April 5, 2001
FINDINGS AND RECOMMENDATION
Plaintiff, David B. Lowry ("Lowry"), brings this action against defendants, Larry G. Massanari, Acting Commissioner of the Social Security Administration ("SSA"), and three Administrative Law Judges ("ALJs") for the SSA, Dan R. Hyatt ("Hyatt"), Riley Atkins ("Atkins"), and Bennett Engelman ("Engelman"), for harm to his business reputation as an attorney representing claimants seeking Social Security benefits. Lowry alleges that Hyatt, Atkins, and Engelman, who preside over administrative hearings at which Lowry represents Social Security claimants, are biased against Lowry and his clients. Lowry alleges that these ALJs have threatened to deny his requests for attorney fees if he files "frivolous" motions for the ALJs to disqualify themselves. Lowry also alleges that at least one of these ALJs contacted at least one of his clients and also disparaged him in front of that client. Lastly, Lowry alleges that the SSA has not provided adequate protection for claimants and their representatives against biased ALJs. Accordingly, Lowry alleged four Causes of Action seeking two writs of mandamus, injunctive, and declaratory relief.
When this case was filed, Kenneth S. Apfel was the Commissioner of the Social Security Administration. President George W. Bush appointed Larry G. Massanari ("Massanari") as the Acting Commissioner of the Social Security Administration, effective March 29, 2001. Pursuant to FRCP 25(d)(1), Massanari is substituted as a named defendant.
Defendants filed three motions to dismiss the Complaint. To resolve these motions, this court previously issued a Findings and Recommendation dated March 2, 2000 (docket #26), adopted by District Court Judge James A. Redden on June 7, 2000 (docket #33) ("FR #1") that, inter alia, Lowry's initial Complaint was not subject to dismissal for lack of subject matter jurisdiction. On June 29, 2000, Lowry filed a First Amended Petition for Writ of Mandamus and Complaint for Injunctive and Declaratory Relief, again asserting various bases for jurisdiction, seeking writs of mandamus, injunctive, and declaratory relief.
Defendants filed a Second Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim (docket #40). To resolve that motion, this court issued a Findings and Recommendations dated September 29, 2000 (docket #61), adopted by District Court Judge James A. Redden on December 15, 2000 (docket #68) that Lowry's constitutional claims must be dismissed. This court reserved a ruling on whether Lowry's non-constitutional mandamus claims are subject to dismissal. Now before the court are the remaining issues raised in defendants' Second Motion to Dismiss. For the reasons stated below, defendants' motion should be granted against all of Lowry's remaining claims.
I. Legal Standard
A motion to dismiss under FRCP 12(b)(6) will be granted only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45 (1957); Allwaste, Inc. v. Hecht, 65 F.3d 1523, 1527 (9th Cir 1995); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir 1995). "The issue is not whether [the] plaintiff will ultimately prevail but whether the [plaintiff] is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Thus, the review is limited to the Complaint, and all allegations of material fact are taken as true and viewed in the light most favorable to the nonmovant. Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir), cert denied, 506 U.S. 999 (1992); Love v. United States, 915 F.2d 1242, 1245 (9th Cir 1989).
II. Nature of Lowry's Claims
Lowry's remaining claims are premised on the theory that he has a non-constitutional cause of action under the Mandamus and Venue Act of 1962, 28 U.S.C. § 1361, which entitles him to writs of mandamus against various officials of the SSA compelling those officials to take a series of specific actions. In his First and Second Causes of Action for Writs of Mandamus, Lowry seeks four specific forms of mandamus relief. Specifically, he seeks orders requiring that: (1) the SSA promulgate final regulations setting forth procedures adequate to protect the due process rights of claimants and their representatives from bias or prejudice by ALJs; (2) the SSA conduct an adversarial fact-finding procedure and finalize its investigation regarding Lowry's claims of bias and prejudice; and (3) unless and until the SSA establishes such procedures and conducts such a hearing, Hyatt, Engelman, and Atkins disqualify themselves from hearing any cases in which Lowry is the claimant's representative and the SSA reassign all present and future cases in which Lowry is the claimant's representative to ALJs other than Hyatt, Engelman, or Atkins.
III. Sovereign Immunity Issue
Initially, this court again must address an issue raised by defendants in their supplemental brief. Defendants assert that Lowry's claims are subject to dismissal because defendants are immune based on the doctrine of sovereign immunity. This court previously determined that sovereign immunity was not a bar to this action. FR #1, pp. 21-24. Defendants correctly note that the Mandamus and Venue Act does not constitute a waiver of sovereign immunity and that the sovereign is immune except insofar as the immunity is expressly waived. However, Lowry's claims fall within the so-called Larson-Dugan exception to that rule.
At least on this issue, this case is remarkably similar to Washington Legal Found. v. United States Sentencing Comm'n, 89 F.3d 897 (D.C. Cir 1996), a decision in which then-Circuit Judge Ginsburg invoked the Larson-Dugan exception to sovereign immunity stating that: "If a plaintiff seeks a writ of mandamus to force a public official to perform a duty imposed upon him in his official capacity . . . no separate waiver of sovereign immunity is needed." Id at 901 (citation omitted). The Supreme Court describes this exception as follows:
"There may be, of course, suits for specific relief against officers of the sovereign which are not suits against the sovereign. . . . [W]here the officer's powers are limited by statute, his actions beyond those limitations are considered individual and not sovereign actions. The officer is not doing the business which the sovereign has empowered him to do or he is doing it in a way which the sovereign has forbidden. His actions are ultra vires his authority and therefore may be made the object of specific relief."
In Washington Legal Foundation, the issue was whether certain documents compiled or created by an advisory committee established by the United States Sentencing Commission were public records to which the public has a conditional right of access under the common law. The Larson-Dugan exception thus turned on whether the Government had a duty to the plaintiff to allow it access to the records. Because the Government denied that it had such a duty, "the question of jurisdiction merge[d] with the question on the merits." Id at 902. Similarly, in this case, Lowry's mandamus claims turn on whether defendants owe to Lowry a duty to perform the acts he asks this court to order defendants to perform and defendants deny that they owe Lowry any such duty. Thus, as in Washington Legal Foundation, "the question of jurisdiction merges with the question on the merits." Id. If the defendants' acts are circumscribed as Lowry contends, then defendants owe him a duty which may be enforced through an action for a writ of mandamus with no sovereign immunity bar under the Larson-Dugan exception. Conversely, if defendants' acts are not so circumscribed, then defendants owe him no duty, and Lowry's claims are not only barred by the doctrine of sovereign immunity as acts of the sovereign but also deficient as claims for writs of mandamus.
IV. Non-Constitutional Mandamus Claim
A. Two Functions of Writ of Mandamus
The Mandamus and Venue Act, 28 U.S.C. § 1361, provides that "district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." This statute "did not enlarge the generally recognized scope of mandamus relief but . . . was intended only to ease the burden of proceeding against officers and employees of the federal government formerly suable only in the District of Columbia." Jarrett v. Resor, 426 F.2d 213, 216 (9th Cir 1970) (citation omitted). Longstanding precedent establishes that a writ of mandamus may be used in one of two circumstances, namely: (1) to compel the performance of a ministerial, or nondiscretionary duty; and (2) to compel action in a matter involving judgment or discretion:
Mandamus is employed to compel the performance, when refused, of a ministerial duty, this being its chief use. It also is employed to compel action, when refused, in matters involving judgment and discretion, but not to direct the exercise of judgment or discretion in a particular way nor to direct the retraction or reversal of action already taken in the exercise of either.
Wilbur v. Kadrie, 281 U.S. 206, 218 (1930) (footnote and citations omitted).
B. Performance of Ministerial or Non-Discretionary Duty
To obtain a writ of mandamus compelling a governmental officer to perform his or her duty, a plaintiff must establish that: (1) his claim is "clear and certain;" (2) the officer's duty is ministerial and so plainly prescribed as to be free from doubt; and (3) no other adequate remedy is available. R.T. Vanderbilt Co. v. Babbitt, 113 F.3d 1061, 1065 n5 (9th Cir 1997); Oregon Natural Resources Council v. Harrell ("ONRC"), 52 F.3d 1499, 1508 (9th Cir 1995); Fallini v. Hodel, 783 F.2d 1343, 1345 (9th Cir 1986). A "`ministerial act'" for purposes of mandamus relief has been defined as a clear, non-discretionary . . . obligation to take a specific affirmative action, which obligation is positively commanded and `so plainly prescribed as to be free from doubt.'" Independence Mining Co., Inc. v. Babbitt, 105 F.3d 502, 508 (9th Cir 1997), citing Azurin v. Von Raab, 803 F.2d 993, 995 (9th Cir 1986), cert denied, 483 U.S. 1021 (1987) and United States v. Walker, 409 F.2d 477, 481 (9th Cir 1969).
Relying principally on a 1967 law review article and a 1975 decision by the Western District of Michigan, Lowry suggests that the "technical trappings" of the writ of mandamus, including the "incomprehensible `ministerial-discretionary distinction,'" were abolished by Congress when it enacted the Mandamus and Venue Act of 1962. Lowry argues that a claim for a writ of mandamus requires only that he allege harm for which he has no adequate remedy and no means for judicial review.
The problem with Lowry's analysis is that the Ninth Circuit has never held that a viable mandamus claim arises simply by virtue of a situation that presents no adequate remedy and no means for judicial review. To the contrary, in the 20 years since the authorities relied upon by Lowry were authored or decided, the Ninth Circuit has repeatedly restated the same three-part test for mandamus relief. E.g., Guerrero v. Clinton, 157 F.3d 1190, 1196 (9th Cir 1998); Patel v. Reno, 134 F.3d 929, 931 (9th Cir 1998); Independence Mining Co., 105 F.3d at 507; ONRC, 52 F.3d at 1508; Barron v. Reich, 13 F.3d 1370, 1374 (9th Cir 1994); Fallini, 783 F.2d at 1345. Moreover, even when a plaintiff satisfies all three prongs of the mandamus test, the granting of mandamus relief is not a foregone conclusion. Instead, the trial court has the discretion to deny the requested relief. Fallini, 783 F.2d at 1345. Thus, at least in the Ninth Circuit, the three-part test remains in place, and Lowry must allege facts supporting each element of the test in order to avoid dismissal of his claims.
Defendants argue that Lowry has failed to cite any authority imposing a ministerial duty on defendants to recuse themselves from or reassign his cases. This court agrees and therefore recommends that these requests for a writ of mandamus be dismissed.
1. Defendants' Admissions
Lowry argues that a ministerial duty to reassign his cases to different ALJs may be found in the SSA's admission that it has the authority to grant him the relief he seeks. However, that admission simply does nothing to advance Lowry's request for a writ of mandamus. In order to be entitled to the extraordinary remedy of mandamus, a plaintiff must show that there is a duty to provide him with the relief he seeks, not merely the authority to provide him the relief he seeks. Thus, this court turns to the various sources cited by Lowry which allegedly impose such a duty.
2. HALLEX POMS
According to Lowry, the SSA has published two documents which include provisions requiring a blanket disqualification of the individual ALJs from his cases: (1) the Hearings Appeals and Litigation Law manual ("HALLEX"); and (2) the Program Operation Manual System ("POMS"). While the HALLEX is undoubtedly an SSA publication, the Ninth Circuit has rejected the notion that it may form the basis for requiring specific action by the SSA. Instead, only six months ago, the Ninth Circuit examined the HALLEX and determined that it "is strictly an internal guidance tool, providing policy and procedural guidelines to ALJs and other staff members. As such, it does not prescribe substantive rules and therefore does not carry the force and effect of law." Moore v. Apfel, 216 F.3d 864, 868 (9th Cir 2000). Given this decision, Lowry is precluded from basing a mandamus claim on a provision of the HALLEX.
Second, citing Briggs v. Sullivan, 886 F.2d 1132, 1142 (9th Cir 1989), Lowry asserts that the Ninth Circuit has held that the POMS constitutes an appropriate basis for relief. However, Briggs does not provide authority for the proposition that the POMS imposes duties upon the SSA. Briggs was premised upon a duty to pay benefits found in the Social Security Act itself, not upon a duty imposed by virtue of the POMS. In Briggs, the Secretary invoked a policy found in the POMS in an effort to avoid the duty of paying benefits imposed in the Social Security Act. The court held that the SSA cannot circumvent its statutory duty through internal policies:
The contention here is precisely that the Act has imposed upon the Secretary a clear, nondiscretionary duty to pay Title II and Title XVI benefits directly to eligible beneficiaries . . . Furthermore, the class members' claim that the Secretary, by issuing the POMS directives which authorized the suspension of payments, violated their constitutional right to due process is . . . appropriate for mandamus.
According to Lowry, the POMS, GN 03103.300, demonstrates the SSA's commitment to provide claimants and their representatives fair and unbiased treatment in the handling of claims, a timely opportunity to raise complaints, and investigation of those complaints. However, as with the HALLEX, the POMS was not promulgated in conformance with the procedural requirements imposed by Congress. Thus, as with interpretations contained in policy statements, agency manuals, and enforcement guidelines, the POMS lacks the force of law. See Christensen v. Harris County, 529 U.S. 576, 587 (2000) (citations omitted); Schweiker v. Hansen, 450 U.S. 785, 789-90 (1981).
Moreover, even assuming Lowry could get over that hurdle, the POMS provision on which he relies expressly states that it is not to be used to "request an ALJ to withdraw from a case" and "confers no appeal rights." POMS, GN 03103.300. As a result, by its own terms, the POMS provision on which Lowry relies does not impose a duty on the SSA to provide Lowry with the relief he seeks. Thus, this court rejects Lowry's arguments that a duty sufficient to warrant mandamus relief may be found in either the HALLEX or the POMS.
3. Federal Statutes and Regulations
Lowry also cites several federal statutes and regulations in support of his assertion that ALJs Hyatt, Atkins, and Engleman must voluntarily recuse themselves from cases in which he represents the claimant or that the SSA must reassign those cases to other judges. Under 28 U.S.C. § 455(a), federal judges and magistrates "shall disqualify [themselves] in any proceeding in which [their] impartiality might reasonably be questioned." While this provision clearly imposes a broad duty on federal judges and magistrates to voluntarily recuse themselves from certain cases, no federal statute imposes a similar duty upon ALJs. Instead, federal law permits — but does not require — an ALJ to voluntarily decline to preside over proceedings when presented with an affidavit of personal bias or other grounds for disqualification. 5 U.S.C. § 556(b)(3). The statute requires the functions of ALJs participating in administrative decisions to be "conducted in an impartial manner" and requires that any decision on a request for disqualification be made on the record, but does not expressly make disqualification mandatory or declare any particular standard for determining the sufficiency of the request for disqualification. Id.
The Code of Federal Regulations contains several similar provisions, including a provision imposing a duty on ALJs "to conduct a fair hearing, to take all necessary action to avoid delay, and to maintain order." 45 C.F.R. § 81.63. However, just as with the federal statutes, those federal regulations also contain permissive language and do not set any particular standard for determining whether the alleged bias or other grounds for disqualification merit voluntary recusal by the ALJ or reassignment of the case by the SSA. Additionally, those regulations are clearly aimed at ensuring fairness to claimants on a case-by-case basis, and do not confer any right on a claimant's attorney to have every case in which he or she is the claimant's representative reassigned to another ALJ:
An [ALJ] 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 [ALJ] who will conduct the hearing, you must notify the [ALJ] at your earliest opportunity. The [ALJ] 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 . . . will appoint another [ALJ] to conduct the hearing. If the [ALJ] 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 [ALJ].20 C.F.R. § 404.940 and 416.1440.
Under the above statutes and regulations, Lowry's clients have a right to raise allegations of bias at the administrative level, to have a decision concerning recusal or reassignment made on the record, to raise the refusal of the ALJ to step down as an objection to the decision before the Appeals Council, and to seek judicial review by a federal court under 42 U.S.C. § 405(g). However, those statutes and regulations do not impose any duty on ALJs or the SSA expressly for the benefit of claimant's representatives, nor do they set any particular threshold for determining when recusal is mandatory. In short, they impose no ministerial duty either on the ALJs to recuse themselves or on the SSA to reassign Lowry's cases to other ALJs.
4. The SSA's 1992 "Interim" Procedure for Investigation of Bias
Lowry also relies on the "Notice of Procedures" published by the SSA in the federal register on October 30, 1992, in which the SSA sets forth its "interim" procedure for investigating allegations of bias of ALJs. See Procedures Concerning Allegations of Bias or Misconduct by Administrative Law Judges ("Interim Procedure") 57 Fed Reg 49186 (Social Security Administration, October 30, 1992). The publication was in response to a hearing on September 22, 1992, conducted by the Subcommittee on Oversight of Government Management of the Committee on Governmental Affairs of the United States Senate concerning allegations of bias within the Social Security disability program ("the September 22, 1992 hearing"). Allegations of Bias Within the Social Security Disability Program: Hearing Before the Subcomm. on Oversight of Governmental Mgmt of the Committee on Governmental Affairs, 102nd Cong., 2nd Sess, S. Hrg. 102-1049 (1992). The September 22, 1992 hearing was convened in response to a Governmental Affairs Office report showing an unexplained pattern of racial disparities in decisions by ALJs and a series of federal court cases alleging "general bias" by ALJs against people applying for disability benefits. Id at 1.
At the September 22, 1992 hearing, the then-acting Commissioner of the SSA, Louis D. Enoff ("Enoff"), testified that, four months earlier, the SSA had formalized an "interim" procedure for centralizing investigations of complaints of bias by individual ALJs and that the SSA was soliciting advice from a number of other agencies in an attempt to develop a "system that provides a full and vigorous investigation of complaints while at the same time not impinging on the independence of the ALJs." Id at 28. Enoff acknowledged that the interim procedure had not been published and was not well known (id at 32, 34) and that there were no standards for determining whether bias exists (id at 33). Enoff then agreed that he would publish the SSA's interim procedure. Id at 37. When pointedly questioned by Senator Cohen about how long it might take the SSA to publish final regulations, given that complaints of bias had been made as far back as the mid-1980's, Enoff agreed that publishing final regulations "is not something we can wait to do," and promised to finalize the rule sooner if possible, but suggested that it would take at least 6 months. Id at 39-40. Just over a month later, on October 30, 1992, the SSA published the Interim Procedure, setting forth the "interim" bias procedures.
The Interim Procedure clearly is aimed at ensuring fair treatment not only to claimants, but also to claimant's representatives:
SSA is committed to providing every claimant and his or her representative fair and unbiased treatment in the handling of all claims by its OHA hearing offices. SSA is also committed to ensuring that claimants and their representatives are afforded timely opportunities to raise any complaints that they may have about alleged bias or misconduct by [ALJs], and to have their complaints reviewed or investigated.
57 Fed Reg at 49186 (emphasis added).
The Interim Procedure states that "[p]rocedures designed to achieve these goals are being issued by SSA and will ensure that" complaints of bias will be acknowledged in writing and reviewed and investigated in a timely manner, and that the complainant will receive written notification of the results of the review or investigation. Id at 49186-87. The Interim Procedure then lists the "key features" of the procedures that "are being issued," including written notification that the complaint was received, an opportunity for the ALJ to comment, review, and a determination by the Regional Chief ALJ as to whether the complaint merits investigation, forwarding of the complaint to the Office of Hearings Appeals Special Counsel for investigation, "if necessary, . . . appropriate administrative action," and written notification of the complainant of the results of the review or investigation. Id at 49187. The Interim Procedure is to "remain in effect until further notice." Id.
The Interim Procedure contemplates an investigation of bias complaints, notification of the results of the investigation, and "appropriate" administrative action. However, it sets no investigation timeline, does not mandate any particular type of investigation (other than specifying which department of the SSA will conduct the investigation), grants the SSA the discretion to choose whether and what "appropriate" administrative action to take, and allows for no further (much less independent) review of the investigation by any other agency or tribunal. While the bare text of the Interim Procedure is arguably broad enough to allow the SSA to institute a blanket disqualification of an individual ALJ from a particular class of cases (such as those where Lowry is the representative), the Interim Procedure certainly does not mandate that the SSA do so, nor set any standard for deciding whether to do so. In short, the Interim Procedure simply does not command either individual ALJs or the SSA to take the specific affirmative action requested by Lowry. Consequently, the Interim Procedure imposes no plainly prescribed ministerial duty on the part of ALJs to voluntarily recuse themselves or for the SSA to reassign the cases in which Lowry is the claimant's representative to other ALJs.
5. Codes of Judicial Conduct
Finally, Lowry asserts that the individual ALJs are bound to disqualify themselves from his clients' cases by virtue of either the American Bar Association's ("ABA") Model Code of Judicial Conduct ("Model Judicial Code") or the ABA's Model Code of Judicial Conduct for Federal Administrative Law Judges ("Model Code for ALJs"). The Model Judicial Code provides that a "judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned." ABA Model Code of Judicial Conduct, Canon 3(E)(1) (2000). Similarly, the Model Code for ALJs states that "an [ALJ] should avoid impropriety and the appearance of impropriety in all activities" and provides that:
An [ALJ] should disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge has a personal bias or prejudice concerning the proceeding.
Model Code for ALJs, Canons 2 and 3(C).
The problem with attempting to base a mandamus claim on these provisions is twofold. First, neither the Model Judicial Code nor the Model Code for ALJs applies to any judge "unless it is adopted by the responsible adjudicatory." Model Code for ALJs, Preface (1989). While the Model Code for ALJs was apparently endorsed by the National Conference of ALJs in February 1989, the SSA has never adopted the Model Code for ALJs, but instead simply looks to the Code for guidance when it determines that the language of the Code is not otherwise inconsistent with the Social Security Act or its implementing regulations. Lowry argues that numerous court decisions and other sources "suggest" that the Model Judicial Code and Model Code for ALJs apply to federal ALJs. However, unless and until the Model Judicial Code or the Model Code for ALJs is adopted by the SSA, it cannot provide a basis for imposing a duty enforceable by means of a writ of mandamus.
Moreover, even assuming that the Model Code for ALJs applies to ALJs of the SSA, its language is advisory, not mandatory. ALJ's "should" avoid impropriety and "should" disqualify themselves in proceedings in which their impartiality might reasonably be questioned. Rather than imposing on the defendant ALJs a plainly prescribed ministerial duty to recuse themselves, this language simply entreats them to do so. The Model Judicial Code, and the federal statute governing federal judges and magistrates, 28 U.S.C. § 455, contain the mandatory term "shall," but again, the record contains nothing indicating that those provisions apply to SSA ALJs.
In sum, the authorities cited by Lowry impose no plainly prescribed ministerial duty on the defendant ALJs to voluntarily recuse themselves or on the SSA to reassign cases in which Lowry is the claimant's representative to other ALJs. Thus, to the extent Lowry's claims for mandamus rest on those authorities and request that relief, they are deficient and should be dismissed. Since voluntary recusal from the cases in which he is the claimant's representative is the only form of relief Lowry seeks that relates to the individual ALJ's, all of Lowry's remaining claims against the individual ALJs are deficient.
C. Matters Involving Judgment or Discretion
Lowry also seeks to compel the SSA to take action in matters requiring the exercise of judgment or discretion, namely to issue final regulations, finalize the investigation of his claims of bias and prejudice, and take whatever administrative action the SSA deems "appropriate" following that investigation. These requests hinge on the SSA's 1992 Interim Procedure and the SSA's ongoing investigation of Lowry's complaints. Unlike his requests that the ALJs either voluntarily recuse themselves or that the SSA reassign his cases to other ALJs, Lowry's requests that this court order the SSA to issue final regulations and complete its investigation of his complaints of bias and notify him of the results fall into the second category of mandamus cases. This category turns on a finding that the agency is obligated to "take a specific affirmative action, which obligation is positively commanded and "`so plainly prescribed as to be free from doubt.'" Independence Mining Co., 105 F.3d at 508, quoting Azurin v. Von Raab, 803 F.2d 993, 995 (9th Cir 1986), cert denied, 483 U.S. 1021 (1987) (other citation omitted).
1. Duty to Issue Final Bias Procedures
When it was published on October 30, 1992, the Interim Procedure expressly stated that it would remain in effect "until further notice," that additional procedures were "under development," and that the additional procedures "should be finalized in approximately six months." 57 Fed Reg at 49187. Despite this hopeful declaration, the SSA has yet to publish a final rule. Lowry argues that the SSA has a duty to issue final procedures governing claims of ALJ bias, and that the SSA's failure to do so for nearly eight years (since April 1993 when the procedures "should" have been finalized) constitutes unreasonable delay meriting court intervention in the form of mandamus relief.
The difficulty with Lowry's position is that the Interim Procedure was both voluntarily published by the SSA and contains only permissive language. Lowry has not cited, nor is this court aware of, any statute or other binding authority which requires the SSA to issue rules (interim or final) governing claims of ALJ bias. Instead, as discussed above, the SSA (through Enoff), in response to political pressures, voluntarily committed itself to publishing the Interim Procedure and soliciting input from other agencies with an eye toward publishing a final bias procedure in six months. By so committing itself, the SSA managed to keep Congress from passing its own bias procedures and managed (whether deliberately or inadvertently) to keep its own highly discretionary procedures in place.
The Interim Procedure does state that the "procedures described in this notice are in addition to [other applicable regulations and SSA policies]." Id. However, the Interim Procedure arguably does not impose any affirmative obligation on the SSA, either in terms of following specific procedures when confronted with claims of ALJ bias, or in terms of finalizing its procedures. The SSA has been following the Interim Procedures and apparently is doing so with regard to Lowry's complaints. However, both sections of the Interim Procedure indicate that they actually are descriptions of the goals and features that will be included in the final rules which are "under development":
Procedures designed to achieve these goals are being issued by SSA and will ensure that [description of acknowledgment of complaint, timely review, written notification of results of the review]. The key features of the procedures are: [description of notification of receipt of complaint, processing through regional offices and (where investigation found warranted) OHA Special Counsel, appropriate administrative action, and notification of the results].
57 Fed Reg at 49186-87 (emphasis added).
Moreover, the Interim Procedure states that it will remain in effect "until further notice" and imposes no mandatory deadline for any further action. Other than facing the political fallout of reneging on its commitment to proceed forward and issue final bias procedures, this court is aware of nothing preventing the SSA from scrapping its Interim Procedure and refusing to issue final bias procedures. In the event the SSA did so, persons wishing to pursue a blanket disqualification of a particular ALJ would be left to argue that some other statute, rule, regulation, or other authority mandates such disqualification. As discussed above, none of the other authorities cited by Lowry provide such a mandate.
2. Completion of Investigation of Lowry's Claims of Bias
Finally, Lowry seeks a writ of mandamus ordering the SSA to complete its investigation by conducting an adversarial fact-finding procedure to decide the claims of bias and prejudice he raises. Lowry asserts that the SSA's investigation should include an opportunity for him to appear, testify, introduce evidence, call and examine witnesses, and present legal and factual arguments. As with his request for an order requiring the SSA to issue final bias rules, this request is premised upon the Interim Procedure. However, neither the Interim Procedure nor any of the other authorities cited by Lowry impose any obligation on the SSA to conduct a particular type of investigation. Similarly, other than the requirement that any complaints be promptly reviewed or investigated, the Interim Procedure sets forth no specific timeline for review, investigation, and action on complaints of bias.
The Interim Procedure requires that claimants and their representatives be notified of the complaint procedures, have their complaints acknowledged in writing, be informed how the complaint will be handled, have their complaints reviewed or investigated "in a timely manner" by an uninvolved SSA official, and be notified of the results of the investigation or review. After they are filed, any complaints are to be forwarded to the appropriate Regional Chief ALJ for an initial inquiry. 57 Fed Reg at 49187. Any ALJ accused on bias or misconduct will be informed of the complaint and be allowed to comment. Id. The Regional Chief ALJ reviews the report of the initial inquiry, and forwards it to the Chief ALJ at the Office of Hearing Appeals ("OHA") headquarters. According to defendants, the Regional Chief ALJ has recently sent a report of his findings of fact concerning Lowry's complaints to the Chief ALJ.
Under the Interim Procedure, the next step is for the Chief ALJ to determine "whether the inquiry merits an investigation" and, if so, to forward the complaint to OHA Special Counsel. Id. If the investigation shows that bias or misconduct has occurred, then the Associate Commissioner of the OHA consults with the Chief ALJ and the OHA Special Counsel and takes "appropriate administrative action." Id. The complainant is notified of the results of the investigation and the action taken. Id.
At best, under the Interim Procedure, Lowry is entitled to have the Chief ALJ make a decision one way or the other as to whether his complaint merits an investigation above and beyond the initial inquiry already performed in the regional office. The Interim Procedure clearly gives the Chief ALJ the discretion to decide whether any further investigation is warranted. With or without further investigation, the only right the Interim Procedure gives Lowry is to be notified of the results and of any administrative action taken. The Interim Procedure does not contain any mandatory provision for the type of adversarial process requested by Lowry. As a result, it evidences no "duty owed to the plaintiff" to hold such an adversarial factfinding inquiry that is enforceable under 28 U.S.C. § 1361.
It is worth noting that, in addition to granting wide discretion to SSA officials to determine the type of investigation and administrative action that might be warranted in response to a complaint of bias against an ALJ, the Interim Procedure also does not provide for any type of appeal of the decision about whether and what administrative action to take as a result of the investigation. The adversarial process envisioned by Lowry seems to imply that he should have such an appeal right, but no such appeal right is evident in the text of the Interim Procedure. Early Supreme Court jurisprudence concerning the writ of mandamus made clear that, when the applicant for mandamus relief asks a court to force a governmental official to take action which involves the exercise of judgment or discretion, the action must be one which is reviewable once taken:
The principles of law relating to the remedy by mandamus are well settled. It lies where there is a refusal to perform a ministerial act involving no exercise of judgment or discretion. It lies, also, where the exercise of judgment and discretion are involved and the officer refuses to decide, provided that, if he decided, the aggrieved party could have his decision reviewed by another tribunal. It is applicable only in these two classes of cases. It cannot be made to perform the functions of a writ of error.
Commissioner of Patents v. Whiteley, 71 U.S. 522, 533-34 (1866) (emphasis added).
This is the same sentiment which is embodied in the All Writs Act, 28 U.S.C. § 1651, which authorizes "all courts established by Act of Congress [to] issue all writs necessary or appropriate in aid of their respective jurisdictions." In this case, neither the Interim Procedure nor any other authority cited by Lowry allows for review of the Chief ALJ's decision by any other tribunal once that decision is made. In other words, on its face, the Interim Procedure does not confer jurisdiction on this court to review the Chief ALJ's determination about whether to investigate Lowry's complaints further, or about what administrative action, if any, to take based on any such investigation. As a result, longstanding mandamus jurisprudence does not provide for relief and no claim may be made under 28 U.S.C. § 1651, as no jurisdiction would be "aided" by issuing a writ.
In conclusion, the authorities cited by Lowry do not impose any ministerial duty on the SSA to issue final bias regulations, complete its investigation, and conduct an adversarial factfinding process concerning his allegations of bias. As a result, Lowry's claims requesting such relief are deficient and must be dismissed.
D. Other Prongs of Mandamus Test and Discretion to Deny Relief
In their supplemental briefs, defendants also argue that Lowry has established no "clear and certain" claim and that he has no other adequate remedy available to him. However, because defendants are under no plainly prescribed ministerial duty to grant Lowry the relief he seeks, Lowry's mandamus claims must be dismissed on that basis alone. Thus, this court need not, and does not, address the remaining two prongs of the mandamus inquiry.
Moreover, even when a plaintiff establishes all three prongs of the mandamus test, mandamus relief is nonetheless discretionary. While the problems that led to the September 22, 1992 hearing cry out for a solution, any meaningful solution lies in the hands of Congress. Thus, even assuming that Lowry had met all three prongs of the mandamus inquiry, this court would exercise its discretion and deny mandamus relief.
This court is not unsympathetic to Lowry's predicament, nor to that of the many other persons who — based on the testimony offered at the September 22, 1992 hearing — find themselves at the mercy of biased ALJs. However, the narrow issue before this court is whether Lowry may find a remedy in the writ of mandamus. This case illustrates the classic distinction between those issues that may be resolved by recourse to a writ of mandamus and those that may not.
The history of the oft-cited ministerial act requirement can be traced back some 200 years. In Marbury v. Madison, 5 U.S. 137 (1803), the Supreme Court noted that the power of a court to examine the legality of a governmental official's act (or failure to act) depends upon the nature of the act: "[W]hether the legality of an act of the head of a department be examinable in a court of justice or not, must always depend on the nature of the act." Id at 165. The Court went on to distinguish between "acts [which] are only politically examinable," and "acts [which the official] is directed by law to do [and which affect] the absolute rights of individuals." Id at 166, 170. Only the latter are answerable by a writ of mandamus.
In this case, Lowry has cited no applicable statute, regulation, rule, or canon under which defendants are "directed by law" to provide him with the relief he seeks. Instead, he and countless disability claimants are left with a series of enactments which sound principled, fair, and bound to lead to a just adjudication, but which in reality are toothless pronouncements assuring nothing more than that they will be notified of — but will have no opportunity to challenge — the results of an investigation conducted by the SSA. Congress simply has not mandated any particular standard for disqualification of ALJs, seen fit to impose any particular deadlines on the SSA to finalize its bias procedures, or required that the interim procedures outlined in October 1992 follow any specific timeline. The SSA has not imposed such standards or timelines on itself, but has instead reserved unto itself the authority to fashion "appropriate" administrative actions. The net effect of issuing a writ of mandamus in such a situation would be to remove the decision of whether and what standards and deadlines to impose from the political arena and to enforce a judicially-created set of standards and timelines. A writ of mandamus simply cannot be used to accomplish this purpose.
For the reasons stated above, the remaining portion of defendants' Second Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim (part of docket #40) should be GRANTED. The remainder of Lowry's claims, which are premised upon general federal question jurisdiction seeking injunctive or declaratory relief, and any such claim premised upon 28 U.S.C. § 1361 seeking a writ of mandamus should be DISMISSED WITH PREJUDICE.
Objections to these Findings and Recommendations, if any, are due April 23, 2001. If no objections are filed, then the Findings and Recommendations will be referred to a district court judge and go under advisement on that date.
If objections are filed, the response is due no later than May 11, 2001. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will be referred to a district court judge and go under advisement.