Crosby v. Social Sec. Admin. of U.S., 85-1863

• Decision Date: 22 July 1986
• Docket Number: No. 85-1863,85-1863
• Citation: 796 F.2d 576
• Parties: , Unempl.Ins.Rep. CCH 16,985 Carol A. CROSBY, individually and on behalf of all others similarly situated, Plaintiffs, Appellants, v. SOCIAL SECURITY ADMINISTRATION OF the UNITED STATES, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 576

796 F.2d 576

14 Soc.Sec.Rep.Ser. 252, Unempl.Ins.Rep. CCH 16,985

Carol A. CROSBY, individually and on behalf of all others

similarly situated, Plaintiffs, Appellants, v. SOCIAL SECURITY ADMINISTRATION OF the UNITED STATES, et al.,

Defendants, Appellees.

No. 85-1863.

United States Court of Appeals, First Circuit.

Argued June 2, 1986.

Decided July 22, 1986.

Jonathan S. Berck with whom Paul R. Collier, III, Boston, Mass., Lisa R. Sockett, Veronica M. Dougherty and Vilna M. Waldron, Harvard Legal Bureau, were on brief, for plaintiffs, appellants.

John S. Koppel, Appellate Staff, Civil Div., Dept. of Justice, with whom Richard K. Willard, Asst. Atty. Gen., Washington, D.C., William F. Weld, U.S. Atty., Boston, Mass., and John F. Cordes, Appellate Staff, Civil Div., Dept. of Justice, Washington, D.C., were on brief, for defendants, appellees.

Before COFFIN, Circuit Judge, BROWN, ^* Senior Circuit Judge, and BOWNES, Circuit Judge.

COFFIN, Circuit Judge.

Plaintiffs-appellants appeal from a judgment of the District Court for the District of Massachusetts dismissing their class action claim in light of Heckler v. Day, 467 U.S. 104, 104 S.Ct. 2249, 81 L.Ed.2d 88 (1984). We agree that Day precludes class-wide relief in this case and thus affirm.

Plaintiffs-appellants filed their class action claim in 1981, claiming that unreasonable delays by the Social Security Administration (SSA) in issuing decisions on claims for Social Security disability benefits violated their rights under the Social Security Act, the Administrative Procedure Act and the Fifth Amendment. The District Court for the District of Massachusetts found that average delays of up to seven months violated the class members' right to "reasonable notice and opportunity for a hearing" as required by the Social Security Act, 42 U.S.C. 405(b) and 1383(c)(1). The court awarded summary judgment to the plaintiff class and ordered that all hearings be held and claims adjudicated within 180 days of a claimant's hearing request. Crosby v. Social Security Administration, 550 F.Supp. 1278 (D.Mass.1982).

On appeal, 767 F.2d 904, we vacated the district court's judgment and remanded the case in light of the intervening Supreme Court opinion in Heckler v. Day, 467 U.S. 104, 104 S.Ct. 2249, 81 L.Ed.2d 88 (1984). In Day, the Court invalidated a class-wide injunction that imposed mandatory time limits for reconsideration decisions of disability denials and for hearings before an Administrative Law Judge (ALJ). ¹ The Court held that because Congress had determined that mandatory time deadlines would be inappropriate for adjudicating disability claims, "it would be an unwarranted judicial intrusion into this pervasively regulated area for federal courts to issue injunctions imposing deadlines with respect to future disability claims". Day, 467 U.S. at 119, 104 S.Ct. at 2258.

On remand, the district court dismissed the claims of the plaintiff class on the ground that Day precluded the relief sought. At the time, plaintiffs had not yet argued for any relief different from that granted in the original injunction. We vacated and remanded, on the ground that plaintiffs might be able to devise a recertified class and alternative relief measures that could pass muster under Day and that the district court should pass on such alternative relief and class composition first "in light of Day, the history and procedural posture of the case, and such other law as may be appropriate". We then stated that the court may "reconsider the motion to dismiss if still appropriate".

On remand, the plaintiffs moved to recertify the class as all present and future claimants for disability benefits "who have not had a hearing held within a reasonable time and/or who have not had a decision rendered in such a hearing for benefits within a reasonable time from the date of Request of Hearing" (emphasis in original). ² The new relief requested included a declaration that defendants have "violated the rights of class members to reasonably timely hearings and decisions in Social Security disability appeals as required by the Social Security Act", an injunction ordering defendants to "provide notice to class members of their rights", and an injunction ordering defendants "to provide periodic reports to the Court and counsel for the Plaintiff Class on the status of the delay situation in Massachusetts".

The plaintiffs proposed two notices that would inform class members of their rights. The first notice would be sent immediately after a claimant requested a hearing before an ALJ, as part of the usual acknowledgement form that the SSA mails to every claimant who requests a hearing. That notice would advise claimants that long delays in hearings and adjudications are unreasonable absent justification, and that they should contact counsel for the plaintiff class or other counsel if they desire further assistance. The second notice would be sent to claimants 120 days after their request for a hearing, and would contain a statement by the SSA as to why the hearing had not been held. This notice would be designed to alert the claimant that delay in his or her individual case may be unlawful.

The district court rejected the plaintiffs' alternative class definition and relief requests, finding that they did not escape the proscription of Day. The court pointed out that plaintiffs' "pleadings simply substitute the standard of 'within a reasonable time' for a definitely established period of time for the class" and that "[s]uch a class would be impossible to identify". The court dismissed the case without prejudice to former members of the class to present individual claims, and directed the Secretary of Health and Human Services to provide written notice to members of the class of the provisions of the court's order. In addition, in response to the court's suggestion, the Secretary agreed to provide the identities of delayed applicants to plaintiffs' counsel to facilitate the institution of appropriate individual suits.

We sympathize, as did the district court, with the plight of plaintiffs in this case; nevertheless, we agree with that court that the only appropriate action at this juncture is to dismiss the class action suit. In Heckler v. Day, the Supreme Court did more than merely abolish judicially imposed mandatory time limits. The underlying rationale of the Court was that Congress had disapproved of mandatory time limits because such limits failed to take into account the differences in the facts and circumstances of each individual case. As a basis for its understanding, the Court quoted a report from the House Ways and Means Committee: "[The] Committee believes that a disability claimant is entitled to a timely hearing and a 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.... Establishing strict time limits for the adjudication of every case could result in incorrect determinations because time was not available to ... reach well-reasoned decisions in difficult cases." Day, 467 U.S. at 115, 104 S.Ct. at 2256 (quoting H.R.Rep. No. 97-588, at 19-20 (1982)).

Under this analysis, a delay of any particular period of time may be quite reasonable in one case and extremely unreasonable in another. Thus, the Court refused to find that the statutory right to be granted a hearing within a reasonable time-frame could be effectuated through the use of across-the-board time limits, and rather emphasized that injunctive relief could properly be used only "to remedy individual violations of 405(b)". Day, 467 U.S. at 119 & n. 32, 104 S.Ct. at 2258 & n. 32 (emphasis in the original).

Given the dictates of Day, we see no way for plaintiffs to maintain their class action. Plaintiffs now define their class as all claimants who have not had a hearing or a decision on their disability claim "within a reasonable time". But Day makes it clear that the determination of whether the right to a reasonably timely ALJ hearing and decision has been violated can be made only on a case-by-case basis. Because the standard of "within a reasonable time" makes class members impossible to identify prior to individualized fact-finding and litigation, the class fails to satisfy one of the basic requirements for a class action under Rule 23 of the Federal Rules of Civil Procedure. See 7 C. Wright & A. Miller, Federal Practice and Procedure, 1760, at 581 (2nd ed. 1972) (description of class must be sufficiently definite so that it is administratively feasible to determine whether a particular individual is a member); 3B Moore's Federal Practice 23.04, at 23-119 ("membership of the class must be capable of ascertainment under some objective standard"); 23.40 at 23-291--23-292 (defendant's "action or inaction must not be so varied and particularized in relation to the individual putative class members as to be valid as to some and invalid as to others") (2nd ed. 1985); Metcalf v. Edelman, 64 F.R.D. 407, 409-10 (N.D.Ill.1974) (no common issue of law when separate adjudications are necessary to determine if a particular plaintiff is being deprived of a livelihood compatible with health and well-being and is thus a member of the plaintiff class). Without an identifiable class of disability claimants, we cannot grant class-wide relief in this case either in the form of granting notices or compiling status reports.

We are aware that the Court of Appeals for the Second Circuit has recently addressed this precise question and has come to an opposite conclusion. Barnett v. Bowen, 794 F.2d 17 (2nd Cir.1986). The court in Barnett was troubled by the Secretary's argument that "even if Heckler v. Day did not address the question of class-wide relief, its prohibition on mandatory deadlines makes definition of a class difficult, since unreasonable must be defined in relation to some specific time frame."...