Lowry v. Barnhart

• Citation: 329 F.3d 1019
• Decision Date: 16 May 2003
• Docket Number: No. 01-35775.,01-35775.
• Parties: David B. LOWRY, Plaintiff-Appellant, v. Jo Anne BARNHART, in her capacity as Commissioner of the Social Security Administration; Dan Hyatt; Riley Atkins; Bennett Engelman, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1019

329 F.3d 1019

David B. LOWRY, Plaintiff-Appellant, v. Jo Anne BARNHART, in her capacity as Commissioner of the Social Security Administration; Dan Hyatt; Riley Atkins; Bennett Engelman, Defendants-Appellees.

No. 01-35775.

United States Court of Appeals, Ninth Circuit.

Submitted November 8, 2002.^*

Filed May 16, 2003.

Rosemary B. Schurman, Kirkland, WA, for the appellant.

Victoria B. Chhagan, Assistant Regional Counsel, Social Security Administration, Seattle, WA, for the appellees.

Before REAVLEY,^** KOZINSKI and W. FLETCHER, Circuit Judges.

OPINION

KOZINSKI, Circuit Judge.

In this case, social security lawyer David Lowry tries to live out what must be every lawyer's fantasy by suing the judge who ruled against him one time too many. Lowry seeks a writ of mandamus to have Administrative Law Judge Dan Hyatt investigated and kicked off his future cases. We consider whether the writ can be put to this novel use.

1. Lowry represents social security claimants, and Hyatt is an administrative law judge who often presides over his cases. Lowry says Hyatt uses "intimidation and anger as a tactic to shorten [his] hearings," refuses to hear evidence and denies him cross-examination. Hyatt also supposedly told two claimants that Lowry was a "poor attorney who does a poor job." Lowry began filing motions to recuse Hyatt from his cases, and Hyatt responded with letters to Lowry's clients defending his impartiality and encouraging them to ask Hyatt about their "rights to representation."

Hyatt, for his part, doesn't think much of Lowry. He says Lowry uses too many leading questions, fails to submit necessary medical records and questionnaires, and acts in a generally "disrespectful and contemptuous" manner. He says that Lowry once called him a "baldfaced liar" on the record and then sat at counsel table laughing and smirking.

In December 1998, Lowry filed a bias complaint with the Social Security Administration. Making little headway, he filed this lawsuit in federal district court in August 1999, invoking the Mandamus and Venue Act, 28 U.S.C. § 1361. He seeks three forms of relief: He wants the Administration to complete review of his December 1998 bias complaint. He wants Hyatt and two alleged "co-conspirator" ALJs disqualified from his future cases. Finally, he wants the Administration to promulgate final procedures for handling bias complaints. The district court denied relief, and Lowry now appeals.

2. Mandamus is available only when "(1) the plaintiff's claim is clear and certain; (2) the duty is ministerial and so plainly prescribed as to be free from doubt; and (3) no other adequate remedy is available." Or. Natural Res. Council v. Harrell, 52 F.3d 1499, 1508 (9th Cir.1995) (internal quotation marks omitted).¹ If a plaintiff has no legal entitlement to the relief sought, a "clear and certain" claim cannot exist, and the writ will not lie. Lowry identifies several constitutional and regulatory authorities, and we consider each in turn.

a. Lowry's strongest argument relies on the Administration's 1992 "interim" bias complaint procedures. In the early 1990s, a congressional subcommittee expressed concern over bias in the Administration's adjudication of claims. The Administration responded by publishing interim procedures for more effectively handling bias complaints. See Social Security Administration Procedures Concerning Allegations of Bias or Misconduct by Administrative Law Judges, 57 Fed.Reg. 49,186 (Oct. 30, 1992). It indicated that permanent procedures were under development and "should be finalized in approximately six months." Id. at 49,187. This turned out to be an optimistic prediction — over ten years later, the agency still operates under its interim rules.

These procedures address ALJ bias against both claimants and their attorneys. They state that the "SSA is committed to providing every claimant and his or her representative fair and unbiased treatment in the handling of all claims." Id. at 49,186. "Every complaint," we are told, "will be reviewed or investigated in a timely manner." Id. The procedures contemplate an initial inquiry by the Regional Chief ALJ. He then forwards the results to the Chief ALJ at the Office of Hearings and Appeals, who notifies the complainant whether a formal investigation will be conducted.

The Administration's swiftness in promulgating final procedures is apparently matched only by the blinding speed with which it handles individual complaints. Lowry's complaint, a one-page document that referred to incidents in only two hearings, was filed in December 1998 but was still pending in May 2001 when the district court dismissed his case. When the court rejected Lowry's Rule 60(b) motion in March 2002, there was still no indication that the Chief ALJ had completed his review.

Be that as it may, we cannot review the Administration's inertia unless the interim procedures create judicially enforceable duties. This is a threshold jurisdictional question, see United States v. Alameda Gateway Ltd., 213 F.3d 1161, 1167-68 (9th Cir.2000), so we decide it first, see Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).

An agency's regulations may create judicially enforceable duties. See Workman v. Mitchell, 502 F.2d 1201, 1205 (9th Cir.1974). But not all agency pronouncements do so. To be judicially enforceable, a pronouncement must "prescribe substantive rules — not interpretive rules, general statements of policy or rules of agency organization, procedure or practice," and must have been "promulgated pursuant to a specific statutory grant of authority and in conformance with the procedural requirements imposed by Congress." United States v. Fifty-Three (53) Eclectus Parrots, 685 F.2d 1131, 1136 (9th Cir.1982) (internal quotation marks omitted); cf. Schweiker v. Hansen, 450 U.S. 785, 789-90, 101 S.Ct. 1468, 67 L.Ed.2d 685 (1981).

No court has yet addressed whether the Administration's 1992 interim bias complaint procedures prescribe judicially enforceable duties. We now conclude they do not. By their terms, they are a mere "[n]otice of procedures," 57 Fed.Reg. at 49,186, and rules of procedure generally are not enforceable, see Fifty-Three (53) Eclectus Parrots, 685 F.2d at 1136. The procedures do not invoke any congressional grant of authority, nor were they subject to notice and comment — the usual prerequisites to agency rulemaking. The procedures are in many respects like agency guidance manuals, which we have previously held unenforceable. See Moore v. Apfel, 216 F.3d 864, 868-69 (9th Cir. 2000); W. Radio Servs. Co. v. Espy, 79 F.3d 896, 901 (9th Cir.1996); Fifty-Three (53) Eclectus Parrots, 685 F.2d at 1136.

The procedures do differ from typical guidance manuals in two respects. First, they were published in the Federal Register. Publication alone, however, does not make a procedure judicially enforceable. The Freedom of Information Act requires many documents to be published in the Federal Register, see 5 U.S.C. § 552(a)(1), including "rules of procedure," id. § 552(a)(1)(C). That an agency must make its procedures generally known does not imply a right to enforce those procedures in court.

Second, the language of the procedures is not entirely hortatory. The procedures state that they "will ensure that... [e]very complaint will be reviewed or investigated in a timely manner." 57 Fed. Reg. at 49,186 (emphasis added); cf. Moore, 216 F.3d at 868 (manual merely provided "guidance" to agency staff); Alameda Gateway, 213 F.3d at 1168 (same). But force of language alone cannot create substantive rules where the congressionally prescribed procedures for promulgating such rules have not been invoked.

Although we conclude that the bias procedures are not judicially enforceable, we are not unsympathetic to Lowry's predicament. The Administration's unexplained decade-long delinquency in promulgating final procedures and its lackadaisical handling of Lowry's complaint raise serious concerns about its commitment to the values the procedures purport to embrace. Unfortunately for Lowry, not every agency shortcoming is subject to correction in the courts. The Administration created internal procedures and disclosed them to the public, but it did not create legally enforceable rights; we therefore lack authority to grant mandamus relief.

b. Lowry offers several other authorities, but we have little difficulty rejecting them. First, he claims that ALJ bias violates his constitutional due process right to practice his profession. This claim may have been inspired by our ill-fated decision in Gabbert v. Conn, 131 F.3d 793 (9th Cir.1997), rev'd, 526 U.S. 286, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999), where we held that illegal execution of a search warrant on an attorney violated his constitutional right to practice his profession. 131 F.3d at 800-01. The Supreme Court was not impressed by this conclusion, observing that precedent provided only "scant metaphysical support." 526 U.S. at 291, 119 S.Ct. 1292. It indicated that "a complete prohibition of the right to engage in a calling" might implicate due process, but that "the sort of brief interruption which occurred" in that case did not. Id. at 292, 119 S.Ct. 1292.

Hyatt's alleged interference with Lowry's practice does not share the brevity of the interference in Gabbert, but it is similar in severity in that both fall far short of a complete prohibition. Lowry doesn't claim that Hyatt barred him from retaining clients or appearing at hearings. At worst, he may have a harder time finding clients because of his losing track record. This indirect and incidental burden on professional practice is far too removed from a complete prohibition to support a due process claim.²

Lowry next argues that certain Social Security Administration regulations impose a duty of impartiality. He points to two provisions that provide "[a]n administrative law judge shall not conduct a...