Petitioners Brief — Heckler v. Day
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-e-Supreme Court, U.S.
{ -k ILED
AUG §& 1983
No. 82-1371 ALEXANOE °° L. ST &VAS,
In the Supreme Court of the United States
OCTOBER TERM, 1983
MARGARET M. HECKLER, SECRETARY OF HEALTH
AND HUMAN SERVICES, PETITIONER
v.
LEON S. DAY, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT
BRIEF FOR THE PETITIONER
REX E. LEE
Solicitor General
J. PAUL MCGRATH
Assistant Attorney General
KENNETH S. GELLER
Deputy Solicitor General
EDWIN S. KNEEDLER
Assistant to the Solicitor General
WILLIAM KANTER
JOHN F. CORDES
Attorneys
Department of Justice
Washington, D.C. 205380
(202) 633-2217
QUESTIONS PRESENTED
1. Whether persons seeking disability benefits under
the Social Security Act are entitled by statute to recon-
sideration of their claims by the State agency and to an
administrative hearing by the Secretary of Health and
Human Services within the fixed periods of time imposed
by the district court.
2. Whether, in the absence of statutory authorization,
@ court may require the Secretary to pay benefits from
the Disability Insurance Trust Fund on an interim basis
to persons who have not been found entitled to them, be-
cause judicially imposed deadlines for the adjudication of
disability claims have not been met.
(1)
PARTIES TO THE PROCEEDING
The petitioner is the Secretary of Health and Human
Services, Margaret M. Heckler. The respondents are Leon
S. Day and Amedie Maurais, who are representatives of
the following class of claimants for disability benefits un-
der Title II of the Social Security Act, 42 U.S.C. (&
Supp. V) 401 et seq.:
All present and future Vermont residents seeking to
secure Social Security disability benefits who, follow-
ing an initial determination by the [Secretary] that
no disability exists, experience an unreasonable delay
in the handling of and/or issuance of decisions in
reconsiderations and fair hearings.
Pet. App. 12a n.1.*
* Respondents Day and Maurais had received an ALJ hearing and
decision prior to the district court’s certification of the class on
June 14, 1979. Ths district court held that the case was not moot,
however, concluding that the case fell within the exception recog-
nized in Gerstein v. Pugh, 420 U.S. 108, 110 n.11 (1975), page 8
ations in which the challenged condition is temporary and the
issue as regards any particular class representative might become
moot before the district court even could rule on the class certifica-
tion issue (J.A. 84). See also Sosna v. Iowa, 419 U.S. 398, 402
n.11 (1976); United States Parole Commission v. Geraghty, 445
U.S. 388, 398-8399 (1980). The district court also found that re
spondents Day and Maurais would be suitable representatives of the
class in these circumstances (J.A. 83). See United States Parole
Commission Vv. Geraghty, supra, 445 U.S. at 406-407. ~
a
TABLE OF CONTENTS
Page
Opinions below 1
aa ncrnetisieeia salon ni ncuminianaiathinenihentonel 1
Statutory provisions involved 2 .......2---2---eeeeeeeeneeeeeee 2
Statement:
ey SR eee ce ee el Bab a OT
1. The statutory and regulatory framework .... 2
2. The administrative law judges and the hear-
re St ccerehaiemiecetnnetih 6
B. The proceedings in this case 00.0... 10
1. The district court’s decision —......................... 10
2. The court of appeals’ decision ....................... 13
ESE IE CIT CEA 14
Argument:
I. The district court was not authorized by the
Social Security Act or the Administrative Pro-
cedure Act to require that requests for a hearing
and reconsideration in disability cases be acted
upon within a fixed period of time —.................... 18
A. The imposition of fixed hearing deadlines is
inconsistent with the text and legislative
history of the Social Security Act 2.000000... 19
B. The timing of ALJ hearings in the disability
program does not violate 42 U.S.C. 405(b).... 31
C. The Secretary’s scheduling of hearings does
not violate the Administrative Procedure
Act
D. The courts below erred in extending process-
ing deadlines to the reconsideration stage...
(m1)
IV
Argument—Continued Page
II. The district court was without authority to order
the payment of interim benefits to individuals
whose claims are not processed within the ju-
dicially imposed deadlines —.......-...---.--------- 46
AEE LG a a Se SAE 2 RE eee AE 50
a RICE Rens “TAs eee Peers EF la
TABLE OF AUTHORITIES
Cases:
Army & Air Force Exchange v. Sheehan, 456 US.
ATES A SN ee et a RCC LAP R LOT 47
Barnett v. Califano, 580 F.2d 28 _.....--.....-......-...... 11, 38
Blankenship v. Secretary of HHS, 532 F. Supp.
(RE Sa Cree SOP oeee eee Ores 28
Blankenship V. Secretary of HEW, 587 F.2d 329..28, 36-37,
38, 39
Bob Jones University v. United States, No. 81-3
SAD Eee aera eames Foe 23
Bush v. Lucas, No. 21-469 (June 13, 1983) 48
Califano v. Yamasaki, 442 U.S. 682 32-33
Caswell v. Califano, 582 F.2d 9 _....- 14, 38, 39
Chrysler Corp. v. Brown, 441 U.S. 281 —............ 43
Costle v. Pacific Legal Foundation, 445 U.S. 198... 42
Deering-Milliken, Inc. v. Johnston, 295 F.2d 856_.. 44
FTC v. J. Weingarten, Inc., 336 F.2d 687 _........... 44
Federal Crop Insurance Co. Vv. Merrill, 332 U.S.
RE Lar ie RIO = RAS SI I een 47
GTE Sylvania, Inc. v. Consumers Union, 445 U.S.
LE Ss Io ee Ree Pace Rate Me RE 41
Goldberg v. Kelly, 397 U.S. 254 — 36
Heckler v. Campbell, No. 81-1983 (May 16, 1983).. 2, 31,
34, 35, 37, 39
Hodel v. Virginia Surface Mining & Reclamation
Association, 452 U.S. 264 _. 38
INS v. Miranda, No. 82-29 (Nov. 8, 1982) _........... 45, 48
Lassiter vy. Department of Social Services, 452 U.S.
18 34
Lehman Vv. Nakshian, 453 U.S. 156 21, 46
Little v. Streater, 452 U.S. 1 84
Cases—Continued Page
Mathews v. Eldridge, 424 U.S. 319 ............ 3, 8, 21, 33, 34,
89, 49
Morris v. Slappy, No. 81-1095 (Apr. 20, 1983)... 41
North Haven Board of Education v. Bell, 456 U.S.
TE AT IERIE ERM aS AN LEIP ES 8 28
Occidental Life Ins. Co. v. EEOC, 432 U.S. 356.... 33
Open America v. Watergate Special Prosecution
f... 4 og | eee a ie 38
Pine Hill Coal Co. v. United States, 259 U.S. 191.. 47
Radzanower v. Touche Ross & Co., 426 U.S. 148.... 40
Richardson v. Perales, 402 U.S. 389 _................ 2, 3, 34, 40
Roche v. Evaporated Milk Association, 319 U.S. 21.. 43
Schweiker v. Hansen, 450 U.S. 785 ...................--- 14, 17, 47
Schweiker v. McClure, 456 U.S. 188 —.........-.-......... 33, 37
United States v. Chemical Foundation, 272 U.S. 1.. 37
United States v. Erika, Inc., 456 U.S. 201 —............ 21
United States v. Mitchell, No. 81-1748 (June 27,
, Ee at RE as ae a eae een OEE SMELT ESAS 47
United States v. Sherwood, 312 U.S. 584 ........... 46-47
United States v. Testan, 424 U.S. 392 46, 47
Vermont Yankee Nuclear Power Corp. v. NRDC,
(gs Re Ee Dera Ae ERS SS 31, 43
White v. Mathews, 559 F.2d 852, cert. denied, 435
TE SIP « hinvecisscnteniidnenitapiicnagsinticoamtstionenimemiea 11, 13, 14, 38
Will v. Calvert Fire Insurance Co., 4837 U.S. 655.... 43
Wright v. Califano, 587 F.2d 345 _..- 38, 39, 44
Constitution, statutes and regulations:
U.S. Const.:
BET eM Ie Wy vara sity tirsinsestdinatnipncalnnensnsaeboiesatindiciataaaid 47
Amend, V (Due Process Clause) ..................... 13
Administrative Procedure Act, 5 U.S.C. 551 et seq.:
Pie ke | | ||) Aeon enema tue 2, 40, 41, 17a
5 U.S.C. 555(b) -...................-- 2, 16, 17, 40, 41, 42, 18a
RR ON si icici csc vcnscnocsvnsiwinlatintehoeigandganiade 2, 19a
SUSB.C, FOC (1): -.---2--pncennneee-cececeees 17, 40, 41, 42, 43
All Writs Act, 28 U.S.C. (1946 ed.) 377, now codi-
fied at 28 U.S.C. 1651 .....
VI
Constitution, statutes and regulations—Continued Page
Social Security Act, 42 U.S.C. (& Supp. V) 301
et seq.:
Title II, 42 U.S.C. (Supp. V) 401 et seq.....2, 3, 7, 10,
11, 15, 21, 32, 38
42 U.S.C. (Supp. V) 401(b) ...................... 2
42 U.S.C. (Supp. V) 401(g) (1) (A) ....... 6
42 U.S.C. (& Supp. V) 406 .......................... 3,4
42 U.S.C. (& Supp. V) 406 ......................... 2, 2a
a cnuivesesimuinndinhe 37, 2a
a mseceen 3, 15, 19, 23, 29
42 U.S.C. (Sapp. V) 405(b). ....................... passim
ee es 4
A 37
42 U.S.C. (Supp. V) 405 (g) ........................ 38
SE, aE 6, 14, 18, 47, 48, 4a
RE I i cicicsinsicciinscocencnnn 15, 22, 31, 48, 5a
I i cesemencs 22, 6a
42 U.S.C.(& Supp. V) 421 .......................... 2, 7a
42 U.S.C. (Supp. V) 421(a) ...0.....0000..... 3, 46, 7a
42 U.S.C. (Supp. V) 421(a) (2) ......... 39, 45, 8a
42 U.S.C. (Supp. V) 421(a) (2) (C) .......... 45, 8a
42 U.S.C. (Supp. V) 421(b) .................. 45, 46, 9a
42 U.S.C. (Supp. V7) 421(ce). ....................... 5, lla
42 U.S.C. (Supp. V) 421(c) (1) 00.0.0... 5, lla
42 U.S.C. (Supp. V) 421(c) (2) ................ 5, lla
42 U.S.C. (Supp. V) 421(c) (8) ................ 5, lla
RSIS See Ie 6
42 U.S.C. (Supp. V) 421(h) .........00...00...... 6, 12a
42 U.S.C. (& Supp. V) 423 200000000. 2, 18a-l4a
42 U.S.C. (Supp. V) 423(a) (1) ou... 18, 47, 14a
cuentas 3
ete Serer C2) (A) 2.....5. 2
42 U.S.C. 428(d) (2) (A) 2.22... cecccececeeeeeee 2
IRN ee OL ae 4, l4a
Title XVI, 42 U.S.C. (& Supp. V) 1381 et seq... 2, 7,
11, 15, 21
I 21
42 U.S.C. 1882(a) (2) (B) ............-..seccsesseee 2
Vil
Constitution, statutes and regulations—-Continued Page
RR ERs | RS arcane roe sae 2
42 U.S.C. (& Supp. V) 1888 ............00.0...... 2
42 U.S.C. (& Supp. V) 1883 (¢) 200.00... 20-21, 16a
42 U.S.C. (Supp. V) 1888(c) (1) ou... 21
pth Fah) | aren ae NT 10, 21, 31
42 U.S.C. (Supp. V) 1888(c) (2) oc. 15
Social Security Disability Amendments of 1980,
Pub. L, No. 96-265, 94 Stat. 441 et seq.:
Section 304(g), 94 Stat. 456 200... 2,5, 13a
Section 805 (a), 94 Stat. 467 0.0... 3
Section 806, 94 Stat. 466 .............00...........c00c00000 2, 26, la
Pub. L. No. 90-248, Section 171 (a), 81 Stat. 876.... 22
Pub. L. No. 94-202, Section 3, 89 Stat. 1135 .......... 24
Pub. L. No. 95-216, Section 371, 91 Stat. 1559 ........ 24
Pub. L. No. 95-480, Title II, 92 Stat. 1582 0000000000... 7
Pub. L. No. 97-455, 96 Stat. 2497 et seq.:
ek ee ene 4, 16a
| ea Rue Re 6
Section 4, 96 Stat. 2499 .o...............0..0...c00c..0000000 4
I 4
8 ERIS Pam Be ceeeee WAR Yet BP 87
20 C.F.R.:
Sections 404.907-404.921 oon 3
a Re RE ee ES 6
Sections 404.929-404.961 oo... ccccccccccceceeeeeeeeee 5
EA TT 9
8 ETE ates eee as 9, 34
Sections 404.967-404.983 00.00 ccccecccceeeeee 5
TTT CAI ABET ee Phi RET 3
Section 404.1640 et sq. .o...cccccccccccccccccceseeeeeeseeeees 45
i a 22
Oy I III Eo cicicecssiccccanssconcemicngeeinnerlacaten 6
Miscellaneous:
Administration of the Supplemental Security In-
come Program: Hearings Before the Subcomm.-
on Social Security of the House Comm. on Ways
and Means, 94th Cong., 2d Sess. (1976) ............ 24
VIII
Miscellaneous—Continued
Administrative Law Judges, HEW Executive Level
Positions, and Salary Adjustment for Director of
Office of Management and Budget: Hearings
Before the Subcomm, on Employee Ethics and
Utilization of the House Comm, on Post Office
and Civil Service, 95th Cong., 1st Sess. (1977)..
Attorney General Committee on Administrative
Procedure, Administrative Procedure in Govern-
ment Agencies, S. Doc. No. 10, 97th Cong., 1st
a TI Oe CUR cvcccepnecetcecceasiennttrctncninetiin
128 Cong. Rec. (daily ed. Dec. 3, 1982):
III lhc indinetccpuhsciiaviniailbsapbabaoninassntepandaniemmainiann
TREE I ee Le ere in eRe eet
IIIS Gadi ndieeacescghtveundanabneaanrals
3 K. Davis, Administrative Law Treatise (2d ed.
SAE EN SORES NN oy SOM rk TORS
Delays in Social Security Appeals: Hearings Be-
fore the Subcomm. on Social Security of the
House Comm. on Ways and Means, 94th Cong.,
yh | RN eRe Fre anor ew <t Pe
Department of Health, Education, and Welfare and
Related Agencies Appropriations, Fiscal Year
1978: Hearings Before the Senate Comm. on
Appropriations, 95th Cong., 1st Sess. (Pt. 3)
CI cos inh ccncncputibcasitbtnclaetiasasidtsipad uate sua idee aden
Departments of Labor and Health, Education, and
Welfare Appropriations for 1978: Hearings Be-
fore a Subcomm. of the House Comm. on Appro-
priations, 95th Cong., Ist Sess. (Pt. 6) (1977)...
Page
24
Ix
Miscellaneous—Continued
Departments of Labor and Health, Education, and
Welfare Appropriations for 1979: Hearings Be-
fore a Subcomm. of the House Comm, on Appro-
priations, 95th Cong., 2d Sess. (Pt. 6) (1978)...
Departments of Labor and Health, Education, and
Welfare and Related Agencies Appropriations,
Fiscal Year 1979: Hearings Before the Senate
Comm, on Appropriations, 95th Cong., 2d Sess.
gE ESE aoe aes Sorc ere
Departments of Labor and Health, Education, and
Welfare Appropriations for 1980: Hearings Be-
fore a Subcomm. of the House Comm. on Appro-
priations, 96th Cong., Ist Sess. (Pt. 6) (1979)...
Departments of Labor and Health, Education, and
Welfare and Related Agencies Appropriations,
Fiscal Year 1980: Hearings Before a Subcomm.
of the Senate Comm. on Appropriations, 96th
Cong., 1st Sess. (Pt. 83) (1979) 2.00.0...
Departments of Labor, Health and Human Service 3,
Education and Related Agencies Appropriations,
Fiscal Year 1981: Hearings Before a Subcomm.
of the House Comm. on Appropriations, 96th
Cong., 2d Sess. (Pt. 2) (1980) 0000.
Departments of Labor, Health, Education, and
Welfare, and Related Agencies Appropriations
for 1981: Hearings Before a Subcomm. of the
House Comm, on Appropriations, 96th Cong., 2d
YE & 2 eS er
Departments of Labor, Health and Human Services,
Education, and Related Agencies Appropriations
for 1983: Hearings Before a Subcomm. of the
House Comm. on Appropriations, 97th Cong., 2d
OF eae
Departments of Labor, Health and Human Services,
Education, and Related Agencies Appropriations
for 1984: Hearings Before a Subcomm. of the
House Comm. on Appropriations, 98th pis lst
a res a
Page
25
25
25
Miscellaneous—Continued Page
Departments of Labor, Health and Human Services,
Education, and Related Agencies Appropriations,
Fiscal Year 1983: Hearings Before the Senate
Comm. on Appropriations, 97th Cong., 2d Sess.
CO Me GR iteiaidiate codinnistnectidesce vaceionaoadh saci Chetan 26
Disability Insurance Legislation: Hearings before
the Subcomm. on Social Security of the House
Comm. on Ways and Means, 96th Cong., 1st Sess.
oh , RE Rae eae 1, Cte te ATE SN 27
Disability Insurance Program: 1978: Hearings Be-
fore the Subcomm, on Social Security of the
House Comm. on Ways and Means, 95th Cong.,
Be I II gach <5 ceak ca cinenamieribaneaeecacesi basset 24
Disability Insurance Program: Public Hearings
Before the Subcomm. on Social Security of the
House Comm. on Ways and Means, 94th Cong.,
A GAELS ee 24
Dixon, The Welfare State and Mass Justice: A
Warning from the Social Security Disability Pro-
oe BE Oe: ee 18
Goldman, Administrative Delay and Judicial Relief,
66 Mich. L. Rev. 1428 (1968) ............................. 39,
H.R. 5276, 94th Cong., Ist Sess. (1975) 000000.
H.R. 12466, 94th Cong., 2d Sess. (1976) 2000000...
H.R. 5151, 95th Cong., Ist Sess. (1977) 000.
H.R. 12672, 95th Cong., 2d Sess. (1978) © 000.
H.R. 747, 96th Cong., Ist Sess. (1979) 0.00...
H.R. 4775, 97th Cong., Ist Sess. (1981) .
H.R. Rep. No. 1980, 79th Cong., 2d Sess. (2946) ....
H.R. Rep. No. 94-679, 94th Cong., Ist Sess. (1975)..
H.R. Rep. No. 96-100, 96th Cong., Ist Sess. (1979) ..4, 5,
H.R. Conf. Rep. No. 96-944, 96th Cong., 2d Sess.
Rei G SRR Bee kes ised ans 5 MS See
H.R. Rep. No. 97-251, 97th Cong., Ist Sess. (1981)...
H.R. Rep. No, 97-588, 97th Cong., 2d Sess. (1982)..29,
PR RLEKLKSRRKwE
S
H.R. Rep. No. 97-294, 97th Cong., 2d Sess. (1982)... 26
J. Mashaw, Bureaucratic Justice (1983) 0... 18
J. Mashaw, C. Goetz, F. Goodman, W. Schwartz, P.
Verkwil & M. Carrow, Social Security Hearinge
and Appeals (1978) 18, 34-35
xI
Miscellaneous—C ontinued Page
Note, Judicial Acceleration of the Administrative
Process: The Right to Relief from Unduly Pro-
tracted Proceedings, 72 Yale L.J. 574 (1963) ...... 44
Note, Judicial Resolution of Systemic Delays in
Social Security Hearings, 79 Colum. L. Rev. 959
, _. eeetoenedall Esta eGPait BSaeea ne eee Acie 18, 34, 39, 42, 44
Office of Hearings and Appeals, U.S. Dep’t of
Health and Human Services, Key Workload
Indicators (FY May 1983) (June 29, 1983).... 3,7, 8,
32, 41
Report of the Department of Health and Human
Services, Implementation of Section 308, Public
Law 96-265, Time Limitations for Decisions on
Title II Benefit Claims (Oct. 21, 1980) 00000000000. 28
S. 476, 98th Cong., Ist Sess. (1983) 000. 4
S. Rep. No. 728, 76th Cong., Ist Sess. (1939) .......... 19
S. Rep. No. 734, 76th Cong., Ist Sess. (1939) .......... 19
S. Rep. No. 752, 79th Cong., Ist Sess. (1945) _........ 40, 42
S. Rep. No. 744, 90th Cong., Ist Sess. (1967) .......... 22, 48
S. Rep. No. 94-550, 94th Cong., Ist Sess. (1975) .... 24
S. Rep. No. 96-408, 96th Cong., 1st Sess. (1979) ..4, 5, 6, 27
S. Rep. No. 97-648, 97th Cong., 2d Sess. (1982).... 29
S. Rep. No. 97-680, 97th Cong., 2d Sess. (1982) ...... 26
Social Security Administration, U.S. Dep’t of
Health and Human Services, Office of Hearings
and Appeals Handbook (Apr. 1982) .....0.............. 8-9, 10
Social Security Administration, U.S. Dep’t of
Health and Human Services, Office of Hearings
and Appeals Handbook, Interim Circular No. 138
ARR SES Ta i A Se AE ea ae 10
Social Security Administration, U.S. Dep’t of
Health and Human Services, 1983 Annual Re-
port to Congress (May 1983) ............0.....0....-..-2---- 7
Social Security Appeals and Case Review Process:
Hearings Before the Subcomm. on Social Security
of the House Comm. on Ways and Means, 97th
a, IIR CRED (sires osc accnsos CniSakcibleteeteinees 29
Staff of the House Comm. on Ways and Means,
94th Cong., Ist Sess., Appeals Process: Areas of
Possible Administrative or Levislative Action
(Comm. Print 1975) ....... 24
XII
Miscellaneous—Continued
Staff of the House Com. on Ways and Means,
95th Cong., Ist Sess., Background Material on
H.R. 5728: Conversion of Temporary Social
Security ALJ’s (Comm. Print 1977) .........-..-.----
Staff of the House Comm. on Ways and Means,
95th Cong., 2d Sess., Disability Insurance—
Possible Areas of Subcommittee Action (Comm.
Print 1978) -2.-----c0cce--nac-nnseovoeccosencerenesassoseseosnecses
Staff of the House Comm. on Ways and Means,
96th Cong., 1st Sess., Social Security Adminis-
trative Law Judges: Survey and Issue Paper,
96th Cong., 1st Sess. (Comm. Print 1979) ..........
Staff of the House Comm. on Ways and Means,
97th Cong., 1st Sess., Social Security Hearings
and Appeals: Pending Problems and Proposed
Solutions (Comm. Print 1981) ..............-----.---+++---
Staff of the House Comm. on Ways and Means,
97th Cong., 1st Sess., Status of the Disability
Insurance Program (Comm. Print 1981) ..........
Staff of the Senate Comm. on Finance, 96th Cong.,
lst Sess., Issues Related to the Social Security
Disability Program (Comm. Print 1979) ..........
Staff of the Senate Comm. on Finance, 97th Cong.,
2d Sess., Staff Data and Materials Related to the
Social Security Disability Insurance Program
(Comme, Primt TQGR) anna csiccncnsevsssscesesccvescczovees
U.S. Dep’t of Justice, Attorney General’s Manual
on the Administrative Procedure Act (1947)....
Webster's Third New International Dictionary
tt ah: , ; pee RanORRNUDN Renee ips lease A ie nb ott
Page
7, 30
30
26
40, 43
Iu the Supreme Court of the United States
OCTOBER TERM, 1983
No. 82-1371
MARGARET M. HECKLER, SECRETARY OF HEALTH
AND HUMAN SERVICES, PETITIONER
Vv.
LEON S. DAY, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT
BRIEF FOR THE PETITIONER
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. la-9a)
is reported at 685 F.2d 19. The opinions of the district
court (Pet. App. 12a-20a, 2la-3la) are unreported.
JURISDICTION
The judgment of the court of appeals (Pet. App. 10a)
was entered on June 28, 1982, and a petition for rehear-
ing was denied on September 17, 1982 (Pet. App. 11a).
On December 7, 1982, Justice Marshal! extended the time
within which to file a petition for a writ of certiorari to
and including February 14, 1983. The petition was filed
on that date and was granted on April 25, 1983 (J.A.
207). The jurisdiction of this Court rests on 28 U.S.C.
1254(1).
(1)
2
STATUTORY PROVISIONS INVOLVED
Relevant provisions of Sections 205, 221, 223 and 1631
of the Social] Security Act, 42 U.S.C. (& Supp. V) 405,
421, 423 and 1383; Sections 304(g) and 308 of the Social
Security Disability Amendments of 1980, Pub. L. No.
96-265, 94 Stat. 456, 458; and the recodified provisions of
the Administrative Procedure Act, 5 U.S.C. 554(b), 555
(b) and 706, are reproduced in the Appendix, infra, la-
19a.
STATEMENT
A. Background
1. The Statutory and Regulatory Framework
This case arises under Title II of the Social Security
Act, which provides disability insurance benefits to an
individual suffering a medically determinable physical or
mental impairment if he is unable to do his previous
work or to engage in any kind of substantial gainful
work that exists in the national economy. 42 U.S.C.
423(d)(1)(A) and (2)(A). See Heckler v. Camp-
bell, No. 81-1983 (May 16, 1983), slip op. 1. These bene-
fits are paid out of the Federal Disability Insurance Trust
Fund in the Treasury, which is funded by payroll taxes.
42 U.S.C. (Supp. V) 401(b). Disability benefits also are
payable under the Supplemental Security Income (SSI)
program established by Title XVI of the Social Security
Act, 42 U.S.C. (& Supp. V) 1381 et seg. See 42 U.S.C.
1382(a)(2)(B) and 1382c(a) (3).
The disability programs established by Titles II and
XVI “are of a size and extent difficult to comprehend.”
Richardson v. Perales, 402 U.S. 389, 399 (1971). In fiscal
year 1981 alone, approximately 2.3 million claims for dis-
ability benefits were filed under the two Titles. Heckler
v. Campbell, supra, slip op. 3 n.2. To provide for an or-
derly determination of the eligibility of this number of -
individuals, Congress and the Secretary of Health and
Human Services (HHS) have prescribed in meticulous de-
tail a multi-stage procedure for the administrative con-
3
sideration of disability claims. Should it be determined
at any stage of this procedure that an individual is eligi-
ble for benefits, he is entitled to retroactive payments for
the period of his eligibility. 42 U.S.C. (& Supp. V) 404
and 423(b); see Mathews v. Eldridge, 424 U.S. 319, 339
(1976).
a. Under the Title II program, a State agency first
determines whether a claimant has a disability and the
date when the disability began or ceased. 42 U.S.C.
(Supp. V) 421(a); 20 C.F.R. 404.1503. If the claimant
is dissatisfied with this determination, he may request a
de novo reconsideration by the State agency. 20 C.F.R.
404.907-404.921. Additional evidence often will be sub-
mitted at the reconsideration stage, including examina-
tion of the individual by a consulting physician. See Pet.
App. 23a; Richardson v. Perales. supra, 402 U.S. at 393-
394; Mathews v. Eldridge, supra, 424 U.S. at 338 n.20.
In fiscal year 1982, more than 503,000 requests for
reconsideration were processed.'
In recent years, Congress has enacted two additional
procedural requirements at the reconsideration stage.
First, in the Social Security Disability Amendments of
1980 (Pub. L. No. 96-265, Section 305(a), 94 Stat. 457),
Congress amended 42 U.S.C. 405(b) to require that in
any disability case in which the State agency’s decision is
adverse to the claimant, the decision must contain an
easily understandable discussion of the evidence and the
reasons for the determination of ineligibility. Although
Congress recognized that such individualized notice would
consume more resources and might increase processing
time, it concluded that requiring the State examiner to
formulate written reasons for his decision would improve
the adjudicatory process and that the claimant might be
less likely to appeal if he understood those reasons.
1 Office of Hearings and Appeals, U.S. Dep't of Health and Human
Services, Key Workload Indicators (FY May 1983) 15 (June 29,
1983) (“Key Workload Indicators”). We have lodged a copy of the ©
May 1983 edition of the monthly Key Workload Indicators with the
Clerk of this Court.
4
S. Rep. No. 96-408, 96th Cong., lst Sess. 56-57 (1979) ;
H.R. Rep. No. 96-100, 96th Cong., 1st Sess. 12 (1979).
Second, in 1982 Congress provided that, beginning no
later than January 1, 1984, whenever a State agency ini-
tially determir*s that a person previously entitled to bene-
fits no longer is under a disability and that his benefits
therefore should be terminated, the person must be af-
forded an evidentiary hearing at the reconsideration
stage.* Moreover, as a temporary measure, the 1982 leg-
islation authorized the payment of interim benefits,
pending a final decision after a hearing in HHS (see page
5, infra), to a person whom the State agency has found
no longer to be disabled.* Congress did not, however, pro-
vide for an additional hearing at the reconsideration
stage or interim benefits for individuals whose new ap-
plications for disability benefits were denied by the State
agency at the initial determination stage.
b. When it enacted the disability program in 1954,
Congress authorized the Secretary, on his own motion, to
review and overturn any determination by a State agency
in favor of the claimant. 42 U.S.C. (1952 ed. Supp. IT)
421(c) ; 68 Stat. 1082. Until 1972, the Social Security Ad-
2? Pub. L. No. 97-455, Section 4, 96 Stat. 2499, adding a new para-
graph (2) to Section 205(b) of the Social Security Act, to be codi-
fied at 42 U.S.C. 405(b) (2).
3 Pub. L. No. 97-455, Section 2, 96 Stat. 2498, adding a new
Subsection (g) to Section 223 of the Act, to be codified at 42
U.S.C. 423(g). The authorization for interim benefits applies only
to initial determinations in disability benefit termination cases
made on or after (or pending on administrative review on) the
effective date of the Act (January 12, 1983) but before October 1,
1983. Benefits may continue to be paid in such cases after October
1, 1983 until the HHS Administrative Law Judge (ALJ) renders
his decision or until June 1984, whichever is earlier. These benefits
are subject to recoupment if the initial determination that benefits
should be terminated is affirmed on appeal, although recoupment
may be waived in accordance with 42 U.S.C. (& Supp. V) 404. A
bill has been introduced in the Senate to make the interim benefits
authorization permanent in benefit cessation cases. S.476, 98th
Cong., 1st Sess. § 5 (1983).
5
ministration (SSA) in HHS reviewed the majority of
State determinations. In 1972, as a result of a growing
workload and efforts to reduce costs, SSA switched to a
sample review of only 5% of the State agencies’ determi-
nations in favor of the claimant, and even those cases were
reviewed only after the State’s determination had gone
into effect and payment of benefits had begun. Over the
next few years, however, Congress became concerned that
the quality and uniformity of State decisions were deteri-
orating because of an undue emphasis on expediting the
claims process in response to the backlog of cases. See S.
Rep. No. 96-408, supra, at 52-56; H.R. Rep. No. 96-100,
supra, at 810. Consequently, Congress included in the
Disability Amendments of 1980 a requirement that, be-
ginning in fiscal year 1983, the Secretary must review
65% of all State determinations in favor of the claimant
before those determinations are put into effect. 42 U.S.C.
(Supp. V) 421(c)(2) and (3). The 1980 amendments
also provided for the Secretary to review State determi-
nations that are unfavorable to the claimant. 42 U.S.C.
(Supp. V) 421(c) (1).4
ce. If the final State agency decision after reconsidera-
tion is adverse to the claimant, he is entitled to an evi-
dentiary hearing by an Administrative Law Judge
(ALJ) in HHS. 42 U.S.C. (Supp. V) 405(b)*°; 42
U.S.C. (Supp. V) 421(c); 20 C.F.R 404.929-404.961. If
the claimant is dissatisfied with the decision rendered after
the hearing, he may take an appeal to the Appeals Coun-
cil in HHS. 20 C.F.R. 404.967-404.983. The Secretary
also was directed by Section 304(g) of the Disability
Amendments of 1980 (94 Stat. 456) to institute a pro-
gram for the Appeals Council to review ALJ decisions on
4The Secretary actually had instituted such reviews in some
cases prior to 1980. At the times relevant t» this case, for example,
certain State agency reconsiderations of decisions terminating bene-
fits to previously eligible individuals were reviewed by SSA in
Baltimore before they became fina! (Pet. App. 24a).
5 We shall delete “Supp. V” in future references to this Section.
6
its own motion, because of what Congress perceived to be
a lack of uniformity among ALJ decisions and between
decisions rendered by ALJs and the State agencies. H.R.
Conf. Rep. No. 96-944, 96th Cong., 2d Sess. 57-58 (1980) ;
S. Rep. No. 96-408, supra, at 53.
After a claimant has exhausted his administrative rem-
edies in this fashion,* he may seek judicial review of a
final denial of benefits pursuant to 42 U.S.C. (Supp. V)
405(g). Under 42 U.S.C. 405(i), payment of disability
benefits may be made out of the Disability Trust Fund
upon a final decision of the Secretary or a final judgment
of a court that a person is entitled to such benefits. Pur-
suant to a specific directive added by the Disability
Amendments of 1980, once a person has been found by a
State agency, the Secretary, or a court to be disabled, his
case thereafter must be reviewed periodically to determine
whether he still is under a disability. See 42 U.S.C.
(Supp. V) 421(h).’
2. The Administrative Law Judges and the Hearing
Process
a. The hearings provided for in 42 U.S.C. 405(b
are conducted by a corps of ALJs in the Office of Hea»-
ings and Appeals (OHA) in SSA. 20 C.F.R. 404.929.
The cost of the ALJs, their support staffs, and other
expenses of SSA, as well as the State agencies’ costs
associated with the disability program, are paid out of
the Trust Funds in “such amounts as the Congress may
deem appropriate” (42 U.S.C. (Supp. V) 401(g) (1) (A);
see also 42 U.S.C. (Supp. V) 421 (e)). To implement
* Similar procedures are followed in SSI disability cases under
Title XVI of the Act. See 20 C.F.R. Part 416 subpart N.
7In general, this review must occur at least once every three
years. 42 U.S.C. (Supp. V) 421(h). In 1983, Congress authorized
the Secretary, on a State-by-State basis, to modify the requirement
for continuing disability reviews every three years if the backlog
of such reviews, the number of new applications, and staffing levels
in a State so warrant. See Pub. L. No. 97-455, Section 3, 96 Stat.
2499.
7
the quoted provision, Congress specifies in annual appro-
priation acts the maximum amount of money to be made
available for administering the Social Security programs.
See, e.g., Pub. L. No. 95-480, 92 Stat. 1567, 1582.
The total number of ALJ hearings requested annually
under all Social Security programs increased from ap-
proximately 72,000 in fiscal year 1973 to more than
320,000 in fiscal year 1982. The vast majority of these
hearing requests were in disability cases.’ HHS has pro-
jected that hearing requests will reach 379,000 in fiscal
year 1983.” This increase will result in part from the
requirement imposed by Congress in 1980 that the Secre-
tary provide for a periodic review of the eligibility of in-
dividuals who are receiving disability benefits (see page
6, supra) .™
To meet this greatly expanded workload, the number
of ALJs in HHS has been increased from 420 in fiscal
year 1973 to approximately 800 at the present time. The
support staff per ALJ more than doubled during this
period, and, on the average, there are now more than
four support personne! for each ALJ. The result of these
and other administrative initiatives by the Secretary has
been to increase the average number of dispositions per
8 Key Workload Indicators, supra note 1, at 1.
*In fisce! year 1980, for example, more than 95% of all hearing
requests involved Title II or Title XVI disability claims. Staff of
the House Comm. on Ways and Meany, 97th Cong., Ist Sess., Social
Security Hearings and Appeals: Pending Problems and Proposed
Solutions 2 (Comm. Print 1981).
1© Social Security Administration, U.S. Dep’t of Health and
Human Services, 1983 Annual Report to Congress 49 (May 1983).
Statistics for the first eight months of fiscal year 1983 in fact re-
flect a substantial increase. Hearing requests averaged approxi-
mately 26,725 per month in fiscal year 1982 but approximately
29,570 per month during the first eight months of fiscal year 1983—
including an all-time record of 33,112 filed in March 1983 and 31,471
and 32,264 filed in April and May of 1983, respectively. Key Work-
load Indicators, supra note 1, at 1.
11 See Comm. Print, supra note 9, at 1.
8
ALJ each month from 14 in 1973 to 34 in 1982. Cur-
rently, an ALJ processes an average of more than 1.5
cases each working day.’
Between 1973 and 1982, the nationwide average time
from the date on which an evidentiary hearing was re-
quested to the date on which the ALJ rendered his deci-
sion varied between a high of 288 days in fiscal year
1976, when Mathews v. Eldridge was decided (see 424
U.S. at 341-342), to a low of 151 days in 1979. In fis-
cal year 1982, the average processing time was 174 days,
the same as it had been in 1973,’* thereby indicating that
SSA has been able to absorb the more than fourfold in-
crease in its hearing caseload since 1973 without extend-
ing the time needed to conduct such hearings beyond
what it was a decade ago. Nevertheless, because of the
continually expanding caseload, the number of pending
cases had grown to more than 152,000 at the end of fiscal
year 1982 and more than 171,000 at the end of May
1983, an all-time record. And the average number of
eases pending per ALJ stood at 203 in September 1982
and 221 in May 1983, another all-time record.”
b. The Secretary has adopted detailed procedures
governing the scheduling and conduct of hearings by
ALJs. A request for an ALJ hearing is assigned to the
Hearing Office of OHA responsible for the region in
which the claimant resides. The Hearing Office staff is
responsible for ensuring that the procedural prerequi-
sites to a hearing have been satisfied and for procuring
the case file from the appropriate office of SSA. See So-
cial Security Administration, U.S. Dep’t of Health and
Human Services, Office of Hearings and Appeals Hand-
12 Key Workload Indicators, supra note 1, at 1.
%% Key Workload Indicators, supra note 1, at 1. The processing
time has fluctuated in fiscal year 1983 between a low of 177 days
in October 1982 and a high of 189 days in January 1983. For cases
decided in April and May 1983, the average processing time was
185 days. /bid.
4 Key Workload Indicators, supra note 1, at 1.
9
book §§ 2-310 to 2-319 (Apr. 1982) (“OHA Handbook”).
When those materials are assembled, the case is assigned
to an ALJ in rotation insofar as possible, taking into
account individual ALJ dockets. Jd. §§ 1-313, 1-314. At
this point, jurisdiction over the case passes to the ALJ.
Id. § 1-310.
The ALJ is required to look fully into the issues and
facts in the case, even if the claimant does not ade-
quately present them himself. 20 C.F.R. 404.944. Ac-
cordingly, the ALJ’s staff must conduct a prehearing
workup of the case, in which they identify the issues for
the hearing, review the evidence in the file to determine
whether additional material is required, isolate conflicts
in the evidence, propose exhibits for the record, deter-
mine whether material from any prior hearings should
be transcribed or included, consider whether a voca-
tional expert or medical advisor should be present at the
hearing, and decide whether a prehearing interview or
conference would be appropriate. OHA Handbook, supra,
at §§ 1-300, 1-344, 1-349, 1-620. It then may be necessary
for the ALJ, either before or after the hearing (20 C.F.R.
404.944), to request additional medical evidence from
the claimant, the State agency, or a physician who re-
cently has examined the claimant or performed a consul-
tative examination for the ALJ (OHA Handbook, supra,
at §§$ 1-510 et seg., 1-520, 1-521, 2-326—407 2-330, 2-500
et seq.). The ALJ also may request vocational testimony
from an expert (id. $$ 1-530 et sey.), earnings informa-
tion from various sources (id. § 1-542), and information
about the claimant’s age, citizenship, or similar matters
from other agencies (id. $§ 1-544, 1-545).
The ALJ is responsible for scheduling the hearing
within the framework of priorities established by SSA.
20 C.F.R. 404.9386(a) ; OHA Handbook, supra, at § 2-350.
Consistent with “[{t]he administrative objective * * * that
a hearing be held as soon as possible after the [request for
a hearing] is filed” (id. § 1-360), the OHA Handbook
states that “[a] hearing date should be selected as soon
10
as the prehearing workup is completed; all outstanding
evidence requested by the ALJ has been received; and
it is clear that the request cannot be disposed of with-
out a hearing” (id. § 2-351). The OHA Handbook pro-
vides that, as a general matter, cases are to be scheduled
for a hearing in the order in which the hearing requests
were received. However, the ALJs also must coordinate
the scheduling of hearings in various locations. /d.
§§ 1-313, 2-351. The OHA Handbook further provides
that SSI nondisability cases must be expedited, as re-
quired by the Act. 42 U.S.C. 1883(c) (2). Finally, by
OHA Handbook Interim Circular No. 138, dated March
31, 1982, the Commissioner of Social Security directed
that hearings to review a State agency’s decision to termi-
nate benefits are to be given priority over hearings to re-
view a State agency’s denial of an initial application for
benefits.
B. The Proceedings in This Case
1. The District Court’s Decision
This class action was filed by respondent Day in the
United States District Court for the District of Vermont
on November 15, 1978. Respondents alleged that an un-
reasonably long period of time elapsed in Title II disabil-
ity cases in Vermont between a claimant’s request for
reconsideration and the State agency’s decision on recon-
sideration and between a request for an ALJ hearing
and the convening of the hearing (Pet. App. 12a-13a &
a.)
Respondent Day, who had been receiving benefits pursuant to
a prior finding of disability, was found by the State agency no
longer to be disabled. He requested reconsideration of that deter-
mination on December 21, 1977, and his claim was denied after
reconsideration on June 6, 1978, 167 days later. Day then requested
an ALJ hearing, which was held on December 4, 1978, 173 days
after he requested the hearing and several weeks after he filed this
suit. On January 17, 1°79, the ALJ issued a decision reaffirming
the decision to termina‘ his disability benefits (Pet. App. 13a-14a).
Respondent Maurais, who intervened in this suit on December 1,
1978 (Pet. App. 14a), .lso had been receiving benefits pursuant to
11
a. On December 28, 1978, the district court granted
partial summary judgment for respondents with respect
to the timing of ALJ hearings (Pet. App. 12a-20a). Re-
lying on the Second Circuit’s prior decisions in White v.
Mathews, 559 F.2d 852 (1977), cert. denied, 435 U.S.
908 (1978), and Barnett v. Califano, 580 F.2d 28
(1978), the district court held that the provision in 42
U.S.C. 405(b) for the Secretary to afford a claimant
“reasonable notice and opportunity for a hearing” re-
quires that the ALJ hearing be conducted within a “rea-
sonable” time after it is requested ‘Pet. App. 15a).”*
The district court did not question the Secretary’s sub-
mission that “SSA has made a good faith effort to meet
the needs of claimants for disability benefits while pro-
tecting the fiscal integrity uf its program with the lim-
ited resources available” (Pet. App. 17a). Indeed, the
court agreed that “SSA has made admirable strides in
reducing the average length of delay experienced by
claimants a few years ago” (ibid.). Nevertheless, based
solely on evidence that 43% of Vermont residents who
requested hearings on their Title II disability claims in
1978 waited more than 90 days for their hearings, the
a prior determination of disability. In April 1978, Maurais was
notified of the State agency’s determination that his disability had
ceased. lie requested reconsideration of that initia] determination,
and an adverse reconsideration decision was rendered on January
4, 1979, 215 days after his request. Maurais then requested an ALJ
hearing, and that hearing was held 65 days later. Maurais’ benefits
were reinstated following the hearing (Pet. App. l4a).
1¢In White v. Mathews, supra, a class action by Title II disability
claimants in Couuecticut, the court of appeals had held that the
average period of 211.8 days between a hearing request and the
ALJ's decision was not “reasonable” and ordered the Secretary to
reduce that time period for Connecticut claimants to 120 days.
559 F.2d at 858-860. In Barnett v. Califano, supra, the court of
appeals had held that the period of 6 or 7 months that ordinarily
elapsed in Title XVI disability cases in Vermont was unreasonable
and ordered that hearings be held within 90 days. 580 F.2d at
31-33.
12
court found that a substantial number of claimants had
not had a hearing within a reasonable time (Pet. App.
17a). The court therefore ordered that ALJ hearings be
held within 90 days of a request, subject to certain ex-
ceptions for delays caused by the claimant (id. at 33a-
34a).
b. On August 19, 1981, the district court granted sum-
mary judgment for respondents on the reconsideration
aspect of the case as well ‘Pet. App. 2la-3la). Although
42 U.S.C. 405(b) does not mention the reconsideration
stage, the court explained that reconsideration by the
State agency is an administrative prerequisite to an
ALJ hearing and that unreasonable delays in recon-
sideration therefore undercut the right to an ALJ hear-
ing within a “reasonable” time (Pet. App. 27a).
The district court found that in a sample of 77 Title II
disability cases in Vermont processed between 1977 and
1980, reconsideration time ranged between 17 and 251
days, with a mean time of 68 days. Approximately 35%
of these reconsideration cases took more than 90 days to
process. The court acknowledged that “the reconsidera-
tion process is often time consuming and complex” (Pet.
App. 25a) because of the need to locate and procure the
claimant’s folder, update existing evidence or gather new
evidence, arrange for a consultative examination where
indicated, perform a vocational evaluation, prepare no-
tices, and allow time for quality control reviews both by
the State agency and by SSA (id. at 23a-24a, 28a-29a).
The court also acknowledged that SSA should retain flex-
ibility to implement the additional notice and quality re-
view provisions required by the Disability Amendments
of 1980 (Pet. App. 29a & n.8; see pages 3, 5, supra).
But the court concluded that a claimant should not have
the timing of his hearing affected by what it termed “in-
efficient agency procedures” or “unnecessarily lengthy”
internal quality control checks (id. at 28a). Against this
background, the court held that the passage of more than
90 days between a request for reconsideration and the
13
decision on reconsideration was not “reasonable” (id. at
28a-29a), and it ordered that reconsideration be accom-
’
i
‘
plished within a 90-day perici, except where the time/
consumed in excess of that amount is attributable to the
claimant (id. at 33a).
ce. The district court also ordered the Secretary to pay
interim disability benefits to any claimant who has not
received a reconsideration determination or hearing
within 180 days of the request ‘or reconsideration or has
not received an ALJ hearing within 90 days of a hearing
request, even though the claimant has not yet been found
entitled to such benefits by the State agency or the Sec-
retary. These benefits are made subject to recoupment
by the Secretary if the claimant ultimately is determined
not to have been eligible to receive them (Pet. App. 30a-
8la, 34a-35a).*7
2. The Court of Appeals’ Decision
The court of appeals affirmed the district court’s deci-
sion in all respects (Pet. App. la-9a). The court of ap-
peals expressed its “sympath{y] with the severe prob-
lems that beset SSA” and its “understand[ing] that [the
district court’s] decision may have a significant impact
on [SSA’s] operations” (id. at 6a). But the court never-
theless concluded that judicially imposed timetables were
appropriate for the processing of the “ ‘flood of claims’ ”
confronting SSA (ibid., quoting White v. Mathews,
supra, 559 F.2d at 859).
The court of appeals “share[{d] the First Circuit’s con-
cern that ‘if the Secretary’s resources truly are inade-
quate to the task, the more litigious of the applicants
may gain an advantage over the less assertive’” (Pet.
17 Because the district court found violations of the Social
Security Act, it did not reach respondents’ arguments that the
challenged practices violate the Due Process Clause of the Fifth
Amendment and the Administrative Procedure Act (Pet. App. l5a,
26a). The court of appeals likewise did not consider those argu-
ments (id. at 9a n.8).
. that it should not be deterred from awarding
14
App. 7a, quoting Caswell v. Califano, 588 F.2d 9, 17 (1st
Cir. 1978)). The court concluded, however, again quot-
ing,relief to respondents by “ ‘the alleged inability of the
ecretary] fully to meet his obligations to others’ ”
(ibid.). The court of appeals also recognized “that in the
last five years Congress has involved itself heavily in the
administration of this Act” and that “Congress has re-
fused to impose its own deadlines.” But the court viewed
Congress’ failure to impose deadlines as perhaps sug-
gesting that Congress is satisfied that the problem of
the timing of ALJ hearings is being handled effectively
by the courts (Pet. App. 7a). In addition, the court of ap-
peals approved the district court’s extension of its hold-
ing in White v. Mathews, supra, to the processing of
claims by State agencies at the reconsideration stage
(Pet. App. 7a-8a).
Finally, the court of appeals concluded that the provi-
sions of 42 U.S.C. 405/i) limiting payments from the
Trust Fund to situations in which the Secretary or a
court has found the claimant entitled to benefits do not
““‘exclud(e) the possibility of interim payments ordered
by a court exercising its remedial power’” (Pet. App.
8a, quoting White v. Mathews, supra, 559 F.2d at 861).
The court rejected the contention that its approval of
interim benefits in White v. Mathews was undermined
by this Court’s subsequent decision in Schweiker v. Han-
sen, 450 U.S. 785 (1981), explaining that the award of
interim payments at issue here flows from the “district
court’s inherent powers to fashion a remedy” (Pet. App.
8a-9a).
SUMMARY OF ARGUMENT
The decision of the court of appeals, imposing arbi-
trary time limitations on the administrative adjudica-
tion of disability claims under the Social Security Act,
represents an unwarranted judicial intrusion into an
area carefully considered and pervasively regulated by
Congress and the Secretary of Health and Human Serv-
15
ices. The Court’s ruling is without statutory basis and,
indeed, is inconsistent with Congress’ repeated refusal
to include processing deadlines in disability cases. If up-
held, the ruling will substantially disrupt the disability
program and will impair the accuracy and fairness of
administrative decision-making.
A. There is no requirement in 42 U.S.C. 405(b) that
hearings on claims for benefits under Title II of the So-
cial Security Act be conducted within a fixed period of
time. In contrast, the parallel provision for hearings
under the Supplemental Security Income (SSI) program
in Title XVI of the Act requires that a decision be ren-
dered within 90 days of a request for a hearing. 42 U.S.C.
(Supp. V) 1383(c) (2). This demonstrates that when
Congress wants to impose hearing deadlines, it expressly
so provides. Moreover, disability cases are specifically ex-
cluded from the hearing deadline even under the SSI pro-
gram, thereby indicating Congress’ determination that
fixed processing times are especially inappropriate in this
category of cases. Congress likewise excluded disability
cases from the provision in 42 U.S.C. 495(q) for expe-
dited benefit payments, tecause a lengthy investigation
often is required in such cases.
In addition, Congress repeatedly has refused to impose
deadlines on the hearings by Administrative Law Judges
(ALJs) because of its concern that arbitrary time limita-
tions could adversely affect the thoroughness and ac-
curacy of their decisions. Indeed, in the Disability
Amendments of 1980, Congress directed the Secretary to
recommend appropriate time limits that would take these
concerns into account. But Congress did not amend 42
U.S.C. 405(b) to impose deadlines after the Secretary
submitted his report, even thouzh it did amend 42 U.S.C.
405(b) in 1982 to expedite the opportunity for a hearing
in another way—by providing for a hearing at the State
agency reconsideration stage in benefit termination cases.
16
Given Congress’ extensive attention to the question and
persistent refusal to impose deadlines, the courts below
erred in doing so.
B. Whether existing procedures afford a ‘reasonable
* * * opportunity for a hearing” under 42 U.S.C. 405(b)
presents a question of statutory interpretation and there-
fore requires a consideration of congressional intent and of
the statutory scheme governing the review of disability
claims. Processing times that are an entrenched feature
and foreseeable consequence of the manner in which Con-
gress and the Secretary have jointly implemented the
Social Security Act over the last decade cannot properly
be held to violate that Act.
Thus, in concluding that any period of time in excess
of 90 days for holding an ALJ hearing is not “reason-
able” except where the claimant delays the proceedings,
the court below focused too narrowly on the claimant’s
interest in expedited ben fit determinations to the exclu-
sion of other considerations Congress has deemed rele-
vant. For example, the ALJ is required to look fully into
the issues in the case, and Congress repeatedly has
stressed that the interest in speedy resolution of claims
does not outweigh the need for thoroughness and ac-
curacy. The timing of hearings also must accommodat:
the need for quality review of State agency and ALJ de-
cisions, additional procedural steps Congress has man-
dated, and the limited personnel resources available. The
court below could not properly second-guess the manner
in which Congress and the Secretary have balanced these
competing concerns by enforcing its own view of what
would be an appropriate time within which to resolve
disability claims.
C. The Administrative Procedure Act does not support
the judgment below. Under 5 U.S.C. 555(b), an agency
must conclude a matter pending before it “within a rea-
sonable time,”’ but also “[w]ith due regard for the con-
venience and necessity of the parties.” The latter phrase
indicates that an agency’s workload and procedures must
17
be considered in scheduling hearings. Moreover, the ques-
tion of what constitutes a “reasonable time” for purposes
of Section 555(b) must take into account all relevant fac-
tors under the substantive program involved, including re-
source limitations, the complexity of scheduling a vast
number of hearings, and the need for thorough and ac-
curate decision-making.
Under 5 U.S.C. 706/1), a reviewing court may compel
agency action “unreasonably delayed.” This phrase con-
notes an intentional retarding of action from its normal
course, and thus does not describe the Secretary’s orderly
disposition of the enormous backlog of disability cases
under established procedures and resources limitations.
The legislative history and the Attorney General’s con-
temporaneous interpretation of the APA confirm that
Section 706(1) does not justify the imposition of program-
wide deadlines where the agency is proceeding diligently
and in good faith.
D. The courts below erred in imposing deadlines on the
reconsideration of claims by State agencies. Cor,gress con-
sistently has refused to enact time limitations governing
this stage of the administrative proceedings, w)ich are
not under the Secretary’s day-to-day control. In addition,
in the Disability Amendments of 1980, Congress left to
the Secretary’s discretion the question whether processing
time limits should be established for State agencies.
II
The portion of the judgment below requiring payment
of interim benefits to individuals whose claims are not
processed within judicially fashioned deadlines fails to re-
spect the conditions Cor gress has prescribed for charging
the public treasury. Schweiker v. Hansen, 450 U.S. 785
(1981). Congress has authorized payments from the
Trust Fund only upon a “final decision” by the Secretary
or a “final judgment” by a court that an individual ac-
tually is “entitled” to disability benefits because he is
under a disability and satisfies other eligibility criteria.
18
42 U.S.C. (& Supp. V) 405(i), 428(a) (1). Moreover,
Congress has specifically addressed the question of when
interim benefits should be paid pending completion of the
administrative process, but it has not chosen to authorize
the payment of interim benefits solely because of the pas-
sage of time in processing claims for disability benefits.
ARGUMENT
i. THE DISTRICT COURT WAS NOT AUTHORIZED
BY THE SOCIAL SECURITY ACT OR THE ADMIN.-
ISTRATIVE PROCEDURE ACT TO REQUIRE THAT
REQUESTS FOR A HEARING AND RECONSIDER-
ATION IN DISABILITY CASES BE ACTED UPON
WITHIN A FIXED PERIOD OF TIME
As this Court has recently observed, “{t]he Social Se-
curity hearing system is ‘probably the largest adjudica-
tive agency in the western world.’” Heckler v. Campbell,
supra, slip op. 3 n.2, quoting J. Mashaw, et al., Social
Security Hearings and Appeals, at xi (1978). Congress and
the Secretary are confronted with a task of unprecedented
difficulty in fashioning procedures for the adjudication of
the vast numbers of claim. and requests for review sub-
mitted annually under the nationwide disability programs.
In doing so, they must seek to accommodate a variety of
goals—accuracy, fairness, uniformity, efficiency, and econ-
omy—that often may conflict with the goal upon which
the court of appeals narrowly focused: completing the
review as quickly as possible.'*
Given the difficulty of the task, it is not surprising that
few subjects have commanded such consistent attention
by Congress and the Secretary as the administration of
the disability program, including the persistent backlog
18 See J. Mashaw, Bureaucratic Justice 187 (1983) ; Note, Judicial
Resolution of Systemic Delays in Social Security Hearings, 79
Colum. L. Rev. 959, 971 (1979); Dixon, The Welfare State and
Mass Justice: A Warning from the Social Security Disability Pro-
gram, 1972 Duke L. J. 681, 687-688.
19
of pending cases and the time required to process claims.
But although Congress has amended the Act in a number
of other rispects to improve procedures for adjudicating
claims, it repeatedly has rejected proposals that dis-
ability claims be ruled upon within a fixed time. This
refusal stems principally from Congress’ concern that
such deadlines would undermine the goal of assuring a
thorough and accurate evaluation of disability claims,
which protects the interests of the claimant and the public.
The court of appeals’ imposition of fixed deadlines that
Congress and the Secretary have declined to adopt is with-
out statutory basis, inconsistent with the statutory
scheme, disruptive of the disability program, and likely to
lead to inferior rather than improved decision-making.
We submit that the Secretary fully satisfies her obligation
under 42 U.S.C. 405/b) to provide claimants a “reason-
able * * * opportunity for a hearing’’ by diligently proc-
essing more than 300,000 hearing requests annually in ac-
cordance with established procedures and priorities, the
validity of which are not challenged here, and within the
limits of available resources.
A. The Imposition Of Fixed Hearing Deadlines Is In-
consistent With The Text And Legislative History
Of The Social Security Act
Congress did not include in 42 U.S.C. 405(b) fixed
deadlines for holding hearings on claims for benefits
under Title II of the Social Security Act. Indeed, there
is no mention whatever of the timing of hearings in the
text or legislative history of 42 U.S.C. 405(b) as origi-
nally enacted.” That Section simply provides, in the most
1% See S. Rep. No. 728, 76th Cong., Ist Sess. 42 (1939); S. Rep.
No. 734, 76th Cong., lst Sess. 51 (1939). The Social Security
Board’s description of the hearing process soon after 42 U.S.C.
405(b) was enacted in 1939 recited various “Legal Considerations”
regarding the nature of the hearing required by 42 U.S.C. 405(b),
but, likewise, did not mention the question of timing. See Attorney
General's Committee on Administrative Procedure, Administrative
Procedure in Government Agencies, S. Doc. No. 10, 97th Cong.. 1st
20
general terms, that the Secretary shall afford “reasonable
notice and opportunity for a hearing” if the Secretary
initially denies a claim. The courts below nevertheless
found in this language an implicit authorization for the
imposition of program-wide time limits on the process.ng
of disability claims generally. This holding is plainly
wrong.
The application to this case of the phrase “reason-
able * * * opportunity for a hearing” in 42 U.S.C.
405(b) presents solely a question of statutory interpreta-
tion: what, if anything, did Congress intend the Social
Security Act to require with respect to the timing of
ALJ hearings in disability cases? Whatever else Con-
gress may have intended in this regard, it is unambigu-
ously clear that Congress did not intend to impose fixed
deadlines on the adjudication of disability claims. As we
explain in this section of the Brief, Congress repeatedly
has rejected such deadlines because they could prevent the
thorough and accurate review of claims. The courts be-
low could not properly circumvent this congressional judg-
ment by reading into the general phrase “reasonable * * °
opportunity for a hearing” their own notion of what
would be a “reasonable” period of time within which to
conduct a hearing—90 days, under the decision in this
case—and then incorporating that notion into a remedial
decree that binds the Secretary in disability cases gen-
erally.
1. The absence in 42 U.S.C. 405(b) of fixed deadlines
or even of any mention of the timing of hearings under
Title II is in marked contrast to the parallel provision
for hearings under the SSI program. See 42 U.S.C. (&
Sess. (Pt. 3) 38-40 (1941). Under a separate heading entitled “Re-
quirements of the Administrative Task,” the Board did cite expedi-
tious processing as an important feature of the review process, in
the interests of elficiency, human needs, and public relations. Jd. at
37. The Board also recognized, however, the strong countervailing
interests in fairness, uniformity, and accuracy of determinations
(ibid.), which account for much of the time consumed in processing
disability cases.
21
Supp. V) 1888(c). That Section, like 42 U.S.C. 405(b),
provides that the Secretary shall provide “reasonable
notice and opportunity for a hearing” on a claim for
benefits. 42 U.S.C. (Supp. V) 1883(c)(1). But Con-
gress further specified with respect to SSI nondisability
claims that the “[dJetermination on the basis of such
hearing * * * shall be made within ninety days after
the individual requests the hearing * * *.” 42 U.S.C.
1383(c) (2). Thus, Congress has demonstrated in tue
Social Security Act itself that when it intends to im-
pose fixed deadlines on the Secretary’s processing of
claims, it has expressly so specified. ‘In light of the stat-
ute’s precisely drawn provisions,” the fact that Congress
did not include a fixed deadline in the parallel hearing
provision in 42 U.S.C. 405(b) provides “persuasive evi-
dence” that Congress “deliberately intended” not to im-
pose deadlines through that Section. United States v.
Erika, Inc., 456 U.S. 201, 208 (1982). Indeed, the fact
that 42 U.S.C. (Supp. V) 1883(c) (1) contains the identi-
cal phrase “reasonable notice and opportunity for a hear-
ing,” and yet Congres.. found it necessary to address the
question of timing* of SSI hearings in a separate para-
graph (42 U.S.C. 1883(c)(2)), confirms that Congress
did not intend the quoted phrase to address the scheduling
of hearings on a program-wide basis. See Lehman V.
Nakshian, 453 U.S. 156, 162-163 (1981).
2. Congress’ decision to impose a hearing deadline un-
der Title XVI but not Title II of the Act reflects the fact
that eligibility for SSI benefits, unlike benefits under Ti-
tle II, is based on need. 42 U.S.C. 1382(a). Compare
Mathews v. Eldridge, supra, 424 U.S. at 340-342, Con-
gress reasonably could conclude that the hardship caused
by an extended waiting period in the processing of claims
under Title XVI therefore would be greater than under
Title II. It is significant, however, that Congress never-
theless expressly excepted disability cases from the 90-day
hearing deadline even under the SSI program (see 42
U.S.C. 13883(¢c) (2)), presumably because of the complex-
22
ity of the disability determination. This exception makes
even clearer that Congress did not intend courts to
impose fixed deadlines on the processing of disability
claims under Title II, where the claimant’s countervailing
interest in a speedy disposition weighs less heavily.
In fact, Congress made just such a judgment regarding
Title II disability claims in 1968, when it added Subsec-
tion (q) to 42 U.S.C. 405 to authorize expedited payment
of benefits to certain individuals pending a final decision
on their claims. Pub. L. No. 90-248, Section 17l‘a), 81
Stat. 876. Under 42 U.S.C. 405(q), a claimant may begin
to receive such benefits once 90 days have passed with-
out a final decision following the submission of all evi-
dence requested by the Secretary, if the Secretary deter-
mines that the individual has made a prima facie show-
ing of entitlement. See 20 C.F.R. 404.1810. The Senate
Report on the measure stressed, however, that “the Sec-
retary should not be forced into making doubtful pay-
ments merely because of the passage of time” (S. Rep.
No. 744, 90th Cong., 1st Sess. 106 (1967)). Consistent
with this view, Congress excluded Title II disability cases
from the provision for expedited payments. 42 U.S.C.
405(q) (5). The Senate Report explained:
The process of making disability determinations is
significantly different from the retirement and sur-
vivors insurance claims process. In the disability
process State vocational rehabilitation agencies are
involved importantly in the making of the decision
and in borderline cases lengthy and extensive devel-
opment of facts of a medical nature is often re-
quired. Because the Secretary should be reluctant to
make a favorable finding of basic eligibility in the
disability area on the basis of partial evidence, the
expedited payment procedure is not provided in dis-
ability cases.
S. Rep. No. 744, supra, at 107.
3. Since 42 U.S.C. 405(q) was enacted in 1968, Con-
gress has continued to express its concern that the quality
of decisions should not be sacrificed to a desire to expedite
23
payment of benefits to eligible applicants. And although
Congress repeatedly has considered the timing of ALJ
hearings and has amended 42 U.S.C. 405(b) in several
other respects to improve disability adjudication proce-
dures, it consistently has rejected proposals to impose fixed
deadlines in disability cases. “In view of its prolonged
and acute awareness of so important an issue” (Bob Jones
University v. United States, No. 81-3 (May 24, 1983),
slip op. 25), Congress’ refusal to do so confirms that 42
U.S.C. 405(b) does not support judicial imposition of such
limitations.
In 1975, for example, the House Social Security Sub-
committee held extensive hearings on the timing of Social
Security administrative appeals,” and 60 Members co
sponsored a bill (H.R. 5276, 94th Cong., 1st Sess. (1975) )
to impose time limitations on all levels of reviev;, includ-
ing ALJ hearings. The Subcommittee received extensive
testimony about the growing backlog of hearing requests
and the resulting time between a hearing request and
decision after a hearing, which then averaged more than
200 days." There also was testimony regarding the ways
in which the hearing system might be improved, includ-
ing the hiring of additional ALJs and support staff = and
the imposition of deadlines.™
After the hearings, the Subcommittee staff recom-
mended against enactment of a law imposing deadlines
on the claims process, noting that “although mandating
by statute certain processing time limits might seem on
* Delays in Social Security Appeals: Hearings Before the
Subcomm. on Social Security of the House Comm. on Ways and
Means, 94th Cong., 1st Sess. (1975) (‘1975 Hearings”).
211975 Hearings, supra, at 26, 28, 37, 39, 93, 104, 118, 146,
228, 230-232, 235, 247, 250, 259, 262, 549, 584.
721975 Hearings, supra, at 39-42, 59, 62-63, 74, 228, 256-257,
439, 526, 535, 570.
31975 Hearings, supra, at 23, 98, 102, 229, 246-248, 552, 575,
581-582.
24
the surface a desirable thing to do, such legislation might
also have an adverse effect on the quality and uniformity
of disability adjudication which is already somewhat sus-
pect.” ** The Committee did not report a bill imposing
time limitations, choosing instead to address the hearing
backlog problem by recommending that SSI hearing ex-
aminers (who were not ALJs) be authorized to hear Ti-
tle II cases on a temporary basis.* The legislation was
enacted,* but congressional interest in the timing of ALJ
hearings has persisted” and bills to limit processing
times have been introduced in subsequent Sessions of Con-
*4 Staff of the House Comm. on Ways and Means, 94th Cong., lst
Sess., Appeals Process: Areas of Possible Administrative or Legis-
lative Action 1-2 (Comm. Print 1975).
* H.R. Rep. No. 94-679, 94th Cong., lst Sess. 1-2, 4, 8 (1975);
see also S. Rep. No. 94-550, 94th Cong., Ist Sess. 1-2, 5-6 (1975).
*¢ Pub. L. No. 94-202, Section 3, 89 Stat. 1135. The hearing
examiners were converted to ALJ status on a permanent basis in
1977. Pub. L. No, 95-216, Section 371, 91 Stat. 1559.
“7 For example, Representative Seiberling, the principal House
sponsor of bills to impose processing deadlines, renewed his call for
such deadlines soon after the 1976 law was passed. See Disability
Insurance Program: Public Hearings Before the Subcomm. on
Social Security of the House Comm. on Ways and Means, 94th
Cong., 2d Sess. 341-343 (1976). See also Administration of the
Supplemental Security Income Program: Hearings Before the
Subcomm. on Social Security of the House Comm. on Ways and
Means, 94th Cong., 2d Sess. 111 (1976); Administrative Law
Judges, HEW Executive Level Positions, and Salary Adjustment
for Director of Office of Management and Budget: Hearings Be-
fore the Subcomm. on Employee Ethics and Utilization of the House
Comm. on Post Office and Civil Service, 95th Cong., 1st Cong., Ist
Sess. 10-11, 16-17 (1977); Staff of the House Comm. on Ways and
Means, 95th Cong., Ist Sess., Baci:ground Material on H.R. 5723:
Conversion of Temporary Social Security ALJ’s 4 (Comm. Print
1977) ; Staff of the House Comm. on Ways and Means, 95th Cong.,
2d Sess, Disability Insurance—Fossible Areas of Subcommittee
Action 10-12 (Comm. Print 1978); Disability Insurance Program:
1978: Hearings Before the Subcomm. on Social Security of the
House Comm. on Ways and Means, 95th Cong., 2d Sess. 15-17,
97-99 (1978).
25
gress. See note 32, infra.** The backlog of ALJ hearing
requests and other aspects of the disability adjudication
process also have been addressed repeatedly in the annual
appropriations process by which Congress authorizes the
expenditure of money from the Trust Funds to administer
the disability program.™ and the Appropriations Commit-
*8 See, e.g., H.R. 12466, 94th Cong., 2d Sess. (1976); H.R. 5151,
95th Cong., 1st Sess. (1977); H.R. 12672, 95th Cong., 2d Sess.
(1978); H.R. 747, 96th Cong., Ist Sess. (1979): H.R. 4775, 97th
Cong., 1st Sess. (1981).
* See Departments of Labor and Health. Education, and Welfare
Appropriations for 1978: Hearings Before a Subcomm. of the House
Comm. on Appropriations, 95th Cong., Ist Sess. (Pt. 6) 237-238,
891-393, 398, 440, 457-459, 477-478 (1977): Department of Labor
and Health, Education, and Welfare and Related Agencies Appro-
priations, Fiscal Year 1978: Hearings Before the Senate Comm. on
Appropriations, 95th Cong., 1st Sess. (Pt. 3) 2353, 2372, 2373-2374,
2381 (1977) ; Departments of Labor and Health, Education, and Wel-
fare Appropriations for 1979: Hearings Before a Subcomm. of
the House Comm. on Appropriations, 95th Cong., 2d Sess. (Pt. 6)
219-221, 484, 495-496, 502-504, 519-522 (1978): Departments of
Labor and Health, Education, and Welfare and Related Agencies
Appropriations, Fiscal Year 1979: Hearings Before a Subcomm
of the Senate Comm. on Appropriations, 95th Cong., 2d Sess. (Pt.
3) 724, 727-728, 735-736, 780-781 (1978) : Departments of Labor
and Health, Education, and Welfare Appropriations for 1980:
Hearings Before a Subcomm. of the House Comm. on Appropria-
tions, 96th Cong., Ist Sess. (Pt. 6) 213, 218. 231-233, 291, 447,
462-463, 482, 484, 497-503 (1979); Departments of Labor and
Health, Education, and Welfare and Related Agencies Appropria-
tions, Fiscal Year 1980: Hearings Before a Subcomm. of the Sen-
ate Comm. on Appropriations, 96th Cong., 1st Sess. (Pt. 3) 698,
712, 718-720 (1979); Departments of Labor, Health, Education,
and Welfare, and Related Agencies Appropriations for 1981: Hear-
ings Before a Subcomm. of the House Comm. on Appropriations,
96th Cong., 2d Sess. (Pt. 5) 281, 299, 341-342, 356, 556, 572, 574
(1980) ; Departments of Labor, Health and Human Services, Edu-
cation, and Related Agencies Appropriations, Fiscal Year 1981:
Hearings Before a Subcomm. of the Senate Comm. on Appropria-
tions, 96th Cong., 2d Sess. (Pt. 2) 1001, 1014, 1040-1047, 1050-1051
(1980) ; Departments of Labor, Health and Human Services, Edu-
26
tees have monitored the problem closely.”
4. The Disability Amendments of 1980 further dem-
onstrate that the existing terms of Title II of the Social
Security Act cannot be read to authorize a court to im-
pose processing deadlines on the Secretary. In Section
308 of those Amendments (94 Stat. 458), Congress di-
rected the Secretary to submit for its consideration a re-
port “recommending the establishment of appropriate
time limitations governing decisions on claims for bene-
fits under Title II of the Social Security Act,” taking
into account “both the need for expeditious processing of
claims for benefits and the need to assure that all such
claims will be thoroughly considered and accurately de-
termined.” *' The enactment of this provision, looking to
cation, and Related Agencies Appropriations for 1983: Hearings
Before a Subcomm. of the House Comm. on Appropriations, 97th
Cong., 2d Sess. (Pt. 5) 557-558, 635-636, 876, 896-897, 918-920, 927
(1982) ; Departments of Labor, Health and Human Services, Edu-
cation, and Related Agencies Appropriations, Fiscal Year 1983:
Hearings Before a Subcomm. of the Senate Comm. on Appropria-
tions, 97th Cong., 2d Sess. (Pt. 3) 274, 330-331 (1983); Depart-
ments of Labor, Health and Human Services, Education, and Re-
lated Agencies Appropriations for 1984: Hearings Before a Sub-
comm. of the House Comm. on Appropriations, 98th Cong., 1st Sess.
(Pt. 5) 492, 527-528, 582-583, 606-607, 618-619, 658-659, 864, 873,
891-893, 898 (1983).
* See H.R. Rep. No. 97-894, 97th Cong., 2d Seas. 85-86 (1982),
and S. Rep. No. 97-680, 97th Cong., 2d Sess. 94 (1982), both of
which request the Secretary to report to the Committees on the
problem. See also H.R. Rep. No. 97-251, 97th Cong., 1st Seas. 80
(1981) (recommending temporary authorization to hire non-ALJ
examiners to reduce the hearing backlog, noting that “it ap
pears impossible to deal with the backlog without extraordinary
measures”).
*! The background materials on the 1980 amendments once
again reflect an appreciation of the magnitude of the administra-
tive problems facing SSA. See Staff of the Senate Comm. on
Finance, 96th Cong., 1st Sess., Jsswes Related to the Social Security
Act Programe 45-51, 123 (Comm. Print 1979); Staff of the House
Comm. on Ways and Means, 96th Cong., Ist Sess., Social Security
27
the possible future establishment of statutory time limi-
tations, is inconsistent with the notion that 42 U.S.C.
405(b) already implicitly contains such limitations in its
reference to “reasonable notice and opportunity for a
hearing.” And, in fact, the Senate Report on the provi-
sion stated that “[{u]nder present law and regulations
there is no limit on the time taken by the Social Security
Administration to adjudicate cases at anv stage of adju-
dication.” * The Senate Report explained:
The provision requires the Secretary in recom-
mending the limits to give adequate consideration to
both speed and quality of adjudication. The Secre-
tary’s recommendations also should reflect the re-
quirement added by this bill for Federal review of
State allowances and denials. Congress could then
evaluate the recommendations for consistency with
the elements it wishes to emphasize and, if needed,
take further action next year.'*?
After receiving the Secretary’s report,** Congress did
Administrative Law Judges: Survey and Issue Paper 5, 63-69
(Comm. Print 1979); Disability Insurance Legislation: Hearings
Before the Subcomm. on Sccial Security of the House Comm. on
Ways and Means, 96th Cong, Ist Sess. 88, 114, 119-120, 237-238,
241, 249 (1979).
828. Rep. No. 96-408, supre, at 59; H.R. Conf. Rep. No. 96-944,
supra, at 59. See also H.R. Rep. No. 96-100, supra, at 14. These
reports all note, in identical language, that ‘“[s])evera] Federa! dis-
trict courts have imposed such limits at the hearing level and
numerous bills have been introduced to set such limits at various
levels of adjudication.” There is no suggestion, however, that Con-
gress approved of the judicial decisions. See pages 29-30, infra.
33S. Rep. No. 96-408, supra, at 59: see also H R. Rep. No. 96-100,
supra, at 14.
* HHS suggested time frames of 150 days for reconsideration of
disability claims and 165 days for rendering a decision following
a request for an ALJ hearing, subject to certain exceptions. These
suggested time frames were based on then-recent processing ex-
perience, caseload projections, and quality indicators. Report of the
28
not take “further action” to impose deadlines. Cf. North
Haven Board of Education v. Bell, 456 U.S. 512, 533-534
(1982). It still has not done so, even though it did
Department of Health and Human Services, Implementation of Sec-
tion 308, Public Law 96-265, Time Limitations for Decisions on
Title I] Benefit Claims 1-2 (Oct. 21, 1980) (“Report”). HHS cau-
tioned, however, that budget and staff limitations, projected work-
load increases, and the impact of other provisions of the Disability
Amendments of 1980 (¢.g., pre-effectuation review of State agency
disability decisions, personalized denial notices, and periodic review
of persons already on disability “mitigate against the Department's
meeting its proposed time limitation objectives in every instance.”
Report, supra, at 2. HHS also noted that the circumstances of in-
dividual cases might make it difficult to meet deadlines—e.g., the
need to obtain sufficient medical documentation and coordinate with
other agencies. /bid. Finally, HHS stated that it would measure its
performance against the time frames and recommend revisions if
necessary. /bid.
The suggested 165-day time limit for rendering ALJ decicions
was based on the similar limit contained in proposed regulations
that recently had been submitted by the Secretary to the district
court on remand from the Sixth Circuit’s decision ‘; Blankenship
Vv. Secretary of HEW, 587 F.2d 329 (1978). See Report, supra, at
2, 3. In Blankenship, the Sixth Circuit had reversed the district
court's judgment requiring that hearings be held within 90 days of
a request and remanded to afford the Secretary an opportunity to
issue regulations to give substance to the “reasonable notice and
opportunity for a hearing” requirement in 42 U.S.C. 405(b). 587
F.2d at 336.
are not satisfied. Blankenship v. Secretary of HHS, 532 F. Supp.
739, 746-747 (W.D. Ky. 1982). The Sixth Cireuit granted a stay in
Blankenship pending th; Seeretary’s appeal. The appeal was
29
amend 42 U.S.C. 405(b) in 1982 to expedite a claimant’s
opportunity for a hearing in another way—by providing
for an evidentiary hearing at the earlier reconsideration
stage in benefit termination cases. See page 4, supra.”
Indeed, the House Report on the bill that formed the
basis for the 1982 legislation expressed its disapproval of
hearing deadlines:
Your Committee believes that a disability claim-
ant is entitled to a timely hearing and decision on
his appeal, but it also recognizes that the time
needed before a well-reasoned and sound disability
hearing decision can be made may vary widely on a
case-by-case basis. (It is also interesting to note
that the mean processing time for disability cases in
some District courts is as high as five years and
nationwide stands at an average of 12 months.) Ad-
ditiona] time may be required in some cases because,
for example, updated, comprehensive medical reports
are needed from a claimant’s treating physicians
% Once more, the legislative history of the 1982 legislation re-
flects a full awareness by Congress of the backlog of requests for
an ALJ hearing and the resulting period of 6 to 9 months or more
that many individuals must wait to receive a hearing. H.R. Rep.
No. 97-588, 97th Cong., 2d Sess. 12 (1982); S. Rep. No. 97-648,
97th Cong., 2d Sess. 20 (1982) (additional views of Sen. Long) ;
128 Cong. Rec. 813857 (daily ed. Dec. 3, 1982) (remarks of Sen.
Heinz) ; id. at S13856 (remarks of Sen. Cohen); id. at S13859 (re-
marks of Sen. Armstrong); id. at S13860-S13861 (remarks of Sen.
Levin): id. at 813862 (remarks of Sen. Pryor); id. at 813868 (re-
marks of Sen. Hawkins); id. at H10677 (daily ed. Dec. 21, 1982)
(statement of Rep. Neal) ; id. at H10678 (remarks of Rep. Pickle) ;
id. at 815963 ‘remarks of Sen. Armstrong); id. at 815964 ( remarks
of Sen. Dole) ; id. at $15964-S15965 (remarks of Sen. Levin). See
also Staff of the Senate Comm. on Finance, 97th Cong., 2d Sess.,
Staff Data and Materials Related to the Social Security Disability
Insurance Program 69-73 (Comm. Print 1982); Social Security
Appeals and Caae Review Process: Hearings Before the Subcomm.
on Social Security of the House Comm. on Ways and Means, 97th
Cong., 1st Sess. 4-5, 9-11, 17-21 (1981). Representative Seiberling
again urged passage of his time limits proposal (id. at 169-173),
but Congress did not enact it.
30
or it is necessary to have a consulting medical spe-
cialist examine the claimant. Establishing strict
time limits for the adjudication of every case could
result in incorrect determinations because time was
not available to obtain needed medical evidence or to
reach well-reasoned decisions in difficult cases. SSA
has recently undertaken several administrative ac-
tions to improve the timeliness of hearing decisions,
such as expanding its ALJ corps and support staff,
improving staff training, and installing niodern
equipment in hearing offices to ensure the efficient
use of their resources. Your Committee will continue
to emphasize ana support improvements in the ad-
ministrative structure and the maintenance of an
adequate staff so that reasonable case-processing
times exist at all levels of adjudication.'™!
%° H.R. Rep. No. 97-588, supra, at 19-20 (emphasis added). This
Report was issued against the background of a report by the Staff
of the Subcomm. on Social Security of the House Comm. on Ways
and Means, 97th Cong., 1st Sess., Status of the Disability Insurance
Program (Comm. Print 1981), which stated (id. at 13; emphasis
added) :
The Subcommittee has been fully aware of the conflicting
pulls of “quality” and “processing time.” During the last 3 or
4 years, there have been efforts by quite a few Members of
Congress to get Ways and Means and the Finance Committee to
put specific time limits in the law to force the State agencies
and the ALJ's to make more timely benefit decisions. These
efforts were resisted by the Committees because of the possible
ramifications of less quality in decisionmaking. In lieu of put-
ting in such statutory requirements in the Disability Amend-
ments of 1980, the legislation called for the Secretary to recom-
mend appropriate time limits for the various levels of adjudica-
tion which would give “adequate consideration to both speed
and quality of adjudication.”
See also id. at 43-46. Another Staff Report of the Subcomm. on
Social Security House Comm. on Ways and Means, 97th Cong., Ist
Sess., Social Security Hearings and Appeals: Pending Problems
and Proposed Solutions (Comm. Priut 1981), stated (id. at 8; foo
note omitted ) :
There are a plethora of cases pending in district and circuit
courts setting different time limits for hearing cases through-
out the country. This has caused major disruption in the
31
5. In sum, Congress, with full awareness of the dimen-
sions, causes, and complexity of the problem, consistently
has eschewed fixed processing deadlines because of their
potentially adverse effect on the quality of disability deci-
sions. At every turn—in excepting disability cases from
the time limitations imposed on adjudication of SSI
claims by 42 U.S.C. 1383(c) (2) and from the expedited
payment provisions of 42 U.S.C. 405(q), in rejecting pro-
posals for fixed deadlines following extensive hearings in
1975, in comments made in a succession of committee and
staff reports and floor debates, and in the Disability
Amendments of 1980—Congress has refused to force the
Secretary to act hastily in this class of cases by imposing
arbitrary processing periods. Moreover, Congress by stat-
ute has now expressed its intention once again to consider
the wisdom of imposing time limits, on the understanding
that present law leaves the question of the scheduling of
hearings to the Secretary. Cf. Heckler v. Campbell, su-
pra, slip op. 8 n.10. In these circumstances, the courts
below plainly erred in intruding their own view of appro-
priate hearing times into the Social Security disability
program, and thereby improperly “engrafting their own
notions of proper procedures upon agencies entrusted with
substantive functions by Congress.” Vermont Yankee Nu-
clear Power Corn. v. NRDC, 435 U.S. 519, 525 (1978).
B. The Timing Of ALJ Hearings In The Disability
Program Does Not Violate 42 U.S.C. 405(b)
1. The courts below imposed hearing deadlines that
Congress has rejected because they found that the Secre-
tary’s practices violated the requirement in 42 U.S.C.
disability hearing process because ALJ’s and cases must be
shuttled around the country in an attempt to comply with
various court orders. In a few cases benefits actually are
being paid on delayed cases, as is suggested but presumably
not yet ordered by the judge in the Blankenship case. The
Social Security Administration is caught in the middle of
either being in contempt of court or paying benefits without
authority of law.
32
405(b) that claimants be provided “reasonable notice and
opportunity for a hearing” ‘see Pet. App. 4a, 17a). This
conclusion, based solely on the fact that 43% of Title II
disability hearings in Vermont were not held within 90
days of a request (Pet. App. 17a), is seriously flawed.
To begin with, as shown in Part A, the courts’ view
that an opportunity for a hearing is not ‘“reasonable’’ if
the hearing is not held within 90 days is flatly inconsist-
ent with the congressional judgment not to incorporate
fixed standards of timing into the Social Security Act.
But, in addition, the courts below lost sight of the fact
that whether particular procedures developed by the Sec-
retary afford claimants a “reasonable * * * opportunity
for a hearing’ for purposes of 42 U.S.C. 405(b) is a
question of statutory interpretation arising under the
Social Security Act itself; it does not turn on general
notions of “reasonableness” that courts might en-
counter in other settings. Accordingly, the requirement
in Section 405(b) that the opportunity for a hearing be
“reasonable’—and any element of timing implicit in that
requirement—can be given content only by reference to
the overall statutory scheme and the benefits program es-
tablished under that scheme.
In particular, it must be borne in mind that the claims
adjudication process respondents attack is the product of
the cooperative efforts of Congress and the Secretary in
the amendment, oversight and administration of the So
cial Security Act. And it is pursuant to the authorization
in that Act that Congress has made money available from
the Trust Funds each year to support the claims adjudi-
cation process and thereby to define its dimensions. Con-
gress and the Secretary have taken these actions over the
last decade with full knowledge of the disability caseload
and the nationwide average period required to obtain a
decision following a hearing, which has never been less
than 150 days. Key Workload Indicators, supra note 1,
at 1.
“TT)]his Court has been willing to assume a con-
gressiona] solicitude for fair procedure” (Califano Vv.
33
Yamasaki, 442 U.S. 682, 693 (1979)) and has given
“substantial weight” to the good faith judgment of the
Secretary that the procedures she has provided “assure
fair consideration of the entitlement claims of individ-
uals” (Mathews v. Eldridge, supra, 424 U.S. at 349). See
Schweiker v. McClure, 456 U.S. 188, 200 (1982). It is
simply inconceivable that processing times that are such
an entrenched feature—and direct and foreseeable conse-
quence—of the conscientious implementation of the Social
Security Act by Congress and the Secretary could be found
to violate that very Act. Cf. Occidental Life Ins. Co. V.
EEOC, 432 U.S. 355, 369-372 (1977). If Congress, with
full appreciation of the enormous number of disability
claims filed each year and the manner in which the Secre-
tary processes them, chooses to approve a series of proce-
dural and substantive requirements to ensure accuracy
and fairness in the adjudication of those claims and to
allocate a particular level of resources to accomplish that
task, we submit that the normal processing period that
results is by definition “reasonable” within the meaning
of the statute.
Nor is there any basis for construing the phrase “‘rea-
sonable * * * opportunity for a hearing” in 42 U.S.C.
405(b) to produce a contrary conclusion. In Mathews v.
Eldridge, this Court held that considerations beyond the
claimant’s interests in a prompt hearing and receipt of
benefits had to be taken into account in determining
whether the procedures under review here satisfied the
constitutional requirement of a meaningful opportunity
to be heard in disability termination cases, in light of the
10 or 11 months that then generally elapsed between a
request for a hearing and the ALJ’s decision (424 U.S.
at 341-342). A fortiori, it is necessary to consider coun-
tervailing interests and other factors Congress has made
relevant under the Social Security Act in determining
whether those procedures violate the statutory require-
ment of a “reasonable * * * opportunity for a hearing,”
in light of the considerably shorter processing times that
34
now prevail. Thus, in considering whether respondents’
rights under 42 U.S.C. 405(b) were violated, the court
of appeals in this case, as in White v. Mathews, supra,
erred in focusing “narrowly” and “somewhat myopically”
on the claimant’s interest in an expeditious decision. See
Note, Judicial Resolution of Systemic Delays in Social
Security Hearings, 79 Colum. L. Rev. 959, 964, 977
(1979) (“Systemic Delays”)
The principal countervailing interests are reflected in
the requirement, recently recognized by this Court, that
the ALJ must “loo(k] fully into the issues” (20 C.F.R.
404.944) in every disability case even if the claimant
does not adequately present all of the facts and legal ar-
guments himself. Heckler vy. Campbell, supra, slip op. 10-
11 & n.12; id. at 1-2 (Brennan, J., concurring) ; id. at 1
(Marshall, J., concurring and dissenting). See also Rich-
ardson Vv. Perales, supra, 402 U.S. at 410. Complete de-
velopment of the facts not only protects the claimant’s
narrow concerns; it also serves the broader governmental
and public interest in accurate, uniform, and just deter-
minations (see Little v, Streater, 452 U.S. 1, 14 (1981) ;
Lassiter v. Department of Social Services, 452 U.S. 18,
27-28 (1981)), to the end that benefits from the Trust
Funds are paid to eligible individuals, but to no others.
Conscientious fulfillment of this obligation often requires
time-consuming measures (see pages 8-10, supra) that
might be curtailed if the complex disability determination
had to be completed within too short a time frame. As
the discussion in Point A demonstrates, Congress has
chosen not to impose fixed deadlines on the hearing proc-
ess precisely because of the fear that they might ad-
versely affect the thoroughness and accuracy of the ALJ’s
inquiry into the issues. See also Systemic Delays, supra,
79 Colum. L. Rev. at 975; J, Mashaw, Social Security
*7 We note in this regard that if a claimant is found at any stage
of the proceedings to be eligible for benefits, he is entitled to retro-
active payment of such benefits for the period his claim was under
review. Mathews v. Eldridge, supra, 424 U.S. at 339.
35
Hearings and Appeals 31 (1978); J. Mashaw, Bureau-
cratic Justice 187-188 (1983).
Other values that must be taken into account by Con-
gress and the Secretary are reflected in specific measures
they have adopted in recent years to fine-tune the dis-
ability adjudication process. The medical-vocational guide-
lines repeatedly suggested by Congress and adopted by
the Secretary in 1978 were intended to establish a proce-
dure for the uniform, accurate, and efficient resolution of
one aspect of the disability determination. Heckler v.
Campbell, supra, slip op. 8 n.10, 9-10. Use of the guide-
lines may serve to expedite the decision-making process
at all levels. But other measures designed to achieve uni-
formity and accountability—such as the provisions of the
Disability Amendments of 1980 requiring Secretarial re-
view of State agency and ALJ decisions and the periodic
review of persons already receiving benefits (see pages
4-5, 6, supra)—may have the incidental effect of in-
creasing processing times and the number of requests for
review.
Even changes that are instituted at a particular stage
to further the claimant’s interest—such as the 1980 and
1982 amendments to 42 U.S.C. 405(b) requiring indi-
vidualized explanation of the denial of disability bene-
fits and an opportunity for a face-to-face hearing at the
reconsideration stage in disability termination cases
(see pages 3-4, supra)—may have the effect of in-
creasing processing times at that stage and, as a result,
postponing the succeeding levels of review. But, by the
same token, these measures may actually expedite com-
pletion of the overall process by identifying eligible per-
sons at an earlier stage or reducing requests for ALJ
hearings by claimants who have been found ineligible by
the State agency but who are satisfied with the correct-
ness of the result. This demonstrates the complex inter-
relationship of the various elements of the adjudication
process. The 1982 amendments also reflect the need to
take into account the relative equities of different cate-
36
gories of claimants, for those amendments make a hear-
ing available at the reconsideration stage only to individ-
uals whose benefits are being terminated and who there-
fore have a particularly strong interest in a prompt res-
olution of their eligibility. Cf. Goldberg v. Kelly, 397
U.S. 254 (1970).
2. These and other measures adopted by Congress and
the Secretary in recent years to improve the quality of
disability determinations have resulted from a constant
reassessment of the various stages of the adjudicatory
process, often reflecting a shifting of emphasis among the
statutory goals of accuracy, fairness, uniformity, effi-
ciency, economy, and timeliness. The relative weight to
be given these factors in fashioning appropriate proce-
dures for reviewing disability claims is a matter for
Congress and the Secretary to resolve. The requirement
in 42 U.S.C. 405(b) that the Secretary furnish claim-
ants “reasonable * * * opportunity for a hearing”
therefore must be read in light of the manner in which
Congress and the Secretary have sought to achieve the
relevant statutory goals in structuring the adjudicatory
process. A court may not second-guess these determina-
tions by enforcing its own views of what constitutes
a “reasonable” system for adjudicating disability claims.
The court of appeals did not even explore these other
concerns. It did not consider the degree to which the
changes in the adjudicatory process wrought by the Dis-
ability Amendments of 1980—improved notice of dis-
ability denials, increased review of State agency and ALJ
decisions—would affect processing times. Nor does its
judgment permit accommodation of the 1982 amendments
requiring a hearing at the reconsideration stage and pay-
ment of interim benefits in termination cases, which will
extend the time needed for reconsideration but at the
same time lessen the need to expedite a second hearing
before an ALJ. These failings are merely symptomatic
of the defects in the courts’ efforts to impose rigidity on
a system that demands flexibility. As the Sixth Circuit
observed in Blankenship v. Secretary of HEW, 587 F.2d
37
329, 335 (1978), “[slimplistic and unreasonably short
time limitations imposed from the outside without a
thorough understanding of the reasons for the problem
wil! frustrate welfare administration, just as it would
frustrate judicial administration.”
Indeed, the court of appeals did not take issue with the
procedures the Secretary has adopted to implement the
“reasonable” hearing requirement. In 42 U.S.C. 405/a),
Congress granted the Secretary “full power and author-
ity” to make rules and regulations to carry out the provi-
sions of Title II and to regulate the nature, extent, and
method of taking and furnishing evidence to establish the
right to benefits. See also 42 U.S.C. 1302. Pursuant to
this authority, the Secretary has promulgated detailed
regulations and instructions that seek to assure an ac-
curate, fair, and uniform determination of claims and
provide for a reasonable distribution of cases among avail-
able ALJs. See pages 8-10, supra. They also take into
account the question of timing by establishing priorities
under which older cases and cases involving termination
of benefits are to be set for a hearing first. Within these
priorities, and taking into account geographical and other
considerations, cases are to be scheduled as soon as pos-
sible after the prehearing workup is completed by the
ALJ’s staff. These regulations and instructions, issued
pursuant to authority specifically delegated by Congress,
are valid unless they exceed the Secretary’s power under
the Act or are arbitrary and capricious. Heckler V.
Campbell, supra, slip op. 7-8. There has been no sugges-
tion here that the Secretary’s implementation of 42 U.S.C.
405(b) is invalid on either ground.
It must be presumed that the ALJs will abide by the
directives the Secretary has issued, including those per-
taining to the scheduling of hearings. Schweiker v. Me-
Clure, supra, 456 U.S. at 196 n.9, 197 n.11; United States
vy. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926).
In fact, the courts of appeals that have considered the
question uniformly have recognized that the Secretary
has made significant efforts within the limits of available
38
resources to manage a caseload that has quadrupled in
size over the past decade (see pages 7-8, supra); and no
court, including either court below, has suggested the ex-
istence of bad faith or dilatory motive on the part of
HHS. See, e.g., Blankenship v. Secretary of HEW, supra,
587 F.2d at 334; Wright v. Califano, 587 F.2d 345, 352-
354 (7th Cir. 1978) ; Caswell v. Califano, 583 F.2d 9, 17-
18 (1st Cir. 1978); Barnett v. Califano, supra, 580 F.2d
at 32; White v. Mathews, supra, 559 F.2d at 861.
Finally, the court of appeals failed to explain how the
90-day time frame it mandated for holding ALJ hearings
could be attained on a nationwide basis given the available
resources and the need to maintain thorough and accurate
adjudication, since the nationwide average time between
a request for a hearing and the ALJ’s decision cur-
rently is 185 days. See Wright v. Califano, supra,
587 F.2d at 353. Cf. Hodel v. Virginia Surface Mining &
Reclamation Association, Inc., 452 U.S. 264, 283 (1981);
Open America Vv. Watergate Special Prosecution Force,
547 F.2d 605, 615 n.17 (D.C. Cir. 1976). If ALJs were
induced to deny benefit claims because insufficient evi-
dence had been obtained within the time allowed to sup-
port a finding of disability, the result could be to increase
the burden on the courts under 42 U.S.C. 405(g) and
actually to lengthen processing times, since a greater per-
centage of cases predictably would be remanded for fur-
ther administrative proceedings following judicial review.
And in an effort to meet the deadlines under the Title II
disability program, the Secretary might be forced to divert
scarce resources from other Social Security programs—
such as Medicare or Old Age and Survivors Insurance
—that are not subject to court-imposed time limitations.”
** Although the judgment below directly concerns only the process-
ing of claims in Vermont, an affirmance of that judgment by this
Court no doubt would rapidly lead to a further proliferation of
separate decrees imposing time limits in other jurisdictions. See,
e.g., cases cited at Pet. 15-15 & nn. 13, 14 & 16. This process
39
In sum, there is no basis for concluding that the Secre-
tary has failed to afford claimants a “reasonable * * * op-
portunity for a hearing” within the meaning of 42 U.S.C.
405(b).
C. The Secretary's Scheduling of Hearings Does Not
Violate The Administrative Procedure Act
The court of appeals, like the district court, did not
address the question whether the timing of ALJ hearings
violates the Administrative Procedure Act (APA), be
cause it found that the timing violates 42 U.S.C. 405(b)
(see Pet. App. 9a n.8, 15a, 26a). Moreover, respondents,
in their Brief in Opposition, did not rely upon the APA
in support of the judgment below. Nevertheless, we shall
briefly address the APA here because it was relied upon
by the First Circuit in Caswell v. Califano, supra, 588
F.2d at 15.”
would further balkanize the administration of what Congress
plainly intended to he a uniform, nationwide program (see 42 U.S.C.
(Supp. V) 421(a) (2); Heckler v. Campbell, supra, slip op. 7-8) as
the Secretary sought to comply with the varying terms of the de
crees. See Pet. 17. In addition, if processing time limits were
judicially imposed in some jurisdictions but not others, the Secretary
would be required to meet the applicable deadlines by reallocating
resources from SSA regions that were not yet under a judicial
decree (as already has occurred in several cases (see Pet. 16 n.17)),
thereby prejudicing the rights of claimants in some localities and
undermining the goals of fairness and uniformity that are them-
selves important elements of a “reasonable * * * opportunity for a
hearing.” See Wright v. Califano, supra, 587 F.2d at 352-353;
Blankenship Vv. Secretary of HEW, supra, 587 F.2d at 335; Systemic
Delays, supra, 79 Colum. L. Rev. at 972; Goldman, Administrative
Delay and Judicial Relief, 66 Mich. L. Rev. 1423, 1425 (1968).
Even the First and Second Circuits have acknowledged the validity
of the concern that “‘if the Secretary's resources truly are inade-
quate to the task, the more litigious of the applicants may gain an
advantage over the less assertive.’” Pet. App. 7a, quoting Caswell
V. Califano, supra, 583 F.2d at 17.
* Respondents’ contention below that the processing times violate
the Due Process Clause is without merit in light of Mathews v.
Eldridge and the 1980 and 1982 amendments to the Social Security
Act providing added protection for individuals whose disability
benefits are terminated.
40
The First Circuit found support for processing dead-
lines in two provisions of the APA: 5 U.S.C. 555(b)
and 706(1).*° The first states: “With due regard for
the convenience and necessity of the parties or their rep-
resentatives and within a reasonable time, each agency
shall proceed to conclude a matter presented to it.” Un-
der 5 U.S.C. 706(1), a reviewing court is authorized to
“compel agency action unlawfully withheld or unreason-
ably delayed.” As an initial matter, we submit that the
timing of disability hearings that has been so firmly estab-
lished by the joint action of Congress and the Secretary
pursuant to the Social Security Act and that clearly satis-
fies the specific procedural requirements of that Act cannot
be held to violate the generally applicable provisions of the
APA. See Radzanower v. Touche Ross & Co., 426 U.S.
148, 153 (1976). Cf. Richardson y. Perales, supra, 402
U.S. at 409-410. In any event, the cited provisions of
the APA do not support the program-wide relief o~ dered
by the courts below.
1. It is plain from the face of 5 U.S.C. 555\b) that
the nature of an agency’s obligation to conclude a matter
must be informed by a “due regard for the convenience
and necessity of the parties.” And with particular rele-
vance to the issue involved here, 5 U.S.C. 554(b) simi-
larly provides that “[i]n fixing the time and place for
hearings, due regard shall be had for the convenience and
necessity of the parties or their representatives.’ Con-
gress thus has recognized that the circumstances con-
fronting a party—including the agency itself—may af-
fect the timing of the hearing and decision. See S. Rep.
No. 752, 79th Cong., lst Sess. 17 (1945); 3 K. Davis,
Administrative Law Treatise 52 (2d ed. 1980): USS.
Dep’t of Justice, Attorney General’s Manual on the
Administrative Procedure Act 46 (1947) (“Manual”)
(scheduling of hearings must be consistent with the “due
execution of the agency’s functions”).
“ We assume, for present purposes only, that these provisions of
the APA apply to Social Security dis-bility claims. See Richardson
V. Perales, supra, 402 U.S. at 409.
41
In addition, the determination of what constitutes a
“reasonable time” for purposes of 5 U.S.C. 555(b) must
take into account more than the claimant’s interest in a
prompt disposition. Just as under 42 U.S.C. 405(b), it
also is necessary to consider the reasons for the passage
of time, the need to assure the quality of adjudication,
and resource limitations under the particular program.
See pages 33-37, supra. Accordingly, the language of 5
U.S.C. 554(b) and 555(b) refutes the suggestion that a
violation of the APA is established by the mere passage
of time prior to the holding of hearings under the dis-
ability program, when that situation results from the
orderly processing of a vast number of cases pending be-
fore the agency within the limits of available resources,
the ALJ’s obligation to prepare each of his many pend-
ing cases carefully for its hearing,** and the need to coor-
dinate the scheduling of hearings in various locations.
Cf, Morris v. Slappy, No. 81-1095 (Apr. 20, 1983), slip
op. 9 (“Trial judges necessarily require a great deal of
latitude in scheduling trials’).
The text of the judicial review provision in 5 U.S.C.
706(1), which authorizes a reviewing court to “compel
agency action wrongfully withheld or unreasonably de-
layed,” likewise does not furnish a basis for a court to
impose program-wide deadlines on the adjudication of
disability claims. There is no suggestion that ALJ hear-
ings have been “wrongfully withheld” from the respond-
ent class. Cf. GTE Sylvania, Inc. v. Consumers Union,
445 U.S. 375, 385-387 (1980). Nor can the hearings be
said to have been “unreasonably delayed.” The word “de
lay” connotes a deliberate postponement or retarding of a
matter from its normal course.‘*? The orderly disposition
of the broad class of disability claims within the limits
41 At the end of May 1983, the average number of cases pending
before each ALJ was 221, an all-time record. Key Workload Indica-
tors, supra note 1, at 1.
42 Webster's Third New International Dictionary 595 (4th ed.
1976).
42
of established procedures and existing resources does not
fit this description. And even if the resulting passage of
time could be said to constitute “delay,” that delay, as
we have explained, is not ‘“‘unreasonable.”
2. The legislative history of the APA is equally un-
supportive of the judgment below, for it too “suggests
that section 555(b) and 706(1) were designed to protect
persons from an agency’s intentional delay or ‘dilatory
attitude’ (Systemic Delays, supra, 79 Colum. L. Rev. at
965 n.30)—factors that concededly are not present here.
@re House Report explained that what is now 5 U.S.C.
555(b) means “that no agency shall in effect deny relief
or fail to conclude a case by mere inaction, or proceed in
dilatory fashion to the injury of the persons concerned.
No agency should permit any person to suffer injurious
consequences of unwarranted official] delay.” H.R. Rep.
No. 1980, 79th Cong., 2d Sess. 32 (1946). See also S.
Rep. No. 752, 79th Cong., Ist Sess. 19 (1945) (“no
agency shall in effect deny relief or fail to conclude a
case by mere inaction”). The nationwide processing of
an average of more than 1.5 cases by each ALJ on each
working day scarcely can be described as “mere inac-
tion” * or proceeding in a “dilatory fashion.” Nor, given
the good faith efforts of the Secretary to improve pro-
ductivity, is this a case of “unwarranted official delay.”
Similarly, the legislative history of the APA described
the predecessor to 5 U.S.C. 706(1) as “recogniz {ing} the
right of properly interested parties to compel agencies to
act where they improvidently refuse to act.” H.R. Rep.
No. 1980, supra, at 44; S. Rep. No. 752, supra, at 28.
Here, however, the Secretary has not “refused” to decide
disability cases (cf. Costle v. Pacific Legal Foundation,
445 U.S, 198, 220 n.14 (1980)) or acted “improvidently”
in assuring a thorough and accurate evaluation of claims
with full use of available resources.
* Conducting the hearing itself is not the only “action” by the
Secretary in these cases; the numerous steps that must be taken
in preparation for the hearing (see pages 8-10, supra) dispel any
suggestion of prolonged “inaction” in the interim.
43
It also is significant that the Attorney General’s Man-
ual on the APA“ states that what is now 5 U.S.C. 706
(1) “appears to be a particularized restatement of exist-
ing judicial practice” in the issuance of writs of manda-
mus pursuant to the Al] Writs Act, 28 U.S.C, (1946 ed.)
877, now codified at 28 U.S.C. 1651. Manual, supra, at
108, citing, inter alia, Roche v. Evaporated Milk Associa-
tion, 319 U.S. 21 (1943). Mandamus would not lie to
compel a district judge to act on a particular case solely
because of the passage of the time required by the judge
and the parties to prepare the case and to bring it to trial
in the normal course on the court’s crowded docket. That
relief would be available only if the court affirmatively
and substantially departed from its normal course in the
particular case—i.e., if it “persistently and without rea-
son refuse{d] to adjudicate a case properly before it”
(Will y. Calvert Fire Insurance Co., 487 U.S. 655, 661-
662 (1978) (opinion of Rehnquist, J.). See also Roche
v. Evaporated Milk Association, supra, 319 U.S. at 27
(“refusal” to adjudicate issues). It would, accordingly,
be unthinkable for an appellate court, in granting man-
damus relief, to require that a// cases pending before a
district judge be disposed of within a fixed time frame—
at least absent the most exceptional circumstances. Al-
though we do not suggest that mandamus doctrine is uni-
formly applicable to 5 U.S.C. 706(1), the Attorney Gen-
eral’s contemporaneous interpretation of 5 U.S.C. 706(1)
as a “particularized restatement” of mandamus princi-
ples at the very least weighs heavily against a reviewing
court’s exercising a comparably instrusive control over an
agency’s docket and its scheduling of cases for a hearing.
3. Thus, the text and legislative history of the APA
do not support the ordering of program-wide deadlines
absent a showing of pervasive bad faith. That Act was
“ This Court has given weight to the Manual in interpreting the
APA because it embodies the contemporaneous construction of the
Act by the Executive Department involved in its drafting. Chrysler
Corp. Vv. Brown, 441 U.S. 281, 302 n.31 (1979); Vermont Yankee
Nuclear Power Corp. Vv. NRDC, supra, 435 U.S. at 546.
44
intended instead to furnish a more tailored remedy, avail-
able upon a party’s showing that the handling of a par-
ticular case departs significantly from agency norms
without justification, requires repetitive proceedings serv-
ing no legitimate agency purpose, or otherwise constitutes
the effective equivalent of a deliberate and substantial
postponement of action. See Wright v. Califano, supra,
587 F.2d at 352-353; FTC v. J. Weingarten, Inc., 336
F.2d 687, 691-692 (5th Cir. 1964), cert. denied, 380 U.S.
908 (1965); Deering-Milliken, Inc. v. Johnston, 295 F.2d
856, 867-868 (4th Cir. 1961) ; Goldman, supra, 66 Mich.
L. Rev. at 1429; Systemic Delays, supra, 79 Colum. L.
Rev. at 966-968, 977-982; Note, Judicial Acceleration of
the Administrative Process: The Right To Relief from
Unduly Protracted Proceedings, 72 Yale L.J. 574-575
(1963). No such showing has been made here.
D. The Courts Below Erred In Extending Processing
Deadlines Tv The Reconsideration Stage
Our submission that the courts below erred in imposing
deadlines on the processing of claims at the ALJ hearing
stage equally demonstrates that the courts were mistaken
in extending processing deadlines to the reconsideration
stage as well. As we have explained (see pages 19-31,
supra), Congress consistently has declined to incorporate
deadlines in the Act for any stage of the proceedings, in-
cluding reconsideration, and instead has enacted statutory
provisions and suggested solutions inconsistent with court-
imposed deadlines.
The extension of deadlines to the reconsideration stage
is particularly inappropriate in view of the fact that the
reconsideration function is carried out by State agencies,
whose day-to-day activities are not subject to the Secre-
tary’s direct control. To meet this problem, in the Dis-
ability Amendments of 1980, Congress authorized the
Secretary to promulgate regulations specifying “in such
detail as he deems appropriate” performance standards
and procedures to be followed by the State agencies “in
order to assure effective and uniform administration of
45
the disability program throughout the United States.” 42
U.S.C. (Supp. V) 421/a) (2). These regulations “may,”
but need not, specify performance criteria for the accu-
racy of decisions and “the time periods within which
determinations must be made” (42 U.S.C. (Supp. V)
421(a)‘2)'C)). Moreover, Congress provided a specific
means of enforcing these standards: it authorized the
Secretary to assume the State’s functions—after a 180-
day waiting period—if she finds after a hearing that the
State agency has failed to comply with the standards. 42
U.S.C. (Supp. V) 421/b). In the exercise of her discre-
tion under this Section, the Secretary has elected to im-
pose time limits on initial determinations by State agen-
cies (20 C.F.R. 404.1640 et seq.), but not on reconsidera-
tions. The Secretary’s omission of fixed deadlines at the
reconsideration stage plainly is not an abuse of discretion,
in view of Congress’ express reservations about the wis-
dom of deadlines. The court of appeals’ imposition of
processing deadlines directly on the State agencies there
fore is at odds with the explicit congressional judgment
to leave the question of such deadlines and their enforce-
ment to the Secretary as part of her general oversight of
the State’s performance.”
** Respondents complain (Br. in Opp. 4) of what they term “gaps
of unexplained delay” in the processing of the 77 cases selected as a
sample of reconsideration cases in Vermont (see page 12, supra).
This complaint is based on a compilation of a log for each of the 77
sample cases that simply notes when certain discrete actions were
taken in the particular case (e.g., file requested from SSA by the
State agency, file received, consultative examination requested, addi-
tional evidence requested, determination signed by State agency
examiner or State agency physician, “systems input,” etc.). See
J.A. 105-149, 192-195. These summaries do not purport to explain
what transpired between the particular milestones listed, the com-
plexity of particular cases, or the caseload confronting the employ-
ees involved, and it simply is not possible to reconstruct those facts
long after a case has been finally adjudicated. Such “gaps” in ex-
planation by the agency, when considered with a presumption of
regularity, do not show that the agency has performed in an un-
acceptable fashion. See INS v. Miranda, No. 82-29 (Nov. 8, 1982),
slip op. 4. Far less do they carry respondents’ burden of proving
46
Finally, the ability of a State agency to comply with
the 90-day deadline adopted by the courts below—a figure
based on the district court’s review of cases reconsidered
between 1977 and 1980—is rendered more doubtful by
the provisions of the Disability Amendments of 1980 re-
quiring new individualized notice and preeffectuation re-
view by SSA of State reconsideration decisions. And be-
ginning no later than January 1, 1984, evidentiary hear-
ings must be held at the reconsideration stage in dis-
ability termination cases, which obviously will add to the
time needed at that stage. These legislative develop-
ments, which the processing deadlines imposed by the
lower courts fail to accommodate, clearly illustrate the
danger of judicial intervention in an area more appro-
priately designed for monitoring and regulation by Con-
gress and the Secretary.
Il. THE DISTRICT COURT WAS WITHOUT AUTHOR-
ITY TO ORDER THE PAYMENT OF INTERIM
BENEFITS TO INDIVIDUALS WHOSE CLAIMS
ARE NOT PROCESSED WITHIN THE JUDI-
CIALLY IMPOSED DEADLINES
If, contrary to our submission in Point I, the district
court properly imposed fixed deadlines on the completion
of the reconsideration stage and the holding of ALJ hear-
ings in Social Security disability cases, that court never-
theless was without authority to order the payment of
interim benefits to individuals whose claims are not proc-
essed within those deadlines.
This Court repeatedly has stressed that “the United
States, as sovereign, ‘is immune from suit save as it
consents to be sued * * * and the terms of its consent
to be sued in any court define that court’s jurisdic-
tion to entertain the suit.’” Lehman v. Nakshian, 453
U.S. 156, 160 (1981), quoting United States v. Testan,
their entitlement to the extraordinary relief ordered below. Congress
has now made clear that any defects in a State agency's administra-
tion of the disability program are for the Secretary to correct. 42
U.S.C. (Supp. V) 421(a) and (b).
47
424 U.S. 392, 399 (1976), and United States v. Sherwood,
312 U.S. 584, 586 (1941). Consistent with this principle,
a court may not award monetary relief against the fed-
eral government absent a congressional enactment waiv-
ing the United States’ sovereign immunity. United States
v. Mitchell, No. 81-1748 (June 27, 1983), slip op. 6; Army
& Air Force Exchange Service v. Sheehan, 456 U.S. 728,
738-740 (1982): United States v. Testan, supra; Pine
Hill Coal Co. v. United States, 259 U.S. 191, 196 (1922).
Cf. U.S. Const., Art. I, §9, Cl. 7 (“No Money shall be
drawn from the Treasury, but in Consequence of Appro-
priations made by Law * * °”),
The conditions for the payment of benefits from the
Social Security Trust Funds are set forth in 42 U.S.C.
405(i). That Section permits payment only upon a “final
decision” by the Secretary or “final judgment” by a court
that a person is “entitled” to benefits. Under 42 U.S.C.
(Supp. V) 423(a)(1), an individual is “entitled” to pay-
ment of disability insurance benefits only if he “is un-
der a disability’’ and satisfies other eligibility criteria.
Any member of the respondent class to whom interim dis-
ability benefits must be paid under the judgment below by
definition will not have received the requisite “final deci-
sion” by the Secretary ‘or the State agency) establishing
his eligibility. The interim benefit provisions of the judg-
ment below therefore violate 42 U.S.C. 405(i).
In Schweiker v. Hansen, 450 U.S. 785 (1981), another
Social Security case, this Court reiterated “ ‘the duty of
all courts to observe the conditions defined by Congress
for charging the public treasury.’” 450 U.S. at 788, quot-
ing Federal Crop Insurance Co. V. Merrill, 332 U.S. 380
(1947). The court of appeals sought to avoid the force of
Hansen by characterizing the interim benefits require-
ment as flowing from the “district court’s inherent
powers to fashion a remedy” (Pet. App. 8a). But, as we
have said, the courts of the United States have no “in-
herent power” to order the payment of money from the
federal Treasury whenever they find a violation of a stat-
tute. United States v. Testan, supra, 424 U.S. at 401,
48
403. Moreover, the remedy a court may fashion for a
violation of the requirement in 42 U.S.C. 405(b) that an
individual be provided “reasonable notice and opportunity
for a hearing” surely is limited by the conditions on the
payment of money from the Trust Funds contained in
Subsection (i) of that same statutory provision. Com-
pliance with those conditions is not excused by the mere
passage of time in processing a claim. Cf. INS v. Mi-
randa, No. 82-29 (Nov. 8, 1982).
In addition, the decision below ignores the fact that
Congress has addressed the interim benefits issue and has
chosen not to make such benefits generally available in
disability cases solely because of the passage of time in
the administrative review process. As we have explained
(see page 22, supra), Congress enacted 42 U.S.C.
405(q) in 1968 to provide a mechanism for the expedited
payment of benefits when a claim has not been finally re-
solved within a specified period but the claimant has made
a prima facie showing of entitlement. The Senate Report
explicitly stated, however, that “the Secretary should not
be forced into making doubtful payments merely because
of the passage of time” and that Section 405(q) therefore
requires the Secretary to be “confident of the validity of
the claim” before an interim payment may be made. S.
Rep. No. 744, supra, at 106. What is more, Congress ex-
pressly excluded disability cases from this expedited pay-
ment provision (42 U.S.C. 405(q)(5)) because State
agencies are involved in the process, “lengthy and exten-
sive development of facts of a medical nature is often re
quired,” and “the Secretary should be reluctant to make
a favorable ruling of basic eligibility in the disability
area on the basis of partial evidence” (S. Rep. No. 744,
supra, at 107). The award of interim benefits by the courts
below countermands this deliberate legislative judgment.”
44 Even in situations not implicating sovereign immunity, where
the federal courts may have greater “power to grant relief that is
not expressly authorized by statute,” the Court has stressed that
“such power is to be exercised in light of relevant policy determina-
tions made by the Congress.” Bush v. Lucas, No. 81-469 (June 13,
1983), slip op. 6.
49
In 1982, Congress did enact temporary authorization
for the payment of interim benefits through the ALJ
stage to an individual whose benefits are to be terminated
on the basis of a decision by the State agency that he no
longer is under a disability. See page 4, supra. This
provision was enacted because of Congress’ special con-
cern that individuals who may have become dependent
upon their disability benefits might experience hardship
while they pursue administrative review of the State’s
termination decision. See materials cited in note 35, su-
pra. Any member of the respondent class covered by this
provision of course may receive benefits under it. But
because Congress has demonstrated that when it intends
to allow payment of interim benefits pending administra-
tive review it has expressly so provided, it is now espe-
cially clear that the award of interim benefits to other
persons—such as those whose new applications ior dis-
ability benefits have been denied by the State agency—is
barred by the Act.*’ The district court’s interim benefits
order therefore cannot stand.**
47 In fact, the 1982 legislation permitting interim benefit pay-
ments only in termination cases was enacted on the basis of Con-
gress’ understanding that “[p]resent law does not authorize the
payment of Social Security benefits from the Social Security trust
funds until a final decision is made on an application for benefits”
and its disagreement with judicial decisions requiring payment of
interim benefits in disability cases generally. H.R. Rep. No. 97-
588, supra, at 19. See also note 36, supra.
48 Although the district court’s order permits recoupment of the
interim benefits if the claimant is later found to be ineligible (Pet.
App. 35a), this “theoretical right of the Secretary to recover un-
deserved benefits [would not] result, as a practical matter, in any
substantial offset to the added outlay of public funds.” Mathews
v. Eldridge, supra, 424 U.S. at 347.
50
CONCLUSION
The judgment of the court of appeals should be re-
versed.
Respectfully submitted.
REx E, LEE
Solicitor General
J. PAUL MCGRATH
Assistant Attorney General
KENNETH S. GELLER
Deputy Solicitor General
EDWIN S. KNEEDLER
Assistant to the Solicitor General
WILLIAM KANTER
JOHN F. CorpeEs
Attorneys
AUGUST 1983
la
APPENDIX
STATUTORY PROVISIONS INVOLVED
A. SOCIAL SECURITY PROVISIONS:
1. Section 308 of the Social Security Disability Amend-
ment of 1980, Pub. L. No. 96-265, 94 Stat. 458, 42 U.S.C.
(Supp. V) 401 note, provides:
TIME LIMITATIONS FOR DECISIONS ON BENEFIT CLAIMS
Sec. 308. The Secretary of Health and Human
Services shall submit to the Congress, no later than
July 1, 1980, a report recommending the establish-
ment of appropriate time limitations governing deci-
sions on claims for benefits under title II of the So
cial Security Act. Such report shall specifically ree-
ommend—
(1) the maximum period of time (after ap-
plication for a payment under such title is filed)
within which the initial decision of the Secretary
as to the rights of the applicant should be made;
(2! the maximum period of time (after ap-
plication for reconsideration of any decision de
scribed in paragraph (1) is filed) within which
a decision of the Secretary on such reconsidera-
tion should be made;
(3) the maximum period of time (after a re-
quest for a hearing with respect to any decision
described in paragraph (1) is filed) within
which a decision of the Secretary upon such
hearing whether affirming, modifying, or re-
versing such decision) should be made; and
(4) the maximum period of time (after a re-
quest for review by the Appeals Council with
respect to any decision described in paragraph
(1) is made) within which the decision of the
Secretary upon such review (whether affirming,
modifying, or reversing such decision) should be
made.
2a
In determining the time limitations to be recom-
mended, the Secretary shall take into account both
the need for expeditious processing of claims for
benefits and the need to assure that all such claims
will be thoroughly considered and accurately deter-
mined.
2. Section 205 of the Social Security Act, as codified
at 42 U.S.C. (& Supp. V) 405, provides in relevant part:
: 405. Evidence, procedure, and certification for pay-
ments
(a) Rules and regulations; procedures
The Secretary shall have full power and authority
to make rules and regulations and to establish proce-
dures, not inconsistent with the provisions of this
subchapter, which are necessary or appropriate to
carry out such provisions, and shall adopt reasonable
and proper rules and regulations to regulate and pro-
vide for the nature and extent of the proofs and evi-
dence and the method of taking and furnishing the
same in order to establish the right to benefits here-
under.
(b) Administrative determination of entitlement to
benefits statement; findings of fact; hearings;
investigations
[(1)*] The Secretary is directed to make findings
of fact, and decisions as to the rights of any indi-
*In Section 4(a) of Pub. L. No. 97-455, 96 Stat. 2499, Congress
amended Section 205(b) of the Act by inserting “(1)” before the
text of Subsection (b) as it then read and adding at the end of Sub-
section (b) a new paragraph (2), which is set off here in brackets
because it has not yet been codified at 42 U.S.C. 405(b). Section
4(b) of Pub. L. No. 97-455, 96 Stat. 2500, provides that these
amendments to Section 205(b) of the Act shall apply to any re-
quest for reconsideration made on or after such date as the Secre-
tary may specify, but in any event no later than January 1, 1984.
3a
vidual applying for a payment under this subchapter.
Any such decision by the Secretary which involves a
determination of disability and which is in whole or
in part unfavorable to such individual shall contain
a statement of the case, in understandable language,
setting forth a discussion of the evidence, and stat-
ing the Secretary's determination and the reason or
reasons upon which it is based. Upon request by any
such individual or upon request by a wife, divorced
wife, widow, surviving divorced wife, surviving di-
vorced mother, husband, widowei, child, or parent
who makes a showing in writing that his or her
rights may be prejudiced by any decisicn the Secre-
tary has rendered, he shall give such applicant and
such other individual reasonable notice and oppor-
tunity for a hearing with respect to such decision,
and, if a hearing is held, shall, on the basis of evi-
dence adduced at the hearing, affirm, modify, or re-
verse his findings of fact and such decision. Any
such request with respect to such a decision must be
filed within sixty days after notice of such decision
is received by the individual making such request.
The Secretary is further authorized, on his own mo
tion, to hold such hearings and to conduct such in-
vestigations and other proceedings as he may deem
necessary or proper for the administration of this
subchapter. In the course of any hearing, investiga-
tion, or other proceeding, he may administer oaths
and affirmations, examine witnesses, and receive evi-
dcace. Evidence may be received at any hearing be
fore the Secretary even though inadmissible under
rules of evidence applicable to court procedure.
[(2) In any case where—
(A) an individual is a recipient of disability
insurance benefits, or of child’s, widow’s, or
widower’s insurance benefits based on disability,
(B) the physical or mental impairment on the
basis of which such benefits are payable is found
4a
to have ceased, not to have existed, or to no
longer be disabling, and
(C) as a consequence of the finding described
in subparagraph (B), such individual is deter-
mined by the Secretary not to be entitled to such
benefits,
any reconsideration of the finding described in sub-
paragraph (B), in connection with a reconsideration
by the Secretary (before any hearing under para-
graph (1) on the issue of such entitlement) of his
determination described in subparagraph ‘C), shall
be made only after opportunity for an evidentiary
hearing, with regard to the finding described in sub-
paragraph (B), which is reasonably accessible to
such individual. Any reconsideration of a finding de-
scribed in subparagraph (B) may be made either by
the State agency or the Secretary where the finding
was originally made by the State agency, and shall
be made by the Secretary where the finding was orig-
inally made by the Secretary. In the case of a re-
consideration by a State agency of a finding de-
scribed in subparagraph (B) which was originally
made by such State agency, the evidentiary hearing
shall be held by an adjudicatory unit of the State
agency other than the unit that made the finding de-
scribed in subparagraph (B). In the case of a re-
consideration by the Secretary of a finding described
in subparagraph (B) which was originally made by
the Secretary, the evidentiary hearing shall be held
by a person other than the person or persons who
made the finding described in subparagraph (B).]
(i) Certification for payment
Upon final decision of the Secretary or upon final
judgment of any court of competent jurisdiction, that
any person is entitled to any payment or payments
under this subchapter, the Secretary shall certify to
Da
the Managing Trustee the name and address of the
person so entitled to receive such payment or pay-
ments, the amount of such payment or payments, and
the time at which such payment or payments should
be made, and the Managing Trustee, through the
Division of Disbursement of the Treasury Depart-
ment, and prior to any action thereon by the General
Accounting Office, shall make payment in accordance
with the certification of the Secretary * * *: Pro-
vided, That where a review of the Secretary’s deci-
sion is or may be sought under subsection (g) of this
section the Secretary may withhold certification of
payment pending such review. The Managing Trus-
tee shall not be held personally liable for any pay-
ment or payments made in accordance with a certifi-
cation by the Secretary.
(q) Expedited benefit payments
(1) The Secretary shall establish and put into ef-
fect procedures under which expedited payment of
monthly insurance benefits under this subchapter
will, subject to paragraph (4) of this subsection, be
made as set forth in paragraphs (2) and (3) of this
subsection.
(2) In any case in which—
(A) an individual makes an allegation that a
monthly benefit under this subchapter was due
him in a particular month but was not paid to
him, and
(B) such individual submits a written re
quest for the payment of such benefit—
(i) in the case of an individual who re-
ceived a regular monthly benefit in the
month preceding the month with respect to
which such allegation is made, not less than
30 days after the 15th day of the month
with respect to which such allegation is
6a
made ‘and in the event that such request is
submitted prior to the expiration of such
30-day period, it shall be deemed to have
been submitted upon the expiration of such
period), and
(ii) in any other case not less than 90
days after the later of (I) the date on which
such benefit is alleged to have been due, or
(II) the date on which such individual fur-
nished the last information requested by the
Secretary (and such written request will be
deemed to be filed on the day on which it
was filed, or the ninetieth day after the first
day on which the Secretary has evidence
that such allegation is true, whichever is
later),
the Secretary shall, if he finds that benefits are due,
certify such benefits for payment, and payment shall
be made within 15 days immediately following the
date on which the written request is deemed to have
been filed.
(3) In any case in which the Secretary determines
that there is evidence, although additional evidence
might be required for a final decision, that an allega-
tion described in paragraph (2)(A) is true, he may
make a preliminary certification of such benefit for
payment even though the 30-day or 90-day periods
described in paragraph (2) (B) (i) and (B) (ii) have
not elapsed.
(4) Any payment made pursuant to a certification
under paragraph (3) of this subsection shall not be
considered an incorrect payment for purposes of de-
termining the liability of the certifying or disbursing
officer.
(5) For purposes of this subsection, benefits pay-
able under section 428 of this title shall be treated as
monthly insurance benefits payable under this sub-
chapter. However, this subsection shall not apply
_
with respect to any benefit for which a check has
been negotiated, or with respect to any benefit al-
leged to be due under either section 423 of this title,
or section 402 of this title to a wife, husband, or child
of an individual entitled to or applying for benefits
under section 423 of this title, or to a child who has
attained age 18 and is under a disability, or to a
widow or widower on the basis of being under a
disability.
8, Section 221 of the Social] Security Act, as codified
at 42 U.S.C. (Supp. V) 421, provides in relevant part:
£421. Disability determinations
(a) State agencies
(1) In the case of any individual, the determina-
tion of whether or not he is under a disability (as
defined in section 416(i) or 423(d) of this title)
and of the day such disability began, and the deter-
mination of the day on which such disability ceases,
shall be made by a State agency, notwithstanding
any other provision of law, in any State that notifies
the Secretary in writing that it wishes to make such
disability determinations commencing with such
month as the Secretary and the State agree upon,
but only if (A) the Secretary has not found, under
subsection (b)(1) of this section, that the State
agency has substantially failed to make disability de
terminations in accordance with the applicable provi-
sions of this section or rules issued thereunder, and
(B) the State has not notified the Secretary, under
subsection (b) (2) of this section, that it does not
wish to make such determinations. If the Secretary
once makes the finding described in clause (A) of the
preceding sentence, or the State gives the notice re-
ferred to in clause (B) of such sentence, the Secre-
tary may thereafter determine whether (and, if so,
beginning with which month and under what condi-
8a
tions) the State may again make disability determi-
nations under this paragraph.
(2) The disability determinations described in
paragraph ‘1) made by a State agency shall be made
in accordance with the pertinent provisions of this
subchapter and the standards and criteria contained
in regulations or other written guidelines of the Sec-
retary pertaining to matters such as disability deter-
minations, the class or classes of individuals with
respect to which a State may make disability deter-
minations (if it does not wish to do so with respect
to all individuals in the State), and the conditions
under which it may choose not to make all such de-
terminations, In addition, the Secretary shall pro
mulgate regulations specifying, in such detail as he
deems appropriate, performance standards and ad-
ministrative requirements and procedures to be fol-
lowed in performing the disability determination
function in order to assure effective and uniform ad-
ministration of the disability insurance program
throughout the United States. The regulations may,
for example, specify matters such as—
(A) the administrative structure and the re-
lationship between various units of the State
agency responsible for disability determinations,
(B) the physical location of and relationship
among agency staff units, and other individuals
or organizations performing tasks for the State
agency, and standards for the availability to ap-
plicants and beneficiaries of facilities for mak-
ing disability determinations,
(C) State agency performance criteria, in-
cluding the rate of accuracy of decisions, the
time periods within which determinations must
be made, the procedures for and the scope of
review by the Secretary, and, as he finds ap-
propriate, by the State, of its performance in
individual cases and in classes of cases, and rules
9a
governing access of appropriate Federal officials
to State offices and to State records relating to
its administration of the disability determina-
tion function,
(D) fiscal control procedures that the State
agency may be required to adopt, and
(E) the submission of reports and other data,
in such form and at such time as the Secretary
may require, concerning the State agency’s ac-
tivities relating to the disability determination.
Nothing in this section shall be construed to author-
ize the Secretary to take any action except pursuant
to law or to regulations promulgated pursuant to
law,
(b) Determinations by Secretary
(1) If the Secretary finds, after notice and oppor-
tunity for a hearing, that a State agency is substan-
tially failing to make disability determinations in a
manner consistent with his regulations and other
written guidelines, the Secretary shall, not earlier
than 180 days following his finding, and after he has
complied with the requirements of paragraph (3),
make the disability determinations referred to in sub-
section (a) (1) of this section.
(2) If a State, having notified the Secretary of its
intent to make disability determinations under sub
section (a) (1) of this section, no longer wishes to
make such determinations, it shall notify the Secre-
tary in writing of that fact, and, if an agency of the
State is making disability determinations at the time
such notice is given, it shall continue to do so for not
less than 180 days, or (if later) until the Secretary
has complied with the requirements of paragraph
(3), Thereafter, the Secretary shall make the dis-
ability determinations referred to in subsection
(a) (1) of this section,
10a
(3) (A) The Secretary shall develop and initiate
all appropriate procedures to implement a plan with
respect to any partial or complete assumption by the
Secretary of the disability determination function
from a State agency, as provided in this section, un-
der which employees of the affected State agency who
are capable of performing duties in the disability
determination process for the Secretary shall, not-
withstanding any other provision of law, have a pref-
erence over any other individual in filling an appro
priate employment position with the Secretary (sub-
ject to any system established by the Secretary for
determining hiring priority among such employees of
the State agency) unless any such employee is the ad-
ministrator, the deputy administrator, or assistant
administrator (or his equivalent) of the State
agency, in which case the Secretary may accord such
priority to such employee.
(B) The Secretary shall not make such assump-
tion of the disability determination function until
such time as the Secretary of Labor determines that,
with respect to employees of such State agency who
will be displaced from their employment on account
of such assumption by the Secretary and who will
not be hired by the Secretary to perform duties in
the disability determination process, the State has
made fair and equitable arrangements to protect the
interests of employees so displaced. Such protective
arrangements shall include only those provisions
which are provided under all applicable Federal,
State and loca] statutes including, but not limited to,
(i) the preservation of rights, privileges, and bene-
fits (including continuation of pension rights and
benefits) under existing collective-bargaining agree-
ments; (ii) the continuation of collective-bargaining
rights; (iii) the assignment of affected employees to
other jobs or to retraining programs; (iv) the pro-
tection of individual employees against a worsening
of their positions with respect to their employment;
lla
(y) the protection of health benefits and other fringe
benefits; and (vi) the provision of severance pay, as
may be necessary.
(ce) Review of determination by Secretary
(1) The Secretary may on his own motion or as
required under paragraphs (2) and (3) review a
determination, made by a State agency under this
section, that an individual is or is not under a dis-
ability (as defined in section 416(i) or 423(d) of
this title) and, as a result of such review, may
modify such agency’s determination and determine
that such individual either is or is not under a dis-
ability (as so defined) or that such individual’s dis-
ability began on a day earlier or later than that de-
termined by such agency, or that such disability
ceased on a day earlier or later than that determined
by such agency. A review by the Secretary on his
own motion of a © ate agency determination under
this paragraph may be made before or after any
action is taken to implement such determination.
(2) The Secretary (in accordance with paragraph
(3)) shall review determinations, made by State
agencies pursuant to this section, that individuals
are under disabilities (as defined in section 416(i)
or 423(d) of this title). Any review by the Secre-
tary of a State agency determination under this
paragraph shall be made before any action is taken
to implement such determination.
(3) In carrying out the provisions of paragraph
(2) with respect to the review of determinations,
made by State agencies pursuant to this section, that
individuals are under disabilities (as defined in sec-
tion 416(i) or 423(d) of this title), the Secretary
shall review—
(A) at least 15 percent of all such determi-
nations made by State agencies in the fiscal
year 1981,
12a
(B) at least 35 percent of all such determi-
nations made by State agencies in the fiscal year
1982, and
(C) at least 65 percent of all such determina-
tions made by State agencies in any fiscal year
after the fiscal year 1982.
(d) Hearings and judicial review
Any individual dissatisfied with any determina-
tion under subsection (a), (b), (c), or (g) of this
section shall be entitled to a hearing thereon by the
Secretary to the same extent as is provided in sec-
tion 405(b) of this title with respect to decisions of
the Secretary’s final decision after such hearing as
is provided in section 405(g) of this title.
(h)[*] Periodic reviews of eligibility
[(1)**] In any case where an individual is or
has been determined to be under a disability, the
case shal] be reviewed by the applicable State agency
or the Secretary (as may be appropriate), for pur-
poses of continuing eligibility, at least once every 3
years[, subject to paragraph(2)]; except that where
a finding has been made that such disability is per-
manent, such reviews shall be made at such times as
the Secretary determines to be appropriate. Reviews
of cases under the preceding sentence shall be in ad-
dition to, and shall not be considered as a substitute
for, any other reviews which are required or pro-
* Section 221(i) was editorially designated as Subsection (h) of
42 U.S.C. (Supp. V) 421 because no Subsection (h) of Section 221
of the Act was enacted. See 42 U.S.C. (Supp. V) 421 note.
**In Section 3 of Pub. L. No. 97-455, 96 Stat. 2499, Congress
amended Section 221(i) by inserting “(1)” before the text of Sub-
section (i) as it then read and adding at the end of Subsection (i)
a new paragraph (2), which is set off in brackets here because it
has not yet been codified at 42 U.S.C. 421(h). See note *, supra.
13a
vided for under or in the administration of this
subchapter.
[(2) The requirement of paragraph (1) that
cases be reviewed at least every 3 years shall not ap-
ply to the extent that the Secretary determines, on a
State-by-State basis, that such requirement should be
waived to insure that only the appropriate number
of such cases are re\.ewed. The Secretary shall de-
termine the appropriate number of cases to be re-
viewed in each State after consultation with the
State agency performing such reviews, based upon
the backlog of pending reviews, the projected num-
ber of new applications for disability insurance ben-
efits, and the current and projected staffing levels of
the State agency, but the Secretary shall provide for
a waiver of such requirement only in the case of a
State which makes a good faith effort to meet proper
staffing requirements for the State agency and to
process case reviews in a timely fashion. The Secre-
tary shall report annually to the Committee on Fi-
nance of the Senate and the Committee on Ways and
Means of the House of Representatives with respect
to the determinations made by the Secretary under
the preceding sentence. }
4. Section 304(g) of the Social Security Disability
Amendments of 1980, Pub. L. No. 96-265, 94 Stat. 456,
42 U.S.C. (Supp. V) 421 note, provides:
The Secretary of Health and Human Services
shall implement a program of reviewing, on his own
motion, decisions rendered by administrative law
judges as a result of hearings under section 221(d)
of the Social Security Act, and shall report to the
Congress by January 1, 1982, on his progress.
5. Section 223 of the Social Security Act, as codified
at 42 U.S.C. (& Supp. V) 423, provides in relevant part:
lda
$423. Disability insurance benefits payments
(a) Disability insurance benefits
(1) Every individual who—
(A) is insured for disability insurance ben-
efits (as determined under subsection (c) (1) of
this section),
(B) has not attained the age of sixty-five,
(C) has filed application for disability insur-
ance benefits, and
(D) is under a disability (as defined in sub-
section (d) of this section)
shall be entitled to a disability insurance benefit (i)
for each month beginning with the first month after
his waiting period (as defined in subsection (c) (2)
of this section) in which he becomes so entitled to
such insurance benefits, or (ii) for each month be-
ginning with the first month during all of which he
is under a disability and in which he becomes so en-
titled to such insurance benefits, but only if he was
entitled to disability insurance benefits which termi-
nated, or had a period of disability (as defined in
section 416(i) of this title) which ceased, within the
60-month period preceding the first month in which
he is under such disability, and ending with the
month preceding whichever of the following months
is the earliest: the month in which he dies, the month
in which he attains age 65, or, subject to subsection
(e) of this section, the termination month. * * *°.
{(g) Continued payment of disability benefits dur-
during appeal
(1) In any case where—
(A) an individual is a recipient of disability
insurance benefits, or of child’s, widow’s, or
widower’s insurance benefits based on disability,
l5a
(B) the physical or mental impairment on
the basis of which such benefits are payable is
found to have ceased, not to have existed, or to
no longer be disabling, and as a consequence
such individual is determined not to be entitled
to such benefits, and
(C) a timely request for a hearing under
section 221(d), or for an administrative review
prior to such hearing, is pending with respect
to the determination that he is not so entitled,
such individual may elect (in such manner and form
and within such time as the Secretary shall by regu-
lations prescribe) to have the payment of such bene-
fits, and the payment of any other benefits under
this Act based on such individual’s wages and self-
employment income (including benefits under title
XVIII), continued for an additional period begin-
ning with the first month beginning after the date of
the enactment of this subsection for which (under
such determination) such benefits are no longer
otherwise payable, and ending with the earlier of
(i) the month preceding the month in which a deci-
sion is made after such a hearing, (ii) the month
preceding the month in which no such request for a
hearing or an administrative review is pending, or
(iii) June 1984.
(2) (A) If any individual elects to have the pay-
ment of his benefits continued for an additional pe-
riod under paragraph (1), and the final decision of
the Secretary affirms the determination that he is
not entitled to such benefits, any benefits paid under
this title pursuant to such election (for months in
such additional period) shall be considered overpay-
ments for all purposes of this title, except as other-
wise provided in subparagraph (B).
(B) If the Secretary determines that the individ-
ual’s appeal of his termination of benefits was made
loa
in good faith, all of the benefits paid pursuant to
such individual’s election under paragraph (1) shall
be subject to waiver consideration under the provi-
sions of section 204.
(3) The provisions of paragraphs (1) and (2)
shall apply with respect to determinations (that in-
dividuals are not entitled to benefits) which are
made—
(A) on or after the date of enactment of this
subsection, or prior to,such date but only on the
basis of a timely request for a hearing under
section 221(d), or for an administrative review
prior to such hearing, and
(B) prior to October 1, 1983.*).
6. Section 1631(c) of the Social Security Act, as codi-
fied at 42 U.S.C. (& Supp. V) 1383 (c), provides:
$1383. Procedure for payment of benefits
(c) Hearing to determine eligibility or amount of
benefits; time within which to request hearing;
time for determinations of Secretary pursuant
to hearing; judicial review
(1) The Secretary is directed to make findings of
fact, and decisions as to the rights of any individual
applying for payment under this subchapter. Any
such decision by the Secretary which involves a de-
termination of disability and which is in whole or in
part unfavorable to such individual shall contain a
statement of the case, in understandable language,
setting forth a discussion of the evidence, and stat-
ing the Secretary’s determination and the reason or
reasons upon which it is based. The Secretary shall
provide reasonable notice and opportunity for a
* In Section 2 of the Pub. L. No. 97-455, 96 Stat. 2498-2499, Con-
gress amended Section 223 of the Act by adding at the end thereof
a new Subsection (g), which is set off in brackets here because it
has not yet been codified at 42 U.S.C. 423(g).
B
17a
hearing to any individual who is or claims to be an
eligible individual or eligible spouse and is in dis-
agreement with any determination under this sub-
chapter with respect to eligibility of such individual
for benefits, or the amount of such individual’s bene-
fits, if such individual requests a hearing on the
matter in disagreement within sixty days after no-
tice of such determination is received, and, if a hear-
ing is held, shall, on the basis of evidence adduced at
the hearing affirm, modify. or reverse his findings of
fact and such decision. The Secretary is further au-
thorized, on his own motion, to hold such hearings
and to conduct such investigations and other pro-
ceedings as he may deem necessary or proper for the
administration of this subchapter. In the course of
any hearing, investigation, or other proceeding, he
may administer oaths and affirmations, examine wit-
nesses, and receive evidence. Evidence may be re-
ceived at any hearing before the Secretary even
though inadmissible under the rules of evidence ap-
plicable to court procedure.
(2) Determination on the basis of such hearing,
except to the extent that the matter in disagreement
involves a disability (within the meaning of section
1382c(a)(3) of this title), shall be made within
ninety days after the individual requests the hear-
ing as provided in paragraph (1).
(3) The final determination of the Secretary
after a hearing under paragraph (1) shall be sub-
ject to judicial review as provided in section 405(g)
of this title to the same extent as the Secretary’s
final determinations under section 405 of this title.
ADMINISTRATIVE PROCEDURE ACT:
1. 5 U.S.C. 554(b) provides:
$554. Adjudication
(b) Persons entitled to notice of an agency hear-
ing shall be timely informed of—
18a
(1) the time, place, and nature of the
hearing;
(2) the legal authority and jurisdiction under
which the hearing is to be held; and
(3) the matters of fact and law asserted.
When private persons are the moving parties, other
parties to the proceeding shall give prompt notice of
issues controverted in fact or law; and in other in-
stances agencies may by rule require responsive
pleading. In fixing the time and place for hearings,
due regard shall be had for the convenience and
necessity of the parties or their representatives.
. 5 U.S.C. 555(b) provides:
$555. Ancillary matters
(b) A person compelled to appear in person be-
fore an agency or representative thereof is entitled
to be accompanied, represented, and advised by coun-
sel or, if permitted by the agency, by other qualified
representative. A party is entitled to appear in per-
son or by or with counsel or other duly qualified
representative in an agency proceeding. So far as
the orderly conduct of public business permits, an
interested person may appear before an agency or its
responsible employees for the presentation, adjust-
ment, or determination of an issue, request, or con-
troversy in a proceeding, whether interlocutory,
summary, or otherwise, or in connection with an
agency function. With due regard for the conve-
nience and necessity of the parties or their repre-
sentatives and within a reasonable time, each agency
shall proceed to conclude a matter presented to it.
This subsection does not grant or deny a person who
is not a lawyer the right to appear for or represent
others before an agency or in an agency proceeding.
19a
3. 5 U.S.C. 706 provides:
$706. Scope of review
To the extent necessary to decision and when pre-
sented, the reviewing court shall decide all relevant
questions of law, interpret constitutional and statu-
tory provisions, and determine the meaning or appli-
cability of the terms of an agency action. The re-
viewing court shall—
(1) compel agency action unlawfully with-
held or unreasonably delayed; and
(2) hold unlawful and set aside agency ac-
tion, findings, and conclusions found to be—
(A) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance
with law;
(B) contrary to constitutional right,
power, privilege, or immunity;
(C) in excess of statutory jurisdiction,
authority, or limitations, or short of statu-
tory right;
(D) without observance of procedure re-
quired by law;
(E) unsupported by substantial evidence
in a case subject to sections 556 and 557 of
this title or otherwise reviewed on the rec-
ord of an agency hearing provided by
statute; or
(F) unwarranted by the facts to the ex-
tent that the facts are subject to trial de
novo by the reviewing court.
In making the foregoing determinations, the court
shall review the whole record or those parts of it
cited by a party, and due account shall be taken of
the rule of prejudicial error.
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