Lois M. Grant, on Behalf of Herself and All Other Similarly Situated Persons v. Donna E. Shalala, Secretary of Health and Human Services

conducting a Vastóla to convict cient U.S.C. of 18 in violation enterprise RICO appeal. Saka’s 1962(c). dismiss We will con- judgment Vastola’s will vacate We instructions and remand viction of Armenakis’ the reasonableness consider sealing law to into the inquiry surveillance tapes obtained premises Long Branch West error, any, was whether consider

harmless. PANEL FOR PETITION

SUR REHEARING May NYGAARD, BECKER Present: Judges. Circuit by Appel- filed rehearing petition judges submitted having lee been of this decision in the participated who concurred who judge rehearing, having asked decision rehearing is DENIED. panel petition for GRANT, herself on behalf M. Lois similarly situated all persons SHALALA, E. Donna Services, Human Health Appellant. 91-5675. No. Appeals, United States Circuit. Third 10, 1992. Argued March 5, 1993. March Decided 7, 1993. Rehearing April Petition for Sur (argued), M. Attys., Appellate

Robert Loeb Staff, Div., Justice, Dept, Civ. Washing- ton, DC, appellant. for Zurflieh, Norton, Peter Lawrence E. II (argued), Pennsylvania Legal Central Ser- vices, PA, Harrisburg, Knight, Louise O. Knight, Lewisburg, PA, Clement and appellees. Walz, Sutton,

Pamela D. Thomas Com- munity Legal Services, Inc., Philadelphia, PA, curiae, for amicus Jane Doe. Weiss, Golick, Jonathan A. Toby David S. Udell, City, curiae, New York for amici Legal Claudia Kendrick and Services for Elderly. HUTCHINSON, ALITO, Before: HIGGINBOTHAM, Judges. Circuit THE OPINION OF COURT ALITO, Judge: Circuit interlocutory appeal This is an in a class brought pursuant action to Section Act, Security Social 42 U.S.C. 405(g). question presented is wheth- § may er the district court hold a trial and findings regarding make its own of fact alleged general Department of a bias (HHS) Health and Human Services admin- (AU) judge istrative law or whether the court must instead the Secretary’s findings question. on this Based on the express language binding 205(g), of Section precedent, circuit and the effect that such litigation independence would have on the judges, of administrative we law hold the district court not make its own may only review the Secre- and, tary’s findings necessary, remand to proceedings. for further

I. September Lois Grant filed an

application Security Insurance disability that she She asserted benefits. perform any gainful could not substantial employment injury because of an to her knee, pain, depression, and as well as Gerson, Gen., Atty. injury. Stuart M. Asst. stemming conditions from that West, Kanter, Atty., James J. agency handling application William state de- Act, 42 Security the Social 205(g) of tion requested then Grant claim. nied her Secretary of 405(g),1 against U.S.C. Administrative HHS before Services, asserting that assigned to Human case was her Health Judge, Law con- was hearing, AU denying her After Rowell. the decision ALJ Russell not enti- Act Grant the Social trary concluded Rowell medical that the found Amend- Fifth He of the benefits. tled to Due Clause Process not could Grant alleged that show not specifically did complaint evidence Her ment. in that work, such as sedentary perform 44): (App. engaged. App. previously she had which disability every in inclined ALJ Rowell Furthermore, he found 36, 39. benefits; his discre- he uses deny case to credi- were pain of complaints Grant’s to effect credibility determine tion to conclusion, reaching this In App. 37. ble. against claimants. bias large “a ele- termed he what he relied an later, filed Grant months Several and noted gain” secondary of ment addi- two complaint, which added amended bene- after-tax injury Grant’s following her Donnelly P. plaintiffs, Jamie named tional exceeded compensation workers’ fits from addition, the Wallace.2 injury. and Harold prior the income her before-tax brought on behalf complaint of sought amended then Grant App. 37-38. disability consisting of certain Appeals the HHS a class before decision the AU’s would her or had been Council denied cases whose Council, Appeals the claimants but Rowell. ALJ assigned review. future be application for the in sought complaint the things, Among other in complaint the a filed Grant Rowell ALJ declaratory judgment a Middle the for District States United disability claimants and against biased to Sec- was Pennsylvania pursuant District validity of such and regulations the with such provision states: 1. This may, on the motion regulations. The individual, of the any decision final after Any he files good before Secretary cause made for hearing he which a Secretary after made Secretary answer, to the remand the his in of the amount irrespective party, awas may Secretary, by the action for further de- of such a review controversy, obtain to be evidence any order additional time within action commenced civil a cision only upon Secretary, before taken mailing him of notice days sixty after which showing new evidence there is time further such or within decision such good for cause and that there material shall Secretary may Such action allow. into the incorporate such evidence failure of the United brought district court Secre- and the prior proceeding; in a record which the judicial district States remanded, shall, case is tary after place of resides, principal has his plaintiff business, or if so evidence hearing additional such after his or, or have reside does not if he fact ordered, findings of modify his or affirm any such within business place of principal both, decision, with the file and shall or or his district, District States the United find- modified any additional and such part of As Columbia. the District Court for decision, transcript of ings fact and Secretary a certified file shall answer his testimony upon record the additional including transcript record of the copy of the affirming modifying or his which action findings and upon evidence find- modified or additional Such was based. The court based. complained of are decision be reviewable shall ings decision of fact and enter, pleadings upon the power to shall provided only extent to the record, judgment af- transcript and firming, findings decision. of fact and original reversing the decision modifying, or except be final shall the court judgment of remanding Secretary, or without with of the in the same subject to review shall be that it of the rehearing. The cause for civil actions. judgment in other as a fact, supported manner Any sub- any toas with this conclusive, in accordance evidence, action instituted shall be' stantial notwithstanding any survive shall the Secre- subsection been denied has a claim where occupying office person change subsec- under is rendered tary or a decision vacancy such office. any an or (b) which is adverse this section tion 405(g). party 42 U.S.C. was a who individual of the Secretary, of failure because before ALJ Ro- complaint alleged that The amended proof to submit individual claimant disability of both of claims denied well had prescribed regulation any conformity doing found so had section, and in these men (a) the court of this subsection under App. 55-58. conformity credible. question of shall review deprived panel that this bias had de- would member and instructed it to examine plaintiffs of prive hearing. a fair sample the records in a random complaint sought injunction requir- also disability cases decided AU Rowell. plaintiffs’ that all of the claims that She stated that sample was “anticipat- rejected be reheard Rowell before ed to consist of at least 200 App. eases.” AUs, prohibiting as well as the Sec- 105. She also stated panel would retary assigning “from AU Rowell in the seek to determine whether the records in future to tasks which involve the dis- these cases “manifest pat- instances of a cretion to determine Social and/or tern of bias of sort on the of AU disability App. SSI claims.”3 Rowell, based, alia, inter on the conduct of hearings, language decisions, Secretary opposed class certification credibility determinations, evidentiary in- protective prevent- and moved for a order ferences and accuracy of characteriza- plaintiffs conducting further tion of medical addition, exhibits.” In Id. discovery.4 The district court denied plaintiffs she stated Sullivan, that the Secretary’s motions.5 and AU Ro- Grant v. (M.D.Pa.1989). well would F.Supp. opportunity 462 have the appear, to testify, evidence, introduce and call and In February the district court certi- examine witnesses. Id. fied consisting a class of “all claimants for Security disability Sup- benefits or After the decision to conduct this admin- plemental Security disability Income bene- investigation announced, istrative was fits, both, received, or who have or will Secretary filed a motion in the district receive, an adverse decision from Adminis- asking or, the court to dismiss Judge trative Law Russell on or Rowell alternative, stay to the case in favor of the 1, 1985, January after disability and all investigation. magis- The claimants whose claims have been or will judge trate stay recommended that the be assigned to AU Rowell for a decision.” granted provided Secretary agreed Sullivan, Grant v. 131 F.R.D. postpone proceeding the administrative (M.D.Pa.1990).6 plaintiffs until the complete could their dis- however, covery. court, The meantime, reject-

In the the Chair of the Social recommendation, 133) stating ed this Council, (App. Appeals Administration already that it had Bradley, .plain- Eileen had decided that the determined that agency should investiga- conduct its own tiffs were entitled to a trial in district court allegations tion into the on their that AU Rowell claims of bias and that exhaustion generally against was disability biased of administrative remedies should not be Bradley appointed claimants. required.7 Ms. a three- addition, complaint sought 3. In attorneys reasonably that notice their could not have de- informing be sent to all class members them tected ALJ Rowell’s bias until later. Grant v. Sullivan, so, that AU Rowell was biased and that were F.Supp. doing at 471-74. hearing. Finally, entitled to a new the com- the court reserved decision on "whether [it] plaint sought findings plaintiffs try that the named should the bias claims ... or whether [it] were entitled to benefits. Secretary should remand these claims to the for fact-finding" ques- until the court decided the Secretary

4. The contended that tion of class at certification. Id. 474. by failing had waived their claims of bias during proceed- raise them the administrative Donnelly representative, 6. withdrew as class ings, alleged the claim of AU Rowell’s and Wallace was dismissed the court as a “general” disability bias toward claimants was representative. class 131 F.R.D. justiciable, and that the district court lacked jurisdiction respect with to those members of 133): (App. 7. The court wrote plaintiff class who had not exhausted ad- stay pro- The motion seeks a ministrative remedies or filed suit within 60 ceedings give in order to time to days of the final administrative order. try procedure a new ad hoc administrative Among things, determining the court held that the whether Administrative Law plaintiffs’ bias Judge claims were not barred due to Russell Rowell biased. order 27, 1989, failure to exhaust July or failure to file suit within dated the Court decided the 60-day period question because the same which the has now ethnicity, gen- race, based biased the was denial court’s Despite 172-73, 181-82. der, age. Id. or proceeded panel special motion, the out AU however, set criticize did report, AU Rowell investigation panel statistically what employing ain records Rowell examine about pan- language” “irregular his cases. sampling termed significant report examples, the evi- As analyze other at 174. cases. attempt el did not had Rowell AU in which cases statements mentioned dence, depositions as testimony he a claimant whose per- described Rowell’s AU co-workers, regarding a “ma- or “manipulative” as not believe did views. sonality or “perfor- aon having put as lingerer,” Rowell determined panel having at- “charade,” mance” during a disability cases decided had (i.e., gain” “secondary tempted obtain these, panel From five-year period. claimant than the more in obtain eventu- was sample a random selected working). Id. earned previously cases. in 212 the files to examine ally able AU Ro- recognizing While 174-75. the files documents pertinent All credibility deter- make required well hear- recordings of the reviewed, tape lan- his minations, panel found studied. ings were “the bounds cases exceeded in these guage its 1990, panel issued In October legally suffi- of a and needs taste “de- it had that reported panel The report. disability determination.” cient, defensible during irregularity patterns no tected AU that found panel also App. The 178. no indication hearing process, on emphasis much too placed had Rowell reviewed transcripts it tapes or hearing gain.” “secondary concept of any bias entertains Judge Rowell that Council, Appeals acting The Chair certainly claimants, and any of against accepted generally Young, J. Andrew The App. 168. of them.” against all those conclusions, including all of panel’s 169): (id. at report continued Young addition, wrote Mr. In noted above. has rule, the Panel Indeed, general aas propo- “accept the did although he that Ro- Judge hearings that at concluded inqui- psychological abstract that an sition in a comported himself consistently well appropriate, was AU Rowell regarding ry” gentle courtly, polite and professional, complete- decided, purposes he had hostility nor fashion, neither displaying testimony from ness, deposition consider to claim- attorney or rancor towards that Rowell of AU co-workers former addition, our discovery. App. ... ant. in civil been obtained records) (hearing office files” “appeals stated: He Judge Rowell us shows that to available in isolated evidence persuasive I find prep- in his scrupulously conscientious to deponents from the statements of, administra- for, and conduct aration heard AU Rowell allegedly what claims. Security hearings in opinions tive personal utter, in their or he finding that support a to Rowell no statistical addition, found report against is biased a mindset has biased Rowell that AU evidence certain claimants generally claimants he or that disability claimants all against the Plaintiffs’ on Court held dis The the motion Court in placed before January 22- on certification we for class proceedings stay motion 24, for a miss or may try —whether 1990, 21, February By dated order the Plaintiffs bias claims of obliged approximately we are or whether a class members class Court certified Secretary. Grant this action determined remand persons in this case 462, (M.D.Pa. Sullivan, F.Supp. obliged vs. were not of the class members wheth 1989). we stated In that decision pro- before remedies administrative exhaust ceeding whether try claims or the bias er we should class claims. their Court Secretary the claims remand we should proposed class determined The upon large part fact-finding depended in irreparable harm would suffer members of Plaintiffs a class we certified whether reme- having administrative exhaust first certified. class we size of what this action and dies. Id. race, ethnicity, examining mindset, based on their or socio- court thought pro- status, cesses, to the exclusion de- predispositions economic of AU Rowell termining the merits of each case based would be destructive to the integrity of the upon process. the record evidence. 144-45. plaintiffs contend that neither the language of the Social Act nor our Appeals

After the had made Council its precludes decision Hummel the district findings, Secretary moved the district court from conducting making a trial and setting vacate the orders the case findings on the issue of bias because the holding on the trial calendar and present case is a plain class action. The plaintiffs need not exhaust their adminis- rely primarily tiffs Court’s trative remedies. The asked that cases, decision two v. Yama plain- the district court instead review the Califano saki, 682, 442 U.S. 99 S.Ct. tiffs’ claims on the administrative record. (1979), L.Ed.2d 176 alternative, City Bowen v. In the asked that New stay postpone the district court the trial (1986). L.Ed.2d 462 also ar pending disposition of the case of his gue inquiry that an into AU Rowell’s state interlocutory appellate motions and justified of mind is in this ease because disposition. The district court de- there is substantial evidence of his bias. nied the motion to vacate the highlight the orders, following evi interlocutory appeal but certified an deposition dence: their of a 1292(b) “decision-writ under 28 U.S.C. to determine er” who worked for AU Rowell for five “whether conduct a [the court] years; planned testimony trial by a former trial on Plaintiffs’ claims of bias.” attorney-advisor and decision-writer re App. 292. garding his conversations with AU Rowell appeal, Secretary argues On that the lunch, during visits at each other’s may properly district court conduct a homes, occasions; and on other a statistical findings trial and regarding make of fact analysis sample of a of AU Rowell’s deci alleged general Rely- AU Rowell’s bias. by expert; sions their and evidence that 205(b)(1), (h) ing (g), on Section allegedly destroyed AU Rowell his notes Act, 405(b)(1), Security 42 U.S.C. § concerning certain cases after (h), (g), and Secretary argues sought by plaintiffs discovery. Appel fact-finding Security role in Social cases is lees’ Br. at 10-18. exclusively his and that the district courts fact-finding have no Secretary role. The II. argument supported maintains that his Heckler, our decision in begin by examining pertinent Hummel v. 736 We (3d Cir.1984), F.2d 91 that provisions Security the status of the of the Social Act and present case governing precedent as a class action does not concerning circuit provide a distinguishing provisions. 205(b)(1) valid basis for those Under Section Hummel, Act, 405(b)(1),8 and that a trial district 42 U.S.C. the Secre- 405(b)(1) guage, setting dence, The full text of 42 U.S.C. § reads: forth a discussion of the evi- stating determina- (b) Administrative determination of entitle- upon tion and the reason or reasons which it fact; findings hearings; ment benefits: Upon request by any is based. such individu- investigations: evidentiary hearings in reconsid- wife, wife, upon request by al or a divorced terminations; disability eration of benefit subse- widow, wife, surviving surviving divorced di- quent applications mother, father, surviving (1) vorced band, divorced hus- Secretary findings is directed to make husband, widower, fact, surviving divorced rights any and decisions as to the child, husband, parent applying payment divorced or who individual for a under this subchapter. Any showing writing makes a that his or her such decision the Secre- tary rights may prejudiced by any which involves a determination of dis- decision the rendered, ability Secretary give and which is in whole or in unfa- has shall he applicant vorable to such individual shall contain a and such other individual reason- case, statement of opportunity hearing in understandable lan- able notice and for a

133 fact, cases.” See also findings role Social tary directed “make Heckler, (7th v. 741 F.2d any Johnson rights of indi- to the and decisions as Cir.1984); Harris, 626 F.2d 225 Parker payment.” for a Sec- applying vidual Hummel, (2d Cir.1980). a in which an case subject to retary's decisions disputed the denial Act, individual claimant 205(g) of the review under Section benefits, pres- relevant for particularly scope of that re- 405(g), but U.S.C. § claimant contended since the purposes ent 205(g) Section view is circumscribed. case who decided her was exception: qualification states without argued that the AU’s bias biased. She any as to findings of a “Bellmon Review” of his stemmed from evidence fact, supported if substantial (The “Bellmon Review” determinations. conclusive.... shall be Appeals a program included review rejects finding a If a district court of the allowance decisions AUs Council standard, 205(g) Section pursuant this rates.9) high We held allowance case for to remand the the court authorizes plaintiff discovery was entitled to agency. Further rehearing before undergone determine whether the AU that, if 205(g) new more, provides Section and, so, if a “Bellmon Review” obtain available after evidence becomes material at We stated information about it. Id. pro of the administrative the conclusion discovery needed so that the may order “addi ceeding, a plaintiff “attempt to the dis- could convince to be taken before Sec tional evidence trict court that a remand “additional modi retary.” And ap- evidence taking new [was] remand, made on fied of fact” are added). (emphasis propriate.” Id. only to the findings are reviewable those Furthermore, we stated event “[i]n original find limited extent as same finding made re- that a of bias on [was] short, ings. creates mand,” to a plaintiff would be entitled may con scheme which district the merits new administrative the Secretary’s duct a restricted review (emphasis disability claim. at 95 of her for new findings and remand added). Thus, perfectly clear we made provi findings, this scheme makes court could not Hummel court to make find sion for findings regarding alleged the AU’s make ings of its own. at remand the case to bias but could most Secretary Addressing Secretary v. could this scheme Hummel so that 93, Heckler, flatly findings. is of course F.2d at we stated make such Hummel 736 binding panel. have no fact-find- this “the district courts decision, and, (S.D.N.Y.1985), grounds, respect if a vacated on other 801 to such hear- with shall, held, (2d ing Cir.1986); on the basis of evidence 29 Association Adminis F.2d affirm, modify, hearing, Heckler, at a or re- adduced Judges, F.Supp. Law v. 594 trative Inc. findings his of fact and such decision. verse 1132, (D.D.C.1984). opinion in the 1133-36 Our Any request respect to such deci- such with present interpreted be ex case should not as sixty days must be within after sion notice of such decision filed pressing any regarding propriety of view received programs. Courts and this other similar making request. The Secre- individual tary disagreed sharply have on this commentators authorized, motion, on his own is further Bowen, question. Compare v. 869 F.2d Nash hearings conduct such to hold such 675, (2d Cir.1989) (upholding program) 678-81 investigations proceedings as he other Pierce, Impermissi Political Control Versus necessary proper may deem admin- Agency Decisionmaking: ble Bias in Lessons subchapter. of this In the course of istration Mistretta, Chevron and 57 U.Chi.L.Rev. investigation, proceed- any hearing, or other 481, (1990) program (arguing 501-19 ing, may he oaths and affirma- administer Bowen, valid) generally Barry v. 825 F.2d tions, witnesses, and evi- examine receive 1324, Cir.1987) invalid): (9th (program 1330-31 may at dence. Evidence be received 1046, 1055-56, Bowen, Salling F.Supp. v. 641 though hearing Secretary in- before the even (W.D.Va.1986) (same); Ad 1073 Association applicable admissible under of evidence rules F.Supp. Judges, at ministrative Law 594 1141-43 procedure. to court (same). program, description For this see Stieber Heckler, 1315, ger F.Supp. 1377-79 McNary Refugee v. Haitian Cen- 205(g) and well as language of Section ter, Inc., 499, 888, in Hummel provide strong our decision (1991), pro- which concerned a L.Ed.2d 1005 Secretary’s argument support for the Immigration Reform and vision of the Con- may district court case that 1986, 8 find trol Act of U.S.C. We § findings and make its own conduct a trial arguments unavailing. all of these We will alleged bias. As we regarding the ALJ’s Supreme the three relevant first discuss already noted, Secretary has con Yamasaki, City New Court decisions— has al inquiry and ducted an extensive McNary then turn to the very matter. ready made on this —and lower court cases. Thus, 205(g) stating portion Section findings of the Sec Yamasaki, categorically that “the A. a class action was fact, supported by sub retary as to Security recipients con- filed Social who accepted must be Security stantial evidence” Administra- tended that Social clearly mean quite required provide opportuni- “conclusive” seems tion was ty hearing beginning recoup must in this case for a before the district Court, overpayments. In the findings on the Education, Health, Secretary of and Wel- making rather than inde question of bias argued, among things, that class Moreover, fare findings of its own. pendent may not awarded in a case relief out in judicial review set entire scheme of brought 205(g). under Section The Secre- mean, 205(b) put as we appears to tary language relied on “the of § Hummel, 93, that “district it in 736 F.2d individual,’ ‘[a]ny authorizes suit fact-finding role courts have no speaks ‘any review of final deci- was, sure, cases.” Hummel to be made after a sion of the case, not a class ac an individual review plaintiff] party,’ and to which was a [the 205(g) nor Hum tion, but neither Section ‘to enter empowers district courts ... mel draws any distinction between individ affirming, modifying, or revers- judgment cases and class actions. ual review ” Secretary.’ decision of the at 2556. “This lan- 99 S.Ct. U.S. III. contended, indicated guage,” the response language of the Social contemplated case-by- “Congress Hummel, Security Act and our decision 205(g)” of claims under adjudication court, plaintiffs, the district and the 442 U.S. at 698- rather than class actions. appear acknowledge that a dissent all at 2556. 99 S.Ct. generally engage in district court disagreed. Court fact-finding brought under Sec- a case 205(g) “con- first noted that Section maintain, however, They 205(g). tion class relief.” express limitation of tains no apply does not in class ac- this restriction at 2557. The tions. Rules that the Federal Court next observed plaintiffs support position, In of their the civil apply to all federal of Civil Procedure language in of point anything the do not 23 authorizes class and that Rule actions provision of the 205(g) or other Section are met. specified actions if conditions legislative histo Security Act or its Social at 2557. The Court at 99 S.Ct. Instead, they rely primarily on two ry. that class relief is avail- therefore reasoned Yamasaki, Court actions the in all federal civil able “[i]n decisions — Califano sup New ra, City and Bowen v. a con- expression” a direct of absence of of York, addition, supra. Id. cite a num And the congressional intent. trary dissent, expression The of of lower court decisions. “clear ber Court found no such Id. approach, 205(g). taking different at in Section congressional a somewhat intent” language significance to the tempts support in the of attached little to find The Court individual,” “[a]ny since 205(g), argument appears the term but this use of Section Yamasaki. provisions under which jurisdictional to us to be foreclosed brought employ simi- City New may relies on as class actions be dissent also 205(g); Section brought under may be Moreover, the Court Id. language.10 lar some adjudicate necessary to fact-finding is is consistent relief “class that concluded means claims; Yamasaki therefore class adjudication case-by-case for need with class in court fact-finding by a district that class membership of the long as so ... this that believe We is allowed. require- actions meet who to those limited Yama- into too much far reads argument 701, 99 at 442 U.S. 205(g).” of § ments held noted, Yamasaki we have As saki. observed the Court Finally, in Section barred is not relief class that appropriate peculiarly was relief that class exempt did cases, Yamasaki 205(g) claims because hand case at in the re- from actions 205(g) class in Section applicable of law “questions on turned im- expressly provision this that strictions class members. all manner” same does Yamasaki Consequently, poses. Sec- that suggest, mean, plaintiffs as the the Yamasaki portion this on Relying 205(g) restrictions tion argu- two advance plaintiffs opinion, disregarded be simply fact-finding quite to us seem which ments, both an sought. Such relief class whenever to ar- appear first plaintiffs strained. espe- be would Yamasaki interpretation decision Supreme Court’s that gue opinion the Court’s since cially far-fetched that proposition broad for stands mention no case made language any restrictive actions class already Indeed, not- as fact-finding. interpreted not be should 205(g) Section relief” that “class ed, observed the Court disagree with strongly literally. We in that appropriate” “peculiarly true, as re- course It is of interpretation. questions on claims “turn[ed] because Yamasaki above, counted manner same applicable lawof on argument based particular a rejected class.” member each hardly It 205(g). Section language of added). (emphasis seem however, as the follows, sup- to draw attempt based argument every imply, that While Yamasaki, the also 205(g)must position of Section for their language port literal that Ya- argument each Instead, we believe an propounds rejected. dissent attempt to find separate- be evaluated precludes. must argument masaki Furthermore, 205(g) Section we language merits. support its own ly on reason Court’s individual between its distinction believe actions, focuses argument the dissent class rejecting cases dissent 205(g) In Yama- here. inapplicable in Section terms Yamasaki clear individual found noted, applicable the Court are more saki, suggests as See to bar actions. intent class congressional than eases expression in- 205(g). dissent Section dissenting op. at 1347-48. under actions all class from Section 205(g) ex- contrast, following states quotation Here, cludes high- helpful Secre- it finds terms categorically 205(g) plicitly by substantial supported tary’s lighted: “conclusive,” accepted must be evidence individual, decision after Any final out clearly sets and Section hearing to after Secretary made Securi- review for scheme irrespective party, he awas courts “the in which ty cases may obtain controversy, amount Hummel, 736 F.2d fact-finding role.” by a civil ac- of such decision at 93. days after sixty within commenced tion or decision of such him mailing to argument second plaintiffs’ Secretary as time such further within essentially as fol on Yamasaki based allow_ Sec- findings of the action a class held Yamasaki lows. (ERISA). 1132(a) (civil § U.S.C. § 1343 28 U.S.C. cited 10. Court (mandamus), 29 1361 rights), § 28 U.S.C.

1341 fact, retary as to if supported by gal policy. In the appeals court of and the evidence, conclusive, substantial shall be Supreme Court, the Secretary and the Com- and where a claim has been denied missioner of Security the Social Adminis- or a decision rendered un- tration challenge did not either (b) der subsection of this section which is authority court’s findings, make par- adverse to an individual party who was a findings made, ticular that it ruling or its to the hearing Secretary, before the be- policy followed by the Social Secu- cause of failure of the claimant rity Administration improper. In- proof individual to in conformity submit stead, they raised arguments not di- any regulation prescribed with under rectly here. relevant (a) section, subsection of this the court relying City on New shall regulations validity and the plaintiffs appear as reason follows. regulations, added). of such (emphasis City New York was Security a Social Dissenting op. (emphasis at 1347-48 added action; class findings made; factual the dissenting opinion. Supreme Court did not criticize the Based highlighted terms, on these the district court for making those findings; dissent draws the conclusion that “section therefore, findings factual in a Social Secu- 205(g) deals solely individual review with rity class proper. action must be We do cases.” Id. at 1349. The dissent subse- agree. quently reiterates: 205(g) out the district sets court’s First and important, most since the jurisdiction applicable standard of district authority findings court’s make review in individual review cases. challenged was not addressed court, appeals, court of or the argument This is almost precisely the Court, mere fact argument as the same that was advanced were inconsequential made is prece rejected by Su- dential purposes. “[Qjuestions which preme There, Court in pre- Yamasaki. merely record, lurk in the brought neither noted, viously Secretary argued to the attention of the court nor ruled many of highlighted the same terms upon, having are not to be considered as dissent “Congress indicated that contem- been so decided as prece to constitute plated a case-by-case adjudication of claims Fall, 507, 511, dents.” v. Webster 266 U.S. under 205(g) incompatible with 148, 149, (1925). 45 S.Ct. 69 L.Ed. 411 Ac 699, class relief.” 442 U.S. at 99 S.Ct. cord Illinois State Board Elections v. Court, however, 2556. The disagreed and 173, Party, Workers Socialist 440 U.S. held that Section applies class 183, 983, 989, 99 S.Ct. 59 L.Ed.2d 230 actions as well as individual review cases. (1979); United States L.A. v. Tucker Thus, argument the dissent’s that “section Lines, 33, 38, 67, Truck 205(g) deals solely individual review 69, (1952); 97 L.Ed. 54 v. Golden Losada (dissenting op. 1349) eases” directly Co., Disposal 1395, Gate F.2d 1399 950 contrary to the reasoning Yamasaki’s and (9th Cir.1991); National Cable Television holding. Ass’n, Editors, v. Inc. American Cinema

B. The other Inc., 1572, (Fed.Cir.1991); on 937 F.2d 1581 which the rely City v. Donnelley FTC, R.R. & Sons Co. v. 931 — Bowen York, supra New 430, (7th inapposite. Cir.1991); likewise F.2d 433 Cousins v. — is There, plaintiff alleged class their Secretary Dep’t Transporta U.S. disability tion, 603, claims been denied (1st Cir.1989); based F.2d 608 Soy secret illegal policy adopted by 303, (3d ka v. Alldredge, 481 F.2d Cir.1973). Administration. Lavine, The dis Hagans See also trict court seven-day 1372, conducted trial 535 n. 1378 n. found that the Social Security (1974) (sub Administra rulings L.Ed.2d silentio tion had indeed jurisdictional followed a secret and ille- on binding). issues not

1342

Second, agency impartial not act as an could if we assumed even For would have far less force. fact-finder en district court to proper it for the was reasons, therefore, City all these New of York, City in New gage fact-finding of of plaintiffs’ argu- support does not York 1361, 28 jurisdiction, U.S.C. § mandamus in this ment case. 205(g), might pro have rather than Section doing In City for so. vided basis similarly do not believe that C. We Inc., and the court Center, New district McNary Refugee v. Haitian 499, 888, court had 112 held that 498 L.Ed.2d appeals jurisdic (1991), dissent relies as on which the jurisdiction, well 1005 mandamus 1349-51), op. light sheds on (dissenting 205(g). City New Section tion under McNary, us. In 1109, 1117-19 question before Heckler, F.Supp. York 578 v. held that a district court Court 729, (2d (E.D.N.Y.) F.2d 734-39 aff'd, 742 question jurisdiction general federal if, Cir.1984).11 is available Mandamus brought aliens a class action entertain plaintiff things, the has among other administer- claimed that the INS was who (Heckler of relief v. adequate other avenue Special Agricultural ing Workers 602, 616-17, 104 S.Ct. Ringer, 466 U.S. (SAW) program way in a amnesty (1984)), 2013, 2022-23, and 80 L.Ed.2d 622 process Immigration due and violated appeals New York the court of City of The and of 1986. Reform Control Act requirement held this had been satis 1160(e)—aprovi- held that 8 U.S.C. Court § case, present fied. 742 F.2d at 739. provides the exclusive sion of the Act that hand, on have not the other “an applica- review of avenue jurisdiction, and in asserted mandamus pursuant to adjustment of status” tion for adequate alternative they event have an preclude the program—did SAW they can seek review of the remedy, since exercising its general court from findings on the issue The question jurisdiction. federal alleged Rowell’s bias. language particular relied on Moreover, perceive significant we dis- (111 896-97) 1160(e) S.Ct. at U.S.C. § questions at tinction between the factual that, plaintiffs’ if the observed issue New York City in cases like barred, “would not as suit present question the factual practical obtain mean- matter be able to case, may bearing a distinction that ingful judicial (id. of their claims review” appropriateness on of mandamus. 898). plain- City cases like New York in which support the dissent’s McNary does agency tiffs that an follow- claim has been argument simple reason policy, secret unlawful could be question un- McNary concerned a different argued proce- that normal administrative statute—namely, whether 8 der a different inadequate dures are because 1160(e) precluded a district court U.S.C. § an impartial could not function as fact- general question federal exercising situation, In that ancient max- finder. Here, jurisdiction. neither U.S.C. im in his judge that no one be a own 1160(e) immigration nor stat- contrast, By case could be invoked.12 when implicated,13 ute federal question in- simply question jurisdiction the factual whether a never been has biased, Moreover, single any argument while the Court ALJ voked.14 fact-finding City this New York 11. Court did not reach issue. ment that proper, Court has never decided whether manda it would not follow that the district jurisdiction mus fact-finding is available in Social engage independent court could Ringer, See Heckler v. 466 U.S. 616— cases. here. 2013, 2022-23, 80 L.Ed.2d 622 (1984). Compare Colonial Penn Ins. Co. Heck Indeed, McNary distinguished Heckler v. (3d ler, Cir.1983). F.2d 437 n. 205(g). Ringer, supra, which involved propriety fact-finding 12. district court 613-16, us, Ringer, 14. See Heckler v. City a case such as New York is not before 2020-22; (addressing general express federal question. We S.Ct. at question we no view that, assuming relating merely argu- jurisdiction note for the sake of to entertain claims

1343 fact-finding plaintiffs challenged that the could was not McNary observed or ad- meaningful judicial dressed, re- not have obtained disputed ques- and the factual view if their district court action was secret, illegal tion—the existence of a poli- barred, in this case the can obtain cy on Secretary’s one which the abili- —was decision ty impartial findings to make could have bias, alleged regarding AU Rowell’s challenged. been must be based on the adminis- Bowen, (3d In Wilkerson v. 828 F.2d 117 Secretary’s findings and the trative record Cir.1987), we remanded a case to the dis- of fact. trict court and instructed the court to de- relying In D. addition to Su- termine whether the were enti- discussed, preme already Court decisions injunctive tled to relief on their claim that plaintiffs’ did not brief cited—but dis- Secretary following was not our deci- previous cuss—several of our decisions. regarding disability sions the evaluation of Appellee’s Perhaps Br. at 29 n. 8. Any claims based on alcoholism. fact-find- thing that needs to be said about these ing might necessary in that case fact-finding authority is that the cases again appear would to fall into the same challenged the district court was not category as that in City New York and For discussed of them. this reason i.e., Bailey, fact-finding to determine alone, they provide precedential support whether the practice was in de- event, plaintiffs’ position. for the In parting binding legal from rules. readily find all of these we cases distin- guishable Califano, from the case us. Holman v. 835 F.2d 1056 before (3d Cir.1987), we remanded a case for the (3d Sullivan, Bailey v. 885 F.2d 52 district court to determine whether the Sec- Cir.1989),a class action was filed contend- retary duty had violated a to make disabili- ing following was anoth- ty payments to claimants within a reason- (id. 58), policy” er “alleged secret eligible. time after able were found “severity regulations.” one related to his opinion makes no fact- reference to court denied class certification finding. suggest Nor does it that the un- erroneous, grounds that we found (i.e., derlying length facts statistics on the we reversed instructed the district eligibili- of time between a determination of court to reconsider its decision. Id. at 58- ty payments) and the commencement of that, 59. We also stated if the district Thus, disputed. were either unknown or proceed court found that the ease should action, may well be that the determination to be a class it should entertain evidence on remand “systematic made the district court misapplication.” Id. at 59. Thus, viz., purely legal, any delay whether shown Bailey, City like New was a propriety case in which the of district court the statistics was reasonable.15 Salfi, (10th Cir.1987) Security); Weinberger (policy practice to Social 749, v. F.2d 161 (1975) (same). Heckler, Hyatt regarding pain); 45 L.Ed.2d 522 evaluation of v. (W.D.N.C.1989), F.Supp. 711 837 aff’d Sullivan, (4th Hyatt sub v. F.2d 329 nom. 899 15. We will not describe in detail the decisions of (same); Heckler, Cir.1990) 668 Samuels appeals other courts of and district courts on (W.D.Tenn.1986) (practice regard- F.Supp. 656 plaintiffs rely. which the The decisions that are consulting physicians); New instructions to plaintiffs most favorable to the van, v. Sulli — Small Bowen, (S.D.N.Y.1987), F.Supp. York v. 655 136 (S.D.Ill.1992), F.Supp. 1098 and Ken Sullivan, sub nom. New York v. 906 F.2d Sullivan, (S.D.N.Y. F.Supp. drick v. aff'd. 910 Thus, (2d Cir.1990). if these cases involved many objections 1992) reject raised the Sec — (as any fact-finding opposed interpreta- retary to class actions similar to the one before regulations Security us, di- tion of rectives), and Social opinions directly but the do not address the fact-finding appear would to be argument that the district court was barred analogous Bailey and is in Bowen making its own not, discussed, already germane for the reasons regarding Virtually fact the Aids' bias. all of case, present purposes. In the final cited the other cases involve district court determina Bowen, (D.Vt.1987), F.Supp. regarding practice Barnett v. policy tions of the Social declaratory component the district court awarded Administration or in which Bowen, Security system. injunctive delays Luna v. relief related to in sched- 1344 “ cases, comparable’ to that of a ‘functionally we of our while

Finally, in several court, judge.”16 Id. our the case to the remanded we envi opinion no indication that provides Availability type discovery of the in engage would the district sioned that sought in this trial fact-finding v. on remand. Mattern independence. undermine vital would (3d Cir.1978), Mathews, cert. F.2d 248 582 discovery Although permits Hummel some Mattern, 443 v. nom. denied sub Califano bias, discovery be on the issue of that must 3101, 876 912, 61 L.Ed.2d 99 S.Ct. U.S. development facts limited to the of those (1979); v. the Blind Liberty Alliance of remand, appropriate, are on and issues that (3d Cir.1977). Califano, F.2d 333 568 of the exis- consideration tence of bias in connection with those bene- sum, nothing In find decisions we subject fit are the of the section claims that or this court Supreme the district action or actions before court, supports authority premise, On that we would be reluc- court. 205(g)’s pro- express in the face of section discovery type tant to sanction hibition, findings regard- make its own contemplated in this case be- district court are ing alleged bias. We ALJ Rowell’s such cause we are convinced that fact-find- convinced that therefore ing a deleterious effect on the would have authority. lacked such on ad- independence of AUs and thus process. ministrative IV. long recognized that It has been 205(g)’s restriction. of dis Section attempts probe thought and decision empty fact-finding is not an trict court making processes of judges adminis requirement but instead serves technical In generally improper. trators United safeguarding integrity vital role 409, 422, v. 61 Morgan, 313 U.S. States present process. the administrative 999, 1004-05, (1941), 85 L.Ed. 1429 S.Ct. context, 205(g)protects against dis Supreme question Court observed covery proceedings and court that could ing judge pro administrator about the independence of seriously undermine the cess which a decision had been reached AUs. judicial or would undermine the administra (id.): process. The tive Court wrote “Just As Court observed Butz judge subjected as a cannot be 478, Economou, 513, v. 438 98 S.Ct. U.S. ..., scrutiny integrity so the admin 2894, 2914, (1978), 57 L.Ed.2d 895 there process equally respect must istrative prior pas- was considerable concern ed.” To Preserve Over See also Citizens sage of the Procedure Act Administrative 402, 420, Volpe, 401 91 ton Park v. “persons hearing cases 814, 825, (1971); 28 L.Ed.2d indepen- at the trial level could not exercise Savings Ryan, 922 F.2d Franklin Ass’n v. Therefore, judgment.” process dent “the (4th 209, Cir.1991); Botany NLRB agency adjudication currently struc- (3d Cir.1939) Mills, 106 F.2d 263 Worsted tured as to assure that the exer- so [AU] (striking interrogatories probing deci independent judgment cises the evi- his members); making process sion NLRB him, pressures by dence before free from Davis, Treatise, K Law Administrative parties officials within (1980). 17.7 agency.” Relying on this structure, case, plaintiffs, through Court concluded In this dis- covery,17 already deeply AU is into the role the modern federal delved denied,

uling hearings, we see no indication that cert. (1982). L.Ed.2d 651 fact-finding. engaged approve 17. Our in Hummel did not decision Corp., NLRB v. See also Permanent Label discovery mel, type permitted here. In Hum- (3d Cir.1981) (Aldisert, J., F.2d 527-28 con we that a claimant was entitled to held AUs), independence discovery undergone curring) (discussing as to whether the ALJ had allege destroyed making processes, that AU Rowell some of decision AU Rowell’s habits, produc- these documents order to avoid private communications. work short, appears example, they deposed opinion-writ- them. For writing opin- plaintiffs very made extensive AU Rowell in efforts to er who assisted thinking they plainly probe making intend- and decision years, for five ions occupying position heavily During processes evidence. of an officer rely ed to on her questioning by plain- described Court as “func- deposition, her under counsel, tionally comparable” judge. gave evidence concern- that of a tiffs’ she in- ing, among things, other AU Rowell’s probe Such efforts to the mind of an concerning opinions that she was structions AU, allowed, pose if would a substantial draft, lan- assigned to his use of “stock” process. threat to the administrative Ev- opinions, in differences between his guage ery work under the threat AU would procedures views and those of work and being subjected to such treatment if his or AUs, length opinions of his and pattern displeased any her of decisions ad- made, her eval- of revisions he number litigant group ministrative with the re- work, aspects his his consulta- uation of put together charging sources suit books, familiarity his with and tion of law Every bias.19 AU would know that his or law, particular views about rules of wheth- deposed could her staff members be and thought opinions principled er she his questioned in detail the AU’s deci- about result-oriented, disagreed how often she making thought processes, sion and decisions, she believed with his whether subpoenaed ques- co-workers could be against cer- his decisions discriminated conversations, that tioned about social role as a groups, tain how he viewed his papers could ordered AU’s notes and be AU, Security he ever ut- Social whether produced discovery, and that evi- epithets, complaints ethnic tered racial or gathered by these means could be dence secretaries, typists him from about used, essence, put the AU on trial evidence, types certain how he evaluated court to determine if he or she worked, his the number of hours he views performing the should be barred from core area, physicians in the regarding particular her office. This would functions of his or regarding obesity, alcoholism and his views ability many seriously interfere with the many other matters. AUs to decide the cases that come before solely and the them based on the evidence plaintiffs apparently also intended law. rely heavily anticipated testimony by another co-worker who “wrote decisions V. Rowell, for AU discussed cases [ ] [with office, recognize fully with him We that bias went to lunch him] nearly every person- part may undermine the fairness day,” became a “close AUs friend,18 process. the administrative “Trial be al” and visited AU Rowell’s of judge’ essential to due testimony, according home. This to the fore ‘an unbiased fact, Mississippi, 403 U.S. plaintiffs’ proposed findings process.” would v. Johnson 212, 216, 1778, 1780, 29 L.Ed.2d allegedly relate numerous statements made S.Ct. (1971). “[A]ny permitted by tribunal regarding AU Rowell his “views of only generally Security try and the law to cases and controversies claimants Social must but also must avoid even disability system attorneys be unbiased doctors system.” Appellees’ appearance of bias.” of claimants Commonwealth addition, Casualty plaintiffs sought Coatings v. Corp. Br. at 14. Continental 337, 340, Co., concerning discovery AU Rowell’s notes decided, (1968). cases that he and the L.Ed.2d 301 See also Haines 19. and, so, parties nature have called to our attention the a “Bellmon Review” recently review. 736 F.2d at 95. We did not sanction fact that similar class actions have been depositions of the ALJ’s co-workers and staff. against several other HHS ALJs. filed Appellees’ Br. at 13. through the fully protected can (3d mination 81, 98 Inc., F.2d Group Liggett process F.2d at Hummel, 736 Cir.1992); determination. fact- trial and court of district type in this sought finding that VI. necessary in order however, case, of Social Se- impartiality safeguard conclusion, hold we pro- Other adjudications. disability curity authori- lacks present threat less pose far cedures independent and make a trial conduct ty to process are of the administrative integrity alleged bias concerning the fact findings of readily available. instead, hold, We ALJ Rowell. noted, previously As review the regula- promulgated has pursuant Administration question this Secretary on law an administrative prohibiting 205(g). tions in Section set out the standard disability a conducting judge partial or prejudiced she is he or “if Jr., HIGGINBOTHAM, Circuit A. LEON any interest has party or respect to dissenting. Judge, decision.” pending for matter the alleged that of a class Suppose regula- The 404.940, 416.1440. C.F.R. §§ Servic- Human Secretary of Health the disquali- the to seek claimant allow tions which policy under adopted a secret es ALJ refuses the Id. If an ALJ. of fication poor or black hispanic, living in claimants an pursue can aside, claimant step the to be presumed communities white subsequent- (id.) and appeal administrative securi- deserving” of social “less generally procedure This review. judicial ly obtain dis- a federal Would disability benefits. ty seeking dis- procedure the analogous to a de authority to conduct the have trict federal district aof qualification plain- ruling on fact-finding trial novo 144, 455.20 28 U.S.C. judge. §§ See only claim, the district or would tiffs’ the Furthermore, present case So- in the Secre- the authority to the have responded Security Administration cial a limited under of facts findings tary’s Rowell con- ALJ allegations against review? of standard conducting an panel and vening special New City v. According to Bowen signifi- statistically of a analysis extensive 2022, 90 467, 106 S.Ct. York, U.S. disability deci- his cant, sample of random v. Haitian McNary (1986)and L.Ed.2d 462 lengthy wrote a panel special The sions. 499, 111 Inc., Center, U.S. Refugee findings, and while its setting out report (1991), dis- 112 L.Ed.2d bias, panel evidence did find conduct power have court would trict it detected. that practices certain criticized Be- Why? fact-finding trial. a de novo Appeals Council acting Chair or constitutional classwide cause, collateral accepted its report and reviewed then practic- agency’s to an challenges statutory Secretary ac- conclusions. essential by the de novo are reviewed policies es or may seek knowledges Center, 111 S.Ct. Refugee Haitian courts. findings and of these York, 476 New City 897; Bowen v. at insuffi- court, them if it finds 2031-32. the Secre- cient, the matter may remand entirely fictional We, substitute Now proceedings. further tary for above described scenario hypothetical the cor- regarding course, no view express pres- by the brought complaint actual findings or rectness According to the plaintiffs. class inquiry, ent panel’s special adequacy of allegedly has Rowell complaint, plaintiffs’ convinced we are he under policy biased adopted a deter- impartial administrative right to an 7521. U.S.C. Board. 5 Protection addition, terns recusal of agency seek an Sys- the Merit proceeding before ALJ in a an ” Majority Op Security cases. hispanic, living that claimants believes Third, majority that no only finds are poor communities or white black Court or this decision from system”, milk the “attempting to court, including City New capable going out “perfectly Bowen liv- they “prefered expressly ever held that the dis- earning living”, has monies,” authority he had no “that court has the to make find- public trict “he did regarding alleged and that paying ings them” of fact bias intention Instead, evidence showed.” according majori- not care what an AU. court have only a federal district in which the dis- ty, Should instances fact-finding de novo authority fact-finding, to conduct a the fact engaged trict court claim, reviewing plaintiffs’ trial existence of a question concerned the only pow- have should the district court practice hidden unlawful —a agency’s findings under er to review the Secretary could not question on which the of review? limited standard impartial fact-finder. Ma- function as Fourth, majority jority Op at 1342. today answers that the dis- majority reluctant argues that this court should be authority to trict court does indepen- to make to allow the district court trial, de novo but instead conduct a regarding of fact the bias of dent agency’s review the authority has fact-finding “such would an AU because re- standard of findings under a limited indepen- have a deleterious effect Why? Be- respectfully dissent. view. I on the administra- dence of AUs thus a cause, bias is plaintiffs’ claim None process.” Majority Op at 1344. tive challenge to an unconstitutional collateral grounds are valid. of these by an adopted practice, no less so because adopted by the Secre- than had it been A. court has the tary. As such the district authority a de novo trial to conduct correctly recog- As the district court reviewing plaintiffs’ claim. nized, security brought in fed- social cases generally fall into two eral district parts. proceeds in two This dissent City New categories. Bowen v. ground part first I will refute each the at 2032. The 476 U.S. at S.Ct. holding. for its majority advanced the review ease. category is the individual first part, I submit an alterna- In the second will district court appeal an This involves reasoning majority. tive Secretary deny- from a final decision I. In this Security or SSI benefits. Social court is asked appeal, the district sort of majority grounds relies on four the case facts of whether examine holding court lacks Id. entitled to benefits. the claimant is independent findings of authority to make security category of social The second alleging unconstitu- fact in a classwide suit in- action. This a collateral class cases is statutorily unlawful bias on tional and court chal- in the district an action volves anof AU. practices as policies or lenging agency’s First, express majority finds statutorily unlawful. unconstitutional 205(g) of the Social language of section action, court is the district In this sort of Act, a 405(g), “creates Security U.S.C. § any of determine whether not asked to may con- a district court scheme which actually entitled ben- plaintiffs are class duct a restricted review efits. for new remand a case the district court’s 205(g)sets Section out provi- findings, this makes no scheme re- standard of applicable jurisdiction any find- to make sion for a district court pro- cases. It review view in individual Majority Op at 1338. ings of its own.” part: in relevant vides Second, deci- majority reasons that our individual, any decision Any after flatly that ‘the in Hummel sion “stated final hearing to after a made fact-finding role in courts have no Yamasaki, 442 U.S. irrespective of party, he was which Califano (1979), the L.Ed.2d may obtain controversy, amount question first answered Supreme Court ac- by a civil a decision of such court found in the affirmative. days after sixty within tion commenced federal preclude 205(g) does section such decision him of mailing to assuming jurisdiction courts time as further within such Yama actions. security class social over the Sec- findings of may allow.... 700-701, at 2557. saki, fact, supported retary as to plain lan Instead, held that the court conclusive, evidence, be shall substantial with 205(g) is consistent of section guage denied has been a claim and where usu of their courts by district exercise un- rendered decision Secretary or a Rules the Federal authority under al which (b) section of this der subsection including cases, to conduct Procedure Civil party who was individual adverse to cases, actions: class Secretary, be- hearing before to the. limi- express 205(g)contains or such of the claimant failure cause of prescribes that It relief. class tation conformity proof individual submit type by the usual shall judicial review prescribed under regulation with routinely dis- brought action’ ‘civil section, the court (a) subsection array of connection court in trict con- question of only the shall aof In the absence litigation.... civil regulations formity with such in- Congress of its expression direct (emphasis regulations, validity of such usual course from the depart tent added). under nature’ of a civil trying ‘all suits says is 205(g)plainly section All that purpose, established Rules been denied has a claimant who actions in civil appropriate relief is class the claimant “hearing” to after court, including those in brought federal petition the district may “party” was a determinations seeking to overturn Secretary’s deci- of the for review court Branch Executive departments of in contro- the “amount sion, irrespective of judi- in cases where the Government that, ruling the denial versy,” and in au- is such determinations review of cial “conclu- benefits, consider court shall omitted). (citations thorized. any Secretary as to findings of sive” Id. evi- fact, by “substantial supported if expressly not 205(g) does as section Just 205(g) way, section another dence.” Stated federal whether question address dis- cases in individual review provides that collat- over jurisdiction have district courts review to deni- jurisdiction have trict courts actions, untouched it leaves eral class Secretary, and by the al of benefits applica- of review standard question fact-finding role district court’s cases the claims, majority ble such actions. findings of the affirming the to limited ac- class however, that, collateral even evi- by substantial supported if statute of the tions, language plain dence. court a district in which a scheme “creates however, leaves unan- 205(g), conduct a restricted may Section first, may the fed- remand findings does questions: two swered this scheme findings, but jurisdiction over court for new eral a district court provision for where class actions makes collateral Majority own.” findings policy any its practice or make challenge a unlawful, majority concluding, statutorily In so op as unconstitutional in section phrase single underlying in on a merits homes challenging the without Secretary as findings of 205(g): “The for benefits? claims of their of the denial fact, by substantial supported if has court Second, if the federal Accord- ...”. actions, evidence, shall be conclusive class collateral jurisdiction over “seems phase majority, ing to review be proper standard of what is court clearly mean that quite in such actions? by the exercised Supreme Yamasaki, Secretary’s findings Court held that must review the [even 205(g) applies “Section to class actions as rather than set- in collateral class actions] cases,” well as to individual review independent findings of ting out to make reasoning directly that the above “is con- Op Majority own.” at 1338-39. its reasoning trary to the Yamasaki and hold- Respectfully, majority wrong. ing.” Majority However, at 1341. a care- phrase “quite clearly” not mean that does reading ful of Yamasaki reveals that it is the district court is bound the Secre- contrary reasoning. to the above tary’s findings in collateral class actions Yamasaki, Supreme Court stated that quite simple for the reason that section 205(g) express “Section contains no limita- 205(g) solely deals with individual Yamasaki, tion on class relief.” 442 U.S. job majority good While the does a cases. 699, 99 S.Ct. at 2557. The court ex- focussing phrase on the that the Secre- plained 205(g) simply that Section silent supported tary’s are conclusive question-of whether federal courts evidence, inexplicably ig- it substantial jurisdiction exercise over social securi- provisions 205(g) of section nores ty class actions. Id. at S.Ct. phrase give which surrounds that According court, in the ab- meaning. context and expression Congress sence of clear exempt security its intent to social class example, 205(g) For states that section trying actions from the usual course of all individual, “any after final decision of nature, suits of a civil class actions were made after a precluded by 205(g). All party, irrespective he was a Court held in Yamasaki controversy, may amount in obtain a re- 205(g) is that Section did not limit federal ” view of such decision.... The use of the jurisdiction security over social class “hearing party” to which he was a terms actions, just as here Section does not clearly contemplates an individual determi- limit the standard of review exercised eligibility nation of for benefits at an actual federal courts over those actions. proceeding where an individual claimant Recently, engaged present given opportunity and was analysis of a stat- the exact same similar present evidence. Moreover the use of McNary Refugee ute. v. Haitian Cen- controversy” the term “amount also con- ter, Inc., template eligibility a determination of (1991), L.Ed.2d 1005 a class of benefits where the claimant and the Secre- up of alien farmworkers made unlawful tary seek to ascertain a dollar in amount Immigration Naturalization sued the benefits to which the claimant is entitled. (INS) Immigration under the Re- Service “hearing These characteristics of the terms (the Act). Act Plain- form Control party” at which he was a and “amount in denied their tiffs claimed that the INS had controversy” only present are in individual in application for lawful status violation challenges review cases where the claimant process guarantees of the Fifth the due by the merits of the denial of Act Amendment to the The Constitution. contrast, Secretary. By in most collateral and stan- prescribed jurisdiction itself cases, plaintiffs may challenge review a reviewing in by dard of review the courts particular aspect Secretary’s practice applications for the denial the INS of policy or without to a hear- reference part: in provided status. It relevant lawful ing present. where More- judi- or There shall be no administrative over, case, plain- since in a collateral action respecting cial review of a determination challenge tiffs do not the merits of the application adjustment an of status benefits, by denial of their definition there except under this in accordance section controversy.” in is no “amount with this subsection. 1160(e)(1). 8 U.S.C. majority maintains that this reason- Majori- a judicial is “foreclosed Yamasaki." There shall be review of such ty op According majority, only judicial in the of an denial review of Section words Similarly, the critical deportation under exclusion order referring provision as 205(g) describe title. of this 1105a section decision” “any final to review judicial 1160(e)(3). 8 U.S.C. § an individ- hearing” at which after “a made solely be based shall review judicial Such of “the irrespective party”, “a ual estab- record upon the words de- controversy.” These amount authority appellate by the lished group a than act “single a rather scribe con- determinations fact and findings of em- procedure practice or aor decisions conclusive shall be in such record tained Moreover, making decisions.” ployed abuse can establish applicant unless the findings that the prescribes 205(g), Section or that discretion where convincing conclusive Secretary shall be contrary clear directly when the considered the record been denied” claim has “a facts contained is ad- “a decision” a renders as whole. party who was “an individual verse 1160(e)(3)(B). 8 U.S.C. § Again, Secretary.” before majority maintains as the Much act”, namely single “a these words refer argued before case, the INS present application.” of an individual the “denial language” “plain Supreme Court concluded Therefore, Supreme Court as of, not judicial review Act restricted Center, the Refugee McNary v. Haitian denial of status appeals of only individual 205(g) describes of Section language INS, also collateral by the adjustment individual deni- statutory process of direct chal- constitutional classwide benefits, than security rather of social practices. als policies and lenges to INS challenges collateral The Court argument. refer rejected policies used practices and unconstitutional reasoned: AU, processing or the 1160(e)(1) agency, describe words ] critical [§ applications to review for benefits. referring provision ap- respecting “of a determination summarily dismisses majority Significant- status. for SAW plication” present McNary and analogy between determination” to “a ly, the reference “McNary concerned stating that than single act rather describes a stat- a different question under different proce- practice or or a decisions group of course, the Of op at Majority ute.” making decisions. employed dure McNary superficially correct. majority 1160(e)(3) further Moreover, when [§ But that statute. different did involve per- only judicial clarifies that to Section remarkably similar statute deportation in the context mitted 205(g), that statute 205(g). Like “judicial review refers to proceeding, review of an limited provides for referring ato again of such a denial” — application. of an individual agency’s denial act, making clear again single however, that the Court, held Supreme “a to determination reference the earlier direct re- process “the described statute application” describes respecting an [], rather than denials of individual view We application. an individual denial of challenges to collateral to Court’s refer[ed] agree with District therefore by the practices used reading unconstitutional of this Appeals’ Court applications.” processing in agency process of describing the as language 498 U.S. at McNary, denials of individual review direct majority’s asser- Moreover, contrary to to status, referring than rather SAW faced McNary in tion, unconsti- challenges Court general collateral today; used this court policies same before practices precisely tutional applications, exer- processing in agency namely the standard chal- original). in “collateral (emphasis in by federal courts cised practices lenges to unconstitutional Center, Inc., Refugee McNary v. Haitian processing in policies used 491-92, 111 S.Ct. at 896. 498 U.S. at panel majority point can The Hummel described the Id.1 The case as applications.” 205(g) ex- follows: language in section to no that, even in collateral class

pressly states appeals Jeannette E. Hummel from a actions, federal district courts are limited summary judgment in favor Secre- Secretary’ of fact and have tary of Health and Human Services in engage independent in fact- power to action, pursuant her to 42 U.S.C. Instead, majority grasps finding. unto 1981), 405(g) (Sup. V for review of the phrase in the whole of section an isolated disability denial of benefits under Title 205(g) phrase that disconnected and uses Act, Security XVI of the Social U.S.C. expand meaning of section with- (1976 1981). Supp 1381-1385 Hum- V §§ Congress intended out evidence that mel contends that the district court erred application. to have such the statute broad concluding Secretary’s in deci- supported by

sion is substantial evidence. Alternatively, she contends that the dis- B. ruling trict court erred on the Secre- ground upon tary’s summary judgment which the ma- motion for The second compel discovery is our decision in Hummel v. while her motions to jority relies Cir.1984). Heckler, (3d outstanding. discovery 736 F.2d 91 Accord- were Those re- quests sought majority, concerning in Hummel “we stated information flatly possible that ‘the district court have no fact- bias of the administrative law presided hearing. finding Security judge role in cases’.” Ma- who at her Social But, jority Op at 1338. as with its selective Hummel, F.2d at 205(g), reading language of section words, plaintiff In other in Hummel majority again quotes of context out separate arguments made two before the Only this court’s statement Hummel. First, plaintiff claimed that district court. paragraph prior one to the statement that denial of her benefits was finding “district courts have no fact role supported by substantial evidence. cases”, explicitly the court Second, plaintiff requested further discov- wrote that “district courts have no fact- ery to show that the so as to be able finding security role social ruled on her claims for benefits was who words, In other the statement that cases.” against argued her. Plaintiff biased fact-finding role in district courts have no proof bias on the of the AU would security social cases must be read to refer of her demonstrate that the denial obviously security to social individual re- supported by evidence. was not substantial view cases. plain- rejected The district court both of granted summary arguments and Indeed Hummel itself was an individual tiff’s Secretary. judgment na- favor of the fully review case. To understand the case, Secretary’s find- concluded that the ture of the a careful examination of necessary. ings supported by substantial evi- holding the facts and the argued required majority were not in a Plaintiffs 1. The also mentions footnote “McNary distinguished Ringer, Heckler v. [466 exhaust administrative remedies because their (1984) ], 80 L.Ed.2d review case. The claim was not an individual 205(g).” majority which involved Section disagreed bot- and found explain why the fact that Heckler v. does not plaintiffs’ claim was not a collateral chal- tom Ringer distinguished McNary should be lenge Id. 466 but an individual review claim. is, relevant here. The truth it is not at all McNary, 104 S.Ct. at 2021. In the U.S. at Ringer, relevant. In Heckler v. four Secretary argued Ringer sup- v. that Heckler right to establish a to reimbursement un- sued ported position that the court should exercise its particular the Medicare Act for a form of der surgery. plaintiffs' The court limited review of claim. sought judicial review of the Plaintiffs by noting distinguished Ringer that Heckler Secretary’s of reimbursement for the sur- denial plaintiffs’ that was not collateral claim in case exhausting gery without their administrative McNary, their claims for benefits. to 494-95, 205(g). required by remedies as Here, plaintiffs’ claim 111 S.Ct. at 897. jurisdiction district court dismissed for lack of 205(g) plaintiffs appealed. their claims for benefits. under Section is collateral to her ruled who on AU showing that the by proof that also concluded The court dence. her. against biased may have been case be AU of would part the the on of bias as- court to request the did not Claimant ev- medical objective the because irrelevant make or to her over case jurisdiction sume rec- the administrative contained idence regarding the bias findings independent the Secre- amply supported than ord more the argument that Claimant’s the AU. was plaintiff that the tary’s conclusion simply a was biased may have been AU to benefits. entitled court district proving method court, reiterat- plaintiff appeal to On ben- of her reversed denial should before made arguments same two ed the 205(g), because, to section pursuant efits argu- to the first As court. the district Secretary, as reflected findings of the district court with the ment, agreed we supported ruling, was not in the AU’s finding of of a “in absence held that such, Hummel As evidence. substantial denying bene- Secretary’s decision bias, collater- not a review and an individual was evi- substantial supported fits [was] case. class action al However, plain- as to Id. at dence.” writes: majority here reversed we argument, tiff’s second that Hummel infor- clear in perfectly “where held that we made court and findings bearing not make on could court a contention the district relating mation but alleged bias the AU’s regarding fairness the fundamental case to government, remand the most possession could Secretary could that to the section so discovery is available attempt findings. to con- she can make such so that plaintiff to the a remand court that the district vince Op at 1338. Majority taking of new evidence Secretary for the of our expansion significant That is words, instead In other Id. appropriate.” As stated holding Hummel. careful of bias were allegations finding that above, held Hummel we detail “objective” na- irrelevant because fact-find- independent no had evidence, reasoned we of the medical ture and, as case in an individual ing role true, would if proven allegations, that such own findings of its such, not make could on the as bias inasmuch highly relevant AU. We alleged bias of regarding the sort of may affect of the AU remands because the case remanded does up which ends evidence “objective” com- security cases social Thus, we con- in the record. up not end Hum- Indeed, time at the since mon. follows: cluded as con- record appeal the mel’s therefore, in the absence hold, “We alleged regarding tained Secretary’s deci- bias, finding of aof AU, reasoned once we bias supported denying benefits sion in de- relevant was the AU bias proof of that a In the event evidence. substantial Secretary’s denial termining whether remand, a new is made finding of bias by sub- supported was to Hummel benefits adminis- held before hearing must be evidence, choice had no we stantial merits determine the judge to law trative Secretary for fact- case to remand claim.” Hummel’s major- Thus, contrary to what finding. not hold certainly did we ity suggests, never, in collat- even claimant short, though the even independent eases, make action class was eral that she a claim made Hummel an alleged bias findings regarding judge may because the benefits denied relatively has taken majority her, AU. clear against was biased have been individual straightforward mer- challenge the seeking to was that she Secretary for remanded which we Claimant of her benefits. denial its of the it into fact-finding and transformed further claimed in Hummel feder- role of sweeping declaration supported denial constitutional in classwide courts al sought prove to so evidence substantial challenges policy and unrealistic view of statutory agencies. to the agency.2 majority It is as if the practice suggest of an administrative that the individual,

Secretary, adopts as an poli- the cy Secretary, individual, and the as an C. ends up reviewing legality. words, its In other ground upon majori- the The third which view, in majority’s the the Secretary runs ty conclusion that no decision relies is its every aspect of the agency, only in Court or this court has in name but also fact. There absolutely is expressly ever held that the district court no evidence that this is the case. Indeed it authority findings regard- has the to make may very well be that the branch of the Instead, ing alleged bias of an AU. agency adopts policy which is not the according in- majority, only to the ultimately same branch which reviews its en- stances district courts legality. gaged fact-finding, question fact concerned the existence of a hidden unlaw- Moreover, begins even if one imagine agency practice question on ful or —a majority is correct in assuming Secretary which the could not function as Secretary develops strange that the at- impartial Majority Op an fact-finder. policies tachment practices, to its own 1342. None of the cases cited the ma- thereby rendering incapable being an jority, indeed none of the cases cited impartial ruling fact-finder in on their le- Secretary, plaintiffs or have ever gality, the fact remains that the same rea- fact-finding held that the role of the district soning applied allegation can be to an security predicated social cases is Secretary bias an AU. The same Secretary expected on whether can be adopts policy practice or is the same impartial to be an fact-finder. The Secretary If, supervises AUs. as the support majority cites for this broad maintains, majority Secretary incapa- distinction is ancient maxim that no “[t]he being impartial ble of an fact-finder in re- judge one be his own cause.” Ma- viewing legality policies, of its there is jority Op Syrus, at 1342. Publilius who Secretary no reason to think that the will first uttered that maxim in the first centu- any capable being impartial be more B.C., ry right. was no doubt But the wis- reviewing allegations fact-finder in of un- notwithstanding, dom of the maxim it can- part lawful of its bias AU. judicial prece- not serve as a substitute for majority’s argument seems to be that the dent. Secretary impartial is unable be an fact- event, agency's regard maxim itself finder with to the unlaw- applicable present policies practices case. The reason- ful because the Secre- majority tary separate agency. seems to that when is not from the If be Secretary adopts policy engages so, that is then the same can be said about practice, relationship into a cannot be an the between impartial determining Secretary, fact-finder in wheth- the AU and AU. vari- policy practice er that all unconstitutional ous other branches of consti- majority explain bureaucracy. or unlawful. The does not tute the same To so, why supposes separate Secretary, agency, this is but one and the majority policy pure must mean that since the or AU is to insist on fiction. And as own, practice say, always is the it will lose Holmes would “fiction Justice objectivity in reviewing legality. poor ground changing all its is a substantial Haddock, reasoning rights.” That is based on a somewhat Haddock v. majority gloss given 2. tries to over the distinction 1339. This is an indefensible statement between individual review cases and collateral unequivocal Court’s statement that was, by concluding: class actions “Hummel security social collateral class actions are “mate- sure, case, an individual review not a class rially distinguishable” from individual action, but neither Section nor Hummel City cases. Bowen v. New 476 U.S. at draws distinction between individual re- 484, 106 S.Ct. at 2032. Majority Op view cases and class actions.” 1354 described may have Court The 552, 867 525, L.Ed. 50 630,

562, judges, to comparable functionally as AUs dissenting). J., (Holmes, (1906) are AUs held that never the but guaran- independence The judges. federal D. rooted judges is III Article to teed upon which ground final and The fourth in embodied doctrine powers of separation holding is explain its to majority relies the By States. United of the the Constitution to allow reluctant court should that to afforded independence contrast, the find- independent to make the be, is may not contours AUs, its whatever because AU of an the on ings of bias ais constitution, rather the in rooted a deleterious have fact-finding would “such effi- administrative for need function and AUs of independence the on effect ex- of administrative recognition ciency, the Ma- process.” on administrative thus adequate an to build the need and pertise, original). in (emphasis Op at jority review. judicial for record administrative long “it has majority, According to 749, 765, 95 Salfi, v. Weinberger probe to attempts recognized been (1975).3 2466, L.Ed.2d S.Ct. of processes making and decision thought enjoyed independence Accordingly, im- generally are administrators judges and For one bounds. not without is AUs is This Op 1344. at Majority proper." efficien- for administrative thing, need of an mind probe to “efforts because controlling actions in necessarily not cy is pose a substan- evidence through such legality very challenge the where process.” administrative threat tial Bowen practice. policy agency’s of Moreover, major- 1345. Op at Majority at York, 476 U.S. New City discov- of trial continues, the sort ity rec- thing, the For another 2033. is S.Ct. in this by the ery sought expertise, of administrative ognition seriously interfere would allowed, “[t]his administra- adequate an to build the need decide the to many AUs ability of with appli- are not judicial for record solely tive them based before come cases case, plain- present when, inas cable Majority the law.” evidence re- the court have not seek to does tiffs’ Op. at 1345. agency which very area view the one paints is majority picture The expert. to be deemed the deci- reach security AUs social where amply demonstrated of course This is to deny claimants benefits award sion The case. present facts process “mysterious” almost through an not simply does Security Administration review. judicial susceptible which reviewing claims any expertise have horribles parade lists a majority has agency Granted bias. general inexorably unfold inevitably and will which claims determine regulations place make permitted are courts if district 404.940, 416.- 20 C.F.R. §§ bias. individual se- whether social findings of independent obviously regulations those But on deny claimants curity AUs claims designed handle majority rea- biases. unlawful basis acknowledged Secretary in fact bias. on determination its soning is based not ade- regulations exiting probe “to permitted may not be courts general bias. reviewing claims quate making processes and decision thinking would were, the If position described occupying officer instituting an than them rather ‘functionally com- relied as by the reviewing plaintiffs’ method “ad hoc” Op at 1344. Majority judge.” ato parable’ may have an it efficiently so that function the con- has described Supreme Court 3. The errors, to afford the opportunity to correct to AU independence afforded tours of terms of exper- its ex- benefit parties and the courts a rationale is ade- tise, compile a record doctrine: haustion Salfi, quate a matter review. generally required Exhaustion interference premature preventing agency processes, so Moreover, court, pursuant 205(g), may the ad hoc to section in this case. af- claim benefits, up by Secretary is unlike- firm the denial of procedure set reverse the judi- benefits, produce adequate record for denial of or remand the ly to an case to example fact-finding. For in the case of the for further cial review. Moreover, district, allegations of Secretary’s examination of an individual re- case, Rowell, accept the ad hoc view must bias on the of AU conclusive all regula- by sup- not established of fact procedure was statute; ported by any procedural or it lacked substantial evidence. tion mechanisms; rules; discovery it lacked contrast, By a collateral claim is an ac- they parties assignment and no challenging poli- tion in the short, does proof. agency burden of cy practice as unconstitu- expertise dealing with not have the statutorily unlawful, tional or without chal- bias, general and there is no claims lenging underlying merits of their deni- procedure reason to believe that the ad hoc al for benefits. The issue before the dis- produce adequate it has devised will trict court in a collateral claim is whether judicial review. record for challenged practice policy is indeed course, major- I unlawful. The Of am convinced that court never considers the ity question actually the duties of their of whether perform of AUs are the statute entitled to office consistent with benefits because collateral charged compliance separate and in claim means that the action execute accept disability But I from the merit the constitution. cannot determination con- majority’s position agency. that the exercise of in- ducted dependent review the district courts on City While Bowen v. New York clear- question bias AUs will ly established the distinction indi- between effect have deleterious on the administra- claims, vidual review cases and collateral process. anything, indepen- If such an tive explicitly did not address issue of the strengthen public dent review can con- applied by standard of review to be And, process. fidence the administrative However, courts in collateral claims. process enjoys an administrative reading careful of Bowen v. New City of public confidence will the end function York, provides strong demonstrates that it efficiently. more support convincing for the conclusion

Having why authority I that district courts have the stated reasons believe flawed, majority’s reasoning independent fact-finding I trials in now conduct turn to the discussion of how I collateral claims. submit case should have been decided.

A. II. involved two City Bowen v. New York Security programs established in distinct of the Social Bowen Security City program, New York that district courts Act. The first Social provides types Security Disability Program, Insurance hear two of Social cases paid appeal: persons individual review of denials of ben- benefits to who have into program mentally or efits and collateral class claims. Id. 476 and have become physically program, The second U.S. at 106 S.Ct. at 2032. As the court disabled. stated, Supplemental Security Income Pro- individual review cases are “materi- ally distinguishable” gram, provides indigent dis- from collateral class benefits persons. eligible claims. An individual review case in- To be for benefits Id. abled appeal program, a claimant must be volves an to the district court from under either disability severity Secretary denying a final decision of the found to under a of such disability engage or SSI benefits. that claimant is unable sub- court in an kind. Pursuant issue before stantial work Secretary adopts statutory authority, individual review case is whether the claim- programs regulations ant is entitled to benefits. The district for both to evaluate re- decision The final S.Ct. at disability bene- applicants process of two elements. consists quirement fits. claims that “the first element a class New City In Bowen v. presented have been must who were claimants composed plaintiffs, at 2032. 483, 106 S.Ct. Secretary.” Id. disability denied to be about or were denied Eldridge, quoting Matthews the district benefits, brought an action 901, 18 893, L.Ed.2d 319, 328, S.Ct. alleging that Secretary, against the court “the is that element (1976). second The unpublished adopted an Secretary had the the prescribed remedies administrative claimants deserving which under policy 482- Id. at be Secretary must exhausted.” claimed Plaintiffs benefits. denied 83, at 2031. 106 S.Ct. through implemented was policy the to discretion Secretary has Normally, memoranda and the internal of secret the use But, requirement. Regis- the Federal exhaustion the waive published never was inter- to claimant’s make arise where that failure argued “cases Plaintiffs ter. resolved issue particular due having members class denied est known policy the the to 7-day trail the deference great that Following a is so promptly of law. process Id. inappropriate.” the is found, judgment Sec- agency’s court district are factors policy, at Two covert at retary had followed is a case determining the whether actually significant violated policy the also agency’s judg- Appeals of Court that deference Security Act. The requirement the district affirmed to the exhaustion ment as Circuit Second for the “the is that to factor Secretary appealed The first inappropriate. and the court brought challenge be] [must constitutional Supreme Court. claim substantive to ‘entirely collateral [a] Court, Secretary Before the factor The second entitlement’.” of of Court of the judgement challenged the aat obtained be cannot “full relief grounds. The jurisdictional on Appeals hearing.” Id. postdeprivation argument was Secretary’s jurisdictional argued that Secretary first twofold: B. class, claim whose members certain determine factors two denied, same The had finally been benefits waive should courts whether in the district bring their action failed administra- of exhaustion decision; of requirement final days within 60 court may also in collateral claims remedies tive argued that second, the whether to determine used exhaust failed the class had members or de-novo restricted exercise in the courts should suing remedies before administrative facts findings of agency’s of an rejected The court. claims. collateral arguments. The both the 60- tolling of equitable held that exhaus- the doctrine is this: reason to those proper as day period remedies administrative tion of period with- judicial to seek failed who had agency’s of an restricted doctrine court also statutory period. same by the driven are findings of fact re- to waive proper it that was held claimants Specifically, considerations. of administrative of exhaustion quirement reme- administrative to exhaust required had not plaintiffs who those as to remedies exhausting their because, by claimants dies appeals. administrative their exhausted administrative appeals, administrative relevant my analysis, purposes For efficiently,” machinery “functions its discus- opinion is court's portion of the “afford opportunity has agency requirement waiver regarding sion experience and its parties the remedies. of exhaustion “com- agency is able expertise,” adequate for record which Normally pile a as follows: reasoned Salfi, Secretary is review.” judgment from only a final restricted exercise Similarly, courts court. Id. to the district appealable finding procedure described above the ad hoc agency’s review of an because how inadequate agency’s has devised is de-novo review of the exercise afford a full and fair findings of fact would disturb the efficient part the issue of bias on the of AU functioning agency, unduly would Rowell. The district court was correct disregard expertise experience thoughtfully when observed that “the merely duplicate an agency, and would properly police cannot itself in a already complete record. case that has been certified as a class ac- Therefore, reasonably one can conclude involving generalized tion a claim of bias that, application of ex- of the doctrine of an Administrative Law remedies and haustion of administrative Judge especially where class consists of doctrine restricted review of an approximately plaintiffs.” District agency’s findings of fact are driven opinion court at 12. factors, non-application same then the of reasonably these two doctrines should also D. be driven the same factors. Bowen analysis, In the final when all else has York, Supreme City New Court of said, it clearly been must be remembered may waive the stated that district courts plaintiffs claiming what here. Plain- requirement of exhaustion of remedies that, pursuant pro- claim to the due tiffs brought challenge the constitutional when cess clause Amendment to the Fifth is collateral to a substantive claim of enti- Constitution, United States have the tlement, and when full relief cannot be petition right to have their social se- for of an obtained at the level administrative curity impartial heard an ad- hearing. City Bowen v. Newof judge. ministrative law Plaintiffs claim Similarly, at at 2031. rights process their due have been apply district courts need not restricted applications violated because their for ben- findings fact but agency’s review to an possessed were denied an AU who efits fact-finding instead exercise de novo general against a class of bias challenge review when the constitutional of their race and their economic because brought is collateral to the substantive importantly, plaintiffs status. But more entitlement, claim of and when full relief rights claim that their have been violated cannot be obtained the level of an admin- simply equipped because hearing. istrative general The deter- police claims of bias. plaintiffs’ con- mination of whether or not C. right violated is the stitutional has been present two fac- satisfies those of an province of the courts and not that factor, plaintiffs tors. As to the first claim agency. Refugee v. Haitian McNary Cen- deserving that an ALJ denies benefits to Inc., 494-95, ter, 498 U.S. at claimants on the of an basis unconstitution- Indeed, the decision of the statutorily general al and unlawful bias. Refugee in McNary v. Haitian Cen- Plaintiffs do not seek to have the district ter, highly present relevant to the Inc. court review the substantive merits of the case, question for it also deals with the plain- of their Therefore denial benefits. ought exercise de whether district courts challenge “entirely tiffs constitutional opposed novo—as to limited—review of collateral to a substantive claim of entitle- classwide collateral constitutional chal- ment.” practice policy. lenges agency’s to an factor, challenge As to the second are That case involved a to the man- unlikely Immigration to obtain full relief at the level of ner in which the and Natural- (INS) hearing. already administering I have was ization Service (SAW) Special Agricultural provi- described does not Workers above any regulation process place Immigration Reform have sions of the Control handling opposed provisions claims of bias as Act of 1986. The SAW Attorney I ad- required to claims of individual bias. have also Act General to Court, made the INS Before farmwork- certain alien the status just First, arguments. jurisdictional Agri- “Special two aliens unlawful from ers U.S.C. to 8 that, pursuant argued lawfully admitted INS (SAW) Workers” cultural have did not court 1105(a), resi- eventually permanent temporary Second, plaintiffs' claim. (a)(2). over 1160(a)(1), jurisdiction 8 U.S.C. § dents. that, if the even argued INS INS authority, the statutory Pursuant claim, pursu- over jurisdiction to determine regulations promulgated did 1160(e)(3)(B),the court to 8 U.S.C. § ant SAW farmworkers of alien eligibility novo de authority to conduct eli- INS determined Essentially the status. findings, was agency’s review personal aon based status for SAW gibility record, and the administrative limited Applicants applicant. each interview were record of fact interview bring to the required could establish applicants unless conclusive documents, as affidavits supporting discretion. abusé was found applicant If an employers. Immigration status, the argu- ineligible for SAW both rejected Supreme Court judicial (INA) barred Nationality Act appeals. and affirmed ments context except denial As review at 899. 498-99, 111 S.Ct. order; a deportation aof review court’s argument appeals, by the court conducted stan- of discretion to an abuse limited 1105(a). 8 U.S.C. § court. district the as follows: held dard, court the that, in re- provided Moreover, INA the ju- of standard of discretion abuse [T]he status, the court of SAW viewing a denial 210(e)(3)(B)would under review § dicial administra- to the is restricted appeals of the to read were no sense we make findings of fact “the record and tive constitutional requiring asAct Reform conclusive a record [are] such contained proce- INS challenges to statutory and of abuse establish applicant can the unless re- specialized its subject to to be dures contrary findings are the or that discretion Although the abuse-of- provision. view contained convincing facts clear and ju- for appropriate standard discretion U.S.C. a whole.” as record the adjudica- of administrative review dicial 1160(e)(3)(B). applica- an individual of the facts of tion SAW unsuccessful 1988, of group a In apply to does tion, a standard action brought a class applicants claims, which statutory constitutional District for Southern court by the courts. de novo are reviewed alleged Plaintiffs against the INS. Florida 897. at process was'conducted the interview exists legal matrix factual same appli- deprived arbitrary fashion Cen- Refugee Haitian present case. of the guarantees process due cants pro- which statutory scheme ter, involved Constitution. to the Amendment Fifth “an ad- review judicial limited for vided by plain- challenged procedures Among the of an of the facts adjudication ministrative whereby INS by the practice tiffs was status.” Id. for SAW application individual “routinely discredit would interviewers a statuto- involves here Similarly, list of secret from a affidavits supporting judi- limited for provides ry scheme Refugee McNary v. Haitian employers.” adjudica- “administrative of an cial Inc., U.S Center, applica- an individual the facts tion found n. In Hai- security benefits. social for tion” and, action class over jurisdiction had brought a Center, plaintiffs Refugee tian merits trial, ruled de novo after proce- challenge to the collateral classwide uncon- the INS practices eligibili- INS to determine devised dures for Appeals The Court stitutional. due violative their as for SAW status ty filed the INS affirmed Circuit Eleventh Amendment the Fifth under rights process certiorari petition plain- here Similarly, the Constitution. of whether the question solely on classwide collateral brought a tiffs over ac- jurisdiction Secretary— of the practice challenge tion. general reflected bias began of an AU judicial with the creation of the adequate and as reflected the lack of See, “hard-look doctrine.” Greater Boston procedure deal with Corp. FCC, Television 444 F.2d (D.C.Cir.1970. general eligibility bias—to determine Currently, the hard-look process as violative of their due doctrine has four principal 1) elements: rights under Fifth Amendment to the enlargement of the class of interests enti- Center, Constitution. In Refugee Haitian tled under the due process clause to an challenged practices administrative agency before in- challenging underlying INS without fringement interests; 2) of those the estab- merit of their Similarly, SAW applications. lishment of a presumption in judi- favor of plaintiffs challenge here the bias of an AU cial review of agency 3) inaction; action or procedures lack of for more scrutinizing judicial review based dealing challeng- bias without upon a detailed agency justification for its underlying merits of their denial of decision; 4) enlargement Refugee benefits. Haitian Center class of judicial interests entitled plaintiffs alleged that interviewers from See, action. Stewart, The Refor- kept employers the INS a secret list of mation Law, American Administrative routinely affidavits were rejected. whose 88 Harv.L.Rev. at Today majori- Similarly, here claimed that an ty opinion has abandoned the hard-look doc- routinely denied their claims if Instead, trine. begun it has to fashion belong particular to a group. economic what can be called the “quick-glance Center, Refugee Haitian the Supreme doctrine.” although Court held that limited Justice Cardozo once wrote: appropriate review is for review of “an great liberty ideals of equality adjudication of the facts of preserved against op- assaults of application” an individual such limited re- portunism, the expediency of passing apply view “does not to constitutional or hour, the erosion of small encroach- claims, statutory are which reviewed de ments, the scorn and derision of those novo Similarly, courts.” Id. here who patience general have no princi- for the district court finding was correct in ples, by enshrining them in constitutions, that, although limited is appropriate consecrating to the task their for review of an adjudica- administrative protection body of defenders.4 benefits, of an application tion individual In this country courts in apply such limited review does not to collat- —and federal particular courts in claims, been statutory eral constitutional and —have “consecrated” the of constitu- reviewed de novo defenders courts. rights against assaults, tional encroach- III. individuals, ments and biases of recipients holders of elected now, office By say agen- positions. bureaucratic majority What the cies exercise broad discretionary power proposes to do in holding effectively its range private over wide interests with to have courts take a back seat intermittent to bureau- control the three agencies cratic government protecting constitutional branches is to state a rather liberties. proposition. Sunstein, majority This—even if the obvious couch- Inter- See es it in terms Groups Law, efficiency est of administrative Public American (1985); expertise Stewart, Stan.L.Rev. radical unwise re- —is relationship definition of the American Administrative fed- between Reformation of Law, 1669,1716 (1975); 88 Harv.L.Rev. eral agencies, courts and likely federal See Nordhaus, R. Litan & W. beyond also have an effect far Reforming question Regulation (1983). Federal In recent the standard of exercised federal years, courts have to make moved the ad- courts in collateral alleging actions unlaw- process ministrative more accountable and ful security bias on the of a social responsive public. to the This movement judge. administrative law Cardozo, Process, The Nature the Judicial P. respectfully I reasons foregoing For the

dissent. REHEARING FOR PETITION

SUR 7, 1993. April Judge, SLOVITER, Chief Present: MANSMANN, STAPLETON, BECKER, SCIRICA, HUTCHINSON, GREENBERG, ALITO, ROTH and NYGAARD, COWEN, Judges. LEWIS, Circuit by appel- rehearing filed petition for having been above-entitled lant in the participated who judges submitted all decision of the circuit judges circuit other available judge who service, and regular active for asked having decision concurred circuit majority and a rehearing, active ser- regular the circuit judges rehearing by the having voted vice rehearing banc, petition Court in denied. KLEINKNECHT, Personal W.

Suzanne R. Drew Estate of Representative of Deceased; P. Richard Kleinknecht, Representative Kleinknecht, Personal Kleinknecht, R. of Drew Estate Klein W. Deceased; Suzanne Kleinknecht, knecht, P. Richard right their own COLLEGE, GETTYSBURG corporation. Rich KLEINKNECHT W. Suzanne Represen Kleinknecht, Personal P. ard R. Kleink Drew the Estate of tatives W. Deceased; necht, Suzanne Kleink P. and Richard Kleinknecht Appellants. right, necht, own in their 92-7160. No. Appeals, States United Third Circuit. 24, 1992. Sept. Argued 31, 1993. March Decided 27, 1993. April Rehearing Denied

Case Details

Case Name: Lois M. Grant, on Behalf of Herself and All Other Similarly Situated Persons v. Donna E. Shalala, Secretary of Health and Human Services

Court Name: Court of Appeals for the Third Circuit

Date Published: Apr 7, 1993

Citation: 989 F.2d 1332

Docket Number: 91-5675

Court Abbreviation: 3rd Cir.