Salling v. Bowen

Decision Date05 August 1986
Docket NumberCiv. A. No. 82-0428-B.
PartiesFloyd Junior SALLING, Plaintiff, v. Otis R. BOWEN, Secretary Department of Health and Human Services, Defendant.
CourtU.S. District Court — Western District of Virginia

Martin Wegbreit, Castlewood, Va., Larry Grant Browning, Lebanon, Va., Joseph E. Wolfe, Norton, Va., Birg E. Sergent, Pennington Gap, Va., Barry Proctor, Abingdon, Va., for plaintiff.

Morgan E. Scott, Asst. U.S. Atty., Roanoke, Va., Randolph W. Gaines, Atty. Gen., Julie Simpson, Washington, D.C., John M. Sacchetti, Baltimore, Md., for defendant.

MEMORANDUM OPINION

GLEN M. WILLIAMS, District Judge.

This complaint was filed on November 12, 1982 by seven applicants for Social Security benefits, seeking injunctive and declaratory relief and challenging a proposed experiment whereby a government advocate appeared at their Social Security and Supplemental Security Income (SSI) disability hearings. The challenged program began operations October 12, 1982 and was considered a demonstration project under the supervision of the Office of Hearings and Appeals (OHA) called SSA Representation Project (SSARP). The court notes initially that it is contended by the plaintiffs in this case that this is an experimental program of the Social Security Administration (SSA); whereas, the Department of Health and Human Services (HHS) in the various memoranda regarding this matter refer to it as "Adjudicatory Improvement Project" (AIP), indicating that there is a difference between an experiment and a project. Initially this program was to be conducted in the SSA's Offices of Hearings and Appeals (OHA) in Kingsport, Tennessee; Baltimore, Maryland; Columbia, South Carolina; Brentwood, Missouri; and Pasadena, California. However, for reasons which are not necessary to go into at this time, the Brentwood, Missouri Program has been discontinued. The Kingsport, Tennessee OHA serves the Southwest Virginia area and appeals from many of the decisions from the Kingsport office are therefore filed in this court. Thus, in the early stages of this program, this court was invited to attend a seminar-type hearing at which the program was explained for the edification of lawyers, the public and the court. This court was not able to attend in person but United States Magistrate Roy V. Wolfe, Jr. did attend this hearing as a representative of the court and informed the court of the general nature of the proceedings. As the exhibits in this case reveal, this program was to last for one year.1a Since this suit was instituted on November 12, 1982, exactly one month after the program came into being, and since the original suit papers moved for a preliminary injunction, an immediate hearing was scheduled by the court. On March 16, 1983, twenty-one additional plaintiffs filed a complaint concerning this same matter, requesting leave to intervene in this case and alleging that they were parties who had hearings either scheduled or completed before the Kingsport, Tennessee OHA and had been adversely affected by the program. These plaintiffs were permitted to intervene by an Order dated March 28, 1983 and Margaret Heckler, the new Secretary of HHS, was named as the party defendant.

On March 28, 1983, the court conducted a hearing on the motion for preliminary injunction, heard argument of counsel and evidence was presented in support of the respective positions of the parties. The court expressed the opinion at that time that since the program was for one year only and that the evidence needed to be further developed, the parties should proceed with discovery and an ample opportunity should be given to see how the program was working before the court arrived at any decision. Defendant filed a motion to dismiss and the plaintiffs renewed their motion for permanent injunction and for summary judgment. On October 4, 1983, approaching the end of the year's experimental program the court entered an Order denying defendant's motion to dismiss and overruling the plaintiffs' motion for summary judgment and directing the defendant to file with the court certain statistical data from the Kingsport, Tennessee OHA and other reports pertaining to the effect of the program and the case was continued.

In the meantime, the plaintiffs instituted a discovery process which is now a part of the record. Also many documents have been submitted on behalf of the defendant. This court has continued to monitor this program through cases which have come before this court, through various documents which have come into the hands of this court from various sources, and in particular, from documents which have been obtained from the Kingsport, Tennessee OHA.

Among the early documents filed by the defendant in this case is a report dated September 28, 1983 filed by Joy Loving. Ms. Loving is identified as the Acting Director of the SSARP. Joy Loving is described further as a person who reports to ALJ Edward Steinman, Director of the Office of Field Administration, OHA. The Chief ALJ of OHA is Phillip P. Brown. The report of Joy Loving dated September 28, 1983 is directed to Louis B. Hayes, Associate Commissioner, OHA, and the subject of the report is "Status of SSA Representation Project—Decision." In this document, Loving summarizes as follows:

I do not believe we yet have sufficient data to accurately assess the effects of the project. Of special significance is that a number of events and circumstances have occurred during the project's initial implementation period which have significantly affected HO performance. These include: the increases in receipts of requests for hearings and in the proportion of project and non-project cases in which the issue is continuing disability; installation of the Wang equipment; staffing problems in part the result of the hiring of decision writers from the participating HO's as SSAR's and the publication of numerous Social Security rulings, to establish a single set of adjudicatory standards for SSA decision makers ... rulings which the SSAR's have been using extensively in stating the SSA's position in SSARP hearings.

The report goes on to state that the data is so inconclusive that it cannot show any effect of the SSARP one way or the other. The report takes note of the fact that this particular lawsuit challenging the project is pending and discusses various options as to what should happen at the end of the one-year period of the project. The report considers the pros and cons of three options: (1) discontinuing the SSARP; (2) continuing the SSARP for one year; and (3) continuing the SSARP and expand it to additional offices. In discussing the cons of these various options, Loving states as follows: "Since there have been significant difficulties with three of the five current SSARP OHAs, continuation alone might not yield wholly useful data." Loving goes on to note that if options (1) or (2) are selected, they could get by without any Federal Register notice; but option (3) would require a Federal Register notice. In keeping with a well-known dogma in the current world of bureaucratic operations, that a bureaucracy feeds upon itself, it is not surprising that Loving recommended option (3) That is, that the program be continued beyond its original year and that it be expanded to additional offices.

On December 18, 1984, this court permitted nine more plaintiffs to intervene in this suit. In the meantime, various parties who had been permitted to intervene as plaintiffs had arrived at a position where their cases were pending before this court and were being delayed pending the outcome of this case. Therefore, this court opted to allow various plaintiffs to have their cases heard individually on the merits and permitted them to withdraw from this action. Many of the plaintiffs took advantage of this procedure. At that point in time, the court was still under the impression that this was a one-year program and that once the plaintiffs' cases had been disposed of on their merits, and particularly assuming a favorable decision had been arrived at, the case would become moot. However, as we shall see, the program has fed upon itself and is now embarked upon a period of expansion. Therefore, the time has come when it is necessary for the court to consider this case on its merits.

Before going into the operation of SSARP, it is necessary to review the administrative procedures involving Social Security and the role of SSARP in the overall administrative procedure as it exists today.

JURISDICTION

The original plaintiffs and all intervening plaintiffs contend that this court has jurisdiction under § 205(g) of the Act, 42 U.S.C. § 405(g). The defendant Secretary of HHS conversely contends that this court lacks jurisdiction because none of the original plaintiffs nor intervening plaintiffs exhausted their administrative remedies before filing this action or intervening therein. This contention was also advanced in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (Brennan, J. dissenting), the controlling Supreme Court decision in procedural due process cases involving exhaustion of administrative remedies as a jurisdictional prerequisite to district court appellate review. While it is all but axiomatic that in the usual case of appellate review of decisions of administrative agencies that exhaustion of administrative remedies is an essential prerequisite to appellate review, the Eldridge majority carved out an exhaustion exception in the following calculus:

Implicit ... is the principle that this condition exhaustion of administrative remedies 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
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4 cases
  • Grant v. Shalala
    • United States
    • U.S. Court of Appeals — Third Circuit
    • April 7, 1993
    ...that program was generally valid) with Barry v. Bowen, 825 F.2d 1324, 1330-31 (9th Cir.1987) (program invalid); Salling v. Bowen, 641 F.Supp. 1046, 1055-56, 1073 (W.D.Va.1986) (same); Association of Administrative Law Judges, 594 F.Supp. at 1141-43 (same).10 The Court cited 28 U.S.C. § 1343......
  • Barry v. Bowen
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • August 19, 1987
    ...Indeed, every court that has addressed the issue has concluded that the program did have this pernicious effect. See Salling v. Bowen, 641 F.Supp. 1046, 1056 (W.D.Va.1986) ("If there ever was a chilling of judicial independence, this is it. This is like threatening a lawyer with disbarment ......
  • Mullins v. Sullivan, Civ. A. No. 87-0077-B
    • United States
    • U.S. District Court — Western District of Virginia
    • October 4, 1991
    ...psychiatrists and psychologists, and that their claims have been prejudiced. II. Relying upon this court's decision in Salling v. Bowen, 641 F.Supp. 1046 (W.D.Va.1986), plaintiffs contend that the use of the "revised form" violates the rules and regulations of the Social Security Administra......
  • Newborn v. Colvin
    • United States
    • U.S. District Court — District of Washington
    • January 18, 2017
    ...a claimant's testimony and the testimony of medical and vocational experts called for the hearing." Id.; see, e.g., Salling v. Bowen, 641 F. Supp. 1046, 1053 (W.D. Va. 1986) (stating that at a de novo hearing "the ALJ looks at the matter from a fresh perspective and, for the first time, hea......
2 books & journal articles
  • 'n' guilty men.
    • United States
    • University of Pennsylvania Law Review Vol. 146 No. 1, November 1997
    • November 1, 1997
    ...may still apply. (212) See United States v. Michalski, 265 F. 839, 840 (W.D. Pa. 1919) (n = "some"). (213) See Salling v. Bowen, 641 F. Supp. 1046, 1051 (W.D. Va. 1986) (n = "several" for criminal punishment, and n = "a few" for being denied Social Security benefits); United States v. Smith......
  • Independence in Administrative Adjudications: When and Why Agency Judges Are Subject to Deference and Influence
    • United States
    • Administration & Society No. 52-2, February 2020
    • February 1, 2020
    ...p. 595).26. For example, see Nash v. Califano 613 F.2d. 10 (2nd Circ., 1980), Bono et al. v. U.S., No 77-0,819-CU-W4, Salling v. Bowen 641 F. Supp. 1046 (W.D. VA, 1986), Association of Administrative Law Judges, Inc. v. Heckler 594 F. Supp. 1132 (D.D.C., 1984).27. For example, in some cases......

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