MARGARET M. HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES,
PETITIONER V. LEON S. DAY, ET. AL.

   No. 82-1371

   In the Supreme Court of the United States

   October Term, 1983

   On writ of certiorari to the United States Court of Appeals for the
Second Circuit

   Brief for the Petitioner

                       PARTIES TO THE PROCEEDING

   The petitioner is the Secretary of Health and Human Services,
Margaret M. Heckler.  The respondents are Leon S. Day and Amedie
Maurais, who are representatives of the following class of claimants
for disability benefits under Title II of the Social Security Act, 42
U.S.C. (& Supp. V) 401 et seq.:

      All present and future Vermont residents seeking to secure
      Social Security disability benefits who, following an initial
      determination by the (Secretary) that no disability exists,
      experience an unreasonable delay in the handling of and/or
      issuance of decisions in reconsiderations and fair hearings.

   Pet. App. 12a n.1.  /*/

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statutory provisions involved
   Statement
      A. Background
          1. The statutory and regulatory framework
          2. The administrative law judges and the hearing
             process
      B. The proceedings in this case
          1. The district court's decision
          2. The court of appeals' decision
   Summary of argument
   Argument:
      I. The district court was not authorized by the
          Social Security Act or the Administrative
          Procedure Act to require that requests for a
          hearing and reconsideration in disability cases
          be acted upon within a fixed period of time
          A. The imposition of fixed hearing deadlines is
             inconsistent with the text and legislative
             history of the Social Security Act
          B. The timing of ALJ hearings in the disability
             program does not violate 42 U.S.C. 405(b)
          C. The Secretary's scheduling of hearings does
             not violate the Administrative Procedure Act
          D. The courts below erred in extending processing
             deadlines to the reconsideration stage
      II. The district court was without authority to order
          the payment of interim benefits to individuals whose
          claims are not processed within the judicially
          imposed deadlines
   Conclusion
   Appendix

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-9a) is reported
at 685 F.2d 19.  The opinions of the district court (Pet. App.
12a-20a, 21a-31a) are unreported.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. 10a) was entered on
June 28, 1982, and a petition for rehearing was denied on September
17, 1982 (Pet. App. 11a).  On December 7, 1982, Justice Marshall
extended the time within which to file a petition for a writ of
certiorari to and including February 14, 1983.  The petition was filed
on that date and was granted on April 25, 1983 (J.A. 207).  The
jurisdiction of this Court rests on 28 U.S.C. 1254(1).

                     STATUTORY PROVISIONS INVOLVED

   Relevant provisions of Sections 205, 221, 223 and 1631 of the
Social Security Act, 42 U.S.C. (& Supp. V) 405, 421, 423 and 1383;
Sections 304(g) and 308 of the Social Security Disability Amendments
of 1980, Pub. L. No. 96-265, 94 Stat. 456, 458;  and the recodified
provisions of the Administrative Procedure Act, 5 U.S.C. 554(b),
555(b) and 706, are reproduced in the Appendix, infra, 1a-19a.

                          QUESTIONS PRESENTED

   1. Whether persons seeking disability benefits under the Social
Security Act are entitled by statute to reconsideration of their
claims by the State agency and to an administrative hearing by the
Secretary of Health and Human Services within the fixed periods of
time imposed by the district court.

   2. Whether, in the absence of statutory authorization, a court may
require the Secretary to pay benefits from the Disability Insurance
Trust Fund on an interim basis to persons who have not been found
entitled to them, because judicially imposed deadlines for the
adjudication of disability claims have not been met.

                               STATEMENT

                             A. Background

               1. The Statutory and Regulatory Framework

   This case arises under Title II of the Social Security Act, which
provides disability insurance benefits to an individual suffering a
medically determinable physical or mental impairment if he is unable
to do his previous work or to engage in any kind of substantial
gainful work that exists in the national economy.  42 U.S.C.
423(d)(1)(A) and (2)(A).  See Heckler v. Campbell, No. 81-1983 (May
16, 1983), slip op. 1.  These benefits are paid out of the Federal
Disability Insurance Trust Fund in the Treasury, which is funded by
payroll taxes.  42 U.S.C. (Supp. V) 401(b).  Disability benefits also
are payable under the Supplemental Security Income (SSI) program
established by Title XVI of the Social Security Act, 42 U.S.C. (&
Supp. V) 1381 et seq.  See 42 U.S.C. 1382(a)(2)(B) and 1382c(a)(3).

   The disability programs established by Titles II and XVI "are of a
size and extent difficult to comprehend." Richardson v. Perales, 402
U.S. 389, 399 (1971).  In fiscal year 1981 alone, approximately 2.3
million claims for disability benefits were filed under the two
Titles.  Heckler v. Campbell, supra, slip op. 3 n.2.  To provide for
an orderly determination of the eligibility of this number of
individuals, Congress and the Secretary of Health and Human Services
(HHS) have prescribed in meticulous detail a multi-stage procedure for
the administrative consideration of disability claims.  Should it be
determined at any stage of this procedure that an individual is
eligible for benefits, he is entitled to retroactive payments for the
period of his eligibility.  42 U.S.C. (& Supp. V) 404 and and 423(b);
see Mathews v. Eldridge, 424 U.S. 319, 339 (1976).

   a. Under the Title II program, a State agency first determines
whether a claimant has a disability and the date when the disability
began or ceased.  42 U.S.C. (Supp. V) 421(a);  20 C.F.R. 404.1503.  If
the claimant is dissatisfied with this determination, he may request a
de novo reconsideration by the State agency.  20 C.F.R.
404.907-404.921.  Additional evidence often will be submitted at the
reconsideration stage, including examination of the individual by a
consulting physician.  See Pet. App. 23a;  Richardson v. Perales,
supra, 402 U.S. at 393-394;  Mathews v. Eldridge, supra, 424 U.S. at
338 n.20.  In fiscal year 1982, more than 503,000 requests for
reconsideration were processed.  /1/

   In recent years, Congress has enacted two additional procedural
requirements at the reconsideration stage.  First, in the Social
Security Disability Amendments of 1980 (Pub. L. No. 96-265, Section
305(a), 94 Stat. 457), Congress amended 42 U.S.C. 405(b) to require
that in any disability case in which the State agency's decision is
adverse to the claimant, the decision must contain an easily
understandable discussion of the evidence and the reasons for the
determination of ineligibility.  Although Congress recognized that
such individualized notice would consume more resources and might
increase processing time, it concluded that requiring the State
examiner to formulate written reasons for his decision would improve
the adjudicatory process and that the claimant might be less likely to
appeal if he understood those reasons.  S. Rep. No. 96-408, 96th
Cong., 1st Sess. 56-57 (1979);  H.R. Rep. No. 96-100, 96th Cong., 1st
Sess. 12 (1979).

   Second, in 1982 Congress provided that, beginning no later than
January 1, 1984, whenever a State agency initially determines that a
person previously entitled to benefits no longer is under a disability
and that his benefits therefore should be terminated, the person must
be afforded an evidentiary hearing at the reconsideration stage.  /2/
Moreover, as a temporary measure, the 1982 legislation authorized the
payment of interim benefits, pending a final decision after a hearing
in HHS (see page 5, infra), to a person whom the State agency has
found no longer to be disabled.  /3/ Congress did not, however,
provide for an additional hearing at the reconsideration stage or
interim benefits for individuals whose new applications for disability
benefits were denied by the State agency at the initial determination
stage.

   b. When it enacted the disability program in 1954, Congress
authorized the Secretary, on his own motion, to review and overturn
any determination by a State agency in favor of the claimant.  42
U.S.C. (1952 ed. Supp. II) 421(c);  68 Stat. 1082.  Until 1972, the
Social Security Administration (SSA) in HHS reviewed the majority of
State determinations.  In 1972, as a result of a growing workload and
efforts to reduce costs, SSA switched to a sample review of only 5% of
the State agencies' determinations in favor of the claimant, and even
those cases were reviewed only after the State's determination had
gone into effect and payment of benefits had begun.  Over the next few
years, however, Congress became concerned that the quality and
uniformity of State decisions were deteriorating because of an undue
emphasis on expediting the claims process in response to the backlog
of cases.  See S. Rep. No. 96-408, supra, at 52-56;  H.R. Rep. No.
96-100, supra, at 8-10.  Consequently, Congress included in the
Disability Amendments of 1980 a requirement that, beginning in fiscal
year 1983, the Secretary must review 65% of all State determinations
in favor of the claimant before those determinations are put into
effect.  42 U.S.C. (Supp. V) 421(c)(2) and (3).  The 1980 amendments
also provided for the Secretary to review State determinations that
are unfavorable to the claimant.  42 U.S.C. (Supp V) 421(c)(1).  /4/

   c. If the final State agency decision after reconsideration is
adverse to the claimant, he is entitled to an evidentiary hearing by
an Administrative Law Judge (ALJ) in HHS.  42 U.S.C. (Supp. V) 405(b)
/5/ ;  42 U.S.C. (Supp. V) 421(c);  20 C.F.R. 404.929-404.961.  If the
claimant is dissatisfied with the decision rendered after the hearing,
he may take an appeal to the Appeals Council in HHS.  20 C.F.R.
404.967-404.983.  The Secretary also was directed by Section 304(g) of
the Disability Amendments of 1980 (94 Stat. 456) to institute a
program for the Appeals Council to review ALJ decisions on its own
motion, because of what Congress perceived to be a lack of uniformity
among ALJ decisions and between decisions rendered by ALJs and the
State agencies.  H.R. Conf. Rep. No. 96-944, 96th Cong., 2d Sess.
57-58 (1980);  S. Rep. No. 96-408, supra, at 53.

   After a claimant has exhausted his administration remedies in this
fashion, /6/ he may seek judicial review of a final denial of benefits
pursuant to 42 U.S.C. (Supp. V) 405(g).  Under 42 U.S.C. 405(i),
payment of disability benefits may be made out of the Disability Trust
Fund upon a final decision of the Secretary or a final judgment of a
court that a person is entitled to such benefits.  Pursuant to a
specific directive added by the Disability Amendments of 1980, once a
person has been found by a State agency, the Secretary, or a court to
be disabled, his case thereafter must be reviewed periodically to
determine whether he still is under a disability.  See 42 U.S.C.
(Supp. V) 421(h).  /7/

       2. The Administrative Law Judges and the Hearing Process

   a. The hearings provided for in 42 U.S.C. 405(b) are conducted by a
corps of ALJs in the Office of Hearings and Appeals (OHA) in SSA.  20
C.F.R. 404.929.  The cost of the ALJs, their support staffs, and other
expenses of SSA, as well as the State agencies' costs associated with
the disability program, are paid out of the Trust Funds in "such
amounts as the Congress may deem appropriate" (42 U.S.C. (Supp. V)
401(g)(1)(A);  see also 42 U.S.C. (Supp. V) 421(e)).  To implement the
quoted provision, Congress specifies in annual appropriation acts the
maximum amount of money to be made available for administering the
Social Security programs.  See, e.g., Pub. L. No. 95-480, 92 Stat.
1567, 1582.

   The total number of ALJ hearings requested annually under all
Social Security programs increased from approximately 72,000 in fiscal
year 1973 to more than 320,000 in fiscal year 1982.  /8/ The vast
majority of these hearing requests were in disability cases.  /9/ HHS
has projected that hearing requests will reach 379,000 in fiscal year
1983.  /10/ This increase will result in part from the requirement
imposed by Congress in 1980 that the Secretary provide for a periodic
review of the eligibility of individuals who are receiving disability
benefits (see page 6, supra).  /11/

   To meet this greatly expanded workload, the number of ALJ's in HHS
has been increased from 420 in fiscal year 1973 to approximately 800
at the present time.  The support staff per ALJ more than doubled
during this period, and, on the average, there are now more than four
support personnel for each ALJ.  The result of these and other
administrative initiatives by the Secretary has been to increase the
average number of dispositions per ALJ each month from 14 in 1973 to
34 in 1982.  Currently, an ALJ processes an average of more than 1.5
cases each working day.  /12/

   Between 1973 and 1982, the nationwide average time from the date on
which an evidentiary hearing was requested to the date on which the
ALJ rendered his decision varied between a high of 288 days in fiscal
year 1976, when Mathews v. Eldridge was decided (see 424 U.S. at
341-342), to a low of 151 days in 1979.  In fiscal year 1982, the
average processing time was 174 days, the same as it had been in 1973,
/13/ thereby indicating that SSA has been able to absorb the more than
fourfold increase in its hearing caseload since 1973 without extending
the time needed to conduct such hearings beyond what it was a decade
ago.  Nevertheless, because of the continually expanding caseload, the
number of pending cases had grown to more than 152,000 at the end of
fiscal year 1982 and more than 171,000 at the end of May 1983, an
all-time record.  And the average number of cases pending per ALJ
stood at 203 in September 1982 and 221 in May 1983, another all-time
record.  /14/

   b. The Secretary has adopted detailed procedures governing the
scheduling and conduct of hearings by ALJs.  A request for an ALJ
hearing is assigned to the Hearing Office of OHA responsible for the
region in which the claimant resides.  The Hearing Office staff is
responsible for ensuring that the procedural prerequisites to a
hearing have been satisfied and for procuring the case file from the
appropriate office of SSA.  See Social Security Administration, U.S.
Dep't of Health and Human Services, Office of Hearings and Appeals
Handbook Sections 2-310 to 2-319 (Apr. 1982) ("OHA Handbook").  When
those materials are assembled, the case is assigned to an ALJ in
rotation insofar as possible, taking into account individual ALJ
dockets.  Id. Sections 1-313, 314.  At this point, jurisdiction over
the case passes to the ALJ.  Id. Section 1-310.

   The ALJ is required to look fully into the issues and facts in the
case, even if the claimant does not adequately present them himself.
20 C.F.R. 404.944.  Accordingly, the ALJ's staff must conduct a
prehearing workup of the case, in which they identify the issues for
the hearing, review the evidence in the file to determine whether
additional material is required, isolate conflicts in the evidence,
propose exhibits for the record, determine whether material from any
prior hearings should be transcribed or included, consider whether a
vocational expert or medical advisor should be present at the hearing,
and decide whether a prehearing interview or conference would be
appropriate.  OHA Handbook, supra, at Sections 1-300, 1-344, 1-349,
1-620.  It then may be necessary for the ALJ, either before or after
the hearing (20 C.F.R. 404.944), to request additional medical
evidence from the claimant, the State agency, or a physician who
recently has examined the claimant or performed a consultative
examination for the ALJ (OHA Handbook, supra, at Sections 1-510 et
seq., 1-520, 1-521, 2-326, 2-330, 2-500 et seq.).  The ALJ also may
request vocational testimony from an expert (id. Sections 1-530 et
seq.), earnings information from various sources (id. Section 1-542),
and information about the claimant's age, citizenship, or similar
matters from other agencies (id. Sections 1-544, 1-545).

   The ALJ is responsible for scheduling the hearing within the
framework of priorities established by SSA.  20 C.F.R. 404.936(a);
OHA Handbook, supra, at Section 2-350.  Consistent with "(t)he
administrative objective * * * that a hearing be held as soon as
possible after the (request for a hearing) is filed" (id. Section
1-360), the OHA Handbook states that "(a) hearing date should be
selected as soon as the prehearing workup is completed;  all
outstanding evidence requested by the ALJ has been received;  and it
is clear that the request cannot be disposed of without a hearing"
(id. Section 2-351).  The OHA Handbook provides that, as a general
matter, cases are to be scheduled for a hearing in the order in which
the hearing requests were received.  However, the ALJs also must
coordinate the scheduling of hearings in various locations.  Id.
Sections 1-313, 2-351.  The OHA Handbook further provides that SSI
nondisability cases must be expedited, as required by the Act.  42
U.S.C. 1383(c)(2).  Finally, by OHA Handbook Interim Circular No. 138,
dated March 31, 1982, the Commissioner of Social Security directed
that hearings to review a State agency's decision to terminate
benefits are to be given priority over hearings to review a State
agency's denial of an initial application for benefits.

                    B. The Proceedings in This Case

                   1. The District Court's Decision

   This class action was filed by respondent Day in the United States
District Court for the District of Vermont on November 15, 1978.
Respondents alleged that an unreasonably long period of time elapsed
in Title II disability cases in Vermont between a claimant's request
for reconsideration and the State agency's decision on reconsideration
and between a request for an ALJ hearing and the convening of the
hearing (Pet. App. 12a-13a & n.1).  /15/

   a.  On December 28, 1978, the district court granted partial
summary judgment for respondents with respect to the timing of ALJ
hearings (Pet. App. 12a-20a).  Relying on the Second Circuit's prior
decisions in White v. Mathews, 559 F.2d 852 (1977), cert. denied, 435
U.S. 908 (1978), and Barnett v. Califano, 580 F.2d 28 (1978), the
district court held that the provision in 42 U.S.C. 405(b) for the
Secretary to afford a claimant "reasonable notice and opportunity for
a hearing" requires that the ALJ hearing be conducted within a
"reasonable" time after it is requested (Pet. App. 15a).  /16/

   The district court did not question the Secretary's submission that
"SSA has made a good faith effort to meet the needs of claimants for
disability benefits while protecting the fiscal integrity of its
program with the limited resources available" (Pet. App. 17a).
Indeed, the court agreed that "SSA has made admirable strides in
reducing the average length of delay experienced by claimants a few
years ago" (ibid.).  Nevertheless, based solely on evidence that 43%
of Vermont residents who requested hearings on their Title II
disability claims in 1978 waited more than 90 days for their hearings,
the court found that a substantial number of claimants had not had a
hearing within a reasonable time (Pet. App. 17a).  The court therefore
ordered that ALJ hearings be held within 90 days of a request, subject
to certain exceptions for delays caused by the claimant (id. at
33a-34a).

   b. On August 19, 1981, the district court granted summary judgment
for respondents on the reconsideration aspect of the case as well
(Pet. App. 21a-31a).  Although 42 U.S.C. 405(b) does not mention the
reconsideration stage, the court explained that reconsideration by the
State agency is an administrative prerequisite to an ALJ hearing and
that unreasonable delays in reconsideration therefore undercut the
right to an ALJ hearing within a "reasonable" time (Pet. App. 27a).

   The district court found that in a sample of 77 Title II disability
cases in Vermont processed between 1977 and 1980, reconsideration time
ranged between 17 and 251 days, with a mean time of 68 days.
Approximately 35% of these reconsideration cases took more than 90
days to process.  The court acknowledged that "the reconsideration
process is often time consuming and complex" (Pet. App. 25a) because
of the need to locate and procure the claimant's folder, update
existing evidence or gather new evidence, arrange for a consultative
examination where indicated, perform a vocational evaluation, prepare
notices, and allow time for equally control reviews both by the State
agency and by SSA (id. at 23a-24a, 28a-29a).  The court also
acknowledged that SSA should retain flexibility to implement the
additional notice and quality review provisions required by the
Disability Amendments of 1980 (Pet. App. 29a & n.8;  see pages 3, 5,
supra).  But the court concluded that a claimant should not have the
timing of his hearing affected by what it termed "inefficient agency
procedures" or "unnecessarily lengthy" internal quality control checks
(id. at 28a).  Against this background, the court held that the
passage of more than 90 days between a request for reconsideration and
the decision on reconsideration was not "reasonable" (id. at 28a-29a),
and it ordered that reconsideration be accomplished within a 90-day
period, except where the time consumed in excess of that amount is
attributable to the claimant (id. at 33a).

   c. The district court also ordered the Secretary to pay interim
disability benefits to any claimant who has not received a
reconsideration determination or hearing within 180 days of the
request for reconsideration or has not received an ALJ hearing within
90 days of a hearing request, even though the claimant has not yet
been found entitled to such benefits by the State agency or the
Secretary.  These benefits are made subject to recoupment by the
Secretary if the claimant ultimately is determined not to have been
eligible to receive them (Pet. App. 30a-31a, 34a-35a).  /17/

                   2. The Court of Appeals' Decision

   The court of appeals affirmed the district court's decision in all
respects (Pet. App. 1a-9a).  The court of appeals expressed its
"sympath(y) with the severe problems that beset SSA" and its
"understand(ing) that (the district court's) decision may have a
significant impact on (SSA's) operations" (id. at 6a).  But the court
nevertheless concluded that judicially imposed timetables were
appropriate for the processing of the "'flood of claims'" confronting
SSA (ibid., quoting White v. Mathews, supra, 559 F.2d at 859).

   The court of appeals "share(d) the First Circuit's concern that 'if
the Secretary's resources truly are inadequate to the task, the more
litigious of the applicants may gain an advantage over the less
assertive'" (Pet. App. 7a, quoting Caswell v. Califano, 583 F.2d 9, 17
(1st Cir. 1978)).  The court concluded, however, again quoting
Caswell, that it should not be deterred from awarding relief to
respondents by "'the alleged inability of the (Secretary) fully to
meet his obligations to others'" (ibid.).  The court of appeals also
recognized "that in the last five years Congress has involved itself
heavily in the administration of this Act" and that "Congress has
refused to impose its own deadlines." But the court viewed Congress'
failure to impose deadlines as perhaps suggesting that Congress is
satisfied that the problem of the timing of ALJ hearings is being
handled effectively by the courts (Pet. App. 7a).  In addition, the
court of appeals approved the district court's extension of its
holding in White v. Mathews, supra, to the processing of claims by
State agencies at the reconsideration stage (Pet. App. 7a-8a).

   Finally, the court of appeals concluded that the provisions of 42
U.S.C. 405(i) limiting payments from the Trust Fund to situations in
which the Secretary or a court has found the claimant entitled to
benefits do not "'exclud(e) the possibility of interim payments
ordered by a court exercising its remedial power'" (Pet. App. 8a,
quoting White v. Mathews, supra, 559 F.2d at 861).  The court rejected
the contention that its approval of interim benefits in White v.
Mathews was undermined by this Court's subsequent decision in
Schweiker v. Hansen, 450 U.S. 785 (1981), explaining that the award of
interim payments at issue here flows from the "district court's
inherent powers to fashion a remedy" (Pet. App. 8a-9a).

                          SUMMARY OF ARGUMENT

   The decision of the court of appeals, imposing arbitrary time
limitations on the administrative adjudication of liability claims
under the Social Security Act, represents an unwarranted judicial
intrusion into an area carefully considered and pervasively regulated
by Congress and the Secretary of Health and Human Services.  The
Court's ruling is without statutory basis and, indeed, is inconsistent
with Congress' repeated refusal to include processing deadlines in
disability cases.  If upheld, the ruling will substantially disrupt
the disability program and will impair the accuracy and fairness of
administrative decision-making.

                                   I

   A. There is no requirement in 42 U.S.C. 405(b) that hearings on
claims for benefits under Title II of the Social Security Act be
conducted within a fixed period of time.  In contrast, the parallel
provision for hearings under the Supplemental Security Income (SSI)
program in Title XVI of the Act requires that a decision be rendered
within 90 days of a request for a hearing.  42 U.S.C. (Supp. V)
1383(c)(2).  This demonstrates that when Congress wants to impose
hearing deadlines, it expressly so provides.  Moreover, disability
cases are specifically excluded from the hearing deadline even under
the SSI program, thereby indicating Congress' determination that fixed
processing times are especially inappropriate in this category of
cases.  Congress likewise excluded disability cases from the provision
in 42 U.S.C. 405(q) for expedited benefit payments, because a lengthy
investigation often is required in such cases.

   In addition, Congress repeatedly has refused to impose deadlines on
the hearings by Administrative Law Judges (ALJs) because of its
concern that arbitrary time limitations could adversely affect the
thoroughness and accuracy of their decisions.  Indeed, in the
Disability Amendments of 1980, Congress directed the Secretary to
recommend appropriate time limits that would take these concern into
account.  But Congress did not amend 42 U.S.C. 405(b) to impose
deadlines after the Secretary submitted his report even though it did
amend 42 U.S.C. 405(b) in 1982 to expedite the opportunity for a
hearing in another way -- by providing for a hearing at the State
agency reconsideration stage in benefit termination cases.  Given
Congress' extensive attention to the question and persistent refusal
to impose deadlines, the courts below erred in doing so.

   B. Whether existing procedures afford a "reasonable * * *
opportunity for a hearing" under 42 U.S.C. 405(b) presents a question
of statutory interpretation and therefore requires a consideration of
congressional intent and of the statutory scheme governing the review
of disability claims.  Processing times that are an entrenched feature
and foreseeable consequence of the manner in which Congress and the
Secretary have jointly implemented the Social Security Act over the
last decade cannot properly be held to violate that Act.

   Thus, in concluding that any period of time in excess of 90 days
for holding an ALJ hearing is not "reasonable" except where the
claimant delays the proceedings, the court below focused too narrowly
on the claimant's interest in expedited benefit determinations to the
exclusion of other considerations Congress has deemed relevant.  For
example, the ALJ is required to look fully into the issues in the
case, and Congress repeatedly has stressed that the interest in speedy
resolution of claims does not outweigh the need for thoroughness and
accuracy.  The timing of hearings also must accommodate the need for
quality review of State agency and ALJ decisions, additional
procedural steps Congress has mandated, and the limited personnel
resources available.  The court below could not properly second-guess
the manner in which Congress and the Secretary have balanced these
competing concerns by enforcing its own view of what would be an
appropriate time within which to resolve disability claims.

   C. The Administrative Procedure Act does not support the judgment
below.  Under 5 U.S.C. 555(b), an agency must conclude a matter
pending before it "within a reasonable time," but also "(w)ith due
regard for the convenience and necessity of the parties." The latter
phrase indicates that an agency's workload and procedures must be
considered in scheduling hearings.  Moreover, the question of what
constitutes a "reasonable time" for purposes of Section 555(b) must
take into account all relevant factors under the substantive program
involved, including resource limitations, the complexity of scheduling
a vast number of hearings, and the need for thorough and accurate
decision-making.

   Under 5 U.S.C. 706(1), a reviewing court may compel agency action
"unreasonably delayed." This phrase connotes an intentional retarding
of action from its normal course, and thus does not describe the
Secretary's orderly disposition of the enormous backlog of disability
cases under established procedures and resources limitations.  The
legislative history and the Attorney General's contemporaneous
interpretation of the APA confirm that Section 706(1) does not justify
the imposition of program-wide deadlines where the agency is
proceeding diligently and in good faith.

   D. The courts below erred in imposing deadlines on the
reconsideration of claims by State agencies.  Congress consistently
has refused to enact time limitations governing this stage of the
administrative proceedings, which are not under the Secretary's
day-to-day control.  In addition, in the Disability Amendments of
1980, Congress left to the Secretary's discretion the question whether
processing time limits should be established for State agencies.

                                  II

   The portion of the judgment below requiring payment of interim
benefits to individuals whose claims are not processed within
judicially fashioned deadlines fails to respect the conditions
Congress has prescribed for charging the public treasury.  Schweiker
v. Hansen, 450 U.S. 785 (1981).  Congress has authorized payments from
the Trust Fund only upon a "final decision" by the Secretary or a
"final judgment" by a court that an individual actually is "entitled"
to disability benefits because he is under a disability and satisfies
other eligibility criteria.  42 U.S.C. (& Supp. V) 405(i), 423(a)(1).
Moreover, Congress has specifically addressed the question of when
interim benefits should be paid pending completion of the
administrative process, but it has not chosen to authorize the payment
of interim benefits solely because of the passage of time in
processing claims for disability benefits.

                               ARGUMENT

 I. THE DISTRICT COURT WAS NOT AUTHORIZED BY THE SOCIAL SECURITY ACT
OR THE ADMINISTRATIVE PROCEDURE ACT TO REQUIRE THAT REQUESTS FOR A
HEARING AND RECONSIDERATION IN DISABILITY CASES BE ACTED UPON WITHIN A
FIXED PERIOD OF TIME

   As this Court has recently observed, "(t)he Social Security hearing
system is 'probably the largest adjudicative agency in the western
world.'" Heckler v. Campbell, supra, slip op. 3 n.2, quoting J.
Mashaw, et. al., Social Security Hearings and Appeals, at xi (1978).
Congress and the Secretary are confronted with a task of unprecedented
difficulty in fashioning procedures for the adjudication of the vast
numbers of claims and requests for review submitted annually under the
nationwide disability programs.  In doing so, they must seek to
accommodate a variety of goals -- accuracy, fairness, uniformity,
efficiency, and economy -- that often may conflict with the goal upon
which the court of appeals narrowly focused:  completing the review as
quickly as possible.  /18/

   Given the difficulty of the task, it is not surprising that few
subjects have commanded such consistent attention by Congress and the
Secretary as the administration of the disability program, including
the persistent backlog of pending cases and the time required to
process claims.  But although Congress has amended the Act in a number
of other respects to improve procedures for adjudicating claims, it
repeatedly has rejected proposals that disability claims be ruled upon
within a fixed time.  This refusal stems principally from Congress'
concern that such deadlines would undermine the goal of assuring a
thorough and accurate evaluation of disability claims, which protects
the interests of the claimant and the public.

   The court of appeals' imposition of fixed deadlines that Congress
and the Secretary have declined to adopt is without statutory basis,
inconsistent with the statutory scheme, disruptive of the disability
program, and likely to lead to inferior rather than improved
decision-making.  We submit that the Secretary fully satisfies her
obligation under 42 U.S.C. 405(b) to provide claimants a "reasonable *
* * opportunity for a hearing" by diligently processing more than
300,000 hearing requests annually in accordance with established
procedures and priorities, the validity of which are not challenged
here, and within the limits of available resources.

 A. The Imposition Of Fixed Hearing Deadlines Is Inconsistent With The
Test And Legislative History Of The Social Security Act

   Congress did not include in 42 U.S.C. 405(b) fixed deadlines for
holding hearings on claims for benefits under Title II of the Social
Security Act.  Indeed, there is no mention whatever of the timing of
hearings in the text or legislative history of 42 U.S.C. 405(b) as
originally enacted.  /19/ That Section simply provides, in the most
general terms, that the Secretary shall afford "reasonable notice and
opportunity for a hearing" if the Secretary initially denies a claim.
The courts below nevertheless found in this language an implicit
authorization for the imposition of program-wide time limits on the
processing of disability claims generally.  This holding is plainly
wrong.

   The application to this case of the phrase "reasonable * * *
opportunity for a hearing" in 42 U.S.C. 405(b) presents solely a
question of statutory interpretation:  what, if anything, did Congress
intend the Social Security Act to require with respect to the timing
of ALJ hearings in disability cases?  Whatever else Congress may have
intended in this regard, it is unambiguously clear that Congress did
not intend to impose fixed deadlines on the adjudication of disability
claims.  As we explain in this section of the Brief, Congress
repeatedly has rejected such deadlines because they could prevent the
thorough and accurate review of claims.  The courts below could not
properly circumvent this congressional judgment by reading into the
general phrase "reasonable * * * opportunity for a hearing" their own
notion of what would be a "reasonable" period of time within which to
conduct a hearing -- 90 days, under the decision in this case -- and
then incorporating that notion into a remedial decree that binds the
Secretary in disability cases generally.

   1. The absence in 42 U.S.C. 405(b) of fixed deadlines or even of
any mention of the timing of hearings under Title II is in marked
contrast to the parallel provision for hearings under the SSI program.
 See 42 U.S.C. (& Supp. V) 1383(c).  That Section, like 42 U.S.C.
405(b), provides that the Secretary shall provide "reasonable notice
and opportunity for a hearing" on a claim for benefits.  42 U.S.C.
(Supp. V) 1383(c)(1).  But Congress further specified with respect to
SSI nondisability claims that the "(d)etermination on the basis of
such hearing * * * shall be made within ninety days after the
individual requests the hearing * * * ." 42 U.S.C. 1383(c)(2).  Thus,
Congress has demonstrated in the Social Security Act itself that when
it intends to impose fixed deadlines on the Secretary's processing of
claims, it has expressly so specified.  "In light of the statute's
precisely drawn provisions," the fact that Congress did not include a
fixed deadline in the parallel hearing provision in 42 U.S.C. 405(b)
provides "persuasive evidence" that Congress "deliberately intended"
not to impose deadlines through that Section.  United States v. Erika,
Inc., 456 U.S. 201, 208 (1982).  Indeed, the fact that 42 U.S.C.
(Supp. V) 1383(c)(1) contains the identical phrase "reasonable notice
and opportunity for a hearing," and yet Congress found it necessary to
address the question of timing of SSI hearings in a separate paragraph
(42 U.S.C. 1383(c)(2)), confirms that Congress did not intend the
quoted phrase to address the scheduling of hearings on a program-wide
basis.  See Lehman v. Nakshian, 453 U.S. 156, 162-163 (1981).

   2. Congress' decision to impose a hearing deadline under Title XVI
but not Title II of the Act reflects the fact that eligibility for SSI
benefits, unlike benefits under Title II, is based on need.  42 U.S.C.
1382(a).  Compare Mathews v. Eldridge, supra, 424 U.S. at 340-342.
Congress reasonably could conclude that the hardship caused by an
extended waiting period in the processing of claims under Title XVI
therefore would be greater than under Title II.  It is significant,
however, that Congress nevertheless expressly excepted disability
cases from the 90-day hearing deadline even under the SSI program (see
42 U.S.C. 1383(c)(2)), presumably because of the complexity of the
disability determination.  This exception makes even clearer that
Congress did not intend courts to impose fixed deadlines on the
processing of disability claims under Title II, where the claimant's
countervailing interest in a speedy disposition weighs less heavily.

   In fact, Congress made just such a judgment regarding Title II
disability claims in 1968, when it added Subsection (q) to 42 U.S.C.
405 to authorize expedited payment of benefits to certain individuals
pending a final decision on their claims.  Pub. L. No. 90-248, Section
171(a), 81 Stat. 876.  Under 42 U.S.C. 405(q), a claimant may begin to
receive such benefits once 90 days have passed without a final
decision following the submission of all evidence requested by the
Secretary, if the Secretary determines that the individual has made a
prima facie showing of entitlement.  See 20 C.F.R. 404.1810.  The
Senate Report on the measure stressed, however, that "the Secretary
should not be forced into making doubtful payments merely because of
the passage of time" (S. Rep. No. 744, 90th Cong., 1st Sess. 106
(1967)).  Consistent with this view, Congress excluded Title II
disability cases from the provision for expedited payments.  42 U.S.C.
405(q)(5).  The Senate Report explained:

      The process of making disability determinations is significantly
      different from the retirement and survivors insurance claims
      process.  In the disability process State vocational
      rehabilitation agencies are involved importantly in the making
      of the decision and in borderline cases lengthy and extensive
      development of facts of a medical nature is often required.
      Because the Secretary should be reluctant to make a favorable
      finding of basic eligibility in the disability area on the basis
      of partial evidence, the expedited payment procedures is not
      provided in disability cases.

   S. Rep. No. 744, supra, at 107.

   3. Since 42 U.S.C. 405(q) was enacted in 1968, Congress has
continued to express its concern that the quality of decisions should
not be sacrified to a desire to expedite payment of benefits to
eligible applicants.  And although Congress repeatedly has considered
the timing of ALJ hearings and has amended 42 U.S.C. 405(b) in several
other respects to improve disability adjudication procedures, it
consistently has rejected proposals to impose fixed deadlines in
disability cases.  "In view of its prolonged and acute awareness of so
important an issue" (Bob Jones University v. United States, No. 81-3
(May 24, 1983), slip op. 25), Congress' refusal to do so confirms that
42 U.S.C. 405(b) does not support judicial imposition of such
limitations.

   In 1975, for example, the House Social Security Subcommittee held
extensive hearings on the timing of Social Security administrative
appeals, /20/ and 60 Members co-sponsored a bill (H.R. 5276, 94th
Cong., 1st Sess. (1975)) to impose time limitations on all levels of
review, including ALJ hearings.  The Subcommittee received extensive
testimony about the growing backlog of hearing requests and the
resulting time between a hearing request and decision after a hearing,
which then averaged more than 200 days.  /21/ There also was testimony
regarding the ways in which the hearing system might be improved,
including the hiring of additional ALJs and support staff /22/ and the
imposition of deadlines.  /23/

   After the hearings, the Subcommittee staff recommended against
enactment of a law imposing deadlines on the claims process, noting
that "although mandating by statute certain processing time limits
might seem on the surface a desirable thing to do, such legislation
might also have an adverse effect on the quality and uniformity of
disability adjudication which is already somewhat suspect." /24/ The
Committee did not report a bill imposing time limitations, choosing
instead to address the hearing backlog problem by recommending that
SSI hearing examiners (who were not ALJs) be authorized to hear Title
II cases on a temporary basis.  /25/ The legislation was enacted, /26/
but congressional interest in the timing of ALJ hearings has persisted
/27/ and bills to limit processing times have been introduced in
subsequent Sessions of Congress.  See note 32, infra.  /28/ The
backlog of ALJ hearing requests and other aspects of the disability
adjudication process also have been addressed repeatedly in the annual
appropriations process by which Congress authorizes the expenditure of
money from the Trust Funds to administer the disability program, /29/
and the Appropriations Committees have monitored the problem closely.
/30/

   4. The Disability Amendments of 1980 further demonstrate that the
existing terms of Title II of the Social Security Act cannot be read
to authorize a court to impose processing deadlines on the Secretary.
In Section 308 of those Amendments (94 Stat. 458), Congress directed
the Secretary to submit for its consideration a report "recommending
the establishment of appropriate time limitations governing decisions
on claims for benefits under Title II of the Social Security Act,"
taking into account "both the need for expeditious processing of
claims for benefits and the need to assure that all such claims will
be thoroughly considered and accurately determined." /31/ The
enactment of this provision, looking to the possible future
establishment of statutory time limitations, is inconsistent with the
notion that 42 U.S.C. 405(b) already implicitly contains such
limitations in its reference to "reasonable notice and opportunity for
a hearing." And, in fact, the Senate Report on the provision stated
that "(u)nder present law and regulations there is no limit on the
time taken by the Social Security Administration to adjudicate cases
at any stage of adjudication." /32/ The Senate Report explained:

         The provision requires the Secretary in recommending the
      limits to give adequate consideration to both speed and quality
      of adjudication.  The Secretary's recommendations also should
      reflect the requirement added by this bill for Federal review of
      State allowances and denials.  Congress could then evaluate the
      recommendations for consistency with the elements it wishes to
      emphasize and, if needed, take further action next year.  /33/

   After receiving the Secretary's report, /34/ Congress did not take
"further action" to impose deadlines.  Cf. North Haven Board of
Education v. Bell, 456 U.S. 512, 533-534 (1982).  It still has not
done so, even though it did amend 42 U.S.C. 405(b) in 1982 to expedite
a claimant's opportunity for a hearing in another way -- by providing
for an evidentiary hearing at the earlier reconsideration stage in
benefit termination cases.  See page 4, supra.  /35/ Indeed, the House
Report on the bill that formed the basis for the 1982 legislation
expressed its disapproval of hearing deadlines:

         Your Committee believes that a disability claimant is
      entitled to a timely hearing and decision on his appeal, but it
      also recognizes that the time needed before a well-reasoned and
      sound disability hearing decision can be made may vary widely on
      a case-by-case basis.  (It is also interesting to note that the
      mean processing time for disability cases in some District
      courts is as high as five years and nationwide stands at an
      average of 12 months.) Additional time may be required in some
      cases because, for example, updated, comprehensive medical
      reports are needed from a claimant's treating physicians or it
      is necessary to have a consulting medical specialist examine the
      claimant.  Establishing strict time limts for the adjudication
      of every case could result in incorrect determinations because
      time was not available to obtain needed medical evidence or to
      reach well-reasoned decisions in difficult cases.  SSA has
      recently undertaken several administrative actions to improve
      the timeliness of hearing decisions, such as expanding its ALJ
      corps and support staff, improving staff training, and
      installing modern equipment in hearing offices to ensure the
      efficient use of their resources.  Your Committee will continue
      to emphasize and support improvements in the administrative
      structure and the maintenance of adequate staff so that
      reasonable case-processing times exist at all levels of
      adjudication.  /36/

   5. In sum, Congress, with full awareness of the dimensions, causes,
and complexity of the problem, consistently has eschewed fixed
processing deadlines because of their potentially adverse effect on
the quality of disability decisions.  At every turn -- in excepting
disability cases from the time limitations imposed on adjudication of
SSI claims by 42 U.S.C. 1383(c)(2) and from the expedited payment
provisions of 42 U.S.C. 405(q), in rejecting proposals for fixed
deadlines following extensive hearings in 1975, in comments made in a
succession of committee and staff reports and floor debates, and in
the Disability Amendments of 1980 -- Congress has refused to force the
Secretary to act hastily in this class of cases by imposing arbitrary
processing periods.  Moreover, Congress by statute has now expressed
its intention once again to consider the wisdom of imposing time
limits, on the understanding that present law leaves the question of
the scheduling of hearings to the Secretary.  Cf. Heckler v. Campbell,
supra, slip op. 8 n.10.  In these circumstances, the courts below
plainly erred in intruding their own view of appropriate hearing times
into the Social Security disability program, and thereby improperly
"engrafting their own notions of proper procedures upon agencies
entrusted with substantive functions by Congress." Vermont Yankee
Nuclear Power Corp. v. NRDC, 435 U.S. 519, 525 (1978).

 B. The Timing Of ALJ Hearings In The Disability Program Does Not
Violate 42 U.S.C. 405(b)

   1. The courts below imposed hearing deadlines that Congress has
rejected because they found that the Secretary's practices violated
the requirement in 42 U.S.C. 405(b) that claimants be provided
"reasonable notice and opportunity for a hearing" (see Pet. App. 4a,
17a).  This conclusion, based solely on the fact that 43% of Title II
disability hearings in Vermont were not held within 90 days of a
request (Pet. App. 17a), is seriously flawed.

   To begin with, as shown in Part A, the courts' view that an
opportunity for a hearing is not "reasonable" if the hearing is not
held within 90 days is flatly inconsistent with the congressional
judgment not to incorporate fixed standards of timing into the Social
Security Act.  But, in addition, the courts below lost sight of the
fact that whether particular procedures developed by the Secretary
afford claimants a "reasonable * * * opportunity for a hearing" for
purposes of 42 U.S.C. 405(b) is a question of statutory interpretation
arising under the Social Security Act itself;  it does not turn on
general notions of "reasonableness" that courts might encounter in
other settings.  Accordingly, the requirement in Section 405(b) that
the opportunity for a hearing be "reasonable -- and any element of
timing implicit in that requirement -- can be given content only be
reference to the overall statutory scheme and the benefits program
established under that scheme.

   In particular, it must be borne in mind that the claims
adjudication process respondents attack is the product of the
cooperative efforts of Congress and the Secretary in the amendment,
oversight and administration of the Social Security Act.  And it is
pursuant to the authorization in that Act that Congress has made money
available from the Trust Funds each year to support the claims
adjudication process and thereby to define its dimensions.  Congress
and the Secretary have taken these actions over the last decade with
full knowledge of the disability caseload and the nationwide average
period required to obtain a decision following a hearing, which has
never been less than 150 days.  Key Workload Indicators, supra note 1,
at 1.

   "(T)his Court has been willing to assume a congressional solicitude
for fair procedure" (Califano v. Yamasaki, 442 U.S. 682, 693 (1979))
and has given "substantial weight" to the good faith judgment of the
Secretary that the procedures she has provided "assure fair
consideration of the entitlement claims of individuals" (Mathews v.
Eldridge, supra, 424 U.S. at 349).  See Schweiker v. McClure, 456 U.S.
188, 200 (1982).  It is simply inconceivable that processing times
that are such an entrenched feature -- and direct and foreseeable
consequence -- of the conscientious implementation of the Social
Security Act by Congress and the Secretary could be found to violate
that very Act.  Cf. Occidental Life Ins. Co. v. EEOC, 432 U.S. 355,
369-372 (1977).  If Congress, with full appreciation of the enormous
number of disability claims filed each year and the manner in which
the Secretary processes them, chooses to approve a series of
procedural and substantive requirements to ensure accuracy and
fairness in the adjudication of those claims and to allocate a
particular level of resources to accomplish that task, we submit that
the normal processing period that results is by definition
"reasonable" within the meaning of the statute.

   Nor is there any basis for construing the phrase "reasonable * * *
opportunity for a hearing" in 42 U.S.C. 405(b) to produce a contrary
conclusion.  In Mathews v. Eldridge, this Court held that
considerations beyond the claimant's interests in a prompt hearing and
receipt of benefits had to be taken into account in determining
whether the procedures under review here satisfied the constitutional
requirement of a meaningful opportunity to be heard in disability
termination cases, in light of the 10 or 11 months that then generally
elapsed between a request for a hearing and the ALJ's decision (424
U.S. at 341-342).  A fortiori, it is necessary to consider
countervailing interests and other factors Congress has made relevant
under the Social Security Act in determining whether those procedures
violate the statutory requirement of a "reasonable * * * opportunity
for a hearing," in light of the considerably shorter processing times
that now prevail.  Thus, in considering whether respondents' rights
under 42 U.S.C. 405(b) were violated, the court of appeals in this
case, as in White v. Mathews, supra, erred in focusing "narrowly" and
"somewhat myopically" on the claimant's interest in an expeditious
decision.  See Note, Judicial Resolution of Systemic Delays in Social
Security Hearings, 79 Colum. L. Rev. 959, 964, 977 (1979) ("Systemic
Delays").  /37/

   The principal countervailing interests are reflected in the
requirement, recently recognized by this Court, that the ALJ must
"loo(k) fully into the issues" (20 C.F.R. 404.944) in every disability
case even if the claimant does not adequately present all of the facts
and legal arguments himself.  Heckler v. Campbell, supra, slip op.
10-11 & n.12;  id. at 1-2 (Brennan, J., concurring);  id. at 1
(Marshall, J., concurring and dissenting).  See also Richardson v.
Perales, supra, 402 U.S. at 410.  Complete development of the facts
not only protects the claimant's narrow concerns;  it also serves the
broader governmental and public interest in accurate, uniform, and
just determinations (see Little v. Streater, 452 U.S. 1, 14 (1981);
Lassiter v. Department of Social Sevices, 452 U.S. 18, 27-28 (1981)),
to the end that benefits from the Trust Funds are paid to eligible
individuals, but to no others.  Conscientious fulfillment of this
obligation often requires time-consuming measures (see pages 8-10,
supra) that might be curtailed if the complex disability determination
had to be completed within too short a time frame.  As the discussion
in Point A demonstrates, Congress has chosen not to impose fixed
deadlines on the hearing process precisely because of the fear that
they might adversely affect the thoroughness and accuracy of the ALJ's
inquiry into the issues.  See also Systemic Delays, supra, 79 Colum.
L. Rev. at 975;  J. Mashaw, Social Security Hearings and Appeals 31
(1978);  J. Mashaw, Bureaucratic Justice 187-188 (1983).

   Other values that must be taken into account by Congress and the
Secretary are reflected in specific measures they have adopted in
recent years to fine-tune the disability adjudication process.  The
medical-vocational guidelines repeatedly suggested by Congress and
adopted by the Secretary in 1978 were intended to establish a
procedure for the uniform, accurate, and efficient resolution of one
aspect of the disability determination.  Heckler v. Campbell, supra,
slip op. 8 n.10, 9-10.  Use of the guidelines may serve to expedite
the decision-making process at all levels.  But other measures
designed to achieve uniformity and accountability -- such as the
provisions of the Disability Amendments of 1980 requiring Secretarial
review of State agency and ALJ decisions and the periodic review of
persons already receiving benefits (see pages 4-5, 6, supra) -- may
have the incidental effect of increasing processing times and the
number of requests for review.

   Even changes that are instituted at a particular stage to further
the claimant's interest -- such as the 1980 and 1982 amendments to 42
U.S.C. 405(b) requiring individualized explanation of the denial of
disability benefits and an opportunity for a face-to-face hearing at
the reconsideration stage in disability termination cases (see pages
3-4, supra) -- may have the effect of increasing processing times at
that stage and, as a result, postponing the succeeding levels of
review.  But, by the same token these measures may actually expedite
completion of the overall process by identifying eligible persons at
an earlier stage or reducing requests for ALJ hearings by claimants
who have been found ineligible by the State agency but who are
satisfied with the correctness of the result.  This demonstrates the
complex interrelationship of the various elements of the adjudication
process.  The 1982 amendments also reflect the need to take into
account the relative equities of different categories of claimants,
for those amendments make a hearing available at the reconsideration
stage only to individuals whose benefits are being terminated and who
therefore have a particularly strong interest in a prompt resolution
of their eligibility.  Cf. Goldberg v. Kelly, 397 U.S. 254 (1970).

   2. These and other measures adopted by Congress and the Secretary
in recent years to improve the quality of disability determinations
have resulted from a constant reassessment of the various stages of
the adjudicatory process, often reflecting a shifting of emphasis
among the statutory goals of accuracy, fairness, uniformity,
efficiency, economy, and timeliness.  The relative weight to be given
these factors in fashioning appropriate procedures for reviewing
disability claims is a matter for Congress and the Secretary to
resolve.  The requirement in 42 U.S.C. 405(b) that the Secretary
furnish claimants "reasonable * * * opportunity for a hearing"
therefore must be read in light of the manner in which Congress and
the Secretary have sought to achieve the relevant statutory goals in
structuring the adjudicatory process.  A court may not second-guess
these determinations by enforcing its own views of what constitutes a
"reasonable" system for adjudicating disability claims.

   The court of appeals did not even explore these other concerns.  It
did not consider the degree to which the changes in the adjudicatory
process wrought by the Disability Amendments of 1980 -- improved
notice of disability denials, increased review of State agency and ALJ
decisions -- would affect processing times.  Nor does its judgment
permit accommodation of the 1982 amendments requiring a hearing at the
reconsideration stage and payment of interim benefits in termination
cases, which will extend the time needed for reconsideration but at
the same time lessen the need to expedite a second hearing before an
ALJ.  These failings are merely symptomatic of the defects in the
courts' efforts to impose rigidity on a system that demands
flexibility.  As the Sixth Circuit observed in Blankenship v.
Secretary of HEW, 587 F.2d 329, 335 (1978), "(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."

   Indeed, the court of appeals did not take issue with the procedures
the Secretary has adopted to implement the "reasonable" hearing
requirement.  In 42 U.S.C. 405(a), Congress granted the Secretary
"full power and authority" to make rules and regulations to carry out
the provisions of Title II and to regulate the nature, extent, and
method of taking and furnishing evidence to establish the right to
benefits.  See also 42 U.S.C. 1302.  Pursuant to this authority, the
Secretary has promulgated detailed regulations and instructions that
seek to assure an accurate, fair, and uniform determination of claims
and provide for a reasonable distribution of cases among available
ALJs.  See pages 8-10, supra.  They also take into account the
question of timing by establishing priorities under which older cases
and cases involving termination of benefits are to be set for a
hearing first.  Within these priorities, and taking into account
geographical and other considerations, cases are to be scheduled as
soon as possible after the prehearing workup is completed by the ALJ's
staff.  These regulations and instructions, issued pursuant to
authority specifically delegated by Congress, are valid unless they
exceed the Secretary's power under the Act or are arbitrary and
capricious.  Heckler v. Campbell, supra, slip op. 7-8.  There has been
no suggestion here that the Secretary's implementation of 42 U.S.C.
405(b) is invalid on either ground.

   It must be presumed that the ALJs will abide by the directives the
Secretary has issued, including those pertaining to the scheduling of
hearings.  Schweiker v. McClure, supra, 456 U.S. at 196 n.9, 197 n.11;
 United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926).
 In fact, the courts of appeals that have considered the question
uniformly have recognized that the Secretary has made significant
efforts within the limits of available resources to manage a caseload
that has quadrupled in size over the past decade (see pages 7-8,
supra);  and no court, including either court below, has suggested the
existence of bad faith or dilatory motive on the part of HHS.  See,
e.g., Blankenship v. Secretary of HEW, supra, 587 F.2d at 334;  Wright
v. Califano, 587 F.2d 345, 352-354 (7th Cir. 1978);  Caswell v.
Califano, 583 F.2d 9, 17-18 (1st Cir. 1978);  Barnett v. Califano,
supra, 580 F.2d at 32;  White v. Mathews, supra, 559 F.2d at 861.

   Finally, the court of appeals failed to explain how the 90-day time
frame it mandated for holding ALJ hearings could be attained on a
nationwide basis given the available resources and the need to
maintain thorough and accurate adjudication, since the nationwide
average time between a request for a hearing and the ALJ's decision
currently is 185 days.  See Wright v. Califano, supra, 587 F.2d at
353.  Cf. Hodel v. Virginia Surface Mining & Reclamation Association,
Inc., 452 U.S. 264, 283 (1981);  Open America v. Watergate Special
Prosecution Force, 547 F.2d 605, 615 n.17 (D.C. Cir. 1976).  If ALJs
were induced to deny benefit claims because insufficient evidence had
been obtained within the time allowed to support a finding of
disability, the result could be to increase the burden on the courts
under 42 U.S.C. 405(g) and actually to lengthen processing times,
since a greater percentage of cases predictably would be remanded for
further administrative proceedings following judicial review.  And in
an effort to meet the deadlines under the Title II disability program,
the Secretary might be forced to divert scarce resources from other
Social Security programs -- such as Medicare or Old Age and Survivors
Insurance -- that are not subject to court-imposed time limitations.
/38/

   In sum, there is no basis for concluding that the Secretary has
failed to afford claimants a "reasonable * * * opportunity for a
hearing" within the meaning of 42 U.S.C. 405(b).

 C. The Secretary's Scheduling of Hearings Does Not Violate The
Administrative Procedure Act

   The court of appeals, like the district court, did not address the
question whether the timing of ALJ hearings violates the
Administrative Procedure Act (APA), because it found that the timing
violates 42 U.S.C. 405(b) (see Pet. App. 9a n.8, 15a, 26a).  Moreover,
respondents, in their Brief in Opposition, did not rely upon the APA
in support of the judgment below.  Nevertheless, we shall briefly
address the APA here because it was relied upon by the First Circuit
in Caswell v. Califano, supra, 583 F.2d at 15.  /39/

   The First Circuit found support for processing deadlines in two
provisions of the APA:  5 ULS.C. 555(b) and 706(1).  /40/ The first
states:  "With due regard for the convenience and necessity of the
parties or their representatives and within a reasonable time, each
agency shall proceed to conclude a matter presented to it." Under 5
U.S.C. 706(1), a reviewing court is authorized to "compel agency
action unlawfully withheld or unreasonably delayed." As an initial
matter, we submit that the timing of disability hearings that has been
so firmly established by the joint action of Congress and the
Secretary pursuant to the Social Security Act and that clearly
satisfies the specific procedural requirements of that Act cannot be
held to violate the generally applicable provisions of the APA.  See
Radzanower v. Touche Ross & Co., 426 U.S. 148, 153 (1976).  Cf.
Richardson v. Perales, supra, 402 U.S. at 409-410.  In any event, the
cited provisions of the APA do not support the program-wide relief
ordered by the courts below.

   1. It is plain from the face of 5 U.S.C. 555(b) that the nature of
an agency's obligation to conclude a matter must be informed by a "due
regard for the convenience and necessity of the parties." And with
particular relevance to the issue involved here, 5 U.S.C. 554(b)
similarly provides that "(i)n fixing the time and place for hearings,
due regard shall be had for the convenience and necessity of the
parties or their representatives." Congress thus has recognized that
the circumstances confronting a party -- including the agency itself
-- may affect the timing of the hearing and decision.  See S. Rep. No.
752, 79th Cong., 1st Sess. 17 (1945);  3 K. Davis, Administrative Law
Treatise 52 (2d ed. 1980);  U.S. Dep't of Justice, Attorney General's
Manual on the Administrative Procedure Act 46 (1947) ("Manual")
(scheduling of hearings must be consistent with the "due execution of
the agency's functions").

   In addition, the determination of what constitutes a "reasonable
time" for purposes of 5 U.S.C. 555(b) must take into account more than
the claimant's interest in a prompt disposition.  Just as under 42
U.S.C. 405(b), it also is necessary to consider the reasons for the
passage of time, the need to assure the quality of adjudication, and
resource limitations under the particular program.  See pages 33-37,
supra.  Accordingly, the language of 5 U.S.C. 554(b) and 555(b)
refutes the suggestion that a violation of the APA is established by
the mere passage of time prior to the holding of hearings under the
disability program, when that situation results from the orderly
processing of a vast number of cases pending before the agency within
the limits of available resources, the ALJ's obligation to prepare
each of his many pending cases carefully for its hearing, /41/ and the
need to coordinate the scheduling of hearings in various locations.
Cf. Morris v. Slappy, No. 81-1095 (Ap. 20, 1983), slip op. 9 ("Trial
judges necessarily require a great deal of latitude in scheduling
trials").

   The text of the judicial review provision in 5 U.S.C. 706(1), which
authorizes a reviewing court to "compel agency action wrongfully
withheld or unreasonably delayed," likewise does not furnish a basis
for a court to impose program-wide deadlines on the adjudication of
disability claims.  There is no suggestion that ALJ hearings have been
"wrongfully withheld" from the respondent class.  Cf. CTE Sylvania,
Inc. v. Consumers Union, 445 U.S. 375, 385-387 (1980).  Nor can the
hearings be said to have been "unreasonably delayed." The word "delay"
connotes a deliberate postponement or retarding of a matter from its
normal course.  /42/ The orderly disposition of the broad class of
disability claims within the limits of established procedures and
existing resources does not fit this description.  And even if the
resulting passage of time could be said to constitute "delay," that
delay, as we have explained, is not "unreasonable."

   2. The legislative history of the APA is equally unsupportive of
the judgment below, for it too "suggests that section 555(b) and
706(1) were designed to protect persons from an agency's intentional
delay or 'dilatory attitude'" (Systemic Delays, supra, 79 Colum. L.
Rev. at 965 n.30) -- factors that concededly are not present here.
The House Report explained that what is now 5 U.S.C. 555(b) means
"that no agency shall in effect deny relief or fail to conclude a case
by mere inaction, or proceed in dilatory fashion to the injury of the
persons concerned.  No agency should permit any person to suffer
injurious consequences of unwarranted official delay." H.R. Rep. No.
1980, 79th Cong., 2d Sess 32 (1946).  See also S. Rep. No. 752, 79th
Cong., 1st Sess. 19 (1945) ("no agency shall in effect deny relief or
fail to conclude a case by mere inaction").  The nationwide processing
of an average of more than 1.5 cases by each ALJ on each working day
scarcely can be described as "mere inaction /43/ or proceeding in a
"dilatory fashion." Nor, given the good faith efforts of the Secretary
to improve productivity, is this a case of "unwarranted official
delay."

   Similarly, the legislative history of the APA described the
predecessor to 5 U.S.C. 706(1) as "recogniz(ing) the right of properly
interested parties to compel agencies to act where they improvidently
refuse to act." H.R. Rep. No. 1980, supra, at 44;  S. Rep. No. 752,
supra, at 28.  Here, however, the Secretary has not "refused" to
decide disability cases (cf. Costle v. Pacific Legal Foundation, 445
U.S. 198, 220 n.14 (1980)) or acted "improvidently" in assuring a
thorough and accurate evaluation of claims with full use of available
resources.

   It also is significant that the Attorney General's Manual on the
APA /44/ states that what is now 5 U.S.C. 706(1) "appears to be a
particularized restatement of existing judicial practice" in the
issuance of writs of mandamus pursuant to the All Writs Act, 28 U.S.C.
(1946 ed.) 377, now codified at 28 U.S.C. 1651.  Manual, supra, at
108, citing, inter alia, Roche v. Evaporated Milk Association, 319
U.S. 21 (1943).  Mandamus would not lie to compel a district judge to
act on a particular case solely because of the passage of the time
required by the judge and the parties to prepare the case and to bring
it to trial in the normal course on the court's crowded docket.  That
relief would be available only if the court affirmatively and
substantially departed from its normal course in the particular case
-- i.e., if it "persistently and without reason refuse(d) to
adjudicate a case properly before it" (Will v. Calvert Fire Insurance
Co., 437 U.S. 655, 661-662 (1978) (opinion of Rehnquist, J.).  See
also Roche v. Evaporated Milk Association, supra, 319 U.S. at 27
("refusal" to adjudicate issues).  It would, accordingly, be
unthinkable for an appellate court, in granting mandamus relief, to
require that all cases pending before a district judge be disposed of
within a fixed time frame -- at least absent the most exceptional
circumstances.  Although we do not suggest that mandamus doctrine is
uniformly applicable to 5 U.S.C. 706(1), the Attorney General's
contemporaneous interpretation of 5 U.S.C. 706(1) as a "particularized
restatement" of mandamus principles at the very least weighs heavily
against a reviewing court's exercising a comparably instrusive control
over an agency's docket and its scheduling of cases for a hearing.

   3. Thus, the text and legislative history of the APA do not support
the ordering of program-wide deadlines absent a showing of pervasive
bad faith.  That Act was intended instead to furnish a more tailored
remedy, available upon a party's showing that the handling of a
particular case departs significantly from agency norms without
justification, requires repetitive proceedings serving no legitimate
agency purpose, or otherwise constitutes the effective equivalent of a
deliberate and substantial postponement of action.  See Wright v.
Califano, supra, 587 F.2d at 352-353;  FTC v. J. Weingarten, Inc., 336
F.2d 687, 691-692 (5th Cir. 1964), cert. denied, 380 U.S. 908 (1965);
Deering-Milliken, Inc. v. Johnston, 295 F.2d 856, 867-868 (4th Cir.
1961);  Goldman, supra, 66 Mich. L. Rev. at 1429;  Systemic Delays,
supra, 79 Colum. L. Rev. at 966-968, 977-982;  Note, Judicial
Acceleration of the Administrative Process:  The Right To Relief from
Unduly Protracted Proceedings, 72 Yale L.J. 574-575 (1963).  No such
showing has been made here.

 D. The Courts Below Erred In Extending Processing Deadlines To The
Reconsideration Stage

   Our submission that the courts below erred in imposing deadlines on
the processing of claims at the ALJ hearing stage equally demonstrates
that the courts were mistaken in extending processing deadlines to the
reconsideration stage as well.  As we have explained (see pages 19-31,
supra), Congress consistently has declined to incorporate deadlines in
the Act for any stage of the proceedings, including reconsideration,
and instead has enacted statutory provisions and suggested solutions
inconsistent with court-imposed deadlines.

   The extension of deadlines to the reconsideration stage is
particularly inappropriate in view of the fact that the
reconsideration function is carried out by State agencies, whose
day-to-day activities are not subject to the Secretary's direct
control.  To meet this problem, in the Disability Amendments of 1980,
Congress authorized the Secretary to promulgate regulations specifying
"in such detail as he deems appropriate" performance standards and
procedures to be followed by the State agencies "in order to assure
effective and uniform administration of the disability program
throughout the United States." 42 U.S.C. (Supp. V) 421(a)(2).  These
regulations "may," but need not, specify performance criteria for the
accuracy of decisions and "the time periods within which
determinations must be made" (42 U.S.C. (Supp. V) 421(a)(2)(C)).
Moreover, Congress provided a specific means of enforcing these
standards:  it authorized the Secretary to assume the State's
functions -- after a 180-day waiting period -- if she finds after a
hearing that the State agency has failed to comply with the standards.
 42 U.S.C. (Supp. V) 421(b).  In the exercise of her discretion under
this Section, the Secretary has elected to impose time limits on
initial determinations by State agencies (20 C.F.R. 404.1640 et seq.),
but not on reconsiderations.  The Secretary's omission of fixed
deadlines at the reconsideration stage plainly is not an abuse of
discretion, in view of Congress' express reservations about the wisdom
of deadlines.  The court of appeals' imposition of processing
deadlines directly on the State agencies therefore is at odds with the
explicit congressional judgment to leave the question of such
deadlines and their enforcement to the Secretary as part of her
general oversight of the State's performance.  /45/

   Finally, the ability of a State agency to comply with the 90-day
deadline adopted by the courts below -- a figure based on the district
court's review of cases reconsidered between 1977 and 1980 -- is
rendered more doubtful by the provisions of the Disability Amendments
of 1980 requiring new individualized notice and pre-effectuation
review by SSA of State reconsideration decisions.  And beginning no
later than January 1, 1984, evidentiary hearings must be held at the
reconsideration stage in disability termination cases, which obviously
will add to the time needed at that stage.  These legislative
developments, which the processing deadlines imposed by the lower
courts fail to accommodate, clearly illustrate the danger of judicial
intervention in an area more appropriately designed for monitoring and
regulation by Congress and the Secretary.

 II THE DISTRICT COURT WAS WITHOUT AUTHORITY TO ORDER THE PAYMENT OF
INTERIM BENEFITS TO INDIVIDUALS WHOSE CLAIMS ARE NOT PROCESSED WITHIN
THE JUDICIALLY IMPOSED DEADLINES

   If, contrary to our submission in Point I, the district court
properly imposed fixed deadlines on the completion of the
reconsideration stage and the holding of ALJ hearings in Social
Security disability cases, that court nevertheless was without
authority to order the payment of interim benefits to individuals
whose claims are not processed within those deadlines.

   This Court repeatedly has stressed that "the United States, as
sovereign, 'is immune from suit save as it consents to be sued * * *
and the terms of its consent to be sued in any court define that
court's jurisdiction to entertain the suit.'" Lehman v. Nakshian, 453
U.S. 156, 160 (1981), quoting United States v. Testan, 424 U.S. 392,
399 (1976), and United States v. Sherwood, 312 U.S. 584, 586 (1941).
Consistent with this principle, a court may not award monetary relief
against the federal government absent a congressional enactment
waiving the United States' sovereign immunity.  United States v.
Mitchell, No. 81-1748 (June 27, 1983), slip op. 6;  Army & Air Force
Exchange Service v. Sheehan, 456 U.S. 728, 738-740 (1982);  United
States v. Testan, supra;  Pine Hill Coal Co. v. United States, 259
U.S. 191, 196 (1922).  Cf. U.S. Const., Art. I, Section 9, Cl. 7 ("No
Money shall be drawn from the Treasury, but in Consequence of
Appropriations made by Law * * * ").

   The conditions for the payment of benefits from the Social Security
Trust Funds are set forth in 42 U.S.C. 405(i).  That Section permits
payment only upon a "final decision" by the Secretary or "final
judgment" by a court that a person is "entitled" to benefits.  Under
42 U.S.C. (Supp. V) 423(a)(1), an individual is "entitled" to payment
of disability insurance benefits only if he "is under a disability"
and satisfies other eligibility criteria.  Any member of the
respondent class to whom interim disability benefits must be paid
under the judgment below by definition will not have received the
requisite "final decision" by the Secretary (or the State agency)
establishing his eligibility.  The interim benefit provisions of the
judgment below therefore violate 42 U.S.C. 405(i).

   In Schweiker v. Hansen, 450 U.S. 785 (1981), another Social
Security case, this Court reiterated "'the duty of all courts to
observe the conditions defined by Congress for charging the public
treasury.'" 450 U.S. at 788, quoting Federal Crop Insurance Co. v.
Merrill, 332 U.S. 380 (1947).  The court of appeals sought to avoid
the force of Hansen by characterizing the interim benefits requirement
as flowing from the "district court's inherent powers to fashion a
remedy" (Pet. App. 8a).  But, as we have said, the courts of the
United States have no "inherent power" to order the payment of money
from the federal Treasury whenever they find a violation of a statute.
 United States v. Testan, supra, 424 U.S. at 401, 403.  Moreover, the
remedy a court may fashion for a violation of the requirement in 42
U.S.C. 405(b) that an individual be provided "reasonable notice and
opportunity for a hearing" surely is limited by the conditions on the
payment of money from the Trust Funds contained in Subsection (i) of
that same statutory provision.  Compliance with those conditions is
not excused by the mere passage of time in processing a claim.  Cf.
INS v. Miranda, No. 82-89 (Nov. 8, 1982).

   In addition, the decision below ignores the fact that Congress has
addressed the interim benefits issue and has chosen not to make such
benefits generally available in disability cases solely because of the
passage of time in the administrative review process.  As we have
explained (see page 22, supra), Congress enacted 42 U.S.C. 405(q) in
1968 to provide a mechanism for the expedited payment of benefits when
a claim has not been finally resolved within a specified period but
the claimant has made a prima facie showing of entitlement.  The
Senate Report explicitly stated, however, that "the Secretary should
not be forced into making doubtful payments merely because of the
passage of time" and that Section 405(q) therefore requires the
Secretary to be "confident of the validity of the claim" before an
interim payment may be made.  S. Rep. No. 744, supra, at 106.  What is
more, Congress expressly excluded disability cases from this expedited
payment provision (42 U.S.C. 405(q)(5)) because State agencies are
involved in the process, "lengthy and extensive development of facts
of a medical nature is often required," and "the Secretary should be
reluctant to make a favorable ruling of basic eligibility in the
disability area on the basis of partial evidence" (S. Rep. No. 744,
supra, at 107).  The award of interim benefits by the courts below
countermands this deliberate legislative judgment.  /46/

   In 1982, Congress did enact temporary authorization for the payment
of interim benefits through the ALJ stage to an individual whose
benefits are to be terminated on the basis of a decision by the State
agency that he no longer is under a disability.  See page 4, supra.
This provision was enacted because of Congress' special concern that
individuals who may have become dependent upon their disability
benefits might experience hardship while they pursue administrative
review of the State's termination decision.  See materials cited in
note 35, supra.  Any member of the respondent class covered by this
provision of course may receive benefits under it.  But because
Congress has demonstrated that when it intends to allow payment of
interim benefits pending administrative review it has expressly so
provided, it is now especially clear that the award of interim
benefits to other persons -- such as those whose new applications for
disability benefits have been denied by the State agency -- is barred
by the Act.  /47/ The district court's interim benefits order
therefore cannot stand.  /48/

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   J. PAUL MCGRATH

      Assistant Attorney General

   KENNETH S. GELLER

      Deputy Solicitor General

   EDWIN S. KNEEDLER

      Assistant to the Solicitor General

   WILLIAM KANTER

   JOHN F. CORDES

      Attorneys

   AUGUST 1983

   /*/ Respondents Day and Maurais had received an ALJ hearing and
decision prior to the district court's certification of the class on
June 14, 1979.  The district court held that the case was not moot,
however, concluding that the case fell within the exception recognized
in Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975), for situations in
which the challenged condition is temporary and the issue as regards
any particular class representative might become moot before the
district court even could rule on the class certification issue (J.A.
84).  See also Sosna v. Iowa, 419 U.S. 393, 402 n.11 (1975);  United
States Parole Commission v. Geraghty, 445 U.S. 388, 398-399 (1980).
The district court also found that respondents Day and Maurais would
be suitable representatives of the class in these circumstances (J.A.
83).  See United States Parole Commission v. Geraghty, supra, 445 U.S.
at 405-407.

   /1/ Office of Hearings and Appeals, U.S. Dep't of Health and Human
Services, Key Workload Indicators (FY May 1983) 15 (June 29, 1983)
("Key Workload Indicators").  We have lodged a copy of the May 1983
edition of the monthly Key Workload Indicators with the Clerk of this
Court.

   /2/ Pub. L. No. 97-455, Section 4, 96 Stat. 2499, adding a new
paragraph (2) to Section 205(b) of the Social Security Act, to be
codified at 42 U.S.C. 405(b)(2).

   /3/ Pub. L. No. 97-455, Section 2, 96 Stat. 2498, adding a new
Subsection (g) to Section 223 of the Act, to be codified at 42 U.S.C.
423(g).  The authorization for interim benefits applies only to
initial determinations in disability benefit termination cases made on
or after (or pending on administrative review on) the effective date
of the Act (January 12, 1983) but before October 1, 1983.  Benefits
may continue to be paid in such cases after October 1, 1983 until the
HHS Administrative Law Judge (ALJ) renders his decision or until June
1984, whichever is earlier.  These benefits are subject to recoupment
if the initial determination that benefits should be terminated is
affirmed on appeal, although recoupment may be waived in accordance
with 42 U.S.C. (& Supp. V) 404.  A bill has been introduced in the
Senate to make the interim benefits authorization permanent in benefit
cessation cases.  S.476, 98th Cong., 1st Sess. Section 5 (1983).

   /4/ The Secretary actually had instituted such reviews in some
cases prior to 1980.  At the time relevant to this case, for example,
certain State agency reconsiderations of decisions terminating
benefits to previously eligible individuals were reviewed by SSA in
Baltimore before they became final (Pet. App. 24a).

   /5/ We shall delete "Supp. V" in future references to this

   Section.

   /6/ Similar procedures are followed in SSI disability cases under
Title XVI of the Act.  See 20 C.F.R. Part 416 subpart N.

   /7/ In general, this review must occur at least once every three
years.  42 U.S.C. (Supp. V) 421(h).  In 1983, Congress authorized the
Secretary, on a State-by-State basis, to modify the requirement for
continuing disability reviews every three years if the backlog of such
reviews, the number of new applications, and staffing levels in a
State so warrant.  See Pub. L. No. 97-455, Section 3, 96 Stat. 2499.

   /8/ Key Workload Indicators, supra note 1, at 1.

   /9/ In fiscal year 1980, for example, more than 95% of all hearing
requests involved Title II or Title XVI disability claims.  Staff of
the House Comm. on Ways and Means, 97th Cong., 1st Sess., Social
Security Hearings and Appeals:  Pending Problems and Proposed
Solutions 2 (Comm. Print 1981).

   /10/ Social Security Administration, U.S. Dep't of Health and Human
Services, 1983 Annual Report to Congress 49 (May 1983).  Statistics
for the first eight months of fiscal year 1983 in fact reflect a
substantial increase.  Hearing requests averaged approximately 26,725
per month in fiscal year 1982 but approximately 29,570 per month
during the first eight months of fiscal year 1983 -- including an
all-time record of 33,112 filed in March 1983 and 31,471 and 32,264
filed in April and May of 1983, respectively.  Key Workload
Indicators, supra note 1, at 1.

   /11/ See Comm. Print, supra note 9, at 1.

   /12/ Key Workload Indicators, supra note 1, at 1.

   /13/ Key Workload Indicators, supra note 1, at 1.  The processing
time has fluctuated in fiscal year 1983 between a low of 177 days in
October 1982 and a high of 189 days in January 1983.  For cases
decided in April and May 1983, the average processing time was 185
days.  Ibid.

   /14/ Key Workload Indicators, supra note 1, at 1.

   /15/ Respondent Day, who had been receiving benefits pursuant to a
prior finding of disability, was found by the State agency no longer
to be disabled.  He requested reconsideration of that determination on
December 21, 1977, and his claim was denied after reconsideration on
June 6, 1978, 167 days later.  Day then requested an ALJ hearing,
which was held on December 4, 1978, 173 days after he requested the
hearing and several weeks after he filed this suit.  On January 17,
1979, the ALJ issued a decision reaffirming the decision to terminate
his disability benefits (Pet. App. 13a-14a).

   Respondent Maurais, who intervened in this suit on December 1, 1978
(Pet. App. 14a), also had been receiving benefits pursuant to a prior
determination of disability.  In April 1978, Maurais was notified of
the State agency's determination that his disability had ceased.  He
requested reconsideration of that initial determination, and an
adverse reconsideration decision was rendered on January 4, 1979, 215
days after his request.  Maurais then requested an ALJ hearing, and
that hearing was held 65 days later.  Maurais' benefits were
reinstated following the hearing (Pet. App. 14a).

   /16/ In White v. Mathews, supra, a class action by Title II
disability claimants in Connecticut, the court of appeals had held
that the average period of 211.8 days between a hearing request and
the ALJ's decision was not "reasonable" and ordered the Secretary to
reduce that time period for Connecticut claimants to 120 days.  559
F.2d at 858-860.  In Barnett v. Califano, supra, the court of appeals
had held that the period of 6 or 7 months that ordinarily elapsed in
Title XVI disability cases in Vermont was unreasonable and ordered
that hearings be held within 90 days.  580 F.2d at 31-33.

   /17/ Because the district court found violations of the Social
Security Act, it did not reach respondents' arguments that the
challenged practices violate the Due Process Clause of the Fifth
Amendment and the Administrative Procedure Act (Pet. App. 15a, 26a).
The court of appeals likewise did not consider those arguments (id. at
9a n.8).

   /18/ See J. Mashaw, Bureaucratic Justice 187 (1983);  Note,
Judicial Resolution of Systemic Delays in Social Security Hearings, 79
Colum. L. Rev. 959, 971 (1979);  Dixon, The Welfare State and Mass
Justice:  A Warning from the Social Security Disability Program, 1972
Duke L.J. 681, 687-688.

   /19/ See S. Rep. No. 728, 76th Cong., 1st Sess. 42 (1939);  S. Rep.
No. 734, 76th Cong., 1st Sess. 51 (1939).  The Social Security Board's
description of the hearing process soon after 42 U.S.C. 405(b) was
enacted in 1939 recited various "Legal Considerations" regarding the
nature of the hearing required by 42 U.S.C. 405(b), but, likewise, did
not mention the question of timing.  See Attorney General's Committee
on Administrative Procedure, Administrative Procedure in Government
Agencies, S.Doc. No. 10, 97th Cong., 1st Sess. (Pt. 3) 38-40 (1941).
Under a separate heading entitled "Requirements of the Administrative
Task," the Board did cite expeditious processing as an important
feature of the review process, in the interests of efficiency, human
needs, and public relations.  Id. at 37.  The Board also recognized,
however, the strong countervailing interests in fairness, uniformity,
and accuracy of determinations (ibid.), which account for much of the
time consumed in processing disability cases.

   /20/ Delays in Social Security Appeals:  Hearings Before the
Subcomm. on Social Security of the House Comm. on Ways and Means, 94th
Cong., 1st Sess (1975) ("1975 Hearings").

   /21/ 1975 Hearings, supra, at 26, 28, 37, 39, 93, 104, 113, 146,
228, 230-232, 235, 247, 250, 259, 262, 549, 584.

   /22/ 1975 Hearings, supra, at 39-42, 59, 62-63, 74, 228, 256-257,
439, 526, 535, 570.

   /23/ 1975 Hearings, supra, at 23, 98, 102, 229, 246-248, 552, 575,
581-582.

   /24/ Staff of the House Comm. on Ways and Means, 94th Cong., 1st
Sess., Appeals Process:  Areas of Possible Administrative or
Legislative Action 1-2 (Comm. Print 1975).

   /25/ H.R. Rep. No. 94-679, 94th Cong., 1st Ses. 1-2, 4, 8 (1975);

   /25/ H.R. Rep. No. 94-679, 94th Cong., 1st Ses. 1-2, 4, 8 (1975);
see also S.Rep. No. 94-550, 94th Cong., 1st Sess. 1-2, 5-6 (1975).

   /26/ Pub. L. No. 94-202, Section 3, 89 Stat. 1135.  The examiners
were converted to ALJ status on a permanent basis in 1977.  Pub. L.
No. 95-216, Section 371, 91 Stat. 1559.

   /27/ For example, Representative Seiberling, the principal House
sponsor of bills to impose processing deadlines, renewed his call for
such deadlines soon after the 1976 law was passed.  See Disability
Insurance Program:  Public Hearings Before the Subcomm. on Social
Security of the House Comm. on Ways and Means, 94th Cong., 2d Sess.
341-343 (1976).  See also Administration of the Supplemental Security
Income Program:  Hearings Before the Subcomm. on Social Security of
the House Comm. on Ways and Means, 94th Cong., 2d Sess. 111 (1976);
Administrative Law Judges, HEW Executive Level Positions, and Salary
Adjustment for Director of Office of Management and Budget:  Hearings
Before the Subcomm. on Employee Ethics and Utilization of the House
Comm. on Post Office and Civil Service, 95th Cong., 1st Cong., 1st
Sess. 10-11, 16-17 (1977);  Staff of the House Comm. on Ways and
Means, 95th Cong., 1st Sess., Background Material on H.R. 5723:
Conversion of Temporary Social Security ALJ's 4 (Comm. Print 1977);
Staff of the House Comm. on Ways and Means, 95th Cong., 2d Sess.,
Disability Insurance -- Possible Areas of Subcommittee Action 10-12
(Comm. Print 1978);  Disability Insurance Program:  1978:  Hearings
Before the Subcomm. on Social Security of the House Comm. on Ways and
Means, 95th Cong., 2d Sess. 15-17, 97-99 (1978).

   /28/ See, e.g., H.R. 12466, 94th Cong., 2d Sess. (1976);  H.R.
5151, 95th Cong., 1st Sess. (1977);  H.R. 12672;  95th Cong., 2d Sess.
(1978);  H.R. 747, 96th Cong., 1st Sess. (1979);  H.R. 4775, 97th
Cong., 1st Sess. (1981-.

   /29/ See Departments of Labor and Health, Education, and Welfare
Appropriations for 1978:  Hearings Before a Subcomm. of the House
Comm. on Appropriations, 95th Cong., 1st Sess. (Pt. 6) 237-238,
391-393, 398, 440, 457-459, 477-478 (1977);  Department of Labor and
Health, Education, and Welfare and Related Agencies Appropriations,
Fiscal Year 1978:  Hearings Before the Senate Comm. on Appropriations,
95th Cong., 1st Sess. (Pt. 3) 2353, 2372, 2373-2374, 2381 (1977);
Departments of Labor and Health, Education, and Welfare Appropriations
for 1979:  Hearings Before a Subcomm. of the House Comm. on
Appropriations, 95th Cong., 2d Sess. (Pt. 6) 219-221, 484, 495-496,
502-504, 519-522 (1978);  Departments of Labor and Health, Education,
and Welfare and Related Agencies Appropriations, Fiscal Year 1979:
Hearings Before a Subcomm. of the Senate Comm. on Appropriations, 95th
Cong., 2d Sess. (Pt. 3) 724, 727-728, 735-736, 780-781 (1978);
Departments of Labor and Health, Education, and Welfare Appropriations
for 1980:  Hearings Before a Subcomm. of the House Comm. on
Appropriations, 96th Cong., 1st Sess. (Pt. 6) 213, 218, 231-233, 291,
447, 462-463, 482, 484, 497-503 (1979);  Departments of Labor and
Health, Education, and Welfare and Related Agencies Appropriations,
Fiscal Year 1980:  Hearings Before a Subcomm. of the Senate Comm. on
Appropriations, 96th Cong., 1st Sess. (Pt. 3) 693, 712, 718-720
(1979);  Departments of Labor, Health, Education, and Welfare, and
Related Agencies Appropriations for 1981:  Hearings Before a Subcomm.
of the House Comm. on Appropriations, 96th Cong., 2d Sess. (Pt. 5)
281, 299, 341-342, 356, 556, 572, 574 (1980);  Departments of Labor,
Health and Human Services, Education, and Related Agencies
Appropriations, Fiscal Year 1981:  Hearings Before a Subcomm. of the
Senate Comm. on Appropriations, 96th Cong., 2d Sess. (Pt. 2) 1001,
1014, 1040-1047, 1050-1051 (1980);  Departments of Labor, Health and
Human Services, Education, and Related Agencies Appropriations for
1983:  Hearings Before a Subcomm. of the House Comm. on
Appropriations, 97th Cong., 2d Sess. (Pt. 5) 557-558, 635-636, 876,
896-897, 918-920, 927 (1982);  Departments of Labor, Health and Human
Services, Education, and Related Agencies Apropriations, Fiscal Year
1983:  Hearings Before a Subcomm. of the Senate Comm. on
Appropriations, 97th Cong., 2d Sess. (Pt. 3) 274, 330-331 (1983);
Departments of Labor, Health and Human Services, Education, and
Related Agencies Appropriations for 1984:  Hearings Before a Subcomm.
of the House Comm. on Appropriations, 98th Cong., 1st Sess. (Pt. 5)
492, 527-528, 582-583, 606-607, 618-619, 658-659, 864, 873, 891-893,
898 (1983).

   /30/ See H.R. Rep. No. 97-894, 97th Cong., 2d Sess. 85-86 (1982),
and S. Rep. No. 97-680, 97th Cong., 2d Sess. 94 (1982), both of which
request the Secretary to report to the Committees on the problem.  See
also H.R. Rep. No. 97-251, 97th Cong., 1st Sess. 80 (1981)
(recommending temporary authorization to hire non-ALJ examiners to
reduce the hearing backlog, noting that "it appears impossible to deal
with the backlog without extraordinary measures").

   /31/ The background materials on the 1980 amendments once again
reflect an appreciation of the magnitude of the administrative
problems facing SSA.  See Staff of the Senate Comm. on Finance, 96th
Cong., 1st Sess., Issues Related to the Social Security Act Programs
45-51, 123 (Comm. Print 1979);  Staff of the House Comm. on Ways and
Means, 96th Cong., 1st Sess., Social Security Administrative Law
Judges:  Survey and Issue Paper 5, 63-69 (Comm. Print 1979);
Disability Insurance Legislation:  Hearings Before the Subcomm. on
Social Security of the House Comm. on Ways and Means, 96th Cong., 1st
Sess. 88, 114, 119-120, 237-238, 241, 249 (1979).

   /32/ S. Rep. No. 96-408, supra, at 59;  H.R. Conf. Rep. No. 96-944,
supra, at 59.  See also H.R. Rep. No. 96-100, supra, at 14.  These
reports all note, in identical language, that "(s)everal Federal
district courts have imposed such limits at the hearing level and
numerous bills have been introduced to set such limits at various
levels of adjudication." There is no suggestion, however, that
Congress approved of the judicial decisions.  See pages 29-30, infra.

   /33/ S. Rep. No. 96-408, supra, at 59;  see also H.R. Rep. No.
96-100, supra, at 14.

   /34/ HHS suggested time frames of 150 days for reconsideration of
disability claims and 165 days for rendering a decision following a
request for an ALJ hearing, subject to certain exceptions.  These
suggested time frames were based on then-recent processing experience,
caseload projections, and quality indicators.  Report of the
Department of Health and Human Services, Implementation of Section
308, Public Law 96-265, Time Limitations for Decisions on Title II
Benefit Claims 1-2 (Oct. 21, 1980) ("Report").  HHS cautioned,
however, that budget and staff limitations, projected workload
increases, and the impact of other provisions of the Disability
Amendments of 1980 (e.g., pre-effectuation review of State agency
disability decisions, personalized denial notices, and periodic review
of persons already on disability) "mitigate against the Department's
meeting its proposed time limitation objectives in every instance."
Report, supra, at 2.  HHS also noted that the circumstances of
individual cases might make it difficult to meet deadlines -- e.g.,
the need to obtain sufficient medical documentation and coordinate
with other agencies.  Ibid.  Finally, HHS stated that it would measure
its performance against the time frames and recommend revisions if
necessary.  Ibid.

   The suggested 165-day time limit for rendering ALJ decisions was
based on the similar limit contained in proposed regulations that
recently had been submitted by the Secretary to the district court on
remand from the Sixth Circuit's decision in Blankenship v. Secretary
of HEW, 587 F.2d 329 (1978).  See Report, supra, at 2, 3.  In
Blankenship, the Sixth Circuit had reversed the district court's
judgment requiring that hearings be held within 90 days of a request
and remanded to afford the Secretary an opportunity to issue
regulations to give substance to the "reasonable notice and
opportunity for a hearing" requirement in 42 U.S.C. 405(b).  587 F.2d
at 336.

   On remand in Blankenship, 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 any commitment to fixed
deadlines in regulations unworkable.  The Secretary therefore moved
for relief from the requirement that he issue regulations and proposed
instead to establish processing goals.  The district court denied the
Secretary's motion, ordered him to publish regulations requiring a
hearing decision within 180 days of request, and required the payment
of interim benefits when the time limits are not satisfied.
Blankenship v. Secretary of HHS, 532 F. Supp. 739, 746-747 (W.D. Ky.
1982).  The Sixth Circuit granted a stay in Blankenship pending the
Secretary's appeal.  The appeal was argued on October 8, 1982
(Blankenship v. Secretary of HHS, Nos. 82-5130 and 82-5204), but no
decision has yet been rendered.

   /35/ Once more, the legislative history of the 1982 legislation
reflects a full awareness by Congress of the backlog of requests for
an ALJ hearing and the resulting period of 6 to 9 months or more that
many individuals must wait to receive a hearing.  H.R. Rep. No.
97-588, 97th Cong., 2d Sess. 12 (1982);  S. Rep. No. 97-648, 97th
Cong., 2d Sess. 20 (1982) (additional views of Sen. Long);  128 Cong.
Rec. S13857 (daily ed. Dec. 3, 1982) (remarks of Sen. Heinz);  id. at
S13856 (remarks of Sen. Cohen);  id. at S13859 (remarks of Sen.
Armstrong);  id. at S13860-S13861 (remarks of Sen. Levin);  id. at
S13862 (remarks of Sen. Pryor);  id. at S13868 (remarks of Sen.
Hawkins);  id. at H10677 (daily ed. Dec. 21, 1982) (statement of Rep.
Neal);  id. at H10678 (remarks of Rep. Pickle);  id. at S15963
(remarks of Sen. Armstrong);  id. at S15964 (remarks of Sen. Dole);
id. at S15964-S15965 (remarks of Sen. Levin).  See also Staff of the
Senate Comm. on Finance, 97th Cong., 2d Sess., Staff Data and
Materials Related to the Social Security Disability Insurance Program
69-73 (Comm. Print 1982);  Social Security Appeals and Case Review
Process:  Hearings Before the Subcomm. on Social Security of the House
Comm. on Ways and Means, 97th Cong., 1st Sess. 4-5, 9-11, 17-21
(1981).  Representative Seiberling again urged passage of his time
limits proposal (id. at 169-173), but Congress did not enact it.

   /36/ H.R. Rep. No. 97-588, supra, at 19-20 (emphasis added).  This
Report was issued against the background of a report by the Staff of
the Subcomm. on Social Security of the House Comm. on Ways and Means,
97th Cong., 1st Sess., Status of the Disability Insurance Program
(Comm. Print 1981), which stated (id. at 13;  emphasis added):

         The Subcommittee has been fully aware of the conflicting
      pulls of "quality" and "processing time." During the last 3 or 4
      years, there have been efforts by quite a few Members of
      Congress to get Ways and Means and the Finance Committee to put
      specific time limits in the law to force the State agencies and
      the ALJ's to make more timel y benefit decisions.  These efforts
      were resisted by the Committee because of the possible
      ramifications of less quality in decisionmaking.  In lieu of
      putting in such statutory requirements in the Disability
      Amendments of 1980, the legislation called for the Secretary to
      recommend appropriate time limits for the various levels of
      adjudication which would give "adequate consideration to both
      speed and quality of adjudication."

   See also id. at 43-46.  Another Staff Report of the Subcomm. on
Social Security House Comm. on Ways and Means, 97th Cong., 1st Sess.,
Social Security Hearings and Appeals:  Pending Problems and Proposed
Solutions (Comm. Print 1981), stated (id. at 8;  footnote omitted):

         There are a plethora of cases pending in district and circuit
      courts setting different time limits for hearing cases
      throughout the country.  This has caused major disruption in the
      disability hearing process because ALJ's and cases must be
      shuttled around the country in an attempt to comply with various
      court orders.  In a few cases benefits actually are being paid
      on delayed cases, as is suggested but presumably not yet ordered
      by the judge in the Blankenship case.  The Social Security
      Administration is caught in the middle of either being in
      contempt of court or paying benefits

without authority of law.

   /37/ We note in this regard that if a claimant is found at any
stage of the proceedings to be eligible for benefits, he is entitled
to retroactive payment of such benefits for the period his claim was
under review.  Mathews v. Eldridge, supra, 424 U.S. at 339.

   /38/ Although the judgment below directly concerns only the
processing of claims in Vermont, an affirmance of that judgment by
this Court no doubt would rapidly lead to a further proliferation of
separate decrees imposing time limits in other jurisdictions.  See,
e.g., cases cited at Pet. 13-15 & nn. 13, 14 & 16.  This process would
further balkanize the administration of what Congress plainly intended
to be a uniform, nationwide program (see 42 U.S.C. (Supp. V)
421(a)(2);  Heckler v. Campbell, supra, slip op. 7-8) as the Secretary
sought to comply with the varying terms of the decrees.  See Pet. 17.
In addition, if processing time limits were judicially imposed in some
jurisdictions but not others, the Secretary would be required to meet
the applicable deadlines by reallocating resources from SSA regions
that were not yet under a judicial decree (as already has occurred in
several cases (see Pet. 16 n.17)), thereby prejudicing the rights of
claimants in some localities and undermining the goals of fairness and
uniformity that are themselves important elements of a "reasonable * *
* opportunity for a hearing." See Wright v. Califano, supra, 587 F.2d
at 352-353;  Blankenship v. Secretary of HEW, supra, 587 F.2d at 335;
Systemic Delays, supra, 79 Colum. L. Rev. at 972;  Goldman,
Administrative Delay and Judicial Relief, 66 Mich. L. Rev. 1423, 1425
(1968).  Even the First and Second Circuits have acknowledged the
validity of the concern that "'if the Secretary's resources truly are
inadequate to the task, the more litigious of the applicants may gain
an advantage over the less assertive.'" Pet. App. 7a, quoting Caswell
v. Califano, supra, 583 F.2d at 17.

   /39/ Respondents' contention below that the processing times
violate the Due Process Clause is without merit in light of Mathews v.
Eldridge and the 1980 and 1982 amendments to the Social Security Act
providing added protection for individuals whose disability benefits
are terminated.

   /40/ We assume, for present purposes only, that these provisions of
the APA apply to Social Security disability claims.  See Richardson v.
Perales, supra, 402 U.S. at 409.

   /41/ At the end of May 1983, the average number of cases pending
before each ALJ was 221, an all-time record.  Key Workload Indicators,
supra note 1, at 1.

   /42/ Webster's Third New International Dictionary 595 (4th ed.
1976).

   /43/ Conducting the hearing itself is not the only "action" by the
Secretary in these cases;  the numerous steps that must be taken in
preparation for the hearing (see pages 8-10, supra) dispel any
suggestion of prolonged "inaction" in the interim.

   /44/ This Court has given weight to the Manual in interpreting the
APA because it embodies the contemporaneous construction of the Act by
the Executive Department involved in its drafting.  Chrysler Corp. v.
Brown, 441 U.S. 281, n.31 (1979);  Vermont Yankee Nuclear Power Corp.
v. NRDC, supra, 435 U.S. at 546.

   /45/ Respondents complain (Br. in Opp. 4) of what they term "gaps
of unexplained delay" in the processing of the 77 cases selected as a
sample of reconsideration cases in Vermont (see page 12, supra).  This
complaint is based on a compilation of a log for each of the 77 sample
cases that simply notes when certain discrete actions were taken in
the particular case (e.g., file requested from SSA by the State
agency, file received, consultative examination requested, additional
evidence requested, determination signed by State agency examiner or
State agency physician, "systems input," etc.).  See J.A. 105-149,
192-195.  These summaries do not purport to explain what transpired
between the particular milestones listed, the complexity of particular
cases, or the caseload confronting the employees involved, and it
simply is not possible to reconstruct those facts long after a case
has been finally adjudicated.  Such "gaps" in explanation by the
agency, when considered with a presumption of regularity, do not show
that the agency has performed in an unacceptable fashion.  See INS v.
Miranda, No. 82-29 (Nov. 8, 1982), slip op. 4.  Far less do they carry
respondents' burden of proving their entitlement to the extraordinary
relief ordered below.  Congress has now made clear that any defects in
a State agency's administration of the disability program are for the
Secretary to correct.  42 U.S.C. (Supp. V) 421(a) and (b).

   /46/ Even in situations not implicating sovereign immunity, where
the federal courts may have greater "power to grant relief that is not
expressly authorized by statute," the Court has stressed that "such
power is to be exercised in light of relevant policy determinations
made by the Congress." Bush v. Lucas, No. 81-469 (June 13, 1983), slip
op. 6.

   /47/ In fact, the 1982 legislation permitting interim benefit
payments only in termination cases was enacted on the basis of
Congress' understanding that "(p)resent law does not authorize the
payment of Social Security benefits from the Social Security trust
funds until a final decision is made on an application for benefits"
and its disagreement with judicial decisions requiring payment of
interim benefits in disability cases generally.  H.R. Rep. No. 97-488,
supra, at 19.  See also note 36, supra.

   /48/ Although the district court's order permits recoupment of the
interim benefits if the claimant is later found to be ineligible (Pet.
App. 35a), this "theoretical right of the Secretary to recover
undeserved benefits (would not) result, as a practical matter, in any
substantial offset to the added outlay of public funds." Mathews v.
Eldridge, supra, 424 U.S. at 347.

   Appendix Omitted