Petitioners Reply Brief — Heckler v. Day

- Supreme Court, U.S

FILED

HOY 28 1993

No. 82-1371 _ eTevas

AL XANOER

In the Supreme Court of the United States

OCTOBER TERM, 1983

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

REPLY BRIEF FOR THE PETITIONER

Rex E. LEE

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

TABLE OF AUTHORITIES

Cases : Page

Alerander v. Hill, 707 F.2d 780, petition for cert.

INN - TO I a a cpeeanbanniatateinenenets 19

Batterton V. Francis, 482 U.S. 416 20000000000. 17

Blankenship v. Secretary of HEW, 587 F.2d 329... 9

California Department of Human Resources Devel-

opment ¥V. Java, 408 U.S. 121 ...........20ccccsccec-sesseeese 11

Carey V. Piphus, 486 U.S. 247 ...........ceccccscsccsssceseees 20

EEOC v. Wyoming, No. 81-554 (Mar. 2, 1983).... 10

Fusari Vv. Steinberg, 419 U.S. 879 ............cccccceeceeeee 11

Heckler v. Campbell, No. 81-1983 (May 16, 1983).. 16,17

INS v. Miranda, No. 82-29 (Nov. 8, 1982) ............. 13

Mathews V. Eldridge, 424 U.S. 819 ...0.0..0..00.000.. 15

Richardson V. Perales, 402 U.S. 389 ...0000.000000000... 15

Rodriquez Vv. Swank, 496 F.2d 1110, cert. denied,

ee ASLO NE ATES ois 19

Schweiker v. Gray Panthers, 453 U.S. 34 ................ 17

Schweiker v. Hansen, 450 U.S. 785 ............ Wee 19

Smith v. Miller, 665 F.2d 172 ..0......0...0cccccccccceccseeeeeees 19

United States v. Mitchell, No. 81-1748 (June 27,

I as 20

United States v. Testan, 424 U.S. 392 ......0..000.00.... 20

United States v. United Mine Workers, 330 U.S.

REE IES acts Ed Cea ee aeeaen Rn eet ED 19

Constitution, statutes and regulations:

pe Ee og ef Ss anne ake toe eo 19

Social Security Act:

Title II, 42 U.S.C. (& Supp. V) 401 et seq.:

42 U.S.C. (Supp. V) warbordieadtes ee 17

42 U.S.C. 405(a) .......... peo 14, 16

42 U.S.C. (Supp. V) 405(b) ec 8, 4, 4, 8, 11,

16, 18

42 U.S.C. (Supp. V) 405 (@) .o......cccccccccceeee 2

I GI icbrctcnnsinnsscctnciagesibakstnsaniinn 18

Pe ae ie UE eee 4,18

43 U.S.C. (& Supp. V) 481. ............ccccccecsees 17

42 U.S.C. (Supp. V) 421(a) ............ 10, 11, 14, 16

42 U.S.C. (Supp. V) 421(a) (2) 00000000... 10

(1)

Il

Constitution, statutes and regulations—Continued: Page

42.U.S.C. (Supp. V) 421 (a) (2) (C) ........ 11

42 U.S.C. (Supp. V) 421(c) .......0.............. 10, 14

42 U.S.C. (Supp. V) 421 (e) «0.0.0... 17

42 U.S.C. (& Supp. V) 423(a) (1) ............ 18

Title III, 42 U.S.C. (& Supp. V) 501 et seq.:

ee Sis MIE ED» ccicecdsnicisuvertasdeseaeianabes 11

Title XVI, 42 U.S.C. 1381 et seq.:

42 U.S.C. 1883 (a) (4) ......... EBLE, 5

42 U.S.C. 1888 (a) (4) (B) 0.00.0... 4,5

42 U.S.C. 1888(c) (2) ............... BRIAR 4

Social Security Disability Amendments of 1980,

Pub. L. No. 96-265, 94 Stat. 441 et seq. 00000000... i]

Pub. Law No. 97-455, 96 Stat. 2497 et seq. ............ 6, 18

$2, 96 Stat. 2406 ....................... aes aie cK 6

I ecidaiauane 6

Pub. L. No. 98-118, § 2, 97 Stat. 808 000. 6

20 C.F.R.

Section 404.1502 00000... SESE aE ae Ee 15

RARE ESIC EE elec ee 15

SRI ERATE Oe aE 15

Miscellaneous:

Annual Report of the Director of the Administra-

tive Office of United States Courts (1982) ....... 2

Attorney General’s Committee on Administrative

Procedure, Administrative Procedure in Govern-

ment Agencic:, S. Doc. 10, 77th Cong., 1st Sess.,

a 7,8 16

Book Review, Bureaucratic Vision, 6 Harv. L.

Sg RSE aa SOOM ole ee pala tent 8,18

129 Cong. Rec. (daily ed. Nov. 18, 1983) :

I 7

I 7

45 Fed. Reg. (1980) :

ASE a RI eee! te See 9

Ae 9

Tl!

Miscellaneous—Continued : Page

8S) OD>*E,,l 7 10

Goldman, Administrative Delay and Judicial Re-

lie, 66 Mich. L. Rev. 1423 (1968) ....................02.. 18

H.R. 6181, 97th Cong., 2d Sess. (1982) 00000000000... 6

H.R. 3391, 98th Cong., lst Sess. (1983) .....000......... 7

H.R. 4170, 98th Cong., 1st Sess. (1983) 0000000000... 6-7

H.R. Rep. 97-588, 97th Cong., 2d Sess. (1982)........ 2,6

H.R. Rep. 98-432, 98th Cong., Ist Sess. (1983)........ 7

J. Mashaw, Beaucratic Justice (1983) —.......000........ 18

Note, Judicial Resolution of Systemic Delays in

Social Security Hearings, 79 Colum. L. Rev. 959

(RESIN Le SS SI a a an An ae 18

Office of Hearings and Appeals, U.S. Dept. of

Health and Human Services, Key Workload In-

dicators, September 1983 (Oct. 26, 1983)........ 2,3

S. 476, 98th Cong., Ist Sess. (1983) 2.000000... 7

S. 2002, 98th Cong., Ist Sess. (1983) 00.0 ee... 7

S. Rep. 92-1230, 92d Cong., 2d Sess. (1972) ............ 5

SSN, U.S. Dept. of Health and Human Services,

Office of Hearings and Appeals Handbook (OHA

OS ge ee 16

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

REPLY BRIEF FOR THE PETITIONER

Respondents’ position suffers from two fatal flaws.

First, respondents provide no answer to the argument

that the 90-day time limits imposed by the district court

are flatly inconsistent with the deliberate judgment by

Congress and the Secretary not to impose fixed deadlines

on the processing of disability claims because of their

concern that such deadlines would adversely affect the

quality of adjudication: Second, respondents ignore the

fact that the Social Security disability program is na-

tionwide in scope and was intended by Congress to be

administered on a uniform basis throughout the country.

Their attempt to justify the time limits and interim

benefits imposed by the courts below on the ground that

they depend upon fact-bound determinations and affect

only the State of Vermont therefore must be rejected.

Affirmance of the judgment below, when combined

with similar judicial decrees that have been entered else-

where and others that surely would follow, would lead to

a further disruption and balkanization of the nationwide

disability program and to the further accretion of dead-

lines that almost certainly could not be met if applied to

the ever expanding caseload, at least not without sub-

stantial cost to the fairness and accuracy of the decision-

(1)

2

making process. Data recently compiled by HHS for the

fiscal year ending September 30, 1983 show that the

number of requests for ALJ hearings under the Social

Secui.ty Act increased by more than 40,000 over the

number for the previous year, to a record total of

362,223—a five-fold increase over the 72,202 hearing

requests just a decade earlier.’

The Social Security program thus far has successfully

absorbed the extraordinary increase in hearing requests

through the combination of additional resources fur-

nished by Congress and improved administration by the

Secretary, with the result that the average time required

for a claimant to receive an ALJ decision has not been

substantially extended by the huge caseload.* This

greatly enhanced productivity is reflected in data show-

ing that at the end of fiscal year 1983, the average num-

ber of cases decided by each ALJ each month stood at 45

(or an average of two cases each working day), a dra-

matic increase over the average of 34 cases decided per

month at the end of fiscal year 1982 and 14 per month in

fiscal year 1973.* But the productivity of the ALJs, who

1 Office of Hearings and Appeals, U.S. Dep’t of Health and Hu-

man Services, Key Workload Indicators, September 1983, at 1 (Oct.

26, 1983). We have lodged a copy of the September 1983 edition of

the monthly Key Workload Indicators with the Clerk of this Court.

2 The average waiting period for an ALJ decision was 174 days

in fiscal year 1973 and 183 days at the end of fiscal year 1983. See

Key Workload Indicators, September (fs, supra note 1, at 1.

As the House Ways and Means Committee observed in 1982 when

it recommended against enactment of fixed deadlines for the proc-

essing of claims, these periods compare favorably to the average

time taken by federal district courts to dispose of Social Security

cases under 42 U.S.C. (Supp. V) 405(g). See H.R. Rep. 97-588,

97th Cong., 2d Sess. 19-20 (1982) (quoted in Gov’t Br. 29-30).

During the 12 months ending June 30, 1982, the average time for a

decision by the district courts was 11 months, and 10% of the cases

required more than 26 months for disposition. Annual Report of

the Director of the Administrative Office of United States Courts

252 (1982). This is so even though the district courts, unlike ALJs,

do not conduct de novo hearings on the claims.

3 Key Workload Indicators, September 1983, supra note 1, at 1.

3

have an average of 228 cases on their dockets,‘ obviously

cannot be increased much further in order to eliminate

the nationwide backlog of pending cases and meet judi-

cially imposed deadlines without also sacrificing the qual-

ity of decisions.

What constitutes a “reasonable * * * opportunity for a

hearing” within the meaning of 42 U.S.C. (Supp. V)

405(b) must be determined not in the abstract, as re-

spondents suggest, but by reference to the terms and

manner of implementation of the Social Security Act it-

self, of which 42 U.S.C. (Supp. V) 405(b) is a part.

Respondents, like all the courts that have considered the

question (Gov’t Br. 37-38), do not challenge the Secre-

tary’s good faith in attempting to dispose of the backlog

of pending cases or the validity of the procedures adopted

by her and by Congress to adjudicate claims. Moreover,

Congress has been fully aware over the last decade of the

timing of ALJ hearings and, pursuant to authorization in

the Social Security Act itself, has allocated resources to

support the adjudication process at a particular level each

year. Processing times that are such an entrenched fea-

ture—and direct and foreseeable consequence—of the con-

scientious implementation of the Social Security Act by

Congress and the Secretary cannot be held to violate that

very Act. Accordingly, we submit that the Secretary

fully satisfies her obligation under 42 U.S.C. (Supp. V)

405(b) to afford claimants “reasonable * * * opportunity

for a hearing” by diligently processing more than 360,000

hearing requests annually in accordance with those es-

tablished procedures and priorities and within the limits

of available resources.

la. Respondents make virtually no effort to answer

the showing in our opening brief (Gov’t Br. 19-31) that

Congress, with full awareness of the size of the pending

caseload and the time required to obtain an ALJ deci-

sion, repeatedly has eschewed fixed deadlines for the

processing of disability claims because of its recognition

that disability determinations are often time-consuming

4 Key Workload Indicator:, September 1983, supra note 1, at 1.

4

and its belief that fixed deadlines could adversely affect

the quality of adjudications. For example, respondents’

only reply to our reliance (Gov't Br. 21-22) on the fact

that Congress expressly excluded disability cases from

the requirement in 42 U.S.C. 1383(c) (2) that an ALJ

render his decision within 90 days of the hearing request

is that the Section is irrelevant because it applies to

claims for SSI benefits under Title XVI, not claims for

disability benefits under Title II, which are involved in

this case. See Resp. Br. 37-38. This response misses the

point. Congress imposed a 90-day deadline for ALJ deci-

sions in SSI cases because eligibility for SSI benefits is

based on need and expeditious treatment therefore was

thought to be appropriate; yet even in that context Con-

gress excluded disability cases from the deadline (Gov't

Br. 21-22). A fortiori, under Title II, where eligibility

is not based on need, the genera! language in 42 U.S.C.

(Supp. V) 405(b) referring to a “reasonable * * * op-

portunity for a hearing” cannot be read to support judi-

cial imposition of fixed deadlines in disability cases.

b. Respondents also do not dispute our submission

(Gov’t Br. 22, 48) that the exclusion of disability cases

from the provision in 42 U.S.C. 405(q) for expedited

payment of benefits under Title II reflects a congressional

judgment not to force a hasty decision in Title II dis-

ability cases through imposition of arbitrary deadlines.

Instead, respondents attempt to avoid the obvious im-

port of 42 U.S.C. 405(q) for their own Title II claims by

citing (Resp. Br. 38-39) a different Section of the Act,

42 U.S.C. 1383(a)(4)(B), which provides for acceler-

ated payments not under Title II, but under the SSI

program. Section 1383/a)(4)(B) permits the Secretary

to pay benefits for up to three months to persons who

have applied for SSI benefits on the basis of disability or

blindness, pending a decision on their applications. This

Section, respondents contend, reflects a congressional in-

tent to expedite the decision in disability cases generally.

In fact, however, it reflects the opposite intent. The leg-

islative history of 42 U.S.C. 1383(a) (4)(B) makes clear

Ll

9)

that it was enacted “in recognition of the fact that in

some cases additiona! time is needed to obtain and evalu-

ate medical and other evidence to establish disability”

and of the need for a mechanism to cover an SSI appli-

cant’s living expenses during that time. S. Rep. 92-1230,

92d Cong., 2d Sess. 391 (1972) (emphasis added) .*

Moreover, the payment may be made to SSI claim-

ants under 42 U.S.C. 1383(a)(4)(B) only if the appli-

cant is “presumptively disabled or blind and is deter-

mined to be otherwise eligible for such benefits” (42

U.S.C. 1383(a)(4)(B)}. The payment of interim bene-

fits under the district court’s order in this case is not

based on any comparable prima facie showing of entitle-

ment; to the contrary, all of the members of the class

were determined not to be disabled. Respondents quote

(Resp. Br. 38-39) language from the Senate report on

42 U.S.C, 1383/a) (4) stating that, in order to avoid any

disruption in benefits, the Committee “expects that the

Secretary will make the initial determination of disabil-

ity before the end of the 3-month period.” S. Rep.

92-1230, supra, at 391. This case, however, involves not

the initial determination stage of the process mentioned

in the Senate report, but reconsiderations and ALJ hear-

ings that are conducted after the State agency has com-

pleted the initial determination and found that the claim-

ant is not disabled. Congress included no processing

deadlines or interim benefits requirement for reconsider-

ations and ALJ hearings in disability cases even under

the SSI program, let alone under Title II.

c. Respondents also ignore the significance of the spe-

cial disability amendments passed by Congress in 1982 in

5’ Congress presumably did not provide a parallel authorization

for payments to cover living expenses during the extended time

sometimes required for the processing of new applications for dis-

ability benefits under Title II of the Act, involved here, because

those benefits are not based on need. Congress has, however, pro-

vided for the payment of interim benefits through the ALJ stage

under Title II for persons who previously had been receiving bene-

fits but whose disability was found by the State agency to have

ceased. See pages 5-7, infra.

6

Sections 2 and 4 of Pub. L. No. 97-455, 96 Stat. 2498 and

2499, which they treat as only of marginal relevance.

See Resp. Br. 39, 47-48. These amendments are directly

relevant, however, because Congress there addressed the

very issue of the timing of ALJ hearings and interim

benefits that respondents raise in this case. In the 1982

amendments, Congress responded to what it perceived to

be the special hardship experienced by one subcategory

of disability claimants while their cases are under ad-

ministrative review—those claimants, like respondents

Day and Maurais, who previously were receiving benefits

and became dependent upon them but whose benefits

were terminated after an initial determination by the

State agency that their disability had ceased. But Con-

gress acted not, as respondents urge this Court to do, by

requiring that all ALJ hearings be held within a fixed

period of time and that all claimants—new applicants as

well as prior recipients—receive benefits if the arbitrary

deadlines are not met.* Congress left the ALJ hearing

process undisturbed and chose instead to provide a sepa-

rate opportunity for a hearing at the earlier reconsider-

ation stage and to authorize payment of interim benefits

through the ALJ stage in the narrow category of dis-

ability cessation cases, without regard to the amount of

time required to hold an ALJ hearing (Gov’t Br. 29-30).’

*The House report on the bill that formed the basis for the

1982 legislation specifically disapproved of fixed processing dead-

lines because they might lead to incorrect decisions. H.R. Rep. 97-

588, 97th Cong., 2d Sess. 19-20 (1982) (quoted at Gov’t Br. 29-30).

Contrary to respondents’ assertion (Resp. Br. 47 n.50), the House

report is directly pertinent to the amendments passed by Congress

in Public Law No. 97-455 because it discusses the provisions of a

bill (H.R. 6181, 97th Cong., 2d Sess. (1982)) that later were in-

cluded in Public Law No. 97-455. See H.R. Rep. 97-588, supra, at

8-9, 11-15.

7 As we have explained in our opening brief (Gov't Br. 4 n.3),

the temporary interim benefits authorization enacted in Section 2

of Pub. L. 97-455 applies only to disability termination cases in

which an initial determination was made prior to October 1, 1983.

That authorization was temporarily extended to December 7, 1983

by Section 2 of Pub. L. No. 98-118, 97 Stat. 808. The House Com-

mittee on Ways and Means recently reported a bill (H.R. 4170,

7

Once again, then, Congress demonstrated that when it

has perceived a need to alleviate hardship that might be

experienced by certain claimants as a result of the pas-

sage of time during administrative review of a claim, it

has included special remedial provisions in the Social

Security Act itself. Congress did not enact any such

measures, however, for persons who have filed new appli-

cations for benefits and therefore have not yet become

dependent upon the receipt of benefits.* Respondents

therefore plainly err in contending that courts may im-

pose such requirements under the general language in

42 U.S.C. (Supp. V) 405(b).°

98th Cong., 1st Sess. (1983)) that would make permanent the

statutory authorization for interim benefits through the ALJ stage

in disability cessation cases. See H.R. Rep. 98-432, 98th Cong., 1st

Sess. 423-424, 1151-1152 (1983). Similar bills have been introJuced

in the Senate, but no action has yet been taken on them. S. 476, 98th

Cong., lst Sess. (1983); S. 2002, 98th Cong., 1st Sess. (1983). An

amendment to extend the interim benefit authorization for an ad-

ditional six months beyond December 7, 1983 was added as a floor

amendment to a tariff bill passed by the Senate on November 18,

1983 (H.R. 3391, 98th Cong., lst Sess.; 129 Cong. Rec. S16855-

$16858 (daily ed. Nov. 18, 1983)), but the House of Representa-

tives failed to consider the bill under a unanimous consent agree-

ment after a Member raised an objection (129 Cong. Rec. H10620-

H10621 (daily ed. Nov. 18, 1983) ).

*Such persons, as respondents concede (Resp. Br. 47 n.49),

comprise the vast majority (approximately 92%) of the members

of the class in this case.

* Respondents contend (Resp. Br. 13-16) that the report prepared

by the Social Security Board in 1939 supports the decisions below.

See Attorney General’s Committee on Administrative Procedure,

Administrative Procedure in Government Agencies, S. Doc. 10,

77th Cong., 1st Sess., Pt. 3 (1941). As respondents concede (Resp.

Br. 15 n.11), however, that report establishes that the Board recog-

nized fairness, uniformity, and aceuracy of decisions to be impor-

tant features of the hearing process under 42 U.S.C. (Supp. V)

405(b). S. Doc. 10, supra, at 36-38. The Board’s discussion upon

which respondents rely shows only that the Board believed that the

need for expedition was another aspect of the administrative task.

This is entirely consistent with our submission that timing is

merely one aspect of the statutorily required “reasonable * * * op-

portunity for a hearing.” In any event, since 42 U.S.C. (Supp. V)

8

d. Finally, respondents try to explain (Resp. Br. 39-

43) Congress’s decision not to enact statutory time limits

on the numerous occasions in 1975 and thereafter in

which it has considered the question (see Gov't Br. 22-

31) by referring to statements by HHS officials that they

expected eventually to reduce the backlog of ALJ hearing

requests and the time taken to process them. As we have

shown (Gov’t Br. 23-24), however, the background of the

1975 legislation also reflects concern that processing

deadlines would adversely affect the quality of adjudica-

tion, and subsequent legislative materials have stressed

that concern as Congress’s reason for declining to impose

fixed deadlines, rather than an expectation that the back-

log of cases would soon be eliminated (Gov’t Br. 26-30).

In any event, whatever Congress might have projected

in 1975, it since has become fully aware of the exploding

disability caseload and the resulting processing times

that have shown the Secretary’: carlier optimism to have

been misplaced. in its report to Congress on processing

times required by the Social Security Disability Amend-

ments of 1980, Pub. L. No. 96-265, 94 Stat. 441 et seq.

405(b) was enacted, Congress has separately addressed the ques-

tion of timing and expedited payment of benefits in other sections

of the Act.

As respondents point out (Resp. Br. 15), the Board’s 1939 report

expresses the expectation that reconsiderations and hearings would

be completed within 30 days of a request. S. Doc. 10, supra, at

40-41, 45. Respondents do not suggest that, as a result, 42 U.S.C.

(Supp. V) 405(b) itself requires that these steps be completed

within 30 days. Such a suggestion would be untenable. The Social

Security program is vastly more complex tay than it was in 1939.

In 1939, the Board predicted an annual hearing caseload of between

5,000 and 20,000 cases, as contrasted to the 362,000 hearing requests

in fiscal year 1983. S. Doc. 10, supra, at 37. Moreover, although the

questions that arose under the old age and survivors program in

1939 typically involved rather straight-forward disputes over the

claimant's age, relationship, or earnings records, the overwhelming

number of ALJ hearings now are requested in disability cases, which

involve far more difficult medical and vocational judgments. Book

Review, Bureaucratic Vision, 96 Harv. L. Rev. 1952, 1956 n.21

(1983).

9

HHS proposed much longer time frames than the 90-day

limits previously discussed in 1975 and stressed that it

could not be sure that even those longer deadlines would

be met, in view of budget and staff limitations, projected

workload increases, the impact of additional procedural

measures mandated by the Disability Amendments of

1980, and the circumstances of individual cases, such as

the need to obtain sufficient medical documentation (see

Gov't Br. 28 n.34). And soon thereafter, in connection

with the litigation on remand from the Sixth Circuit’s

decision in Blankenship v. Secretary of HEW, 587 F.2d

329 (1978), the Secretary on November 30, 1981 publicly

disavowed the workability of processing deadlines.*° Con-

10 Respondents argue (Resp. Br. 22, 31, 33-35) that the courts

below were justified in imposing fixed deadlines because the Secre-

tary stated in the past that time limitations represent an appropri-

ate solution to the problem of unreasonable delay. This assertion

is misleading. Respondents note that in 1978 there was a goal in

Vermont of scheduling ALJ hearings within 90 days (J.A. 50).

But the fact that HHS established an internal goal against which

to measure its performance does not lend support to a court’s im-

posing mandatory hearing deadlines. Respondents also note that

the Secretary proposed regulations in 1980 requiring hearings to

be scheduled within 90 days (45 Fed. Reg. 12937). As respondents

concede (Resp. Br. 34 n.38), however, the proposed regulations

they cite resulted in large part from the remand in Blankenship to

permit the Secretary to develop regulations as an alternative to the

court’s imposing its own deadlines (see 45 Fed. Reg. 12837 (1980).

In Blankenship, of course, the Secretary contended that the process-

ing times then being experienced by claimants were not unreason-

able and that no remedy, including the promulgation of regulations,

was necessary. Respondents also fail to note that the Secretary’s

proposed regulations contained exceptions from the hearing dead-

lines not only for situations in which the claimant caused a delay,

as in the district court’s order in this case, but also where the ALJ

determined that additional evidence was needed or where uncon-

trollable circumstances were present. 45 Fed. Reg. 12839 (1980).

The courts below allowed no such flexibility in this case. See pages

14-15, infra. In any event, the Secretary subsequently repudiated

support for the concept of fixed processing deadlines of the type in-

volved in Blankenship, whether in regulations or court orders.

Finally, respondents refer (Resp. Br. 34-35) to a 60-day time

limit contained in regulations proposed by the Secretary to imple-

10

gress’s decision not to adopt fixed deadlines therefore

cannot be attributed to a supposed belief that the Secre-

tary would do so administratively or that the hearing

backlog was about to evaporate. But even if respondents’

unsupported assertion that Congress declined to act for

these reasons were correct, that would hardly justify the

imposition of processing deadlines by the courts.

2.a. In an effort to avoid the force of the overwhelm-

ing indicia of congressional intent not to impose fixed

deadlines on the administration of the disability pro-

gram, respondents assert (Resp. Br. 19-30, 48) that the

judgment below nevertheless is warranted by “fact-

specific’ circumstances in Vermont. This assertion is

plainly wrong. The Secretary has been directed by Con-

gress “to assure effective and uniform administration of

the disability insurance program throughout the United

States.” 42 U.S.C. (Supp. V) 421/a)(2). The validity

of the manner in which the disability program is admin-

istered therefore cannot be measured on a State-by-State

basis by particularized fact-finding and ad hoc balancing

of factors—e.g., available resources, logistical difficulties,

claimant hardship, and the reasons for the time taken to

review claims—pertaining to each State in isolation. Cf.

EEOC v. Wyoming, No. #1-554 (Mar. 2, 1983), slip op.

13. This is especially so with respect to ALJ hearings,

in which the States play no role.

The Act does provide for the States to make pre

hearing determinations of disability, subject to review by

the Secretary. 42 U.S.C. (Supp. V) 421(a) and (c).

The Act also authorizes the Secretary to promulgate

ment the statutory requirement passed by Congress in 1982 that

claimants be aYorded an evidentiary hearing at the reconsideration

stage in disability cessation cases. 48 Fed. Reg. 36836 (1983); see

note 6, supra. These proposed regulations do not, however, contain

a deadline within which the hearing must be held, as the district

court ordered in this case. The 60-day time frame is for rendering

@ decision after the hearing has been held or after the record has

been closed if additional evidence is submitted following the hear-

. ing. These proposed regulations therefore lend no support to re-

spondents’ position.

11

criteria by which to evaluate a State’s performance. The

Secretary has discretion to include time limitations in

these criteria (42 U.S.C. (Supp. V) 421(a) (2) (C)), al-

though she has not done so for the reconsideration stage

(Gov’t Br. 45)."" Since Congress has expressly addressed

the question of timing of State disability determinations

in 42 U.S.C. (Supp V) 421(a), respondents err in de-

fending court-imposed time limits on reconsiderations by

the State of Vermont in reliance on the language of 42

U.S.C. (Supp. V) 405(b) providing for a “reasonable

* * * opportunity for a hearing,” which does not mention

reconsiderations, State agencies, or the matter of timing.

b. Although the text of the Act does not support their

State-by-State approach, respondents contend (Resp. Br.

89) that Congress’s failure to amend the .nguage of 42

U.S.C. (Supp. V) 405(b) to bar the imposition of fixed

deadlines after courts had imposed deadlines in certain

States indicates that Congress approved of those judicial

decisions. Respondents cite nothing in the legislative his-

tory to support this assertion, and we are not aware of

any support. In fact, the legislative record discussed in

Point 1 and in our opening brief (Gov’t Br. 23-30) dem-

11 Respondents’ reliance on California Department of Human Re-

sources Development V. Java, 402 U.S. 121 (1971), and Fusari v.

Steinberg, 419 U.S. 879 (1975), is misplaced. Those cases concern

the timing of payments of unemployment benefits under Title III

of the Act. Title III, in contrast to 42 U.S.C. (Supp. V) 405(b),

does explicitly address the matter of timing of state decisions by

requiring that payments be made “when due.” 42 U.S.C. 508(a) (1).

Moreover, in Java, the Court held that postponement of payment to

a claimant who had been found eligible for benefits pending the em-

ployer’s appeal of that decision violated the statute. 402 U.S. at 123,

133. In this case, payment has been withheld because the claimants

have been found not to be eligible. In Fusari, the Court declined to

decide the validity of Connecticut procedures under the “when due”

requirement because of intervening changes in state law. 419 U.S.

at 386-390. We note as well that particular focus on the States’

administration was necessary in Java and Fusari because the unem-

ployment program is entirely administered by the states. The dis-

ability program, by contrast, has significant federal involvement at

all levels and the ALJ hearing system is entirely federally admin-

istered.

12

onstrates a clear rejection of such deadlines. Reports is-

sued by the staff of the House Committee on Ways and

Means in 1981, for example, note the “disruption” caused

by the “plethora” of judicial orders imposing time limits,

because resources must be shifted from one district to

another; * explain that the Committee had resisted ef-

forts to put time limits in the Act because of the poten-

tial effect on the quality of decisionmaking; and confirm

that the provision in the 1980 Disability Amendments

for the Secretary to submit a report to assist Congress

in studying the matter was “‘{i]n lieu of putting such

statutory requirer.ents’”’ in the 1980 Amendments (Gov't

Br. 30-31 n.36 (citation omitted) ).

c. Not only is there no legal basis for respondents’

attempt to support the judgment below by focusing only

on the State of Vermont; there is no factual basis for

this approach either. The district court’s holding that

the timing of ALJ hearings in Vermont was not reason-

able did not depend on a “fact-specific’ balancing of

relevant factors in Vermont. The district court relied

12 In an attempt to defend the judgment below, respondents rely

(Resp. Br. 8 n.6, 26-27 & neé7, 30 n.32) on the fact that the Secre-

tary has been able to comply with the 90-day time limit for holding

ALJ hearings in Vermont without transferring ALJs into the

state or transferring cases out of the State. Vermont is a small

and, in many ways, atypical State; unfortunately, HHS's experi-

ence has been different elsewhere. As we have explained in the

certiorari petition (Pet. 16 n.17), in order to comply with judicially

imposed deadlines in New York in 1980 and 1981, it was necessary

to transfer 6,400 cases for decision by ALJs outside the State, and

in order to comply with a similar decree in Massachusetts, it was

necessary to transfer al! new cases while ALJs in the State reduced

the then-pending backlog. See also Gov't Br. 30-31 n.36. Such re-

allocations of resources, which could only be expected to increase

if judicially imposed time limits spread to other States, are dis-

ruptive and operate to the disadvantage of claimants in other juris-

dictions. In addition, as we also have explained in the certiorari

petition (Pet. 17), there is substantial variation among the decrees

that already have been entered in a number of States, thereby pro-

ducing disparity even as among the claimants sought to be bene-

fited and creating complex administrative burdens for HHS in

seeking to comply with the decrees.

13

solely on the fact that 43% of the Vermont claimants did

not receive a hearing within 90 days. See Pet. App. 17a.

The court did not make any further findings of fact with

respect to why more than 90 days had elapsed in these

individual cases, much less determine that the passage of

time was not due to reasonable administrative steps in

preparing for and scheduling the hearings within the

limits of existing priorities, procedures, and resources.

Respondents in fact concede (Resp. Br. 8) that the rea-

sons why hearings were not held within 90 days were

“ynexplained.” Respondents likewise cite no facts per-

taining to the ALJ hearings generally to support the

imposition of such deadlines.”

The district court did inquire to a limited extent into

the timing of reconsiderations in Vermont, but its anal-

ysis was wholly inadequate to sustain the imposition of

fixed deadlines even if a State-by-State assessment of the

matter were appropriate. The district court relied ai-

most entirely on logs identifying the date on which vari-

ous steps occurred in each of a sample of 77 reconsidera-

tion cases in Vermont. The court found that in 27 of

these 77 cases, the decision was rendered more than 90

days after the request for reconsideration, and the court

held that these processing times were unlawful because

the reasons for them were “unexplained” (Pet. App.

28a). However, a finding that an agency’s reasons are

“unexplained” does not mean that they are improper.

INS vy. Miranda, No. 82-29 (Nov. 8, 1982).

‘2 Respondents repeatedly rely on the fact (Resp. Br. 4, 7, 22,

26) that some delay was occasioned in holding respondent Day’s

hearing because an SSA employee neglected to initiate the hearing

process after receiving a letter from counsel for Day, pending re-

ceipt of the appropriate SSA form signed by Day (J.A. 47-48, 57).

But this single error—the effects of which would have been miti-

gated if counsel had not waited almost two months to return the

signed form (J.A. 57)—scarcely justifies judicial time limits on

all ALJ hearings in Vermont.

1} In fact, the processing times were not wholly “unexplained.”

Respondent Day's own case was selected as a quality assurance

sample case by SSA in Baltimore and was returned to the Vermont

14

Moreover, the district court did not dispute the Secre-

tary’s assertion that much time often is consumed in the

reconsideration process because, ¢.g., the case file must

be located by SSA and sent to the State agency, the State

agency often has difficulty in obtaining needed evidence

from third parties (such as the claimant’s physician),

SSA conducts a review of many State decisions before

they become final, and limitations in SSA’s computerized

records system often require additional steps (Pet. App.

28a). The court’s only response to the Secretary’s con-

cerns was that claimants should not “have to endure de-

lays caused by inefficient agency procedures or unneces-

sarily lengthy internal quality control checks” (ibid.).

Congress, however, has vested the Secretary with respon-

sibility for adopting procedures to administer the dis-

ability program (42 U.S.C. (& Supp. V) 405(a) and

421(a)) and indeed has required that SSA conduct a

quality review of State decisions (42 U.S.C. (Supp. V)

421(c)). A court may not disregard Congress’s and the

Secretary’s considered judgments in this regard—or hold

agency in order for a neurological consultative examination to be

conducted. The various steps in this process—selecting and review-

ing the case in Baltimore, sending it to Vermont, scheduling the

examination, reviewing the results of the examination, and return-

ing it to Baltimore—account for more than half of the total time

167 days) consumed between Day’s request for reconsideration and

the decision on reconsideration.) Such a quality review is expressly

authorized by Congress (42 U.S.C. (Supp. V) 421(c)), and it

served the interests of Day as well as the government because he

might have been found disabled on the basis of the consultative

examination without the need for an ALJ hearing. Similar quality

reviews (by SSA or the state agency) were conducted in a number

of the 27 sample cases in which more than 90 days elapsed before

the reconsideration decision (J.A. 108 (#3), 129 (#45), 183 (#651,

#58), 148-149 (#77), 148 (#76)). In others of the 27 cases, delay

was occasioned by such factors as unsuccessful attempts to contact

the claimant (J.A. 124, 194 (#33), 138 (+57), 137 (#60) ), loss of

forms by the claimant's attorney (J.A. 125-126 (#36)), the claim-

ant’s refusal to cooperate (J.A. 147 (#75)), and failure by the

treating physician to respond to requests for information (J.A. 129

(#45), 182 (#49), 185 (#53), 187 ( #56)). These delays cannot

be attributed to SSA or the State agency.

15

unlawful the time ordinarily taken to complete the proce-

dures they have devised—on the basis of its own view

that certain steps in the process are “unnecessary” or

“inefficient” or by its own post hoc determination that.

in isolated cases, those steps might have been completed

more quickly.

d. Respondents also argue (Resp. Br. 8-9, 31-32) that

the 90-day deadlines imposed by the courts below in Ver-

mont are flexible and accommodating of the Secretary’s

interests. They are not. The only exceptions from their

mandatory terms are for situations in which the claim-

ant submits new evidence or requests or causes delay.

Under the court’s order, a State agency may not post-

pone a decision on reconsideration past the 90-day dead-

line on the basis of its own determination that the claim-

ant should undergo a consultative examination unless the

claimant agrees to the examination, even though the regu-

lations provide that the State agency has the authority

to obtain additional evidence or to order a consultative

examination (Pet. App. 30a, 33a). 20 C.F.R. 404.1502,

404.1503, 404.1527. See Richardson v. Perales, 402 U.S.

389, 393-394 (1971); Mathews v. Eldridge, 424 U.S.

319, 338 n.20 (1976).

Similarly, the ALJ hearing date may not be continued

beyond the 90-day deadline even where the ALJ believes

it is necessary to gather additional medical evidence

(Pet. App. 34a), despite the fact that governing regula-

tions and procedures require the ALJ to look fully into

the issues and authorize him to gather new evidence or

order a consultative examination prior to the hearing

(Gov’t Br. 9). It is true that under the district court’s

order, the ALJ is free to seek such additional evidence

after the hearing (Resp. Br. 32). But it is not for the

district court to dictate to an ALJ whether he will seek

necessary evidence before or after a hearing. If the ALJ

gathers al! evidence in advance, it may turn out that the

claimant will be found eligible for Lenefits without

need for a hearing (see J.A. 52). Even if that does

occur, full development of the case by the ALJ and

FS

16

staff prior to the hearing at least will serve to focus the

issues and lead to more efficient and fair adjudications.

Thus, just as a district court would not ordinarily sched-

ule a case for trial before discovery has been completed,

the Secretary’s procedures permit an ALJ to complete

necessary discovery prior to the hearing.”

3. Respondents’ assertedly fact-bound submission also

overlooks the fact that because Congress has conferred

on the Secretary the responsibility for adopting rules and

procedures for the adjudication of claims (42 U.S.C. (&

Supp. V) 405(a) and 421(a); Heckler v. Campbell, No.

81-1983 (May 16, 1983), slip op. 7-8) ), it is for the Sec-

retary, not the courts, to give content in the first in-

stance to the statutory phrase “reasonable * * * oppor-

tunity for a hearing.” The validity of the overall manner

in which the Secretary has accommodated the numerous

and often competing statutory goals in implementing the

hearing requirement does not turn on whether a court

would take the same approach; whether the resulting ad-

ministrative process, including the time typically required

to adjudicate claims under it, satisfies a court’s own view

of what is most “reasonable”; or whether the Secretary

1S Respondents appear to suggest (Resp. Br. 25-26 n.25) that

the provisions of the OHA Handbook providing for a prehearing

workup and for the scheduling of the hearing after that workup is

completed may violate 42 U.S.C. (Supp. V) 405(b) if those meas-

ures “prevent[] fulfillment of the need for expedition” (Resp. Br.

26 n.25). However, 42 U.S.C. (Supp. V) 405(b) simply provides

for a “reasonable * * * opportunity for a hearing,” of which timing

is but one element. Surely, it is a “reasonable” feature of an ad-

judicatory process to complete discovery and other preparation prior

to the hearing, even if the date of the hearing itself may sometimes

be postponed as a result. This is consistent with the Social Security

Board's understanding soon after 42 U.S.C. (Supp. V) 405(b) was

enacted in 1939. The Board explained that “[t)here is * * * no re-

quirement in the act that a hearing be accorded to a claimant * * *

immediately upon his request. Reasonable preliminaries may be

imposed. If the Board sees fit, it can require a consultation between

the claimant and a representative of the Board prior to the hearing,

for the purpose of clarifying the issues.” 8. Doc. 10, supra note 9,

at 39. See also id. at 42.

17

is able to convince a court of the soundness of each step

in the processing of each individual claim. The question,

rather, is whether the Secretary’s rules and procedures

are arbitrary and capricious. Heckler v. Campbell, slip

op. 7-8; Schweiker v. Gray Panthers, 453 U.S. 34, 43-44

(1981); Batterton v. Francis, 482 U.S. 416, 424-426

(1977). Judicial deference to the manner in which the

Secretary has implemented the statutory hearing require-

ment is particularly warranted in the present context,

because the availability of resources has a substantial

impact on the speed with which claims are decided, and

because Congress itself determines each year the amount

of money that should be made available from the Trust

Funds for the administration of the disability program.

42 U.S.C. (Supp. V) 401(g) (1) (A) and 421(e).

This conclusion is reinforced by a consideration of the

relative expertise of Congress and the Secretary on the

one hand and the courts on the other to address the over-

all institutional problems presented in administering the

vast Social Security disability program. Reducing the

average time taken to adjudicate claims while maintain-

ing or improving other aspects of the adjudicatory proc-

ess presents complex questions of policy, resource alloca-

tion, management, relative equities of claimants, and the

feasibility and desirability of revising various interre-

lated procedures. These matters are uniquely within the

competence of Congress and the Secretary to resolve,”

and in fact Congress amended the Act in 1980 to

strengthen the Secretary’s oversight of the States’ ad-

ministration of the Act, including questions of timing.

42 U.S.C. (& Supp. V) 421. See Gov’t Br. 44-45. The

courts, in contrast, generally are not well suited to ad-

dress such questions of administrative efficiency on a

mass scale, especially with nothing more to guide them

1* The affidavit and reports of the Vermont DDA director and

HHS officials regarding the administration of the disability pro-

gram in Vermont (J.A. 161-191), upon which respondents rely

(Resp. Br. 25 & n.24), demonstrate that these officials take their

management and oversight responsibilities seriously.

18

than statutory language as vague as that in 42 U.S.C.

(Supp. V) 405(b) providing for a “reasonable * * * op-

portunity for a hearing.” '’ This has been the view of

commentators who have studied the Social Security dis-

ability program."*

4. We have sufficiently answered in our opening brief

respondents’ contention (Resp. Br. 43-50) that the courts

below properly ordered the payment of interim benefits

to claimants whose cases are not decided within the judi-

cially prescribed time limits. See Gov’t Br. 46-49. When

Congress has wished to depart from the general rule that

disability benefits may be paid only upon a final decision

that the claimant is disabled (42 U.S.C. (& Supp. V)

405(i) and 423(a)(1)), it has expressly so provided in

the Act itself. Congress did so in 42 U.S.C. 405(q),

which excludes disability claims altogether from its au-

thorization of expedited benefits, and then in 1982 in Pub-

lic Law No. 97-455, which provides for interim benefits

pending an ALJ decision only in disability cessation

cases. Contrary to respondents’ contentions (Resp. Br.

46-48, 49), Congress’s explicit provision for interim ben-

efits pending administrative review in certain circum-

stances under Title II forecloses an award by the courts

17 See Goldman, Administrative Delay and Judicial Relief, 66

Mich. L. Rev. 14238, 1480 (1968). As explained by Professor Gold-

man, this is so for several reasons: (1) “the large number of poten-

tially relevant factors and the difficulty of assessing the relative

importance of each variable” (66 Mich. L. Rev. at 1429); (2) the

likelihood of constant “relitigation of the same issue under chang-

ing circumstances,” thereby consuming scarce judicial time (id. at

1430); (3) the “difficulty of acquiring enough evidence,” given the

limited factfinding resources of the judiciary (ibid.); and (4) the

“serious question” about “the courts’ ability to fashion an appro-

priate remedy” for administrative inefficiency (ibid.). In short,

“Cijf delay results from inadequate appropriations, lack of person-

nel, or incompetence, the remedy seems to be with the legislature

and not with the courts” (ibid.).

18 See J. Mashaw, Bureaucratic Justice 185-190, 226 (1983) ; Book

Review, Bureaucratic Vision, 96 Harv. L. Rev. 1952, 1958-1962

(19838); Note, Judicial Resolution of Systemic Delays in Social

Security Hearings, 79 Colum. L. Rev. 959, 968-982 (1979).

19

in circumstances where Congress has refused to au-

thorize interim benefits.

Respondents attempt to avoid this result by contending

(Resp. Br. 43 n.46, 45 n.47, 48) that the payments in-

volved are not really disability benefits, but rather are

simply relief payments intended to compensate persons

whose claims are not considered within the judicially

imposed time limits and to secure compliance with those

time limits. Respondents’ assertion is somewhat dis-

ingenuous. The district court explicitly stated in its

judgment that the payments it ordered were “interim

Title II disability insurance payments to Title II disabil-

ity claimants” (Pet. App. 34a) and termed the payments

“benefits” (id. at 35a). But even if respondents’ charac-

terization were correct, the substantive limitations Con-

gress placed on the payment of benefits cannot be avoided

simply by use of labels or by incorporating the monetary

relief in an equitable decree. See Schweiker v. Hansen,

450 U.S. 785, 788 (1981).

In any event, the award of interim benefits is barred

under the doctrine of sovereign immunity because Con-

gress concededly has not affirmatively authorized such

payments from the federal Treasury. U.S. Const. Art.

I, § 9, Cl. 7 (“No Money shall be drawn from the Treas-

ury, but in Consequence of Appropriations made by

Law’). Respondents argue (Resp. Br. 48-49), however,

that the fiscal consequences of compliance with a prospec-

1 Even where monetary relief is appropriate to enforce a decree,

the plaintiff must prove his substantive entitlement in order to ob-

tain compensation. United States v. United Mine Workers, 330

U.S. 258, 303-304 (1947). The courts in Rodriguez v. Swank, 496

F.2d 1110, 1111 (7th Cir.), cert. denied, 419 U.S. 885 (1974),

and Alezander Vv. Hill, 707 F.2d 780, 782-788 (4th Cir. 1983), peti-

tion for cert. pending, No. 83-163, relied upon by respondents

(Resp. Br. 45 n.47), awarded monetary relief only to persons found

eligible for benefits. The interim benefits involved here are not

based on a finding of disability. In Smith v. Miller, 665 F.2d 172,

174 (7th Cir. 1981), also cited by respondents (Resp. Br. 45 n.47),

the federal program manual! required participating states to provide

that applications would be automatically approved if not acted upon

within a specified period.

20

tive injunctive decree entered against a federal official

are merely an “ancillary” and “inevitable” effect of the

decree and therefore are permissible under the doctrine of

sovereign immunity. This transparent attempt to avoid

the bar of sovereign immunity should not be counte-

nanced.

The courts below did not find, and respondents do not

contend, that the Social Security Act itself requires the

payment of interim benefits where the Secretary does not

conduct a hearing within a fixed or “reasonable” period

of time. As respondents concede (Resp. Br. 45, 48-49),

the interim payment relief was fashioned entirely by the

court, assertedly under its ‘equitable’ powers, without

regard to the terms of the Social Security Act. Thus,

respondents do not seek the future payment of interim

benefits pursuant to the Social Security Act, such that a

judicial order requiring the Secretary to comply with the

Act in the future carries with it the incidental, inevi-

table consequence of requiring the payment of benefits if

the d .dlines are not met. Rather, respondents in effect

ask this Court to recognize an implied right of action

under the Social Security Act for money damages to be

paid out of the Treasury as a remedy when the Secretary

has violated the Act’s hearing requirement. Compare

Carey Vv. Piphus, 435 U.S. 247 (1978). As this Court

has made clear, an award of money damages against the

government as a remedy for violation of a statute is

barred by sovereign immunity unless Congress has af-

firmatively waived that immunity. United States v.

Mitchell, No, 81-1748 (June 27, 1983), slip op. 6; United

States v. Testan, 424 U.S. 392, 399-403 (1976). Congress

has not done so here.

For the foregoing reasons and the additional reasons

stated in our opening brief, the judgment of the court of

appeals should be reversed.

Respectfully submitted.

Rex E. LEE

NOVEMBER 1983 Solicitor General

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