caseload can be expected to increase even beyond the delays that have already occurred. In 1973 the 2,500 Social Security cases constituted about 2.5 percent of the total civil caseload in the district courts. With a four-fold increase of cases, the District Courts can expect that 8-10 percent of all new civil cases will involve social security issues this year.

One measure which has been taken by a significant number of District Courts to cope with the Social Security caseload has been to routinely assign such cases to a magistrate under the provisions of the Federal Magistrates Act of 1968. Currently Weinberger v. Weber, which involves a challenge to this procedure, is before the United States Supreme Court. The Department of Justice has taken a position of opposition to routine assignments of Social Security cases to magistrates on the basis that the Federal Magistrates Act does not permit such action and legislative authorization will be required before such assignments can be considered proper under the law. As a matter of policy, of course, any procedure that will expedite the handling of the substantial number of Social Security cases in the district courts is highly desirable and, in my judgment, this method of handling the cases merits careful consideration in the future. Generally, the experience which the Social Security Administration has had with magistrates, in my opinion, could only be labelled a satisfactory one.

A high portion of social security cases are disposed of through the summary judgment proceeding on the record without the need for oral argument. There are, however, an increasing number of cases being filed which involve constitutional challenges attacking many aspects of social security programs. These actions are requesting class relief as well as individual relief. These cases will be discussed in more detail later. Such cases will, of course, not be disposed of in as short a time as the more routine cases and represent an additional burden on the judiciary.

As you might expect, a caseload of the dimension I have identified poses an untold number of management problems in its handling. Let me describe just one of these many problems which impacts significantly on DHEW's ability to manage such a caseload and which directly affects the time spent on these cases by the courts as well as the pace at which a case proceeds through the judicial process. I am speaking of the problems encountered in timely responding to a plaintiff's initial pleading. In the past the government's answer to the plaintiff's complaint has very often been delayed because under the law, the Secretary is required to furnish a certified copy of the administrative record, which includes a transcript of the administrative hearing held in each case, at the time the answer is filed. Because of the unprecedented rate at which new social security cases have been filed in recent years, it has become almost impossible for the Social Security Administration to compile a copy of the record fast enough so that the government's answer can be filed within the prescribed sixty day period. As a consequence of the staggering number of administrative transcripts which the Social Security Administration must put together for filing with the Secretary's answer, requests for extensions of time to respond must be filed in a high number of cases. Admittedly, each single request may involve only a few minutes of the court's time, but the cumulative effect of all such requests when faced with a litigation caseload in the thousands, amounts to a significant demand on the courts for this function alone, leave alone the time which the courts spend in reading briefs, hearing arguments, reviewing the record and writing opinions. An increasing number of district courts across the nation are refusing to grant extensions of time in which answers must be filed.

To immediately deal with this problem, arrangements have been made in the Bureau of Hearings and Appeals and in the Office of the General Counsel to handle cases in these districts on a priority basis. Of course, the effect of granting priority to certain cases is to delay other cases and lengthen response times for them. In an effort to alleviate the overall time problem. the Social Security Administration and the Office of the General Counsel have adopted numerous management measures which hopefully will enable those offices to hold requests for time extensions to a minimum. Included in these steps has been the establishment of different arrangements for the compilation and preparation of the administrative record, the implementation of new approaches to the drafting of the government's answer, wider use of paralegals and law students, etc.

To reduce the time necessary for preparing the administrative record. a teletype communications system has been established between the Social Se

curity Division of the Office of the General Counsel in Baltimore and United States Attorneys' offices throughout the country. This system enables United States Attorneys to advise the Office of the General Counsel almost immediately when they have been served with process in a new social security case and as a result permits the Social Security Administration to begin preparation of the administrative record probably a week earlier than if the mails had been used. Numerous modifications have also been made in the various other functions which must be performed in the process of defending each of the thousands of cases I have mentioned. Again, these steps range from wider use of automated office equipment to greater utilization of para-professional staff and involve the combined efforts of the Social Security Administration, the Department of Justice and DHEW's Office of the General Counsel. Some of the possible future management steps under consideration include use of a model complaint for social security cases which would hopefully contain all the information necessary for the prompt preparation of the administrative record in the Bureau of Hearings and Appeals.

The Office of the General Counsel, the Department of Justice and the Administrative Office of the Courts have been working closely together to seek solutions to the problems posed by the social security caseload. Also, in this connection, I had the pleasure nearly a year ago of joining the United States Attorneys at their annual meeting to discuss the caseload problems and how both the Department of Justice and DHEW could work more effectively together to solve them.

I found in my nearly two years as General Counsel that the social security caseload could only be properly managed by constantly appraising the way in which we handled the high volume cases and by making necessary adjustments as expanding caseload demanded. That approach allowed the Office of the General Counsel to keep relatively current in its defense of these matters and yet, in my judgment, did not diminish the quality of the defense being provided the Secretary in suits brought against him under the Social Security Act.

Each case, notwithstanding the heavy caseload and the management measures which must constantly be taken to handle same, still receives individualized treatment including the filing of a brief in each action. I believe this practice is essential if the Office of the General Counsel is to continue to carry out the responsibilities it has in the proper defense of these suits.

RECENT KEY LITIGATION ISSUES

As I mentioned earlier, there has also been an upsurge in the number of cases recently filed by individuals and classes which challenge the constitutionality of various aspects of the social security program. These suits require much more than their proportionate share of both administrative and judicial attention as compared to cases involving more frequently litigated issues such as those involving disability. These types of cases involve key issues to the Social Security Administration and can have the most fundamental impact on the functioning of the various social security programs.

One reason for this increased incidence of challenges which I have observed in recent years is the increasing trend of attorney representation of claimants from the administrative hearing stage through the court levels. In Title II litigation in 1972, 6,160 attorney fee petitions were filed with the Bureau of Hearings and Appeals. In 1973 the figure jumped to 7,555; in 1974 there were 9,815 such petitions and in the first quarter of 1975, 2,820 petitions were filed which is a 10 percent increase over the first quarter of 1974. This is an indicator of increased interest in Social Security litigation by the bar in general and by Legal Aid agencies throughout the country. 42 U.S.C. § 406 provides for the compensation of attorneys in Social Security cases and allows the appropriate district court to set a fee to a maximum of 25 percent of past due benefits and it will then be considered by the Social Security Administration for certification.

Among the most significant of these constitutional cases are those which, in one manner or another, are challenging the delays which applicants encounter at various stages of the administrative process. Class actions have been filed in which plaintiffs allege that they are suffering illegal delays in the processing of their claims from initial applications through the hearing stage of review. These actions, generally speaking, allege violations of the Social Security Act and the Due Process clause of the fifth amendment of the United States Consti

tution and seek declaratory, injunctive and mandatory relief. A significant majority of cases challenging delays center on hearing delays. Both individual and class actions have been filed to compel the Secretary to provide administrative hearings on Social Security matters anywhere from 30 days to 6 months after a request is filed. These actions variously allege violations of procedural and substantive due process rights under the fifth amendment, rights under § 205 (g) of the Social Security Act and § 555 (b) of the Administrative Procedure Act. Except for Santos v. Weinberger in Massachusetts, no decisions have been handed down as yet in related cases. In Santos, the District Court has ordered all initial applications on SSI benefits not involving disability or where disability has been determined, under Title II of the Social Security Act, to be processed for payment or denial within 45 days of the initial application. The effect of possible adverse decisions by the courts in these cases will impact greatly on the agency's ability to handle its claim workload.

One line of new case filings which may have a significant effect on the administration of the social security programs involve class action plaintiffs who challenge the lack of an oral evidentiary hearing before benefits received under various programs may be terminated or reduced. This line of prehearing cases usually involve allegations that current administrative procedures present a denial of procedural due process because of the absence of an oral hearing before an action terminating or reducing benefits is taken. Already, at least two District Courts have held present procedures unconstitutional as to individuals. Most of the pending cases have been stayed pending a decision in Eldridge v. Weinberger, currently before the United States Supreme Court. A decision is expected early next year. The District Court in that action held that present procedures relating to termination of social security disability benefits, which provide for notice and a "paper" hearing, fail to afford constitutional due process. The primary precedent relied upon was the landmark 1970 decision of the Supreme Court in Goldberg v. Kelly, a case dealing with termination issues in the administration of a welfare program.

A somewhat similar line of cases has developed with respect to the Secretary's authority to recoup overpayments made under the social security programs. Again such cases typically involve allegations of violations of due process in the recovery of overpayments paid under the Social Security Act without affording the recipient an opportunity for a prior oral hearing with the right to personally appear and cross-examine witnesses, to be represented by counsel, to submit documentation, and to examine his or her file prior to the hearing. A major case involving this issue (Buffington and Biner v. Weinberger, (W.D. Wash., CA 734-73C2)), is presently awaiting decision by the Court of Appeals in the Ninth Circuit. Copies of a number of briefs filed in the Buffington and Eldridge cases will be submitted to you as attachments to this statement.

One additional case worthy of special attention which relates to the "reduction without a hearing" problem is Cardinate et al. v. Mathew (D. D.C., CA No. 930), wherein plaintiffs attack the Supplemental Security Income regulations (20 C.F.R. §§ 416.1401 et seq.) which allow reductions of benefits in certain situations without a prior hearing as exceptions to a general rule that hearings must first be given. On August 26 of this year the district court issued a summary judgment against the defendant in this action. In its order the court declared invalid and enjoined the operation of three exceptions to the prior hearing rule.

The court further ordered that the Secretary prepare a notice to be sent to all SSI recipients informing them of their right to written reasons for any previous reduction or suspension of SSI benefits. The court further provided that plaintiffs are to have input into how the court-ordered notice is to be worded. A stay and clarification of the court's order is being sought.

Also in the SSI program area, numerous cases have arisen challenging the adequacy of the notices provided recipients relative to the reasons for the adverse action and their subsequent appeal rights.

Another area of recent constitutional litigation centers around the benefit provisions of the Social Security Act and concerns sex discrimination. Recently the Supreme Court in Weinberger v. Wiesenfeld, found section 202(g) of the Act unconstitutional insofar as it denies, solely on the basis of sex. benefits to widowers with children in their care. Several more recent district court opinions have found other provisions of the Social Security Act which deal with the dependency requirements for husband's and widower's benefits to be unconstitutional. In the view of the reviewing courts the distinctions drawn between the support

requirements governing these benfits and those applicable to wives and widows are not rationally based. No doubt this line of cases also will continue to expand until a dispositive judicial precedent is established. A listing of a number of cases in the various areas I have mentioned is included in the appendix which has been compiled for your information and use.

CONCLUSION

There is no question but that the continuing increases in the social security caseload will cause even longer delays for the District Courts in disposition of Social Security matters. Just as the Social Security Administration has been compelled to make many adjustments, so will the courts, if the current backlog is not to become permanent.

Surely, the need for such adjustments within the executive branch will continue to exist. If the courts, in the cases involving the lack of oral evidentiary hearing before terminating or reducing benefits ultimately find present Social Security procedures to be constitutionally inadequate, SSA will have to change fundamentally many of its present claims processing procedures as well as its allocation of resources.

While the measures which have already been taken will aid in coping with the problems I have mentioned, the solution is by no means at hand. Continuing diligence and constant reevaluation of present methods by the executive branch, the Congress and the courts will be necessary to ensure the timely adjudication of cases at all levels.

My own view is that the Executive and Congress should re-examine the viability and application of a disability concept in the context of an overall review of alternative income maintenance programs. Specifically, I believe serious thought should be given to not including disability if Congress adopts fundamental reforms in this area of the type recommended by Mrs. Griffith and under study in DHEW.

I would like to thank you for allowing me this opportunity to speak today. I hope I have provided some information which will prove to be of value to you.

APPENDIX

DELAY CASES

Initial Delays and Delays in General

Santos v. Weinberger (D. Mass., 75–166–G)

Wright v. Weinberger (N.D. Ill., CA 75C-1537)

Ferguson v. Weinberger (C.D. Calif., CV 75–2620–RF)
Huntzman v. Weinberger (E.D. Pa., 74–2409)

Hearing Delays

Sturgill v. Weinberger (E.D. Ky., 75-288)

Blankenship v. Weinberger (W.D. Ky., C75–0185–L(A))

Martinez et al v. Weinberger (E.D. N.Y., 73—C—900)

Barnett v. Weinberger (D. Vt., 24-270)

Frink v. Weinberger (D. Neb., 75-L-15)

Cole v. Weinberger (W.D. Mich., K-75–43 CA)

White v. Weinberger (D. Conn., H-75-34)

Harris and Velarde v. Weinberger and Simon (N.D. Ga., C75–1591A)
Brewer v. Weinberger (S.D. Miss., J-75–52 (R) )

Philbrook v. Weinberger (D. Vt., 75-39)

CASES SEEKING RIGHT TO HEARING

Pre-termination hearings

Ramseur v. Weinberger (W.D. Ky., C74–344 LB )
Stewart v. Weinberger (S.D. Ind., IP75-345-C)
McGowan v. Weinberger (S.D. Miss., J-75-13 (R))

Simmons et al v. Weinberger (N.D. Ga., CA C74–1667A)

Roberts v. Weinberger (M.D. Pa., CA 75–159)

Richardson v. Weinberger (W.D. Mo., CA 75CV84–W-4)

Wydner and Saffel v. Weinberger (W.D. Mich., W75-23CA8)

Mathews v. Eldridge, 361 F. Supp. 520, aff'd per curiam 493 F. 2d 1230 (1974). Pending U.S. Sup. Ct., 74-201

Miller v. Weinberger (D. Kansas, CA 74-242-C5)

Marrero v. Weinberger (D. P.R., CA 74–1347)

Williams et al v. Weinberger (D. Fla., CA 74-564-CIV-T-H)

Pre-reduction hearings

Mattern v. Weinberger (E.D. Pa., 377 F. Supp. 906)

Naylor et al v. Weinberger (D. Utah, CA C-75–194)

Mathews v. Buffington and Biner (W.D. Wash., 734-73C2) 9th Circuit appeal pending

Cardinale v. Mathews (D. D.C., No. 74-930)

SEX DISCRIMINATION CASES

Jablon v. Weinberger (D. Md., K-74–739)

Silbowitz v. Weinberger (S.D. Fla., 74–924-CIV-CF)

Goldfarb v. Weinberger (E.D. N.Y., 74-C-1188)

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975)

Kohr v. Weinberger, 378 F. Supp. 1299 (E.D. Pa., 1974); 95 S. Ct. 2671 (1975)

Mr. STEIGER. Mr. Rhinelander, thank you very much for an almost disheartening statement. Obviously, I don't intend that to be critical of you. But the caseload problem for the Federal courts, I fear, is becoming an almost impossible burden, not because of social security but because of lots of other things that we have done and others are doing.

If you can let me go to a couple of issues which you have raised: (1) What is the Federal Magistrates Act of 1958, why is it different? If so, what does it do for you? And ought we to amend the Social Security Act or the Magistrates Act to allow the courts to do what they are doing on what is now going to be argued before the Supreme Court.

Mr. RHINELANDER. Let me handle part of the question and defer to Mr. Dell Acqua.

I think in terms of the Congress acting, it would be wise to wait and see what conclusion the Court reaches. The issue before the Supreme Court is very narrow, it is one of statutory construction, no constitutional points involved. That seems to be the prudent thing to do, wait until the Court renders an opinion in that case. If it in fact is against the Government, then the position which many of the district courts are following will continue on except on a universal basis. At the moment the practice in the courts is uneven because the Department of Justice has indicated they disagree with the position of many of the judges.

Mr. Dell Acqua can respond better than I can as to what the Magistrates Act is.

Mr. DELL ACQUA. In the act, Congress put that in, and they increased, expanded the role, changed the old commissioners to Federal