Nash v. Bowen, 586

Citation869 F.2d 675
Decision Date07 March 1989
Docket NumberNo. 586,D,586
Parties, Unempl.Ins.Rep. CCH 14544A Simon NASH, Plaintiff-Appellant, v. Otis R. BOWEN, John A. Svahn, Donald J. Devine, Louis B. Hays, Philip T. Brown, and L. Charles Leonard, Defendants-Appellees. ocket 88-6066.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Simon Nash, Buffalo, N.Y., plaintiff-appellant pro se.

Stephen J. Markman, Ass't. Atty. Gen., Washington, D.C. (Wilfred R. Caron, Sr. Counsel, William G. Laffer III, Office of Legal Policy, U.S. Dep't of Justice, Washington, D.C., of counsel), for defendants-appellees.

Irving Kator, Joseph B. Scott, Jennifer R. Levin, Kator, Scott & Heller, Washington, D.C., for Federal Administrative Law Judges Conference and Ass'n of Administrative Law Judges, amici curiae, on behalf of plaintiff-appellant.

Anthony Szczygiel, Ass't Professor, Legal Assistance Program, State University of New York at Buffalo Law School, Buffalo, N.Y., amicus curiae, on behalf of plaintiff-appellant.

Before FEINBERG, NEWMAN and ALTIMARI, Circuit Judges.

ALTIMARI, Circuit Judge:

The principal issue raised by the instant appeal following a nonjury trial in the United States District Court for the Western District of New York (Elfvin, J.) is whether efforts by the Secretary of Health and Human Services (the "Secretary") to improve the quality and efficiency of the work of Administrative Law Judges ("ALJs") impaired their asserted right to "decisional independence" under the Administrative Procedure Act, 5 U.S.C. Sec. 551 et seq. (the "APA"). In addition, we are asked to decide whether plaintiff-appellant, an ALJ with the Social Security Administration, has standing to challenge the Secretary's policy of non-acquiescence in decisions of federal courts other than the Supreme Court. Because the district court's factual findings underlying the conclusion that the Secretary's policies did not exceed the bounds of legitimate agency supervision are fairly supported by the record and therefore are not clearly erroneous, we agree with the district court that the Secretary's practices did not infringe on the decisional independence of ALJs. We also find that the district court correctly granted summary judgment in favor of defendants-appellees on plaintiff-appellant's non-acquiescence claim for lack of standing and therefore affirm the district court's judgment in all respects.

BACKGROUND

Plaintiff-appellant, pro se, Simon Nash is an Administrative Law Judge ("ALJ") with some thirty years experience in the Social Security Administration. In 1967, he became an ALJ in charge ("ALJIC") of the Buffalo, New York field office of hearings and appeals. By 1975, the Social Security Administration (the "agency") was faced with an administrative crisis due to a backlog of over 100,000 cases. In order to eliminate the backlog and the concomitant delays in processing appeals, former director of the Bureau (now "Office") of Hearings and Appeals Robert L. Trachtenberg instituted a series of reforms which appellant contends interfered with the "decisional independence" of ALJs under the APA, the Social Security Act and the due process clause of the fifth amendment. Nash initially protested the new policies within the agency only to be summarily demoted from his position as ALJIC to ALJ. In his original complaint filed May 30, 1978 in the district court, plaintiff alleged, in addition to a claim concerning his demotion which was later dropped, that the On June 4, 1979, plaintiff's claims were dismissed by the district court for lack of standing. This court reversed on January 7, 1980 in an opinion by then Chief Judge Kaufman, Nash I, 613 F.2d 10, and remanded the case to the district court for further consideration. We held that the "alleged inroads on ALJs' decisional independence [was] arguably within the zone of interests protected by the [APA] and Social Security Act." Id. at 14; see Association of Data Processing Serv. Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970). This court also noted in dicta that the APA confers a "special status" on ALJs, protecting them from agency interference and giving them a "qualified right" of decisional independence. 613 F.2d at 15-16; see Ramspeck, 345 U.S. at 132-33, 73 S.Ct. at 573.

Secretary's newly-instituted "Peer Review Program," monthly production goals, and "Quality Assurance System" infringed upon the "quasi-judicial" status of ALJs. Nash v. Califano, 613 F.2d 10, 13 (2d Cir.1980) ("Nash I "); see Ramspeck v. Federal Trial Examiners Conference, 345 U.S. 128, 130, 73 S.Ct. 570, 572, 97 L.Ed. 872 (1953).

Following remand to the district court, plaintiff filed an amended complaint, dated September 29, 1982, which realleged the above claims seeking declaratory relief and added a new claim which attacked the legality of the agency's non-acquiescence policy. On May 29, 1985, the district court dismissed plaintiff's non-acquiescence claim for lack of standing and set the remaining claims for trial. At that time, the district court also considered defendants' contention that this court's decision in Nash I--while resolving the question of plaintiff's standing to maintain his remaining claims under the APA--did not preclude dismissal of those claims inasmuch as neither the APA nor any other federal statute expressly or impliedly creates a private right of action in plaintiff's favor. The district court rejected this argument and instead interpreted Nash I as construing the APA to provide plaintiff a right of action to advance his decisional independence claims. But see Goodman v. Svahn, 614 F.Supp. 726, 729 n. 3 (D.D.C.1985); cf. Association of ALJs, Inc. v. Heckler, 594 F.Supp. 1132, 1140-41 (D.D.C.1984). The case thus proceeded to trial before Judge Elfvin in 1985-86, and following trial the matter was submitted for decision. On January 6, 1988, the district court filed its memorandum decision and order finding in favor of defendants, and judgment thereafter was entered dismissing all of plaintiff's claims.

DISCUSSION
I.

We address plaintiff's non-acquiescence claim first. As the district court correctly recognized, plaintiff was unable to demonstrate the requisite " 'distinct and palpable' " injury, Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979) (quoting Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975)), arising from the challenged practice such that he "personally would benefit in a tangible way from the court's intervention." Warth, 422 U.S. at 508, 95 S.Ct. at 2210; see Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984); Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). The only adverse consequence for Nash resulting from nonacquiescence is that his decisions are subject to reversal by the Secretary. This court previously has considered the Secretary's de facto policy of non-acquiescence in the law of the circuit concerning the "treating physician" rule, but only in the context of adjudicating the rights of claimants to Social Security benefits. See, e.g., Stieberger v. Bowen, 801 F.2d 29 (2d Cir.1986); Schisler v. Heckler, 787 F.2d 76 (2d Cir.1986). At least one other circuit court has rejected ALJ standing to challenge the merits of a policy instruction to ALJs when a claimant-initiated proceeding seeking review of the administrative denial of social security benefits is available. See D'Amico v. Schweiker, 698 F.2d 903, 906 (7th Cir.1983).

                Indeed, "[t]hat route is preferable to a suit by administrative law judges, who are the umpires between claimants to social security benefits and the Social Security Administration."    Id.  We thus agree with the district court that Nash lacks standing to pursue a non-acquiescence claim against the Secretary
                
II.

Turning, then, to plaintiff's "decisional independence" claims, the challenged practices are threefold. As explained in Nash I, familiarity with which is assumed, the first allegedly unlawful practice is the "Peer Review Program" (a/k/a the "Appellate Appraisal System,") which directed the Office of Hearings and Appeals to review decisions of ALJs outside of the usual appeals procedure conducted by the Appeals Council. 42 U.S.C. Secs. 405, 421; 20 C.F.R. Sec. 404.900 et seq.; cf. 5 U.S.C. Secs. 556(b)(3), 3105 (vesting ALJs with power to conduct administrative hearings). The second practice concerns the imposition of allegedly arbitrary monthly production quotas requiring ALJs to render a specified number of decisions per month. Cf. 5 U.S.C. Sec. 4301(2)(D) (exempting ALJs from performance appraisals); 5 C.F.R. Sec. 930.211 (same). The third alleged threat to ALJs' decisional independence is the "Quality Assurance System," which attempted to control the number of ALJ decisions reversing previous state-level determinations declining to award benefits. See generally Nash I, 613 F.2d at 13.

A.

Preliminarily, we address two procedural arguments raised by defendants on this appeal. According to defendants, plaintiff's generalized attacks on the agency are "fundamental[ly] flaw[ed]" in that they do not state a cause of action under the APA or any other federal statute. Defendants point to the D.C. Circuit's in banc decision in Council of and for the Blind of Delaware County Valley, Inc. v. Regan, 709 F.2d 1521, 1524-25 (D.C.Cir.1983) as support for the proposition that although we previously have decided in favor of plaintiff on the question of standing, Nash I, 613 F.2d at 16-17, this court is not thereby precluded now from holding that plaintiff has no private right of action to maintain his suit. Cf. Goodman v. Svahn, 614 F.Supp. 726, 729 n. 3 (D.D.C.1985). Relying on dicta from Nash I that the APA "confer[s] a qualified right of decisional independence upon ALJs," 613 F.2d at...

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