613 F.2d 10 (2nd Cir. 1980), 556, Nash v. Califano

Docket Nº:556, Docket 79-6180.
Citation:613 F.2d 10
Party Name:Simon NASH, Plaintiff-Appellant, v. Joseph A. CALIFANO, Jr., Stanford Ross, Alan K. Campbell, Robert L. Trachtenberg, Philip T. Brown, and Wallace Tannenbaum, Defendants-Appellees.
Case Date:January 07, 1980
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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613 F.2d 10 (2nd Cir. 1980)

Simon NASH, Plaintiff-Appellant,


Joseph A. CALIFANO, Jr., Stanford Ross, Alan K. Campbell,

Robert L. Trachtenberg, Philip T. Brown, and

Wallace Tannenbaum, Defendants-Appellees.

No. 556, Docket 79-6180.

United States Court of Appeals, Second Circuit

January 7, 1980

Submitted Dec. 18, 1979.

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Simon Nash, pro se.

Alice Daniel, Acting Asst. Atty. Gen., Washington, D. C., Richard J. Arcara, U. S. Atty., Buffalo, N. Y., Robert Kopp, Barbara B. O'Malley, Kenneth J. Barnes, Civil Division, Dept. of Justice, Washington, D. C. (Burton Berkley, Sp. Counsel, Office of Hearings and Appeals, Social Security Administration and Sherry J. Leiwant, Asst. Regional Atty., Dept. of Health, Education and Welfare, Washington, D. C., of counsel), for defendants-appellees.

Before KAUFMAN, Chief Judge, and SMITH and TIMBERS, Circuit Judges.


Federal courts must pay scrupulous heed to Article III's limitation of our jurisdiction to actual cases or controversies. This requirement girds our judicial power within its proper sphere, and thereby legitimizes its exercise. Yet the doctrines of standing and justiciability, in which the case or controversy requirement plays an important part, must not be applied so as to deprive litigants of an authoritative resolution of genuine disputes. In the case at bar, Judge Elfvin found that an Administrative Law Judge subjected to an allegedly unauthorized regime of monitoring, evaluation and control had not suffered the injury-in-fact required by the doctrine of standing. He therefore granted defendants' motion for summary judgment and dismissed the action. 1 We reverse, holding that the alleged invasion of the appellant's statutory right to decisional independence, as set forth in the amended complaint, presents a justiciable controversy, and that the appellant has standing to bring suit. We do not, of course, express any views on the merits of appellant's claims.


The appellant, Simon Nash, is an Administrative Law Judge (ALJ) of 22 years' experience in the Social Security Administration's Bureau of Hearings and Appeals. 2 The Bureau's ALJs, under authority directly delegated by the Secretary of Health, Education and Welfare (HEW), 3 hold hearings and decide appeals from agency denials of various claims for Social Security benefits. 4

The Bureau's corps of approximately 650 ALJs is divided among 145 field offices, each one headed by an Administrative Law

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Judge in Charge (ALJIC), who has managerial and administrative authority over all personnel assigned to his or her field office, in addition to responsibility for the same caseload as other ALJs. ALJICs receive the same salaries as other ALJs. Each ALJIC reports to one of the ten Regional Chief Administrative Law Judges who, in turn, are under the managerial authority of the Director of the Bureau of Hearings and Appeals and his chief assistant, the Chief Administrative Law Judge. While Administrative Law Judges are civil service employees, the Director of the Bureau is appointed by, and serves at the pleasure of, the Commissioner of the Social Security Administration.

In December of 1967, Judge Nash became ALJIC for the Buffalo field office. During his tenure in that position, he, along with numerous other ALJICs, urged adoption of a number of administrative reforms including the hiring of staff attorneys and the use of summary opinions in appropriate cases to cope with the mounting backlog of cases before the Bureau of Hearings and Appeals. These pleas for reform went unheeded until 1975, when appellee Robert Trachtenberg was appointed Director of the Bureau. 5 Facing a record backlog of 113,000 cases, 6 Director Trachtenberg instituted many of the reforms long advocated by Nash and his colleagues.

Trachtenberg's goal of eliminating unconscionable delays in processing appeals is, of course, commendable. Appellant, however, alleges that appellees and their staff employees have interfered with the decisional independence of the administrative law judges in violation of the Administrative Procedure Act, the Social Security Act and the due process clause of the Fifth Amendment. On January 19, 1978, Nash filed a formal grievance against Regional Chief ALJ Tannenbaum, alleging that he had interfered improperly with the internal operations of the Buffalo field office. One month later, Tannenbaum summarily demoted plaintiff from his position as ALJIC to ALJ, affording him neither a statement of reasons, nor any opportunity for a hearing.

On May 30, 1978, Nash, proceeding Pro se, filed a lengthy complaint in the United States District Court for the Western District of New York seeking his reinstatement as ALJIC, and a judgment declaring invalid a number of official actions allegedly performed by Director Trachtenberg and his administrative subordinates. On September 27, 1978, Judge Elfvin denied plaintiff's motion for a preliminary injunction, noting, Inter alia, that since his demotion from ALJIC to ALJ entailed no loss of income, he could not be said to have suffered irreparable injury. The issue of appellant's demotion, however, is not before us on this appeal for, on December 20, 1978, appellant (represented by counsel at this juncture) filed an amended complaint challenging six allegedly unlawful practices instituted by the defendants, and carefully avoided any mention of his demotion.

The first practice challenged in the complaint is the Bureau's "Regional Office Peer Review Program." According to Nash,

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Trachtenberg, Brown and Tannenbaum, as well as non-ALJ members of their staffs, known as "Development Center Analysts" and "Program Operation Officers," review the work of ALJs outside the normal appellate process. In conjunction with this ongoing review, the appellees or their staffs give plaintiff and all other ALJs detailed, purportedly mandatory instructions concerning the proper length of hearings and opinions, the amount of evidence required in specific cases, and the proper use of expert witnesses. Through the Peer Review Program, the Bureau has allegedly arrogated to itself the power to control the conduct of hearings vested in ALJs by the Administrative Procedure Act, 5 U.S.C. § 556.

Nash also avers that an arbitrary monthly production quota has been established for him and all his colleagues. Unless an ALJ renders a specified number of decisions per month, the agency, appellant claims, threatens to file incompetence charges against him with the Civil Service Commission. 7 In his view, the agency's production quota constitutes a performance rating forbidden by the Administrative Procedure Act, 5 U.S.C. § 4301(2)(E) and 5 C.F.R. § 930.211.

An additional threat to the ALJs statutory independence is allegedly posed by the so-called "Quality Assurance Program," which attempts to control the number of decisions denying Social Security Benefits. The agency has "let it be known" that the average 50% "reversal rate" for all ALJs is an "acceptable" one. Appellant further claims in his amended complaint that the reversal rates of all ALJs are monitored, and those who deviate from the mean are counseled and admonished to bring their rates in line with the national average. This attempt to influence the ALJs' decisionmaking process, it is urged, violates 5 U.S.C. §§ 556 & 3105 and the Fifth Amendment to the Constitution.

Nash's fourth claim centers upon plans that call for the national implementation (in whole or in part) of an "Employee Pool System" developed at the White Plains, New York field office with the knowledge and approval of the Director. Under this program, many of the ALJs' judicial responsibilities including the writing of decisions are vested in clerical and managerial personnel. The use of such "mass production" techniques, it is charged, violates 5 U.S.C. §§ 556(c) & 3105.

The amended complaint goes on to contest the authority of the Secretary of HEW to delegate the power to hold hearings to members of the Appeals Council. Although no members of the Council are alleged to have held hearings in that capacity, Nash asserts that such power may be vested only in an ALJ. Finally, he contends, the Chief ALJ and the 10 Regional Chief ALJs improperly combine judicial and managerial duties in violation of 5 U.S.C. § 3105.

On June 4, 1979, the district court heard argument on appellant's motion for certification of a class consisting of all ALJs similarly situated, and on appellees' motion to dismiss the complaint for failure to state a claim, or in the alternative for summary judgment. Without addressing Nash's claims separately, but after considering affidavits and submitted documents, Judge Elfvin, apparently treating the motion as one for summary judgment, dismissed the amended complaint for lack of standing in a colloquial statement delivered after argument, since he found "nothing right here and now that lands on . . . Judge Nash." 8 No written opinion was filed by the district judge. Judgment dismissing

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the complaint was entered on July 10, 1979 and this appeal, Pro se, followed.


Article III limits federal judicial power to the adjudication of "cases or controversies." Thus, a threshold question in every suit is whether plaintiff has alleged that he has in fact suffered (or is imminently subject to suffering) a cognizable injury. Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Beyond this irreducible constitutional requirement, courts have come to weigh a number of "prudential" considerations to determine whether the complainant is a proper plaintiff to raise and litigate the controversy alleged. Thus, in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970), the Court required that "the interest sought to be protected by the complainant (be) arguably...

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