MARGARET M. HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES, PETITIONER V. SAMMIE GAIL BLANKENSHIP, ET AL., AND GEORGIA FINCH, ET AL. No. 83-1441 In the Supreme Court of the United States October Term, 1983 The Solicitor General, on behalf of the Secretary of Health and Human Services, petitions for a writ of certiorari to the United States Court of Appeals for the Sixth Circuit in this case. Petition for a writ of certiorari to the United States Court of Appeals for the Sixth Circuit PARTIES TO THE PROCEEDING The petitioner is the Secretary of Health and Human Services, Margaret M. Heckler. The first named respondent, Sammie Gail Blankenship, represents a certified class comprised of (App., infra, 31a-32a): all Kentucky residents who have applied for Supplemental Security Income (SSI) or Old Age Security (sic) Disability Insurance (OASDI) benefits pursuant to Sections 205 or 1631(c) of the Social Security Act, and who have been denied benefits at both the original decision level and the reconsideration level because of a finding of no disability and have made timely written application for a hearing but have had no hearing within thirty (30) days of application. The second named respondent, Georgia Finch, represents a certified class comprised of (App., infra, 32a): all present and future residents of the Commonwealth of Kentucky who have received SSI (benefits) pursuant to Title XVI of the Social Security Act and who have had said benefits terminated, reduced or suspended by the Department of Health and Human Services because it was held that they were not disabled and, thus, not eligible; who have contested said decision; who have been denied benefits at the administrative hearing level; who have appealed said adverse decision to the Social Security Appeals Council; but who have not received any decision from the Appeals Council within thirty (30) days after their application. TABLE OF CONTENTS Opinions below Jurisdiction Statutory provisions involved Statement Reasons for granting the petition Conclusion Appendix OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-3a) is reported at 722 F.2d 1282, and the prior opinion of the court of appeals (App., infra, 4a-15a) is reported at 587 F.2d 329. The February 17, 1982 opinion and judgment of the district court (App., infra, 19a-34a) are reported at 532 F.Supp. 739, but the March 25, 1982 order of the district court amending the judgment (App., infra, 35a-36a) is not reported. The September 17, 1981 opinion of the district court (App., infra, 37a-43a) is reported at 522 F.Supp. 618, and the April 20, 1981 opinion of the district court (App. H, infra, 44a-54a) is reported at 517 F.Supp. 77. The May 6, 1976 opinion and prior judgment of the district court (App., infra, 55a-66a) and the July 1, 1976 amendment of the prior judgment (App., infra, 67a-68a), are not reported. JURISDICTION The decision of the court of appeals was issued on December 1, 1983 (App., infra, 1a-3a). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). /1/ STATUTORY PROVISIONS INVOLVED 1. Section 205(b) of the Social Security Act, 42 U.S.C. (Supp. V) 405(b), provides: The Secretary is directed to make findings of fact, and decisions as to the rights of any individual applying for a payment under this subchapter. Any such decision by the Secretary which involves a determination of disability and which is in whole or in part unfavorable to such individual shall contain a statement of the case, in understandable language, setting forth a discussion of the evidence, and stating the Secretary's determination and the reason or reasons upon which it is based. Upon request by any such individual or upon request by a wife, divorced wife, widow, surviving divorced wife, surviving divorced mother, husband, widower, child, or parent who makes a showing in writing that his or her rights may be prejudiced by any decision the Secretary has rendered, he shall give such applicant and such other individual reasonable notice and opportunity for a hearing with respect to such decision, and, if a hearing is held, shall, on the basis of evidence adduced at the hearing, affirm, modify, or reverse his findings of fact and such decision. Any such request with respect to such a decision must be filed within sixty days after notice of such decision is received by the individual making such request. The Secretary is further authorized, on his own motion, to hold such hearings and to conduct such investigations and other proceedings as he may deem necessary or proper for the administration of this subchapter. In the course of any hearing, investigation, or other proceeding, he may administer oaths and affirmations, examine witnesses, and receive evidence. Evidence may be received at any hearing before the Secretary even though inadmissible under rules of evidence applicable to court procedure. 2. Section 1631(c)(1) of the Social Security Act, 42 U.S.C. (Supp. V) 1383(c)(1), provides: The Secretary is directed to make findings of fact, and decisions as to the rights of any individual applying for payment under this subchapter. Any such decision by the Secretary which involves a determination of disability and which is in whole or in part unfavorable to such individual shall contain a statement of the case in understandable language, setting forth a discussion of the evidence, and stating the Secretary's determination and the reason or reasons upon which it is based. tHe Secretary shall provide reasonable notice and opportunity for a hearing to any individual who is or claims to be an eligible individual or eligible spouse and is in disagreement with any determination under this subchapter with respect to eligibility of such individual for benefits, or the amount of such individual's benefits, if such individual requests a hearing on the matter in disagreement within sixty days after notice of such determination is received, and, if a hearing is held, shall, on the basis of evidence adduced at the hearing affirm, modify, or reverse his findings of fact and such decision. The Secretary is further authorized, on his own motion, to hold such hearings and to conduct such investigations and other proceedings as he may deem necessary or proper for the administration of this subchapter. In proceeding, he may administer oaths and affirmations, examine witnesses, and receive evidence. Evidence may be received at any hearing before the Secretary even though inadmissible under the rules of evidence applicable to court procedure. 3. 5 U.S.C. 555(b) provides: A person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented and advised by counsel or, if permitted by the agency, by other qualified representative. A party is entitled to appear in person or by or with counsel or other duly qualified represetnative in an agency proceeding. So far as the orderly conduct of public business permits, an interested person may appear before an agency or its responsible employees for the presentation, adjustment, or determination of an issue, request, or controversy in a proceeding, whether interlocutory, summary, or otherwise, or in connection with an agency function. 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. This subsection does not grant or deny a person who is not a lawyer the right to appear for or represent others before an agency or in an agency proceeding. 4. 5 U.S.C. 706 provides in pertinent part: To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall -- (1) compel agency action unlawfully withheld or unreasonably delayed; * * * * * QUESTION PRESENTED Whether, in this class action brought on behalf of Kentucky claimants, the court of appeals properly ordered the Secretary of Health and Human Services to promulgate nationwide regulations incorporating fixed deadlines for the adjudication of claims for disability benefits under Title II and Title XVI of the Social Security Act. STATEMENT This case concerns the propriety of judicially imposed deadlines for completing several steps in the administrative review of claims for disability benefits under the Social Security Act. That issue is before this Court in Heckler v. Day, No. 82-1371 (argued Dec. 5, 1983). In Day, the court of appeals affirmed a district court order imposing deadlines in a single state for the rendering of reconsideration decisions by the state agency and for holding hearings by administrative law judges (ALJs) on disability claims under Title II of the Act. The court of appeals' decision in this case is far broader, requiring nationwide deadlines for the holding of ALJ hearings in disability cases under Title II and Title XVI of the Act and for review by the Appeals Council in Title XVI termination cases. 1. Title II of the Social Security Act, 42 U.S.C. (& Supp. V) 401 et seq., provides, inter alia, for the payment of disability benefits to insured individuals who, because of physical or mental impairment, are unable to do their previous work or to engage in any kind of substantial gainful work that exists in the national economy (42 U.S.C. 423(d)(2)(A)). Disability benefits also are payable under the Supplemental Security Income (SSI) program established by Title XVI of the Act, 42 U.S.C. (& Supp. V) 1381 et seq. See 42 U.S.C. 1382(a)(2) B). Both statutory programs require the Secretary of Health and Human Services, in determining whether a claimant is disabled, to consider the claimant's physical and mental impairments and, where necessary, the vocational factors of age, education, and work experience. As we have described in our Brief in Day (at 2-6), Congress and the Secretary have established a four-level system of administrative review to provide for an orderly determination of the eligibility of the more than two million claimants who file applications for disability benefits each year. Under both Title II and Title XVI, the initial determination whether a claimant is under a disability and the date on which the disability began or ceased ordinarily is made by a state agency on behalf of the Secretary. 42 U.S.C. (Supp. V) 421(a)(1); 20 C.F.R. 404.1503 and 416.903. If the claimant is dissatisfied with the initial determination, the next step ordinarly is a de novo reconsideration by the state agency. 20 C.F.R. 404.907-404.921 and 416.1407-416.1421. If the decision by the state agency is adverse to the claimant, the Secretary must provide the claimant "reasonable notice and opportunity for a hearing" with respect to the claim. 42 U.S.C. (Supp. V) 405(b) and 1383(c)(1); 20 C.F.R. 404.929-404.961 and 416.1429-416.1461. These hearings are conducted by a corps of ALJs in the Social Security Administration in HHS. 20 C.F.R. 404.929 and 416.1429. See Gov't Br. 6-10, Heckler v. Day. If the claimant is dissatisfied with the decision rendered after the hearing, he may take an administrative appeal to the Appeals Council in HHS. 20 C.F.R. 404.967-404.983 and 416.1467-416.1483. /2/ After the individual has exhausted his administrative remedies in this fashion, he may seek judicial review of the Secretary's "final decision" or "final determination." 42 U.S.C. (& Supp. V) 405(g) and 1383(c)(3). See generally Mathews v. Eldridge, 424 U.S. 319, 335-339 (1976). 2. The December 1, 1983 decision of the court of appeals at issue here was rendered in two consolidated cases. The first, Blankenship v. Secretary of HHS, was filed in 1975 in the United States District Court for the Western District of Kentucky on behalf of a class of Kentucky residents to challenge the timing of ALJ hearings in disability cases under Titles II and XVI of the Social Security Act. The second, Finch v. Secretary of HHS, was brought in the same district court in 1976, also on behalf of a class of Kentucky claimants, to challenge the timing of decisions by the Appeals Council in cases under Title XVI of the Act. The Blankenship case had been to the court of appeals on a prior occasion, in 1978, but the Finch case remained pending in district court until 1982. a. In 1976, the district court held in Blankenship that the passage of more than 90 days prior to a hearing did not comply with what the court found to be the requirement in 42 U.S.C. 405(b) and 1383(c)(1) and the Administrative Procedure Act (APA), 5 U.S.C. 555(b), that ALJ hearings be conducted within a "reasonable" time. The court accordingly ordered the Secretary to schedule ALJ hearings within 90 days for members of the Kentucky class of Title II and Title XVI beneficiaries (App., infra, 55a-68a). b. The Secretary appealed from the district court's order, and the court of appeals, in a decision dated November 24, 1978, reversed and remanded for further proceedings (App., infra, 4a-15a). The court of appeals agreed with the district court that 42 U.S.C. 405(b) and 1383(c)(1) and the APA /3/ require that an ALJ hearing be held within a "reasonable" time. The court observed, however, that "'(t)here are no absolute standards by which it may be determined whether a proceeding is being advanced with reasonable dispatch'" and that "'(w)hat is reasonable can be decided only in light of the nature of the proceedings and the general and specific problems of the agency'" (App., infra, 10a (quoting Deering Milliken, Inc. v. Johnston, 295 F.2d 856, 867 (4th Cir. 1961)). In this case, the court found "ample evidence that there is no dilatory motive on the part of the agency, and that limited resources have been insufficient to meet a dramatically increased case load" (App., infra, 10a). On the other hand, the court found lengthy processing times to be "less tolerable" in this context than in the area of commercial regulation, because substantial hardship may result to an applicant (id. at 11a). The court noted that on a nationwide basis, the median length of time between a hearing request and hearing decision as of July 1975 was 220 days. Observing that other courts had found such processing times "unreasonably long" and had imposed time limits "despite the admitted administrative burdens faced by the agency," the court below, without further analysis, found the processing times for the ALJ hearings of the Kentucky claimants to be "unreasonable" (11a-12a). However, the court of appeals disagreed with the district court's requirement that ALJ hearings be held for Kentucky claimants within 90 days of a request. The court of appeals observed "that Congress specifically confronted and discussed the possibility of imposing a hearing deadline (in 1976) but, after deliberation, rejected this alternative ( /4/ ) in favor of retaining the more flexible principle of a 'reasonable' time period." App., infra, 13a (footnote omitted). "In view of this congressional determination," the court explained, "we do not believe that a judicially imposed 90-day limit is appropriate or consistent with the principle of separation of powers." Ibid. The court of appeals also noted its concerns that compliance with the district court's order "(would) merely result in shifting of resources from other parts of the country to handle hearings in Kentucky, thereby aggravating hearing delays in other areas," and that "(s)implistic and unreasonably short time limitations imposed from the outside without thorough understanding of the reasons for the problem will frustrate welfare administration, just as it would frustrate judicial administration." Id. at 13a-14a. In these circumstances, the court of appeals concluded that the appropriate solution was for the Secretary to exercise his rulemaking authority under 42 U.S.C. 405(a) to establish nationwide time limits, and it remanded the case to the district court with instructions to order the Secretary to develop such regulations and submit them to the court (App., infra, 14a-15a). c. On remand in Blankenship, the Secretary attempted to develop acceptable regulations and submitted several proposals to the district court (App., infra, 24a-25a; see also 45 Fed.Reg. 12837 (1980)). In the end, however, the Secretary concluded that the burgeoning and unpredictable caseload made the concept of fixed deadlines in regulations unworkable. The Secretary therefore moved for relief from the requirement that he issue such regulations and proposed instead to establish processing goals. By opinion and judgment dated February 17, 1982 (and amended on March 25, 1982), the district court denied the Secretary's motion (App. infra, 25a-27a). The court ordered the Secretary, within 60 days, to publish regulations requiring that decisions be rendered by ALJs within 180 days of a request for a hearing in all Title II and Title XVI diasbility cases (both those involving a new application for benefits and those involving a termination of benefits) and providing for the payment of interim benefits in all cases in which this deadline is not met. The court permitted exceptions from this fixed deadline only where the claimant requests or causes a delay, not for situations in which the ALJ finds it necessary to request additional evidence or there are circumstances beyond the Department's control. App., infra, 32a-34a; compare 45 Fed. Reg. 12839 (1980). In the Finch case, the district court ordered the Secretary to promulgate regulations imposing a nationwide 90-day time limit for the rendering of decisions by the Appeals Council in SSI cases in which disability benefits were terminated (App., infra, 33a). The district court acknowledged that the provisions of the Social Security Act relied upon by the plaintiffs provide for "reasonable notice and opportunity for a hearing" (42 U.S.C. (Supp. V) 405(b) and 1383(c)(1)) and that, because Appeals Council review does not occur until after the ALJ hearing, these provisions might not form the basis for a claim that Appeals Council review be completed within a given time. However, the court noted that the court of appeals in Blankenship also had relied upon the provision in 5 U.S.C. 555(b) that an agency shall conclude a matter within a "reasonable time," and it held that fixed deadlines for review by the Appeals Council were appropriate in order to limit the overall time taken for administrative adjudication of a claim. App., infra, 41a-42a. d. On April 15, 1982, the court of appeals granted the Secretary's motion for a stay of the district court's judgment pending appeal (App., infra, 17a-18a). Oral argument on the appeal was held on October 8, 1982. More than a year later -- on October 18, 1983, while the appeal was still under submission to the court of appeals -- respondents filed a Motion to Partially Vacate Stay. Respondents expressly conceded in that Motion that "(i)n light of the Supreme Court's consideration in (Heckler v. Day), * * * it would not be appropriate for the Sixth Circuit at this time to order nationwide regulations establishing time limits for hearing and Appeals Council decisions" (Mot. 6). Respondents therefore requested that the court of appeals vacate the stay it had entered 18 months earlier only to the extent of requiring compliance with the time limits and the payment of interim benefits for members of the classes in Blankenship and Finch -- i.e., only for Kentucky claimants (Mot. 7). Apparently in response to respondents' motion, the court of appeals issued a brief per curiam opinion on December 1, 1983. In that opinion, the court of appeals affirmed those portions of the district court's judgment that established 180-day nationwide time limits for ALJ decisions in all disability cases under Title II and Title XVI and 90-day time limits for Appeals Council review in Title XVI disability cessation cases. The court of appeals also vacated its April 15, 1982 stay of those portions of the district court's judgment that imposed such time limits (App., infra, 3a). The court acknowledged that "(t) his is an important case involving interpretation of the related powers of the administrative, legislative and judicial branches of government under the Constitution of the United States" and that "(i)n such a case, history suggests the utmost of caution on the part of all three branches in asserting potentially conflicting powers" (id. at 1a). But the court nevertheless failed to give any explanation of its reasoning for imposing nationwide deadlines on the Secretary's administration of the Social Security program or for doing so at the very time when this Court is considering the issue of judicially imposed deadlines in Day. The court of appeals did, however, choose not to consider the propriety of the district court's requirement that interim benefits be paid if the court-imposed deadlines are not met, observing that "(t)he Supreme Court has now granted certiorari in Day and we decline to decide this issue until the Supreme Court has resolved it" (id. at 3a). The court of appeals therefore continued in effect its April 15, 1982 stay of the district court's judgment insofar as it required the payment of interim benefits (ibid.). e. After the court of appeals denied the Secretary's application to reinstate a full stay of the district court's judgment (App., infra, 16a), Justice O'Connor granted a stay of that judgment insofar as it required the Secretary to promulgate regulations imposing nationwide time limits, pending the filing and disposition of a petition for a writ of certiorari. Heckler v. Blankenship, No. A-589 (Jan. 26, 1984) (O'Connor, Circuit Justice). REASONS FOR GRANTING THE PETITION This case presents the questions (i) whether the prevailing time lapse in the rendering of ALJ decisions on claims for disability benefits under the Social Security Act is inconsistent with the provision in 42 U.S.C. (& Supp. V) 405 and 1381(c)(1) that the Secretary afford claimants "reasonable notice and opportunity for a hearing," and (ii) whether a court in any event may impose fixed deadlines on the ALJ hearing process despite the repeated rejection of such deadlines by Congress and the Secretary. These questions are essentially identical to those already before the Court in Heckler v. Day, No. 82-1371 (argued Dec. 5, 1983). The petition in this case therefore should be held and disposed of in light of the Court's decision in Day. /5/ As Justice O'Connor observed in granting the Secretary's application for a stay, "(t)he instant case presents issues of potentially even greater legal and social significance than does Day, because the court below has imposed on the Secretary the obligation to promulgate nationwide, as opposed to statewide, regulations" (slip op. 2). Moreover, the court below has imposed deadlines on disability cases under Title XVI of the Act, not only those under Title II, as in Day, and for the first time has extended processing deadlines to the Appeals Council stage of the administrative review process as well. As Justice O'Connor further observed "(i)mposition of nationwide time limits would, in all likelihood, require a substantial restructuring of the existing claims adjudication and appeals process" (slip op. 2). Yet respondents, who consist only of Kentucky residents, "have no standing to insist upon the imposition of deadlines for decisions on claims filed by residents of other states, as the courts below have ordered" (ibid.) Cf. Califano v. Yamasaki, 442 U.S. 682, 704 (1979). The courts below could not avoid this jurisdictional obstacle to the ordering of nationwide time limits simply by requiring the Secretary to promulgate regulations embodying such limits. See Vermont Yankee Nuclear Power Corp. v. NRDC, Inc., 435 U.S. 519, 543-544, 549 (1978); NLRB v. Bell Aerospace Co., 416 U.S. 267, 292-294 (1974). At the very least, a court could not order such extraordinary relief unless a request for regulations first had been presented to the Secretary (cf. 5 U.S.C. 553(e); 42 U.S.C. (& Supp. V) 405(g) and (h)) and the court then determined that the Secretary's decision not to promulgate time limit regulations as part of her implementation of the statutory requirement of "reasonable notice and opportunity for a hearing" was arbitrary and capricious. Heckler v. Campbell, No. 81-1983 (May 16, 1983), slip op. 7-8; Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Insurance Co., No. 82-354 (June 24, 1983), slip op. 10, 20. The Secretary's determination not to promulgate such regulations clearly was not invalid under this standard, especially in view of Congress's repeated refusal to adopt fixed time limits because of its concern about their potentially adverse effect on the quality of decisionmaking. See Gov't Br. 19-31, Heckler v. Day. /6/ If the Court were to hold in Day that a court may impose processing deadlines in a particular state in the absence of Secretarial regulations, it is conceivable that the Secretary would consider the need to promulgate regulations of some type in an effort to promote fairness and uniformity of decisionmaking throughout the Nation. But that is a matter entrusted to the Secretary, not the courts, under 42 U.S.C. 405(a). It is significant as well that the court of appeals' imposition of nationwide deadlines on ALJ decisions was based on the court's conclusion in 1978 that the median nationwide time of 220 days that elapsed between a request for a hearing and a hearing decision in July 1975 was unreasonable. Those data are now more than 8 1/2 years old and were generated at a time when there were only approximately 120,000 hearing requests annually and the productivity of the ALJs was far below what it is today. In its recent summary affirmance, the court of appeals wholly failed to take account of the extraordinary developments that have occurred since that time. The 220-day median processing time in July 1975 has been reduced to 183 days at the end of fiscal year 1983, despite a tripling of the hearing caseload to more than 360,000 requesta annually. This reduction has been accomplished by extensive measures that have increased the productivity of ALJs from an average of 16 cases per month in 1975 to approximately 40 per month in 1983 and have increased the number of ALJs from 591 to 775 and more than doubled the ALJs' support staff. /7/ Moreover, these measures have been instituted at a time when Congress and the Secretary also have taken a number of other steps to improve the quality and uniformity of decisionmaking, sometimes with the incidental effect of increasing processing times. Gov't Br. 3-6, 33-38, Heckler v. Day. In view of these significant developments, the Secretary surely is fulfilling her statutory obligation to afford claimants, "reasonable notice and opportunity for a hearing" by diligently processing the vast number of disability and other Social Security claims pursuant to established procedures and priorities and within the limits of available resources. CONCLUSION The petition for a writ of certiorari should be held and disposed of in light of this Court's decision in Heckler v. Day, No. 82-1371. Respectfully submitted. REX E. LEE Solicitor General RICHARD K. WILLARD Acting Assistant Attorney General KENNETH S. GELLER Deputy Solicitor General EDWIN S. KNEEDLER Assistant to the Solicitor General WILLIAM KANTER JOHN F. CORDES Attorneys FEBRUARY 1984 /1/ The court of appeals has not entered a formal judgment disposing of the entire case or issued its mandate (see Fed. R. App. P. 36, 41(a)), apparently because one issue remains to be resolved. In its December 1 decision, the court of appeals (i) affirmed the district court's judgment insofar as that judgment required the Secretary to promulgate regulations imposing nationwide time limits on the adjudication of claims under the Social Security Act, but (ii) deferred its resolution of the question whether the district court properly ordered the payment of interim benefits until after this Court renders its decision in Heckler v. Day, No. 82-1371 (argued Dec. 5, 1983), which also presents that question. Although the interim benefits issue remains to be resolved, the court of appeals has effectively announced its judgment on the matter of court-imposed deadlines in its December 1 decision by affirming the district court's judgment to that extent. Cf. Fed. R. Civ. P. 54(b). In any event, there can be no doubt regarding this Court's jurisdiction to review this case even if the court of appeals' December 1 affirmance is not regarded as a judgment on the court-imposed deadlines issue, because 28 U.S.C. 1254(1) permits the Court to review a case in the court of appeals by writ of certiorari either "before or after rendition of judgment or decree." /2/ In addition, in the Social Security Disability Amendments of 1980, Congress directed the Secretary to initiate a program for review of some ALJ decisions by the Appeals Council on its own review of some ALJ decisions by the Appeals Council on its own motion, in order to ensure uniformity of decisionmaking among the numerous ALJs. Pub. L. No. 96-265, Section 304(g), 94 Stat. 456, 42 U.S.C. (Supp. V) 421 note. /3/ The court of appeals relied upon two provisions of the APA, 5 U.S.C. 555(b) and 706(1). The former states in part: "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." The latter provides that on judicial review, a court may "compel agency action unlawfully withheld or unreasonably delayed." /4/ The court of appeals relied upon the background of Pub. L. No. 94-202, 89 Stat. 1135 et seq. (see App., infra, 12a-13a), which is discussed in our Brief in Heckler v. Day (at 23-24). /5/ It appears that the decisions below also may have rested on the APA, which was not expressly considered by the Second Circuit in Day. However, as we explain in our Brief in Day (at 39-44), the APA likewise furnishes no basis for court-imposed deadlines, especially since the Secretary's processing of claims is fully consistent with the Social Security Act and the implementation by Congress and the Secretary of the hearing requirement in that Act. The court of appeals postponed the question of a court's authority to order the payment of interim benefits (App., infra, 3a), and that aspect of Day therefore is not involved in the instant petition. /6/ It also seems clear that the time required for the Appeals Council to review the decision of the ALJ after a hearing cannot violate the statutory requirement in 42 U.S.C. (Supp. V) 405(b) and 1383(c)(1) that the claimant be afforded "reasonable notice and opportunity for a hearing." /7/ See Office of Hearing and Appeals, U.S. Dep't of Health and Human Services, Key Workload Indicators, September 1983, at 1 (Oct. 26, 1983). APPENDIX Appendix material is not available on JURIS.