Martin on Social Security Treatise

Martin on Social Security

Part 2 – Topics

Judicial Review

§ D 000. Jurisdiction and Judicial Review – In General

The Act itself furnishes the framework for judicial review of Agency actions. It sets out the standard of review and establishes jurisdiction in the Federal district courts to review final Agency decisions. The claimant is entitled to a court’s review of the Agency decision not a fresh determination. However, judges who have simply ruled on the basis of the complaint, the government’s answer, and the administrative record, without giving the claimant an opportunity to present arguments in writing, have been held in error.

In establishing the framework for judicial review, the Act also circumscribes it. The Act specifically precludes judicial review under other Federal statutes, limits review to final Agency decisions based on a hearing, and requires that the action be filed in a Federal district court within 60 days after notice of the Agency decision.

In Califano v. Sanders, 430 U.S. 99 (1977), the Supreme Court held that, absent a Constitutional issue, the Act does not authorize judicial review of an Agency decision not to reopen a claim for benefits on which a prior determination had become final. The decision not to reopen can be made without a hearing and judicial review is limited to decisions made after a hearing. Subsequent decisions have granted review on the basis of “colorable” Constitutional issues which need not necessarily relate solely to the decision not to reopen.

In Sullivan v. Finkelstein, 496 U.S. 617 (1990), the Supreme Court held that the government can appeal a district court decision remanding a case to the Agency when it has found a regulation invalid and the remand is for a determination consistent with that holding. The Court considered such remands to be appealable “final decisions.”

In Forney v. Apfel, 524 U.S. 266 (1998) the Supreme Court held that the claimant who had sought outright reversal of the Agency’s decision can appeal a district court decision to remand rather than reverse as well.

Rev. 9/98

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ D 100. Need to Exhaust Administrative Remedies

Normally before seeking judicial review of Agency action, the claimant must exhaust available administrative remedies up through and including Appeals Council review. Only in exceptional circumstances will bringing an action at an earlier stage be successful. Situations in which exhausting administrative remedies may be unnecessary include claims challenging the constitutionality of provisions in the Act and those focusing on the functioning of the administrative procedure itself.

The regulations now expressly provide for an expedited appeals process furnishing a direct route to district court in cases that pose only Constitutional questions.

A failure to exhaust administrative remedies within prescribed time limits generally precludes judicial review.

A narrower doctrine of “issue exhaustion” accepted by some courts prior to 2000 would preclude arguing issues at the stage of judicial review that had not previously been raised before the ALJ or the Appeals Council. In 2000 the Supreme Court, in Sims v. Apfel, 530 U.S. 103 (2000), reversed the Fifth Circuit and held that Social Security claimants who exhaust administrative remedies need not also raise all issues in a request for review by the Appeals Council in order to preserve judicial review of those issues.

Rev. 12/97

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ D 200. Timely Filing by Claimant

The Act requires that the action to review a final Agency decision be filed within 60 days. The regulations provide for extension of that period by the Agency in appropriate cases, but Agency exercise of that discretion is itself not reviewable. While courts may interpret the time limit with some flexibility, particularly in terms of when it begins to run, compliance with the limit is normally strictly enforced.

In Bowen v. City of New York, 476 U.S. 467 (1986), the Supreme Court held that the 60 day limit is not jurisdictional. Consequently under proper circumstances a Federal district court may hold that the period’s running is tolled on equitable grounds. The Supreme Court held that a case for tolling exists when claimants do not know of an internal Agency policy that violates their rights.

Subsequent decisions suggest that although the case for tolling is strongest in cases involving government misconduct that is not required. Tolling may, for example, be warranted when the claimant’s mental impairment led to late filing.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ D 300. Consequences of Government Delays in Responding to Court

When the government fails to meet court imposed litigation deadlines or fails to respond to orders that implement intermediate steps in a court’s review a wide range of judicial responses is available.

The principal constraint on the court is the Agency’s responsibility, under the Act, to make benefit determinations and to administer the program.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ D 400. Issues of Appropriate Judicial Remedy – In General

In the normal case requiring judicial review of an Agency determination the court confronts a choice between affirming Agency action or finding it in error. In the latter case the court may reverse the determination and order the Agency to calculate and pay benefits. Alternatively, it may remand for further Agency proceedings. In the wake of the Supreme Court’s detailed discussion of remedies as they affect claims for attorneys fees under the Equal Access to Justice Act, in Melkonyan v. Sullivan, 501 U.S. 89 (1991), remands are now themselves divided into two categories, often referred to as “sentence four” and “sentence six” remands. The terminology is based on the two different sentences in § 205(g) of the Act, 42 U.S.C. § 405(g), authorizing remand. When a court finds the Agency in error and remands the case, the court has ordered a sentence four remand. On the other hand, when a court has not passed on the substance of the Agency’s decision, but has merely remanded the case for the Agency to consider new evidence, the remand is pursuant to sentence six.

The choice between outright reversal and remand can sometimes be difficult. This is especially true when the case includes issues that involve credibility and fact-finding, on the one hand, but the proceeding has already gone on for an inordinate length of time.

In Forney v. Apfel, 524 U.S. 266 (1998) the Supreme Court held that a district court decision to remand rather than reverse is appealable.

Class actions that challenge a widespread Agency policy or practice almost invariably pose difficult questions of appropriate remedy.

Rev. 12/03

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ D 410. Issues of Appropriate Judicial Remedy – Interim Relief

Questions of appropriate interim relief come up most frequently when the challenged Agency action is one terminating, suspending or reducing benefits for an individual or group. If the grounds or procedure are at issue, the court may be asked to order that benefits be continued until the legal issue is finally resolved. From the claimant’s standpoint such relief is necessary to preserve the status quo. To the Agency, asserting its position on the merits, such relief threatens overpayments that may be difficult or impossible to recover.

In Heckler v. Day, 467 U.S. 104 (1984), the Supreme Court held that Federal district courts do not have authority to issue injunctions imposing deadlines on the Agency’s processing of disability claims or to require interim benefits in cases of delay.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ D 420. Issues of Appropriate Judicial Remedy – Whether Court Can or Should Grant Requested Relief

The most difficult questions of the scope of relief a court may grant under the Act or some other source of authority arise when the court is asked to order the Agency to implement a new procedure, to attain certain standards of performance, or to issue administrative guidance in particular form. In individual claims, the most difficult issue has to do with the circumstances that warrant a court’s effectively taking a decision away from the Agency rather than remanding for a new determination employing proper standards and procedures.

Since the Act both precludes judicial review under other statutes and refers only to review of Agency actions, doubt once existed about authority for other forms of relief.

In Califano v. Yamaski, 442 U.S. 682 (1979), the Supreme Court held that injunctive relief could be awarded in a proceeding under the Act.

In Schweiker v. Chilicky, 487 U.S. 412 (1988), the Supreme Court held that money damages were not an available remedy in an action against Federal officials alleging due process procedural violations in disability terminations.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ D 500. Class Actions

Where a Federal district court has jurisdiction over the claims of the individual class members under the Act, the Supreme Court held, in Califano v. Yamaski, 442 U.S. 682 (1979), that court has the discretion to certify a class to litigate those claims.

In Weinberger v. Salfi, 422 U.S. 749 (1975), the Supreme Court held that the Act did not provide jurisdiction over the claims of unnamed class members who had not received a “final decision.”

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ D 600. Role of the Magistrate

The Federal Magistrates Act extends broad authority to Federal district courts to assign magistrates duties beyond those specifically listed in its provisions.

In Mathews v. Weber, 423 U.S. 261 (1976), the Supreme Court held that this authorized a district court’s order requiring initial reference of all actions seeking review of Social Security benefit determinations to a magistrate. The Court noted that when such references are made the Federal district judge retains ultimate responsibility for the decision. Many districts employ this procedure.

Numerous Circuits have held that if a claimant fails to object to a magistrate’s report and recommendation within the time limit laid down in the report the claimant waives the right to appeal a district court decision adopting it.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ D 700. Other Statutes Than Social Security Act as Basis for Judicial Review

The Act contains general language limiting the reviewability of Agency actions. It also specifically excludes Social Security claims from the statutes establishing general Federal question jurisdiction and jurisdiction over civil claims against the U.S.

In Califano v. Sanders, 430 U.S. 99 (1977), the Supreme Court held that the Administrative Procedure Act does not provide subject matter jurisdiction for judicial review of Agency action under the Social Security Act.

In Weinberger v. Salfi, 422 U.S. 749 (1975), the Supreme Court held that the Act’s bar of Federal question jurisdiction applies even to litigation challenging the Constitutionality of particular provisions of the Act.

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]

§ D 800. Issues of New Evidence and Requested Remand

The Act authorizes a Federal district judge to remand a case to the Agency to hear new evidence. For such a remand, the Agency need not have committed any error in the original proceeding.

Where the remand is requested by the claimant so as to permit the consideration of new evidence, the Act requires that the evidence be both new and material and that there be a showing of good cause for the failure to incorporate that evidence into the record in the prior proceeding. Even where such a remand is requested by the Agency, the Act requires a showing of good cause.

This type of remand is commonly referred to as a “sentence six” remand, as distinguished from a “sentence four” remand. The distinction, which has consequences for attorneys fee claims under the Equal Access to Justice Act, keys on the two different sentences in § 205(g) of the Act, 42 U.S.C. § 405(g), authorizing remand.

Rev. 9/96

[Supporting and Elaborating References] [Related Sections: Part 1 - Part 2]