White v. Mathews

• Decision Date: 18 July 1977
• Docket Number: D,No. 1127,1127
• Citation: 559 F.2d 852
• Parties: George WHITE, on behalf of himself and all others similarly situated, Plaintiff-Appellee, v. David MATHEWS, Secretary of the Department of Health, Education and Welfare, as an Individual and in his official capacity, Defendant-Appellant. ocket 77-6015.
• Court: U.S. Court of Appeals — Second Circuit

Page 852

559 F.2d 852

47 A.L.R.Fed. 915

George WHITE, on behalf of himself and all others similarly

situated, Plaintiff-Appellee, v. David MATHEWS, Secretary of the Department of Health,

Education and Welfare, as an Individual and in his

official capacity, Defendant-Appellant.

No. 1127, Docket 77-6015.

United States Court of Appeals, Second Circuit.

Argued May 23, 1977.

Decided July 18, 1977.

Thomas W. Stout, Atty., Office of Gen. Counsel, Social Security Div., Baltimore, Maryland (Barbara Allen Babcock, Acting Asst. Atty. Gen., Washington, D. C., Peter C. Dorsey, U. S. Atty. for the District of Connecticut, New Haven, Conn., Randolph W. Gaines, Chief of Litigation, Dept. of HEW, Washington, D. C., on the brief), for defendant-appellant.

Raymond Richard Norko, Hartford, Conn. (Legal Aid Society of Hartford County; Robert P. Wenten, Litchfield Hills Legal Services; Donna J. Brooks, Legal Aid Society of Hartford County, Hartford, Conn., on the brief), for plaintiff-appellee.

Philip M. Gassel, New York City (Legal Services for the Elderly Poor, Toby Golick, Brooklyn, N. Y., Jane Greengold Stevens, New York City, John C. Gray, Jr., Brooklyn Legal Services, Corp. B., Brooklyn, N. Y., on the brief), amici in support of plaintiff-appellee.

Before FEINBERG and DANAHER, ^* Circuit Judges, and DOOLING, District Judge. ^**

FEINBERG, Circuit Judge:

The Secretary of the Department of Health, Education and Welfare appeals from a successful challenge by plaintiff George White to the glacial pace at which the Social Security Administration (SSA) has adjudicated claims to disability payments. The United States District Court for the District of Connecticut, T. Emmet Clarie, Chief Judge, found the administrative delays in Connecticut unreasonable, and ordered reductions in those delays according to a schedule whose first stage would become effective July 1, 1977. Under the judgment of the district court, claimants forced to wait for a decision longer than the prescribed maximum periods are to be paid benefits until they are ruled ineligible. On appeal, the Secretary argues that the district court lacked subject matter jurisdiction, that the case is moot, and that in any event the delays should not be held unreasonable in view of extraordinary circumstances that aggravated the administrative burden and in view of Congressional reaction to the problem. We find none of these arguments persuasive and we affirm the order of the district court.

I

A brief description of the statutory scheme will be helpful in understanding the issues before us. The administrative process dealing with claims for disability insurance under Title II of the Social Security Act, 42 U.S.C. § 401 et seq., is quite complex, involving both state and federal agencies. As the Supreme Court explained in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), state agencies first determine "whether a disability exists, when it began, and when it ceased. . . . The standards applied and the procedures followed are prescribed by the Secretary . . . who has delegated his responsibilities and powers under the Act to the SSA." To establish disability and maintain his right to continued benefits, a wage earner must adduce "such medical and other evidence of the existence (of the disability) as the Secretary may require," 42 U.S.C. § 423(d)(5), to prove that he cannot "engage in any substantial gainful activity." 42 U.S.C. § 423(d)(1)(A). This showing is necessary both upon initial application and at continuing-eligibility investigations. The latter periodic inquiries involve a physician and another person trained in disability evaluation, who rely on information obtained from the wage earner himself and from his sources of medical treatment. The state agency may also arrange for an examination by an independent physician.

If the agency concludes, either initially or upon reexamination, that the claimant is not entitled to benefits, he is notified of this tentative conclusion and is given an opportunity to submit additional evidence. The state agency then makes its final determination, which the SSA Board of Disability Insurance reviews. An unsuccessful claimant can seek reconsideration by the state agency, whose decision is again subject to SSA review. A losing claimant is then entitled to a hearing before an administrative law judge, which entails a personal appearance and a full evidentiary proceeding. 42 U.S.C. § 405(b)(1970). Review of the administrative law judge's decision is available at the discretion of the Appeals Council of the SSA Hearings and Appeals Bureau. Thereafter, a claimant can obtain judicial review of an adverse determination under § 205(g) of the Act, 42 U.S.C. § 405(g).

This case only concerns delay at the administrative law judge hearing stage, and the facts regarding the claim of wage earner George White are undisputed. White filed an application for disability insurance benefits in the summer of 1972. He claimed to be totally disabled because of cirrhosis of the liver and acute pancreatitis, and he was awarded benefits beginning in January 1973. The agency reexamined White's case later that year, and after receiving a doctor's report, determined that White's disability had ceased in November 1973, and that he was last entitled to benefits for January 1974.

White requested reconsideration, but in early July 1974 he was told that the agency would not change its decision. On July 29, he requested a hearing before an administrative law judge. The hearing did not take place until April 29, 1975, and the administrative law judge issued his decision (adverse to White) on May 21, 1975 about ten months after White's request for a hearing. Subsequently, the Appeals Council of the SSA reviewed the case, took some new evidence, and in December 1975 found that White's disability had not ended in November 1973, but had continued. In December 1975, the SSA reinstated White's benefits and paid him back benefits totalling more than $3,000. At that point, White had not received benefits for almost two years.

In the meantime, however, White had taken further steps to obtain his benefits. In January 1975, while waiting for the hearing he had requested over five months earlier, White filed a class action in the district court, seeking declaratory and injunctive relief against the long hearing delays in Connecticut. ¹ In March 1975, White moved for certification of the class, which Judge Clarie granted on July 18, 1975. ² In the district court action, both White and the Secretary moved for summary judgment. The Secretary also moved to dismiss the complaint, arguing lack of jurisdiction and mootness. In a thorough opinion, Judge Clarie denied defendant's motions and granted summary judgment for plaintiff and his class.

The judge found that the average time between request for a hearing before an administrative law judge and entry of his final decision for the period of January 1973 through March 1975 was 211.8 days for residents of Connecticut, and 195.2 days nationally. Concluding that these delays were unreasonable and violated the Social Security Act, the Administrative Procedure Act, 5 U.S.C. § 551 et seq., and the due process clause, the judge ordered that maximum delays between request for a hearing and final decision by an administrative law judge be reduced to 180 days after July 1, 1977; to 150 days after December 31, 1977; and to 120 days after July 1, 1978. Claimants who are made to wait longer are to receive benefits automatically from the expiration of the allotted time period until a decision is rendered. The Secretary appeals, arguing that the court had no jurisdiction, that the action is moot, that class certification was improper and that the judge was wrong on the merits.

II Jurisdiction

Judge Clarie found subject matter jurisdiction under 28 U.S.C. § 1361, which gives district courts "original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." In Frost v. Weinberger, 515 F.2d 57 (2d Cir. 1975), cert. denied, 424 U.S. 958, 96 S.Ct. 1435, 47 L.Ed.2d 364 (1976), we held that 28 U.S.C. § 1361 was a sufficient predicate for district court jurisdiction over an action to require the SSA to provide an evidentiary hearing before terminating survivors' benefits under the Act. The analogy to this case is clear, and recent Supreme Court cases seem to leave open the possibility that relief can be available here under § 1361. See Norton v. Mathews, 427 U.S. 524, 529-30, 96 S.Ct. 2771, 49 L.Ed.2d 672 (1976); Mathews v. Eldridge, 424 U.S. 319, 322 n. 12, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

Appellant does not attempt to distinguish Frost, but argues that the Social Security Act itself precludes mandamus review. Section 205(g), reproduced in the margin, ³ allows a claimant to obtain judicial relief only after a final agency decision. And § 205(h) provides: "No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided." Appellant claims that this preclusion includes § 1361, because otherwise the requirement of § 205(g) for exhaustion of administrative remedies would be circumvented. Appellant cites RoAne v. Mathews, 538 F.2d 852 (9th Cir. 1976), as authority. But in that case, plaintiffs attempted to invoke § 1361 to gain premature judicial review of the question whether they qualified for social security benefits. This action, on the other hand, does not affect the merits of the underlying statutory issue whether claimants in White's class are entitled to benefits that will ultimately be subjected to the administrative process. Here, the district court was asked merely to require the agency to conduct its proceedings with reasonable speed. As will be seen below, the agency has a clear obligation under the statute to do so....