The Court finds that the absence of a mandatory time limit for all but the foregoing provision does not negate the Secretary's duty to provide a hearing within a "reasonable" time. Barnett v. Mathews, supra at 31; Caswell v. Califano, 435 F. Supp. at 134.
Nor can the Court agree with the Seventh Circuit in Wright v. Califano that the term "reasonable time" can only be determined by HEW. While HEW, like the school board in a desegregation case, should in the first instance be responsible for defining compliance with its statutory and constitutional duties, the courts are given jurisdiction by Congress in order to provide an ultimate safeguard for such compliance. Avoidance of that role would neglect the Court's duty under the APA, 5 U.S.C. § 706(1), which provides that on judicial review a court "shall compel agency action unlawfully withheld or unreasonably delayed." Both under those powers granted by the APA and under general equitable powers, the Court has the authority and responsibility to insure that statutory rights are not denied through agency delay or inaction; Nader v. FCC, 172 U.S.App.D.C. 1, 520 F.2d 182 (1975); Environmental Defense Fund v. Hardin, 138 U.S.App.D.C. 391, 428 F.2d 1093 (1970); Deering Milliken, Inc. v. Johnston, 295 F.2d 856 (4th Cir. 1971). As found above, many members of the class are disabled, aged or infirm and the benefits at issue constitute the principal means of subsistence for many. Delays in determinations of the lengths which are evidenced here amount to effective denial of benefits and inflict grave and irreparable harms upon plaintiffs.
It would be ironic if the statutory scheme which contemplated judicial review of adverse decisions in individual cases, would prevent a review of the equivalent of adverse decisions suffered by an entire class. At a time where a large and growing segment of the population depends upon Congressionally-mandated payments for support and subsistence, the Court cannot endorse a strained interpretation which would insulate from review and remedy systematic failure of the system to resolve disputes about entitlement to payments within a reasonable time.
Nor can the Court accept the reasoning of Wright that the source of the delays lies in an increased caseload due to new legislation and ultimately in Congress's failure to appropriate sufficient funds. There is no evidence that the processing is now done as efficiently as possible, nor that HEW is unable to rearrange priorities or reallocate resources. If the problem ultimately proves to be primarily one of funding, the defendant has a budget and advocacy responsibility which may be subject to judicial oversight. These considerations go to the form of relief, not to the issue of entitlement to relief.
Similarly, the Court recognizes defendant's concern that many benefit claims involve complex issues, that there are many sources of delay and that other courts have taken varying and inconsistent action in responding to the problem. The Court's order emphasizes the necessity that the remedy ultimately adopted be fully consistent with defendant's efforts to comply with the orders of the several other courts which are proceeding parallel to this one. These considerations likewise go to the nature of equitable relief and in no way diminish the Court's duty to grant the declaratory relief plaintiffs seek.
Plaintiffs define their class as individuals who have suffered delays of more than 120 days from the time of their request for a hearing to the time of final decision, including action or inaction by the Appeals Council. The Court's holding does not necessarily entitle each member of that class to relief. First, the Court's holding is at present limited only to the time period between the request for a hearing and the decision by the ALJ. Secondly, the Court holds that the Average time, as revealed by the statistics, between request and decision is unreasonable and violative of statutory provisions. Thirdly, because the class includes claimants for four differing types of benefits, the standard for a "reasonable" period for decision-making may vary for each category. The circumstances of each program may also require that any proposed schedule for conforming to this standard vary for each category, and as plaintiffs themselves recognize, the time limits may take into account varying needs for different types of development in different categories of cases; Plaintiffs' Answers to Interrogatories 18 and 19, filed January 8, 1979, at 2, Ans. to Interrog. 19(c).
While that time period may well serve as a useful benchmark, the Court does not hold that 120 days necessarily defines the limits of reasonableness. Finally, the class may include members for whom the total time deemed to elapse should be reduced to eliminate periods not relevant to an evaluation of the reasonableness of the Secretary's conduct. These periods may include delays caused by plaintiffs themselves or their counsel or by a request by an ALJ for additional information, at least where such request is reasonable and timely in light of the circumstances.
2. Preliminary and Final Equitable Relief
In light of the arguments presented in plaintiffs' motion for reconsideration and clarification of the court's denial of a preliminary injunction, the Court understands plaintiffs as requesting preliminary relief for both individual members and for the class as a whole.
The Court has carefully examined the relief granted by district courts in related cases, as affirmed, modified or reversed by the courts of appeals, and more generally, the problem of judicial relief which affects a complex administrative scheme. It concludes that relief is best afforded by an approach along two distinct avenues. As to the class as a whole, the Court has ordered defendants to submit a plan designed in good faith as an operational (not an advocate's) device to reduce the time for decisionmaking and ultimately to permit all decisions to be made within a reasonable time.
As noted earlier, the problem of delays in decisionmaking is nationwide, and the Secretary is confronted with a number of different commands from the several courts which have ruled on the matter. HEW possesses the information and expertise to initiate a plan encompassing the relevant variables, to assess the cost of any proposed plan and to decide whether a plan should include a requirement that HEW seek additional funding, E. g. Adams v. Richardson, 356 F. Supp. 92 (D.D.C.), Aff'd 156 U.S.App.D.C. 267, 480 F.2d 1159 (1973) (en banc), on remand Sub nom. Adams v. Califano, 430 F. Supp. 118 (1977). HEW is best able to develop a plan in harmony with its obligations elsewhere and to achieve a nationwide relief which would comply with all its judicially-imposed obligations. The importance of the foregoing considerations requires that the plan be formulated and approved at the highest levels within HEW. In sum, HEW should have the opportunity of first proposing a remedy to the Court which can then determine whether that plan meets HEW's legal responsibilities to plaintiffs. Such an approach obviates the immediate need for a court-devised plan and time limitation and is in accord with the long-standing judicial deference to administrative expertise. See generally, Note, Judicial Control of Systemic Inadequacies in Federal Administrative Enforcement, 88 Yale L.J. 407 (1978); Project, The Remedial Process in Institutional Reform Litigation, 78 Col.L.R. 784 (1978).
It must be emphasized, however, that the Court's exercise of deference here is based upon its presumption that the responsible HEW officials will act in good faith to carry out the Court's mandate, which presumption will, if necessary, be validated in enforcement proceedings.
The Court's conclusion that HEW should take the initiative in devising permanent relief for the class does not lessen the Court's obligation to enforce its declaratory judgment for individual claimants with immediate problems, solution of which cannot await the development of a final comprehensive plan. None of the four named plaintiffs requires such attention now, as each has received a decision from an ALJ. The case may be different, however, for intervenors and other members of the class. The Court will entertain motions for preliminary relief from intervenors and other class members for whom a developing plan will not afford a timely and adequate remedy. These applications should identify the duration and the source of delays since a request for a hearing, the financial condition of the claimant and other factors relevant to equitable relief. Such applications should take the form required by F.R.Civ.P. 65 for an application for a preliminary injunction, supported by appropriate affidavits, a memorandum of points and authorities, and a proposed order. The Secretary would respond appropriately if he disputed the source of any delay, was able to present evidence of any efforts to afford relief, or otherwise opposed the motion. The Court expects that this process would permit cooperation between the parties in resolving individual problems, but it would contemplate a remedy imposing a time limit or payment of interim benefits in individual cases where no resolution has been achieved.
Since the Court has concluded that at least some portion of the plaintiff class is entitled to final declaratory relief, plaintiffs' motion for a preliminary injunction has been treated as a motion for a permanent injunction and granted by an Order entered April 12, 1979. To the extent plaintiffs move for equitable relief beyond or in a form different from the comprehensive plan contemplated by this memorandum and order, that motion is taken under advisement pending both development of the permanent plan for equitable relief and any individual motions which may be presented to the Court.