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.
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
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
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,
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
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.
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.
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 to the "waivable" element, it appears that either the Secretary, or the court in a proper case, can "waive" the exhaustion requirement. See Mathews v. Eldridge, supra; Liberty Alliance for the Blind v. Califano, 568 F.2d 333, 343-47 (3d Cir. 1977). As explained in Eldridge, such a case arises where the "claimant's interest in having a particular issue resolved promptly is so great that deference to the agency's judgment [on the need for exhaustion] is inappropriate." 424 U.S. at 330, 96 S.Ct. at 900. This is such a case. Plaintiffs' statutory and constitutional claims are entirely "collateral to [their] substantive claim[s] of entitlement." Id. Thus, waiver in no way circumvents the exhaustion requirement on the issue of the merits of the denial of benefits.
The district court found that the delays to which the plaintiffs were subjected in obtaining a hearing before an administrative law judge to challenge the denial of Title II disability benefits violated the requirements of the Social Security Act and the Administrative Procedure Act. Under 42 U.S.C. § 405(b), the Secretary is required to make "decisions as to the rights of any individual applying for a payment" of benefits. Upon request of an unsuccessful claimant, the Secretary is directed to provide him with "reasonable . . . opportunity for a hearing" to challenge the adverse decision. The Administrative Procedure Act provides that "[w]ith 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 . .," 5 U.S.C. § 555(b), and that the reviewing court "shall . . . (1) compel agency action unlawfully withheld or unreasonably delayed . . .." 5 U.S.C. § 706(1).
Neither the Administrative Procedure Act nor the Social Security Act expressly defines what is a reasonable time in which Title II disability claimants must be afforded a hearing. Pointing to this fact, the Secretary argues that the timing of hearings is a matter committed solely to his discretion, thus precluding judicial review and relief.
We agree that the Secretary has substantial discretion in the scheduling of hearings and that courts must normally defer to agency judgment to allow the evolution of procedures as needs arise. See Wright v. Richardson, 405 U.S. 208, 209, 92 S.Ct. 788, 31 L.Ed.2d 151 (1972). Yet equally clear is the Secretary's statutory duty to provide a hearing at a meaningful and reasonable time. White v. Mathews, supra, 559 F.2d at 858. His discretion would not encompass a system which routinely, as the district court found, schedules hearings at unreasonably distant times. Where the delays exceed the bounds of reasonableness, the Secretary may be judicially required to act with greater dispatch so as to meet his statutory obligation.
Under both general equitable powers and powers granted under the APA, courts can insure that statutory rights are not denied by agency inaction. See, e. g., Nader v. FCC, 172 U.S.App.D.C. 1, 520 F.2d 182 (1975); Environmental Defense Fund, Inc. v. Hardin, 138 U.S.App.D.C. 391, 428 F.2d 1093 (1970); Deering Milliken, Inc. v. Johnston, 295 F.2d 856 (4th Cir. 1961);
Even assuming that his discretion is not unlimited, the Secretary argues that this case presents issues which are not justiciable. He points to the recent congressional inquiries into, and efforts to alleviate the hearing delay problem, claiming that such congressional action precludes judicial intervention. More particularly, he notes that Congress has acted to increase the number of ALJs available to hear Title II cases, but as yet has not seen fit to impose time limits for the scheduling of hearings.
It may well be that in certain cases legislative efforts to deal with a problem so clearly manifest Congress' intent that its remedy be exclusive that further judicial relief would be inappropriate. However, such a clear intent to preempt the field is not present here. We cannot construe, as the Secretary urges, congressional concern with the delay problem as an expression of Congress' belief that no problem really exists. Congress did not eliminate the reasonableness requirement, see Barnett v. Califano, 580 F.2d 18, 31 (2d Cir. 1978), and its limited efforts to ameliorate the delays appear to have been premised, at least in part, upon representations by the SSA Commissioner that simply by increasing the number of ALJs, as provided for by the 1976 legislation, hearings could be provided within 90 days of request by July 1977.
In any event, congressional action to date, far from reflecting a view that the delays complained of here are reasonable, in fact suggests that Congress believes the problem to be a serious one. And while we agree that Congress must bear the ultimate responsibility for remedying problems in the administration of federal programs, see FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 60 S.Ct. 437, 84 L.Ed. 656 (1940); cf. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978), that does not mean that a judicial role is precluded where the statutory mandate is not being followed. The fact, moreover, that the courts seek to remedy the violation of a federal statute in no way precludes Congress from providing additional or different relief, or from clarifying or modifying the statute if the judicial interpretation is not approved. Finally, it is clear that no violence to the principle of the separation of powers arises from judicial efforts to enforce a congressional mandate.
Thus, this action is not rendered nonjusticiable merely because of previous congressional involvement. Our inquiry, however, does not end there. When the courts are asked to reshape other government institutions, the "task [is not] to be undertaken lightly." Ad Hoc Committee on Judicial Administration v. Commonwealth of Massachusetts, 488 F.2d 1241, 1244 (1st Cir. 1973), cert. denied, 416 U.S. 986, 94 S.Ct. 2389, 40 L.Ed.2d 763 (1974). In determining whether the task should be undertaken at all, we must ascertain (1) whether the duty asserted can be judicially identified; (2) whether its breach can be judicially determined; and (3) whether protection for the rights asserted can be judicially molded. Ad Hoc Committee, supra, quoting Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).
It is clear that plaintiffs have a statutory right to a hearing within a reasonable time after request. The question, however, is whether that right can be translated into an identifiable duty on the part of the Secretary to provide hearings within judicially set time limits. Concededly, the circumstances of individual cases will require
Turning next to the ability of the courts to devise a fair and effective remedy, we start with the proposition that the district court possesses considerable discretion in formulating an equitable remedy to vindicate plaintiffs' right to a hearing within a reasonable time. See generally Milliken v. Bradley, 433 U.S. 267, 280-81, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977); Hills v. Gautreaux, 425 U.S. 284, 297, 96 S.Ct. 1538, 47 L.Ed.2d 792 (1976); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15-16, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1970). Several courts faced with similar claims of unreasonable delay have required agency action within specified time limits. See, e. g., Barnett v. Califano, supra; White v. Mathews, supra; Nader v. FCC, supra; cf. United States v. Thirty-seven Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971). The Secretary argues, however, that the order here and those entered in similar actions around the country, see cases cited note 1 supra, have exacerbated, rather than solved the hearing delay problem since they have required the shifting of scarce personnel to some areas to the detriment of others, and that at some point, as the number of such orders increases, there simply will be insufficient personnel to comply with all of them.
The possibility that an order requiring expeditious hearings in Maine will adversely affect disability applicants in other states, of course, is a matter of concern. The Secretary, however, does not argue that such a dire situation yet exists. Moreover, the plaintiffs here are not asking for special preferences or judicially superimposed priorities over other applicants. Compare Open America v. Watergate Special Prosecution Force, 178 U.S.App.D.C. 308, 547 F.2d 605 (1976). Rather, like the litigants in the other disability delay cases, plaintiffs simply seek to be afforded their right to a prompt hearing. Admittedly, that is not a complete answer for, if the Secretary's resources truly are inadequate to the task, the more litigious of the applicants may gain an advantage over the less assertive.
However, the vindication of almost every legal right has an impact on the allocation of scarce resources. And the courts, while mindful of the impact of remedies upon persons not before them, can hardly permit the legal rights of litigants to turn upon the alleged inability of the defendant fully to meet his obligations to others. See Open America, supra, 547 F.2d at 620-21 (Leventhal, J., concurring). We agree with the Second Circuit that the existence of similar orders in other jurisdictions supports the
By virtue of the delays plaguing the Title II disability program, these plaintiffs have been required to wait for periods of up to and exceeding one year before receiving their statutorily guaranteed hearing. Concededly, the reasonableness of administrative delay depends upon a number of factors,
We recognize, as did the district court, that the Secretary has had to cope with serious difficulties stemming from a substantial increase in caseload and from staffing problems. Further we note and commend administrative efforts to reduce delays. Given the fact that the backlog continues to grow, however, it seems clear that more is required. We agree with the Second Circuit and the district court that these administrative problems do not, at least on the circumstances presently shown to exist, establish that the plaintiffs have been afforded a "reasonable . . . opportunity for a hearing." Barnett v. Califano, supra; White v. Mathews, supra. The district court, of course, has jurisdiction to modify its order if changed circumstances warrant.
We have considered the Secretary's other objections and find them to be without merit. The judgment of the district court is affirmed.
As to the Secretary's contentions that the plaintiff class failed to satisfy the requirements of Rule 23, we pause only to note that they are clearly without merit. See White v. Mathews, 559 F.2d 852, 858 (2d Cir. 1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1458, 55 L.Ed.2d 500 (1978).