MARGARET M. HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES,
PETITIONER v. SAMMIE GAIL BLANKENSHIP, ET AL., AND GEORGIA FINCH, ET
AL.

   No. A-589

   In The Supreme Court Of The United States

   October Term, 1983

   Application For A Stay Pending Petition For A Writ Of Certiorari To
The United States Court of Appeals For The Sixth Circuit

   Application For A Stay Pending Petition For A Writ Of Certiorari To
The United States Court Of Appeals For The Sixth Circuit

   Pursuant to Rules 43 and 44 of the Rules of this Court, 28 U.S.C.
2101(f), and the All Writs Act (28 U.S.C. 1651), the Solicitor
General, on behalf of the Secretary of Health and Human Services,
respectfully applies for a stay pending the filing and disposition of
a petition for a writ of certiorari to review the December 1, 1983
order of the United States Court of Appeals for the Sixth Circuit in
this case.  Attached to this application are copies of:  (A) the court
of appeals' December 1 order affirming the district court's judgment
in part and vacating the stay pending appeal in part;  (B) the court
of appeals' order of December 27, 1983 denying the Secretary's motion
for reinstatement of the stay;  (C) the court of appeals' April 15,
1982 order granting a stay pending appeal;  (D) the district court's
opinion of February 17, 1982;  (E) the district court's judgment
entered February 17, 1982;  and (F) the district court's order of
March 22, 1982, correcting the judgment.

   In its brief per curiam order of December 1, 1983, the court of
appeals affirmed that portion of the order entered by the United
States District Court for the Western District of Kentucky in this
case that required the Secretary to promulgate regulations adopting a
nationwide 180-day time limit for the rendering of a decision by
administrative law judges on claims for disability benefits under
Titles II and XVI of the Social Security Act.  The district court also
ordered the promulgation of regulations imposing a 90-day time limit
for the rendering of decisions by the Appeals Council in HHS in
disability termination cases under Title XVI of the Act.  The
propriety of a court's imposing such deadlines in even one state is
before this Court in Heckler v. Day, No. 82-1371 (argued Dec. 5,
1983).  It makes no sense for a court of appeals to order the
Secretary to impose nationwide time limits at a time when this Court
is about to resolve the questions involved, and respondents in fact
conceded in the court of appeals that judicial imposition of
nationwide deadlines would be inappropriate at this time in light of
the pendency of Day.  The court of appeals nevertheless ordered such
time limits into effect without comment and without mention of
respondents' concession.  We therefore are compelled to seek a stay
from this Court.

                               STATEMENT

   The December 1, 1983 order of the court of appeals was entered on
the Secretary's appeal from the judgment of the district court in two
consolidated cases.  The first, Blankenship v. Secretary of HHS, was
brought on behalf of a class of Kentucky residents to challenge the
timing of ALJ hearings in disability cases under Titles II and XVI of
the Social Security Act.  The second, Finch v. Secretary of HHS, which
likewise was brought on behalf of a class of Kentucky claimants,
involves a challenge to the timing of decisions by the Appeals Council
in disability benefit termination cases under Title XVI of the Act
after the claimant has received an adverse decision by an ALJ and
appealed that decision to the Appeals Council.  /1/

   1. In 1976, the district court held in Blankenship that the passage
of more than 90 days prior to a hearing did not comply with what the
court believed to be the statutory requirement that hearings be held
within a "reasonable" time.  The court accordingly ordered the
Secretary to schedule ALJ hearings within 90 days for members of the
Kentucky classes of Title II and Title XVI beneficiaries.  See
Blankenship v. Secretary of HEW, 587 F.2d 329, 331 (6th Cir. 1978).

   The court of appeals agreed with the district court that the
then-prevailing time lapse between a hearing request and receipt of an
ALJ decision in Kentucky violated the statutory requirement of
"reasonable notice and opportunity for a hearing" (42 U.S.C. 405(b)
and 1383(c)(1)), but it disagreed with the district court's
requirement that hearings be held for Kentucky claimants within 90
days of a request.  The court of appeals observed "that Congress
specifically confronted and discussed the possibility of imposing a
hearing deadline (in 1976) but, after deliberation, rejected this
alternative in favor of retaining the more flexible principle of a
'reasonable' time period." 587 F.2d at 335 (footnote omitted).  "In
view of this congressional determination," the court explained, "we do
not believe that a judicially imposed 90-day limit is appropriate or
consistent with the principle of separation of powers." Ibid.  The
court also noted its concerns that compliance with the district
court's order "(would) merely result in shifting of resources from
other parts of the country to handle hearings in Kentucky, thereby
aggravating hearing delays in other areas," and that "(s)implistic and
unreasonably short time limitations imposed from the outside without a
thorough understanding of the reasons for the problem will frustrate
welfare administration, just as it would frustrate judicial
administration." Ibid.  In these circumstances, the court concluded
that the appropriate solution was for the Secretary to exercise his
rulemaking authority under 42 U.S.C. 405(a) to establish nationwide
time limits, and it remanded the case to the district court with
instructions to order the Secretary to develop and submit such
regulations.  Id. at 336.

   2. On remand, the Secretary attempted to develop acceptable
regulations and submitted several regulatory proposals to the district
court.  In the end, however, the Secretary concluded that the
burgeoning and unpredictable caseload made the concept of fixed
deadlines in regulations unworkable.  The Secretary therefore moved
for relief from the requirement that he issue such regulations and
proposed instead to establish processing goals.  By opinion and
judgment dated February 17, 1982 (and amended on March 25, 1982), the
district court denied the Secretary's motion and ordered him, within
60 days, to publish regulations requiring that decisions be renedered
by ALJs within 180 days of a request for a hearing in disability cases
and providing for the payment of interim benefits when this deadline
was not met.  App. D, infra, 7-9;  App. E, infra, 2, 3;  App. F,
infra.  In the Finch case, the district court ordered the Secretary to
promulgate regulations imposing a nationwide 90-day time limit for the
rendering of decisions by the Appeals Council in SSI disability
benefit cessation cases.  App. E, infra, 2-3;  App. F, infra.

   3. On April 15, 1982, the court of appeals granted the Secretary's
motion for a stay of the district court's judgment pending appeal.
App. D, infra.  Oral argument on the appeal was held on October 8,
1982.  More than a year later -- on October 18, 1983, while the appeal
was still under submission to the court of appeals -- respondents
filed a "Motion to Partially Vacate Stay." Respondents expressly
conceded in that Motion that "(i)n light of the Supreme Court's
consideration in (Heckler v. Day), * * * it would not be appropriate
for the Sixth Circuit at this time to order nationwide regulations
establishing time limits for hearing and Appeals Council decisions."
Motion, at 6.  Respondents therefore requested that the court of
appeals vacate the stay it had entered 18 months earlier only to the
extent of requiring compliance with the time limits and the payment of
interim benefits for members of the classes certified in Blankenship
and Finch -- i.e., only for Kentucky claimants.  Id. at 7.

   Apparently in response to respondents' motion, the court of appeals
issued a brief per curiam order on December 1, 1983 affirming those
portions of the district court's order that established 180-day time
limits for ALJ decisions and 90-day time limits for Appeals Council
decisions and vacating the court of appeals' April 15, 1982 order
insofar as it had delayed enforcement of those time limits.  App. A,
infra, 3a.  The court did not give any explanation of its reasoning
for imposing nationwide deadlines or for doing so at a time when this
Court was considering the issue of hearing times in Day.  And the
court failed to offer such an explanation despite its express
acknowledgement that "(t)his is an important case involving
interpretation of the related power of the administrative, legislative
and judicial branches under the Constitution of the United States" and
that "(i)n such a case, history suggests the utmost of caution on the
part of all three branches in asserting potentially conflicting
powers" (id.at 1a).  The court of appeals did, however, continue in
effect that portion of its April 15, 1982 stay of the district court's
order requiring the payment of interim benefits where the time limits
were not met, observing that "(t)he Supreme Court has not granted
certiorari in Day and we decline to decide this issue until the
Supreme Court has resolved it" (id. at 3a).  /2/

   On December 13, 1983, the Secretary filed a motion in the court of
appeals to reinstate the stay.  She noted that by affirming the
district court's order imposing nationwide time limits, the court's
December 1 order had gone beyond respondents' request that such limits
be allowed to go into effect only for the Kentucky claimants.  Motion,
at 1-2.  The government also noted respondents' concession that it
would be inappropriate for the court of appeals to impose nationwide
deadlines at this time.  In their response, respondents urged the
court of appeals to clarify its December 1 order so as to impose time
limits only for members of the Kentucky classes.  In doing so,
respondents stated that "any order requiring adoption of national
regulations at this time would almost certainly be appealed to the
Supreme Court and would likely be stayed pending the decision in
Heckler v. Day, supra," and that "it would better serve judicial
economy, and the interests of the plaintiff classes in Kentucky, to
allow relief in Kentucky to go into effect at this time and to hold
other issues in abeyance pending the decision in Heckler v. Day,
supra." Plaintiffs' Opposition to Motion to Partially Vacate Stay
(sic) and Motion for Clarifying Order, at 8.  Nevertheless, the court
of appeals, again without any explanation, denied the Secretary's
motion to reinstate the stay, making clear that it was requiring
implementation of "the district court's order imposing Social Security
time limit regulations pending resolution of the Supreme Court's
decision in Heckler v. Day, No. 82-1371." App. B, infra.

                               ARGUMENT

   The court of appeals' requirement that the Secretary immediately
promulgate regulations imposing nationwide time limits for rendering
decisions in Social Security disability cases goes far beyond the
decisions in Heckler v. Day and similar cases, which have involved
judicially-imposed time limits only with respect to claimants in a
particular state.  The Solicitor General accordingly has determined
that a petition for a writ of certiorari will be filed to review the
court of appeals' December 1, 1983 order.  We intend to suggest that
that petition be held and disposed of in light of this Court's
decision in Day.  But in the meantime, the Secretary should not be
forced to implement the far-reaching relief ordered by the court of
appeals while this Court is considering the propriety of judicial
imposition of deadlines for administrative consideration of Social
Security disability claims.

   The court of appeals lifted the stay that had been in effect in
this litigation for almost 20 months despite the agreement of the
parties that the district court's order requring nationwide time
limits should continue to be stayed.  The court of appeals failed to
explicate its reasons for ignoring the agreement of the parties, and,
with all respect, we find the court's action to be inexplicable.  In
the present circumstances, we submit that the Secretary is clearly
entitled to a stay.

   In deciding whether to grant a stay pending the filing and
disposition of a petition for a writ of certiorari, the Court or
Circuit Justice is "'to determine whether four Justices would vote to
grant certiorari, to balance the so-called "stay-equities," and to
give some consideration as to predicting the final outcome of the case
in this Court.'" Heckler v. Lopez, No. A-145 (Sept. 9, 1983)
(Rehnquist, Circuit Justice), slip op. 3, quoting Gregory-Portland
Independent School District v. United States, 448 U.S. 1342 (1980)
(Rehnquist, Circuit Justice).  See also Heckler v. Lopez (Oct. 11,
1983) (Brennan, J., dissenting from denial of motion to vacate stay),
slip op. 2;  Rostker v. Goldberg, 448 U.S. 1306, 1308 (1980) (Brennan,
Circuit Justice).  These factors all strongly support the granting of
a stay.

   1. By granting the Secretary's petition for a writ of certiorari in
Day, the Court already has determined that the question of judicial
imposition of time limits on the disability adjudication process
warrants review by this Court.  It is most likely that when the Court
renders its decision in Day, it will grant the government's petition
for a writ of certiorari in this case, vacate the court of appeals'
December 1 order, and remand for further proceedings in light of Day.
This is particularly true because the court below has imposed on the
Secretary the obligation to promulgate nationwide regulations -- an
unprecedented interference with the administrative process.

   2. A balance of the equities of the parties also clearly weighs in
favor of a stay.  On the one hand, imposition of nationwide time
limits would cause massive disruption in the administration of the
Title II and Title XVI disability programs.  At the end of November
1983, the most recent month for which data are available, there were
166,376 hearing requests pending in HHS.  Office of Hearings and
Appeals, U.S. Dept. of Health and Human Services, Key Workload
Indicators, November 1983 at 1 (Jan. 13, 1984).  /3/ The average
processing time for this extraordinary caseload stood at 183 days, and
more than 35% of the total number of cases decided by ALJs were not
disposed of within the 180 days required by the court of appeals in
this case, even taking into account exceptions for delay caused by the
claimant.  Id. at 1, 6.  /4/ The ALJs continued to process this
caseload diligently, however, deciding an average of 38 cases during
November.  But at the same time, the average number of cases pending
before each ALJ stood at 220.  Id. at 1.  Obviously, the productivity
of the ALJs cannot be increased much beyond its current level in order
to reduce the persistent backlog of pending cases without adversely
affecting the quality of decision-making.  /5/ Accordingly, if the
court of appeals' order requiring nationwide 180-day time limits were
to go into effect, a substantial restructuring of the existing claims
adjudication process would be necessary in an effort to comply with
those limits -- assuming compliance would be possible at all.  The
Secretary (and possibly Congress) should not be required to undertake
these measures at this late date in the Blankenship litigation until
this Court has rendered its decision in Day regarding the propriety of
a court's imposting such deadlines.

   On the other hand, respondents have no equities weighing in favor
of the imposition of nationwide time limit regulations at this time.
The respondent classes in this action consist only of residents of
Kentucky.  These respondents have no standing to insist upon the
imposition of deadlines for decisions on claims filed by residents of
other states, as the courts below have ordered.

   Moreover, the Court presumably will render its decision in Day and
dispose of the petition in this case by the end of the current Term,
less than six months hence.  The district court's order requiring
nationwide regulations was stayed by the court of appeals for almost
20 months prior to the December 1 order, and the extension of that
stay for several more months until the Court decides Day cannot be
expected to cause significant incremental hardship.  In addition, even
if the court of appeals' December 1 order requiring nationwide time
limits were allowed to stand, some period of transition obviously
would be necessary in order to permit whatever restructuring of the
program were thought appropriate.  The mere publication of regulations
therefore would not produce immediate benefits for disability
claimants in Kentucky and elsewhere.

   3. Finally, with respect to the likelihood of success on the
merits, we submit that our arguments in Heckler v. Day convincingly
demonstrate that the Secretary's processing of disability claims is
fully consistent with the requirement that claimants be afforded
"reasonable notice and opportunity for a hearing" and that, in any
event, judicial imposition of such deadlines is inconsistent with the
repeated and deliberate judgment by Congress and the Secretary not to
impose such deadlines.  Moreover, in this case, it was especially
inappropriate -- and, indeed, beyond the courts' jurisdiction -- to
order time limits for the processing of claims filed by all disability
claimants in the Nation, even though the only parties before the court
were claimants in Kentucky.  See, e.g., Califano v. Yamasaki, 442 U.S.
682, 704 (1979).

   The courts below could not avoid the jurisdictional obstacle to the
ordering of nationwide time limits simply by ordering the Secretary to
promulgate regulations embodying such limits.  See Vermont Yankee
Nuclear Power Corp. v. NRDC, 435 U.S. 519, 543-544, 549 (1975);  NLRB
v. Bell Aerospace Co., 416 U.S. 267, 292-294 (1974).  At the very
least, a court could not order such extraordinary relief unless a
request for regulations had been presented to the Secretary (cf. 5
U.S.C. 553(e);  42 U.S.C. 405(g) and (h)) and the court determined
that the Secretary's decision not to promulgate time limit regulations
as part of her implementation of the statutory requirement of
"reasonable notice and opportunity for a hearing" was arbitrary and
capricious.  Heckler v. Campbell, No. 81-1983 (May 16, 1983), slip op.
7-8;  Motor Vehicle Manufacturers Ass'n v. State Farm Mutual
Automobile Insurance Co., No. 82-354 (June 24, 1983), slip op. 10, 20.
 Clearly, it was not, in view of Congress's repeated refusal to adopt
time limits because of concerns about their potentially adverse effect
on the quality of decision-making.  See Gov't Br. 19-31, Heckler v.
Day, No. 82-1371.  /6/

                              CONCLUSION

   For the foregoing reasons, the district court's order requiring the
Secretary to promulgate regulations imposing nationwide time limits
should be stayed pending the filing and disposition of a petition for
a writ of certiorari.  /7/

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   JANUARY 1984

   /1/ Governing regulations require a claimant to seek review by the
Appeals Council of an adverse ALJ decision before he may bring an
action in district court pursuant to 42 U.S.C. 1383(c)(3) and 405(g)
seeking review of the denial of benefits.  20 C.F.R. 404.967 et seq.
and 416.1467 et seq.

   /2/ The court of appeals sent a certified copy of its December 1
order to this Court, apparently because of the pendency of Day.

   /3/ We have attached a copy of the November 1983 edition of the Key
Workload Indicators to this application.

   /4/ The regulations the Secretary First developed on remand from
the court of appeals' first decision in Blankenship contained
exceptions for situations in which the ALJ determined that additional
evidence was needed prior to the hearinr or for uncontrollable
circumstances.  45 Fed. Reg. 12840 (1980).  The district court in this
case did not include any such exceptions in its Judgment.  See App. E,
infra, 2.

   /5/ Similarly, the average processing time for Appeals Council
review of ALJ decisions was 89 days in fiscal year 1983 and October
1983, approximately equal to the 90-day limit the courts below ordered
in all SSI disability cessation cases.  The number of dispositions by
the Appeals Council was 8,129 in November and 88,197 in fiscal year
1983.  Key Workload Indicators, supra, at 8.  Thus, the court of
appeals' requirement that deadlines be imposed on Appeals Council
review -- the first such order imposed by a court -- likewise could
substantially disrupt administration not only of the SSI program but
also of other programs in which decisions are subject to review by the
Appeals Council.

   /6/ We are sending respondents a copy of our petition and briefs in
Day.  It also seems clear that the time required for the Appeals
Council to review the decision by an ALJ after a hearing does not
violate the statutory requirement in 42 U.S.C. 405(b) and 1383(c)(1)
that the claimant be afforded "reasonable notice and opportunity for a
hearing."

   /7/ In the court of appeals, respondents argued that even though
nationwide regulations are inappropriate at this time, deadlines
should be imposed for the processing of claims in Kentucky.
Consistent with its 1978 decision in Blankenship, however, the court
of appeals declined to separate out Kentucky claimants for special
treatment, and there is no reason why this Court should do so now.  At
this late date in the Blankenship litigation and with a decision in
Day expected in the next several months, the Secretary should not be
required to reallocate resources to Kentucky in order to meet
deadlines in that State to the detriment of claimants in other states,
as was required to meet other judicially imposed deadlines.  See Pet.
16-17, Heckler v. Day, No. 82-1371.  The district court's order in
this case was stayed for almost 20 months even as to the Kentucky
claimants who are parties to this suit.  There is no indication that a
further limited stay pending a decision in Day would cause significant
incremental harm to these claimants, expecially since some period of
transition would be required to implement such deadlines in any event.

                              ATTACHMENTS