Caswell v. Califano, No. 77-1514

Decision Date16 August 1978
Docket NumberNo. 77-1514
Citation583 F.2d 9
PartiesLeonard CASWELL et al., Plaintiffs, Appellees, v. Joseph A. CALIFANO, Jr., etc., Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Verrell L. Dethloff, Jr., Atty. Social Security Div., Dept. of HEW, Baltimore, Md., with whom Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C., George J Mitchell, U. S. Atty., Portland, Maine, and Randolph W. Gaines, Chief of Litigation, Baltimore, Md., were on brief, for defendant, appellant.

John Whitehouse Cobb, Boulder, Colo., for plaintiffs, appellees.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

This appeal is from one of a growing number of successful court challenges to the delays which attend the scheduling by the Social Security Administration (SSA) of administrative hearings afforded to applicants for disability benefits under Title II of the Social Security Act. 42 U.S.C. §§ 401 Et seq. 1 The United States District Court for the District of Maine, in an opinion reported at 435 F.Supp. 127 (1977), found that the administrative delays suffered by the eight named plaintiffs and the class they were certified to represent were unreasonable and thus violated section 205(b) of the Social Security Act, 42 U.S.C. § 405(b), and certain provisions of the Administrative Procedure Act, 5 U.S.C. §§ 555(b), 706(1). The Secretary was ordered to reduce the lapse of time between a request for hearing and the scheduling of the hearing to within 90 days, and to submit progress reports to allow the court to monitor compliance. 2 On this appeal, the Secretary raises three principal objections: that the district court lacked subject matter jurisdiction; that the case is not justiciable; and that present delays cannot be considered unreasonable. We shall deal with each of these objections in turn, but before doing so we describe the working of the Title II disability program and the problem of delay in greater detail.


To establish disability and maintain the right to benefits under the Title II disability insurance program, 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 demonstrate that he cannot "engage in any substantial gainful activity." Id. § 423(d)(1)(A). The evidence must establish the existence of the disability by means of "medically acceptable clinical and laboratory diagnostic techniques," Id. § 423(d)(3), and that the disability is of such severity that

(the claimant) is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy . . . . Id. § 423(d)(2)(A).

When a person applies for benefits, the initial determination of eligibility is made by the local Social Security Office. If the claim is denied, the claimant may request the appropriate state agency to undertake a de novo reconsideration of the adverse decision upon affidavits and other papers. If still unsuccessful, the claimant becomes entitled to a hearing before an SSA Bureau of Hearings and Appeals administrative law judge (ALJ), which entails a personal appearance and a full evidentiary hearing. Id. § 405(b). It is this administrative hearing which plaintiffs protest is being unreasonably delayed. The record made at that hearing is subject to administrative and, finally, to judicial review. Id. § 405(g). Plaintiffs in no way challenge this complex statutory scheme, but "seek only the opportunity to avail themselves of its procedures within a reasonable time frame." 435 F.Supp. at 130.

The problem of delays attending the scheduling of hearings and the issuance of decisions by administrative law judges in Title II disability cases is national in scope. See cases cited note 1 Supra. The backlog of pending cases reached an all time high of 113,000 in April 1975 up from 36,780 in 1973. In recent years, requests for hearings have substantially increased due to the large volume of benefit claims filed under the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. §§ 901 Et seq., and under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 Et seq., which provides supplemental security income (SSI) for the aged. These black lung and SSI appeals have substantially increased the workload of the Title II judges. Legislative obstacles exacerbated the problem by preventing efficient use of the three distinct types of hearing officers who were separately handling Title II cases, black lung cases, and SSI cases. Additionally, SSA has had difficulties enlarging the hearing staff because other civil service hearing examiners were paid more.

Delays in the SSA hearing process have caused congressional concern, prompted periodic congressional hearings and led to passage in 1976 of legislation allowing greater flexibility in the use of SSA personnel for administrative hearings, 3 and in 1977 of legislation increasing the number of ALJs. 4 During hearings on the 1976 legislation, both the legislation's sponsors 5 and the SSA Commissioner 6 expressed the hope that the backlog would be brought under control and that hearings before the ALJs could be scheduled within 90 days of request by July 1977.

The undisputed facts of this case reveal that the SSA has fallen far short of this 90 day goal. Each of the eight named plaintiffs applied for Title II benefits and, following initial and reconsideration denials, requested a hearing under 42 U.S.C. § 405(b). Of the named plaintiffs, the shortest waiting period from request to the scheduled hearing was 369 days, the longest was 439 days and the average was 398 days. In terms of a decision, the average elapsed time from the request for a hearing was 569 days, or some 19 months. None of the named plaintiffs upon whose cases these statistics are based is charged with any default or action which delayed scheduling of the hearings.

The plaintiff class, as certified by the district court, includes all residents of the District of Maine who have applied for disability benefits under Title II; who have received an adverse initial and reconsideration determination; who have filed a timely request for a hearing; whose request has been pending for sixty days or longer; and for whom a hearing has not been scheduled. The delays experienced by the class are only slightly less lengthy than those suffered by the named plaintiffs. In May 1976, the average waiting time between request and hearing was 11.5 months for the New England Region. In Maine, as of March 1976, the median elapsed time was 367 days, over one year. As forty-five percent of all New England claimants who chose to appeal an adverse decision are ultimately found eligible, it can be said that nearly one half of the plaintiff class is subject to a lengthy deprivation of benefits before receiving that to which they are entitled.

The Secretary has attempted to reduce the backlog. In January 1976, a new hearing office was opened in Portland, Maine, and three ALJs now are permanently assigned to that office. A temporary detail of eight additional ALJs assigned to Maine in the fall of 1976 was able to dispose of 307 pending cases. These efforts have, however, failed to resolve the problem of extensive delays. In January 1976, there were 346 pending requests for which no hearing had been scheduled; by April 1976, this number had increased to 396. Even after assignment of the out-of-state ALJs, approximately 300 requests were pending as of January 1977, without a hearing having been scheduled. That number appears destined to grow. The three full time ALJs have been averaging 50 hearings per month, while an average of 64 hearing requests per month are received. The result, as the district court noted, is a monthly increase in the already existing backlog. 7 435 F.Supp. at 131.


Relying on Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the district court found jurisdiction under 42 U.S.C. § 405(g). We agree that the court had jurisdiction under that provision. 8 To be sure, the literal terms of § 405(g) provide only for review of "any final decision of the Secretary" and hence would seem to require, as a jurisdictional prerequisite, exhaustion of administrative remedies. 9 In Eldridge, however, a Title II recipient brought a constitutional challenge to SSA's assessment procedures without exhausting administrative remedies after his benefits had been terminated without hearing. The Supreme Court, nonetheless, found jurisdiction under § 405(g). The Court first noted that Weinberger v. Salfi, 422 U.S. 749, 757-59, 95 S.Ct. 1422, 45 L.Ed.2d 522 (1975), had held that § 405(h), 10 precludes federal question jurisdiction over actions challenging the denial of benefits, thus making § 405(g) the exclusive basis for such review. It then went on to explain the exhaustion requirement of that provision:

Implicit in Salfi, however, is the principle that this condition (a final decision after a hearing) consists of two elements, only one of which is purely 'jurisdictional' in the sense that it cannot be 'waived' by the Secretary in a particular case. The waivable element is the requirement that the administrative remedies prescribed by the Secretary be exhausted. The nonwaivable element is the requirement that a claim for benefits shall have been presented to the Secretary. Absent such a claim there can be no "decision" of any type. And some decision by the Secretary is clearly required by the statute. 424 U.S. at 328, 96 S.Ct. at 899.

It is not disputed that plaintiffs have satisfied the "nonwaivable" element of Eldridge's finality test. Each member of the plaintiff class has, by definition, presented a claim for benefits and, after initial adverse decisions, has requested a hearing the delay of which is now in issue. As...

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