On Appeal from the United States District Court for the Middle District of Pennsylvania.
Gibbons and Sloviter, Circuit Judges and Mencer, District Judge.*fn*
Jeannette E. Hummel appeals from a summary judgment in favor of the Secretary of Health and Human Services in her action, pursuant to 42 U.S.C. § 405(g) (Supp. V 1981), for review of the denial of disability benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1385 (1976 & Supp. V 1981). Hummel contends that the district court erred in concluding that the Secretary's decision is supported by substantial evidence. Alternatively, she contends that the district court erred in ruling on the Secretary's motion for summary judgment while her motions to compel discovery were outstanding. Those discovery requests sought information concerning possible bias of the administrative law judge who presided at her hearing. We conclude that the court erred in ruling on the Secretary's motion for summary judgment while Hummel's discovery motions were outstanding, and we remand for further proceedings.
Hummel's appeal presents for this court the first occasion to explore the interrelationship between 42 U.S.C. § 405(g) and the Federal Rules of Civil Procedure dealing with discovery. Section 405(g) provides for judicial review of decisions by the Secretary adverse to a claimant for Social Security benefits. The statute limits factual review to determining whether the Secretary's findings are supported by substantial evidence. The court, however, "may at any time order additional evidence to be taken before the Secretary, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding. . . ." Id. Thus, while the district courts have no factfinding role in Social Security review cases, the statute contemplates that matters not included in the administrative record may be presented to those courts for the purpose of establishing the need for an order directing the taking of additional evidence. See, e.g., Kane v. Matthews, 583 F.2d 878, 881 (3d Cir. 1978); Zielinski v. Califano, 580 F.2d 103, 106 (3d Cir. 1978).
Because the district courts have no factfinding role in Social Security cases, those cases are ordinarily disposed of on cross-motions for summary judgment made presumably under Fed. R. Civ. P. 56(a),(b). And when a disability claimant seeks to present materials outside the agency record in order to convince the court that a further hearing should be held before the agency, such materials usually consist of additional medical records or opinions, presented in affidavit form. Thus it is rarely the case that a claimant seeking review under Section 405(g) will rely on Rule 56(f) in resisting summary judgment because the claimant seeks discovery of information not presently available.
We must recognize, as well, that while the regulations governing Social Security claim hearings provide for the issuance of subpoenas, they make no provision for discovery. See 42 U.S.C. § 405(d). The Social Security Act contains no provision for pre-hearing discovery, and the Administrative Procedure Act does not provide for it. Thus, like most federal administrative proceedings, no pre-hearing discovery is normally available. The provision in section 405(g) authorizing orders for the taking of additional testimony should not, in our view, be construed as a means whereby the discovery provisions of the Federal Rules of Civil Procedure may be imported into the administrative adjudication scheme of the Act.
Nevertheless, the absence of a discovery mechanism during the agency proceeding may in some instances mean that facts with respect to the fairness of that proceeding can be developed only in the district court. This case is illustrative, because the claim which Hummel seeks to litigage bears on the possible bias of the administrative law judge, of which she became aware only after the administrative proceeding had concluded.
It is, of course, axiomatic that "trial before 'an unbiased judge' is essential to due process." Johnson v. Mississippi, 403 U.S. 212, 216, 29 L. Ed. 2d 423, 91 S. Ct. 1778 (1971) (per curiam), citing Bloom v. Illinois, 391 U.S. 194, 205, 20 L. Ed. 2d 522, 88 S. Ct. 1477 (1968), and Mayberry v. Pennsylvania, 400 U.S. 455, 465, 27 L. Ed. 2d 532, 91 S. Ct. 499 (1971). That due process rule is applicable to administrative as well as judicial adjudications. Gibson v. Berryhill, 411 U.S. 564, 579, 36 L. Ed. 2d 488, 93 S. Ct. 1689 (1973). Indeed, the absence in the administrative process of procedural safeguards normally available in judicial proceedings has been recognized as a reason for even stricter application of the requirement that administrative adjudicators be impartial. N.L.R.B. v. Phelps, 136 F.2d 562, 563-64 (5th Cir. 1943). Recognizing as much, the Social Security Administration has provided by regulation a means for raising a claim of bias before the agency.
An administrative law judge shall not conduct a hearing if he or she is prejudiced or partial with respect to any party or has any interest in the matter pending for decision. If you object to the administrative law judge who will conduct the hearing, you must notify the administrative law judge at your earliest opportunity. The administrative law judge shall consider your objections and shall decide whether to proceed with the hearing or withdraw. If he or she withdraws, the Associate Commissioner for Hearings and Appeals, or his or her delegate, will appoint another administrative law judge to conduct the hearing. If the administrative law judge does not withdraw, you may, after the hearing, present your objections to the Appeals Council as reasons why the hearing decision should be revised or a new hearing held before another administrative law judge.
20 C.F.R. § 416.1440 (1983).
The quoted regulation apparently contemplates that factfinding with respect to claims of bias take place at the agency level, and that judicial review of bias claims that place in review proceedings under section 405(g). We may assume, without deciding, that had Hummel been aware of the facts giving rise to her claim of bias she would be deemed to have waived it by failing to raise it in the manner specified in 20 C.F.R. § 416.1440. See, e.g., Duffield v. Charleston Area Medical Center, Inc. 503 F.2d 512, 515 (4th Cir. 1974). In this instance, as will be seen when we describe it, and as the district court ;noted, Hummel raised the disqualification claim "as soon as practicable after" she had "reasonable cause to believe that grounds for disqualification exist[ed]. " Marcus v. Director, Office of Workers' Compensation Programs, 179 U.S. App. D.C. 89, 548 F.2d 1044, 1051 (D.C. Cir. 1976).
In her motion to compel discovery Hummel contended that after the agency proceedings were completed she became aware of a case pending in the District Court for the District of Columbia, entitled Association of Administrative Law Judges, Inc. v. Heckler, No. 83-0124 (D.C.D.C. Jan. 19, 1983), in which administrative law judges seek injunctive relief with respect to practices by the Secretary in conducting so-called "Bellmon Reviews"*fn1 of their Social Security Act disability determinations. The thrust of the administrative law judges' complaint is based upon the Secretary's maintenance of statistics on individual judges with respect to the percentage of cases in which they allow or disallow benefits. They contend that the Secretary's program is designed to discourage them from awarding benefits. They also charge that the training given to new administrative law judges as a group is designed to create a bias against the award of benefits to claimants. Without detailing ...