Blankenship v. Secretary of HEW, 76-2342

• Decision Date: 24 November 1978
• Docket Number: No. 76-2342,76-2342
• Parties: Sammie BLANKENSHIP et al., Plaintiffs-Appellees, v. SECRETARY OF HEW and the Department of HEW, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 329

587 F.2d 329

Sammie BLANKENSHIP et al., Plaintiffs-Appellees, v. SECRETARY OF HEW and the Department of HEW, Defendants-Appellants.

No. 76-2342.

United States Court of Appeals, Sixth Circuit.

Nov. 24, 1978.

Argued April 4, 1978.

George J. Long, U. S. Atty., Louisville, Ky., William Kanter, Harry R. Silver, Dept. of Justice, Washington, D. C., Verrell L. Dethloff, Jr., Randolph W. Gaines, Baltimore, Md., for defendants-appellants.

Lawrence Elswit, Legal Aid Society of Louisville, Louisville, Ky., for plaintiffs-appellees.

Before PHILLIPS, Chief Judge, MERRITT, Circuit Judge, and RUBIN, ^* District Judge.

MERRITT, Circuit Judge.

This class action was brought to challenge delays by the Social Security Administration in scheduling administrative hearings. The plaintiffs are Kentucky applicants for benefits under the Old-Age, Survivors, and Disability Insurance (OASDI) program ¹ and the Supplemental Security Income (SSI) program ² of the U.S. Department of Health, Education and Welfare. Their applications for benefits were initially denied by the state agency and, on reconsideration, by the Secretary of the United States Department of Health, Education and Welfare. The plaintiffs then sought hearings before an administrative law judge, as provided in the statute, to contest the denial of benefits. ³

The named plaintiffs, who have all experienced delays of more than 30 days in scheduling hearings, sought judicial relief on statutory and constitutional grounds. The District Court certified a class of Kentucky plaintiffs seeking OASDI and SSI benefits who had experienced delays of more than 30 days in obtaining a hearing. The Court took jurisdiction under 28 U.S.C. § 1361 (mandamus) and 42 U.S.C. § 405(g), which provides for judicial review of final decisions of the Secretary. On summary judgment, the Court found that the agency was statutorily and constitutionally required to provide a hearing within a "reasonable time." It further found that delays longer than 90 days were unreasonable, and it ordered the defendants to schedule hearings before an administrative law judge for all members of the class within 90 days of application for a hearing.

We disagree with the 90-day remedy imposed by the District Court and remand with instructions to the lower court to require the Secretary to issue regulations providing for the scheduling of administrative hearings for these applicants and other similarly situated within a specific, reasonable time period.

I. JURISDICTION

The first issue is whether the court below had jurisdiction to entertain a suit to compel acceleration of the hearing procedures.

We agree with the District Court that 42 U.S.C. § 405(g) provides a basis for jurisdiction. That section states in part:

Any individual, after any final decision of the Secretary made after a hearing to which he was a party . . . may obtain a review of such decision by a civil action . . . . in the district court of the United States . . . . The court shall have power to enter . . . a judgment affirming, modifying, or reversing the decision of the Secretary . . . .

Although this section on its face appears to bar review until after a "final" decision is made "after a hearing," the Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 328, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) construed the section broadly. It held that the section provided jurisdiction over a claim that social security benefits were unconstitutionally terminated without a pretermination hearing. Although the agency procedures provided a right to reconsideration of the decision, the plaintiff instead sought to bring his claim immediately in federal court. In upholding the exercise of jurisdiction over the case, the Supreme Court first concluded that the jurisdictional prerequisite of a "decision" was satisfied because the plaintiff had presented his claim and the claim had been denied by the Secretary. Second, the Supreme Court found that "finality" in the sense of complete exhaustion of remedies is not always necessary. The decision to terminate benefits was sufficiently "final" to warrant immediate judicial review because "a claimant's interest in having a particular issue resolved promptly (may be) so great that deference to the agency's judgment is inappropriate." 424 U.S. at 330, 96 S.Ct. at 900.

Thus the Supreme Court viewed § 405(g) as providing jurisdiction over an issue which was admittedly collateral to the substantive claim of entitlement to benefits. Its analysis on this point appears to apply here. The plaintiffs' claim does not pertain to their entitlement to benefits, but it arose in the context of a request for benefits, and it was raised only after the plaintiffs applied for benefits and received an unfavorable decision.

The Supreme Court's "finality" analysis in Eldridge also applies. In Eldridge, pursuit of post-termination agency procedures could not provide an adequate substitute for the relief sought, namely, the right to a pretermination hearing. The Supreme Court referred to "the core principle that statutorily created finality requirements should, if possible, be construed so as not to cause crucial collateral claims to be lost and potentially irreparable injuries to be suffered . . . ." 424 U.S. at 331 n. 11, 96 S.Ct. at 901. In the present case as well, pursuit of further administrative remedies would be fruitless, since the delays in those procedures are the very wrong of which plaintiffs complain. This is not a case where taking jurisdiction would circumvent "an orderly administrative mechanism" or contravene a congressional policy regarding the timing of judicial review as in Califano v. Sanders, 430 U.S. 99, 102, 106, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977).

We therefore conclude that § 405(g) provides jurisdiction in this case under the reasoning of Mathews v. Eldridge. This conclusion is consistent with decisions by other courts that have considered the issue. See, e. g., Caswell v. Califano, 583 F.2d 9, at 14 (1st Cir. 1978) and cases cited.

In light of this conclusion we find no need to reach the remaining contentions of the plaintiffs that 28 U.S.C. § 1361 and 28 U.S.C. § 1331 also provide jurisdiction. We note only that a number of courts in similar cases have found that, in the absence of any other adequate remedy, 28 U.S.C. § 1361 provides a basis for jurisdiction. See, e. g., Caswell v. Califano, Supra, at 13 n. 8 and cases cited therein. ⁴

II. MOOTNESS

All of the named plaintiffs received disability hearings before the District Court granted class certification. Consequently, the defendants contend therefore that the suit should be dismissed as moot.

Admittedly, the named plaintiffs can no longer complain that they have failed to receive a hearing, and any court-ordered relief to accelerate hearing procedures would have no effect on them. The claims of delay which the plaintiffs advance, however, epitomize the type of claim which continually evades review if it is declared moot merely because the defendants have voluntarily ceased the illegal practice complained of in the particular instance. Thus, the defendants may expedite processing for any plaintiffs named in a suit while continuing to allow long delays with respect to all other applicants. As in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 765, 35 L.Ed.2d 147 (1973), refusal to consider a class-wide remedy merely because individual class members no longer need relief would mean that no remedy could ever be provided for continuing abuses. We therefore conclude that the class members retain a live interest in this case so that the class action should not be declared moot, and the class certification should "relate back" to the date of the filing of the complaint, when the named plaintiffs had not yet received hearings or hearing decisions. See Sosna v. Iowa, 419 U.S. 393, 402 n. 11, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975).

III. RIGHT TO A HEARING WITHIN A "REASONABLE" TIME

The plaintiffs' right to a hearing to contest a denial of benefits is not disputed. An opportunity for a hearing is explicitly required by 42 U.S.C. §§ 405(b) and 1383(c)(1). The central issue, rather, is whether the Secretary must provide a hearing within a given time period.

The hearing provisions regarding both OASDI and SSI benefits require simply that the Secretary shall provide "reasonable notice and opportunity for a hearing" if benefits are denied at the reconsideration level. 42 U.S.C. §§ 405(b), 1383(c)(1). The provisions regarding SSI benefits further state that a "(d)etermination on the basis of such hearing, except to the extent that the matter in disagreement involves the existence of a disability . . . shall be made within ninety days after the individual requests the hearing . . . ," 42 U.S.C. § 1383(c)(2), but this section does not apply to the present claims because the dispute in all instances involves the existence of a disability.

The Administrative Procedure Act establishes similar requirements. The provisions of 5 U.S.C. § 555(b) state in part: "With due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it." Furthermore, 5 U.S.C. § 706(1) provides that on judicial review a court shall "compel agency action unlawfully withheld or unreasonably delayed." These statutory provisions are applicable to the agency defendants here under the terms of the Act. ⁵

Clearly then, under the applicable statutes, the class members in this case have a right to a hearing and the Secretary has a duty to provide a hearing within a "reasonable" time. Discerning what Congress viewed as "reasonable" when it enacted the relevant legislation, however, is a difficult task. As one court commented, "There are no absolute standards by which it may be determined whether a proceeding is being advanced with reasonable dispatch. What is reasonable can be decided only in the light...