source: Caselaw Access Project

author: WARRINER, District Judge.

license: Public Domain

text:
    Ray Thomas BARTHOLOMEW v. L.R. CLAWSON, Supt., et al.
    Civ. A. No. 82-0500-R.
    United States District Court, E.D. Virginia, Richmond Division.
    Sept. 7, 1984.
    Donald L. Creach, Hunton & Williams, Richmond, Va., for plaintiff..
    Guy W. Horsley, Jr., Asst. Atty. Gen., Richmond, Va., for defendants.
   OPINION

WARRINER, District Judge.

Plaintiff, proceeding pro se' and- in for-ma pauperis, under 42 U.S.C. § 1983, filed this action on 4 August 1982. Plaintiff filed an amended complaint on 16 August. Defendants filed a motion for summary judgment accompanied by affidavits on 23 August and filed what they characterized as a motion to dismiss in response to the amended complaint on 14 September. Plaintiff filed a response to defendants’ motions on 4 October 1982, and an affidavit in support of his response on 29 October 1982.

On 2 March 1983, this Court granted summary judgment to the defendants herein, relying in part on Cooper v. Riddle, 540 F.2d 731 (4th Cir.1976), and Gorham v. Hutto, 667 F.2d 1146 (4th Cir.1981). On 11 April, 1984, the United States Court of Appeals for the Fourth Circuit vacated the judgment of this Court and remanded the action in light of Hayes v. Thompson, 726 F.2d 1015 (4th Cir.1984), which held that Cooper and Gorham were overruled.

On 4 May 1984, the Court appointed counsel on behalf of plaintiff and directed the parties to file briefs on the issues presented herein in light of the decision of the Fourth Circuit Court of Appeals. The parties having filed timely briefs, the matter is now ripe for consideration. The Court has jurisdiction under 28 U.S.C. § 1343.

In its opinion herein, the Court of Appeals stated that on remand “the District Court should address whether State regulations create such a liberty interest as to trigger due process requirements. If the answer to that inquiry is in the affirmative, then the Court should go on to determine whether or not Bartholomew received those protections.” Although the parties dispute the import of this directive from the Court of Appeals, the Court is satisfied that the Court of Appeals intended this Court to reconsider defendants’ motion for summary judgment regarding plaintiff’s due process claim, in light of recent developments in that area of the law.

On 29 May 1984, plaintiff filed a motion pursuant to Fed.R.Civ.P. 60(b) for relief from the Court’s judgment of 2 March, 1983. Specifically, plaintiff complains that the Court improperly granted defendants’ motion for summary judgment regarding plaintiff’s first amendment claims of retaliation. Plaintiff apparently bases his motion on Fed.R.Civ.P. 60(b)(6), arguing that to permit the judgment to stand would be “manifestly unjust.” Reply Brief on Behalf of Plaintiff, 29 May 1984, at 3. Having reviewed the plaintiff's motion, the Court concludes that plaintiff’s retaliation claim was based on his temporary transfer from Caroline Correctional Unit # 2 to the Virginia State Penitentiary on 6 November 1981. The affidavit of John Hinkle clearly states that, at the time they approved this temporary transfer, the members of the CCB were unaware of plaintiff’s retaliation claims. Accordingly, plaintiff’s motion for relief pursuant to Fed.R.Civ.P. 60(b)(6) shall be DENIED.

The factual situation out of which plaintiff’s due process claim arises is relatively simple. The parties agree that on 6 November 1981, while confined to Caroline Correctional Unit # 2, plaintiff was given written notice that he would be brought before the Institutional Classification Committee (ICC) for consideration of a possible increase in security classification and/or a transfer to another prison. The reason proffered for the hearing was that the prison administration had reliable information that plaintiff was planning an escape attempt. At that time, plaintiff signed a “notification of referral” to the ICC which set forth the procedural aspects of the ICC hearing. The notice informed plaintiff that he could be present at the hearing and would be afforded an opportunity to call and examine witnesses. Blanks were provided on the form for plaintiff to list any witnesses he wanted' to call; plaintiff signed the notice form without listing potential witnesses. Plaintiff asserts that at the time he signed the notice, however, he was verbally instructed by Sgt. Huffman that he was not to request witnesses.

On 6 November 1981, plaintiff was transferred to the Virginia State Penitentiary by the Central Classification Board (CCB) solely on the basis of the information received regarding plaintiff’s involvement in the escape attempt. On 10 November 1981, four days after his arrival at the Virginia State Penitentiary, plaintiff’s ICC hearing took place. At the hearing, a counselor from Caroline Correctional Unit # 2 presented information regarding plaintiff’s involvement in the escape plan. That information included (1) a tip by a confidential and reliable source that plaintiff was planning an escape, (2) the fact that prison officials had recently discovered three bars partially sawed off, and (3) that plaintiff had transferred a sum of money to an account outside the prison. Plaintiff denied any involvement in an escape attempt and asserted that the only reason he had been called before the ICC was because he had lodged complaints against the administration about prison conditions.

The ICC found the evidence concerning plaintiff's alleged plan to raise a “reasonable suspicion” although this evidence was “not convincing as the truth.” The report concluded that, “[g]iven Bartholomew’s attitude toward the unit and its employees, however, it would appear to be in the best interest of both the institution and the inmate if he were transferred to another institution.” The ICC decided that plaintiff should be transferred to a medium security institution, and that he should remain in segregation until the CCB acted on this recommendation. On 25 November 1981, the CCB approved the ICC recommendation and ordered plaintiff to be transferred to Powhatan Correctional Center. Plaintiff was assigned to segregation pending the transfer.

The first question which this Court must address is whether the Department of Corrections’ Guidelines created a liberty interest cognizable under the Due Process Clause of the Fourteenth Amendment. In determining whether the Department of Corrections’ Guidelines which were in effect on 6 November 1981 created a liberty interest, the Court is guided by two recent Supreme Court decisions.

In Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), the United States Supreme Court faced a similar question with regard to a Pennsylvania inmate. Aaron Helms, an inmate in the Pennsylvania State Correctional System, was removed from the general prison population following a prison riot and confined to administrative segregation pending an investigation into his role in the riot. Id. at 462-463, 103 S.Ct. at 866-867, 74 L.Ed.2d at 682-83. Finding that “the transfer of an inmate to less amenable and more restrictive quarters for non-punitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence,” the Court held that only if Pennsylvania had “created a liberty interest in remaining free from the restraints accompanying confinement in administrative segregation, through enactment of its regulations governing prison administration, was Helms entitled to procedural due process.” Id. at 468-469, 103 S.Ct. at 869-870, 74 L.Ed.2d at 686-687. The Court recognized that “the safe and efficient operation of a prison on a day to day basis has traditionally been entrusted to the expertise' of prison officials ... [and] that regulations structuring the authority of prison administrators may warrant treatment, for purposes of creation of entitlements to ‘liberty,’ different from statutes and regulation's in other areas.” Id. In evaluating the Pennsylvania regulations governing prison administration, the Court found that Pennsylvania had created a liberty interest because “the Commonwealth has gone beyond simple procedural guidelines. It has used language of an unmistakably mandatory character, requiring that certain procedures ‘shall,’ ‘will,’ or ‘must’ be employed, ... and that administrative segregation will not occur absent specified substantive predicates — viz., ‘the need for control,’ or ‘the threat of a serious, disturbance.’ ” Id. at 471-472, 103 S.Ct. at 871, 74 L.Ed.2d at 688. The repeated use of mandatory language in connection with substantive constraints on the decisionmaking authority of prison administrators as to when an inmate could be placed in administrative segregation created a protected liberty interest.

Turning to what process was due the inmate, the Court noted that the inmate’s privacy interest was not of great consequence in comparison with the governmental interest in the safety of "the prison guards and the other inmates. Because the Commonwealth’s important interest in isolating him pending an investigation of the charges, the Court held that Helms was entitled only to receive notice of the charges against him and an opportunity to present his views to the prison officials charged with deciding whether to transfer him to administrative segregation. Id. at 475, 477, 103 S.Ct. at 873, 875, 74 L.Ed.2d at 691, 692.

The Court faced a similar situation in Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983). In that case, inmate Wakinekona was transferred from a State Prison in Hawaii to one in California because of his reputation as a trouble-maker. In determining whether Wakinekona had a liberty interest in not being transferred to the mainland, the Court evaluated the prison regulations of Hawaii. The Court noted that only if Hawaii’s regulations placed substantive limitations on the discretion of prison officials did they create a .constitutionally protected liberty interest. Id. at 249, 103 S.Ct. at 1747, 75 L.Ed.2d at 823. “If the decision-maker is not ‘required to base its decision on objective and defined criteria’ but instead ‘can deny the requested relief for any constitutionally permissible reason or for no reason at all,’ [citation omitted] the State has not created a constitutionally protected liberty interest.” Id. In Olim, the regulations in question stated that the inmate classification process was not concerned with punishment. The regulations required that a prison administrator appoint an impartial committee to conduct a hearing concerning the inmate’s classification. The committee was to give the inmate written notice of the hearing, permit him, with exceptions, to confront and cross-examine witnesses, afford him an opportunity to be heard, and notify him of the committee’s findings. The committee was then to make a recommendation to the administrator who had the ultimate authority for the decision. The regulation directed that the administrator, as the final decision maker, might:

“(a) affirm or reverse, in whole or in part, the recommendation; or
(b) hold in abeyance any action he believes jeopardizes the safety, security, or welfare of the staff, inmate ..., other inmates ..., institution or community and refer the matter back to the program committee for further study and recommendation.”

Rule IV, paragraph 3(d)(3), App. 24.

Id. 242, 103 S.Ct. at 1744, 75 L.Ed.2d at 818.

Because this regulation did not place any substantive limitation on official discretion, the Court held that it created no liberty interest entitled to protection under the Due Process Clause. The Court noted that “the prison administrator’s discretion to transfer an inmate is completely unfettered. No standards govern or restrict the administrator’s determination because the administrator is the only decision maker under Rule IV, we need not decide whether the introductory paragraph of Rule IV, see n. 1, supra, places any substantive limitations on the purely advisory program committee.” Id. at 249-50, 103 S.Ct. at 1747-1748, 75 L.Ed.2d at 823. The Court further noted that just because the State had created procedures for the channeling of decision making, those procedures did not in and of themselves create substantive limitations on the decisions made. “Process is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement ... the State may choose to require procedures for reasons other than protection against deprivation of substantive rights.” Id. at 250, 103 S.Ct. at 1748, 75 L.Ed.2d at 823-824.

Applying the reasoning of both Hewitt and Olim to the instant case requires an extensive examination of the Virginia Department of Corrections’ Guidelines (DGL) which were in effect on 6 November 1981. The pertinent Division Guidelines which apply to the plaintiff’s claims regarding his administrative segregation and subsequent transfer are set forth in full in Appendix A. These administrative regulations are interrelated and, in order to determine whether they create a due process liberty interest, they must be read as a whole. DGL # 821 outlines the procedural operation of an Institutional Classification Committee (ICC). DGL # 823 specifically addresses the issue of inmate custody classification, and is complemented by Guideline #861.1 which prescribes minimum standards for segregation. The requirements for inter-institutional inmate transfers are outlined in DGL # 825. The Court will first address the issue of whether the Virginia Division Guidelines created a liberty interest for plaintiff in not being held in administrative segregation.

On 6 November 1981, plaintiff was transferred to the Virginia State Penitentiary pursuant to DGL # 821, XI, which states:

“Where emergency situations exist, the institution’s superintendent or ranking security officer is expected to take whatever action his/her judgment dictates is necessary and essential to prevent the loss of life, bodily injury, or property damage. All such actions taken which result in a custody increase, assignment of segregation status, removal of work/study, release or institutional transfer, are tentative and subject to review by an ICC and a CCB.”

After such an emergency transfer, Guideline # 823(d)(3) requires a formal ICC hearing pursuant to the procedural requirements of Guideline # 821, IX, (B)(3). The recommendations of the ICC must be approved by the CCB. Guideline # 821, VIII(I)(l)(a). Section VIII(J) of that Guideline sets forth the inmate’s appeal procedure from a CCB decision.

DGL # 823, VIII(C), sets forth the procedures for assignment to segregation status. Segregation is defined as:

“a type of housing reserved as special purpose bed assignments at major institutions and field units utilized under proper administrative process for the' protective care and custodial management of inmates. Segregation is designed to provide stringent custodial control and surveillance over those inmates who pose a serious security threat and cannot exist in the general population setting.”

DGL # 823, VIII(C)(2), states that all assignments to and removal from segregation status require formal ICC hearings and that all ICC recommendations for continued confinement in segregation status are subject to review and approval by the CCB.

While Division Guidelines # 821 and # 823 appear to have established mandatory procedures applicable whenever an inmate faces the possibility of confinement in administrative segregation, these Guidelines fail to place “substantive limitations on official discretion.” Olim, 461 U.S. at 249, 103 S.Ct. at 1747, 75 L.Ed.2d at 823. DGL # 861.1(B)(1) provides that segregation is a “custodial management measure exercised by the institution or unit for the welfare of the inmate or the facility or both.” Significantly, the ICC recommendation at plaintiff’s segregation hearing contained a recommendation for transfer and “continued administrative segregation pending such transfer” based on the “best interest of both the institution and the inmate.”

DGL # 86Ll(b)(2) states that “Segregation is not a disciplinary measure but a means of preventive control.” Subsection (3) goes on to state “Inmates assigned to segregation ordinarily include inmates presenting chronic behavior problems or those who present a serious threat to themselves or to others.” (emphasis added.) The use of the term “ordinarily” undermines plaintiff’s argument that the Virginia Guidelines have created particularized substantive limitations on Virginia prison officials’ discretion to place an inmate in administrative segregation. DGL # 861.1 makes it clear that the standards concerning inmates with “chronic behavior problems or those who present a serious threat to themselves or to others” are a general guideline to assist officials in exercising their discretion. They do not constitute limiting conditions; the discretion of the decision maker is the limiting condition. It is the opinion of the Court that the Virginia Division Guidelines in effect on 6 November 1981, did not create a substantive liberty interest in plaintiff from being placed in administrative segregation. Therefore, summary judgment shall be GRANTED to the defendants on this issue.

Addressing the issue of plaintiffs transfer, DGL # 821 IX(B) and VIII(I)(l)(b) establish mandatory procedures and CCB review whenever there is an administrative request to transfer an inmate who poses a security threat. Guideline # 825(B), however, states that “an inmate may be referred administratively to an Institutional Classification Committee for transfer consideration in the manner described in DGL # 821.” (émphasis added.) In addition to this non-mandatory .language in DGL # 825, § 53.1-21 of the Va.Code establishes an overall policy of unfettered discretion regarding inter-institutional inmate transfers. Under the Virginia Guidelines, the CCB may transfer an inmate from one institution to another within the Commonwealth for any reason or for no reason at all. The fact that certain procedures must be afforded an inmate before he is transferred does not create a due process liberty interest. Olim at 243, 103 S.Ct. at 1744, 75 L.Ed.2d at 819.

Following the specific language mandated by the remand from the Court of Appeals, this Court’s inquiry would normally be concluded upon the finding that the Virginia Division Guidelines in effect on 6 November 1981 did not create a liberty interest cognizable under the Due Process Clause. Acknowledging that the issue of the creation of due process liberty interests through State administrative regulations is still an unsettled area of law, I wish to note that, absent the Fourth Circuit’s specific mandate, this Court would have followed a more expedient analysis by assuming a liberty interest arguendo and proceeding to address the ultimate issue of whether or not the plaintiff received all the procedural protections mandated by the Due Process Clause.

While a State may create substantive rights of such import that they are entitled to protection under the Due Process Clause, this does not mean that all procedures erected by the State to protect such rights are thereby transformed into constitutional imperatives under the Fourteenth Amendment itself. Hewitt v. Helms, 459 U.S. at 475, 103 S.Ct. at 874, 74 L.Ed.2d at 691. Durkin v. Taylor, 444 F.Supp. 879, 889, fn. 14 (E.D.Va.1977).

Where a State creates a protected liberty interest through administrative guidelines, due process is satisfied where an inmate is afforded:

“... an •' '.formal, non-adversary, evidentiary review ... an inmate must merely receive some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation. Ordinarily, a written statement by the inmate will establish this purpose ... so long as this occurs, and the decision maker reviews the charges and then-available evidence against the prisoner, the Due Process Clause is satisfied.”

Hewitt 459 U.S. at 476, 103 S.Ct. at 874, 74 L.Ed.2d at 691.

The uncontroverted facts in this case reveal that plaintiff received notice of his formal ICC hearing, and that he attended the hearing. That the hearing was meaningful is evidenced by the fact that plaintiff was successful in dissuading the Committee from increasing his security classification. Although the ICC was not convinced that the information that plaintiff was planning an escape was absolute “truth,” they believed that the information raised a “reasonable suspicion” of such activities. On the basis of that suspicion, and in conjunction with plaintiffs hostile attitude, the ICC recommended transfer to Powhatan Correctional Center. On the basis of this information the CCB, the ultimate decision maker, approved plaintiffs transfer on 25 November 1981, less than three weeks after plaintiffs formal ICC hearing. On these facts, it is clear that plaintiff received all the procedural protections mandated by the Due Process Clause. Accordingly, summary judgment shall be GRANTED for defendants.

Should plaintiff desire to appeal, written notice of appeal must be filed' with the Clerk of the Court within 30 days of the entry hereof.

An appropriate judgment shall issue.

APPENDIX A

Division Guidelines #821

# 821 V. Function of the Institutional Classification Committee

An essential element in the classification process is the Institutional Classification Committee which functions as an extension of the institution administration and exerts control over the continuing development and management of the offender’s correctional program. The Institutional Classification Committee has responsibility for the following:

1. Approval and revision of Specific Inmate Program Objectives and Plans c. Recommend inmate custody change and institutional transfers to Central Classification Board

# 821 VIII. G. Institutional Classification Committee Meeting Procedure:

It is imperative that classification hearings be conducted uniformly in accordance with established procedure and that all decisions rendered by the Institutional Classification Committee are based on reliable information and sound reasoning.

# 821 VIII. I. Approval of Institutional Classification Committee Actions:

1. Types of actions which require Central Classification Board approval:

a. All custody change recommendations as well as the assignment of and release from segregation status

b. All institutional transfer recommendations

# 821 VIII. J. Appeal Procedures:

2. Central Classification Board Level Decisions: The institution or unit superintendent may appeal the decisions of the Central Classification Board to the Assistant Director in charge of Classification and Records through their respective Associate Directors in charge of Major Institutions and Field Unit Institutions. In the case of field unit institutions, such appeals must be routed through the respective Regional Superintendents.

All appeals of Central Classification Board decisions must be submitted in writing and include a specific, detailed justification as to why the Central Board’s decision should be amended. The Associate Directors in charge of Major Institutions and Field Unit Institutions may deny appeals stating the reasons for such actions in the absence of input from Classification and Records. Appeals which in the judgment of the respective Associate Directors merit further consideration will be forwarded to the Assistant Director in charge of Classification and Records for final disposition. The Assistant Director’s final disposition will be communicated in writing to the respective Associate Directors for dissemination to the respective institution or unit superintendent.

3. Inmate Appeals: Inmates may appeal the decision of the Institutional Classification Committee and/or Central . Classification Board to the Director by submitting a grievance through the established grievance procedure at their assigned institution.

#821 IX. B. Formal Classification Hearings: '

1. Definition: Formal Classification Hearings are defined as those inmate case reviews conducted by the Institutional Classification Committee which require at a minimum prior notification to the inmate and the inmate’s presence during review proceedings in addition to other procedural safeguards identified in this section.

2. Types of classification actions which require Formal Classification Hearings:

c. Assignment and review of segregation status

d. Institutional transfers which are based on any of the following:

(1) Documented Adjustment Committee reports

(2) Information reported at the institution by the correctional staff and/or reliable inmate sources which tends to indicate that a given inmate(s) presents a serious threat to the institution’s security.

(3) Pending criminal charges

3. Procedural Requirements:

The inmate will:

a. receive written notification of the hearing a minimum of forty-eight (48) hours in advance stating the reasons for and purpose of the review.

b. be given an opportunity to appear before and address the Committee.

c. be allowed to remain silent.

d. have an institutional counselor or other institutional employee present to assist him.

Note: Inmates will not be permitted to have employed legal counsel present during formal classification proceedings.

* e. be permitted to hear the reporting officer’s testimony. A signed and notarized statement from the reporting officer will suffice in the reporting officer’s absence. Additionally, a ranking treatment or custodial official who is thoroughly familiar with the facts surrounding a given case may appear before the Institutional Classification Committee in the absence of the reporting officer.

* f. be permitted to call and cross-examine voluntary witnesses and cross-examine adverse witnesses.

g. be advised verbally during the Committee’s proceedings and in writing within two working days following the hearing as to the Committee’s recommendations and the rationale for the same.

h. receive within a reasonable period of time a copy of the Committee’s written findings and recommendations reflecting the unit or institution superintendent’s action and that of the Central Classification Board where the latter is required.

* Note: Requirement e., above, does not apply in the case of those hearings which are based on documented Adjustment Committee Reports. Requirement f., above, applies only in the case of those hearings which are based on information reported at the institution which tends to indicate that the inmate presents a serious threat to the institution’s security. In such cases, the person referring the inmate to the Institutional Classification Committee must appear before the Committee in the presence of the inmate and state the reason(s) for the referral.

In those cases where information concerned was reported at other units or institutions, the officer requesting reclassification will familiarize himself with those incidents and appear in place of the reporting officer(s) before the Institutional Classification Committee to be examined.

Where voluntary witnesses (inmate) are assigned to another institution or field unit, the Institutional Classification Committee must provide some means for taking a statement from that witness by either counselors or supervisory personnel.

The Institutional Classification Committee may limit the number of voluntary witnesses to those the Committee considers reasonably necessary. The Committee may limit repetitive and irrelevant testimony.

# 821 IX. C. Form — Notification of Referral to Institutional Classification Committee — See Appendix C

In all formal hearings conducted by the Institutional Classification Committee, the inmate will be furnished a minimum of twenty-four hours in advance of the hearing with a completed “Notification of Referral to Institutional Classification Committee” indicating the reasons for and purpose of the hearing. The inmate will be required to sign this document acknowledg-. ing receipt of the same. This act must be witnessed by a sworn corrections employee. The institution superintendent or his designee will be responsible for the preparation and issuing of this notification. Copies of this notification will be placed in the inmate’s institutional criminal record and attached to the CL-20 for Central Classification Board access and inclusion in the central criminal record.

# 821 IX. F. Miscellaneous

At no time are Institutional Classification Committee proceedings to be used as a means for punishing inmates.

# 821 XI. Miscellaneous

Within reason, every inmate assignment should be consistent with his/her established program objectives. Prescribed assignments and inmate assignment preferences must give way to space, security, and program considerations. Nowhere in the classification process is there a place for arbitrary or capricious action. Established Committees, not individuals, will maké assignments. Where emergency situations exist, the institution superintendent or ranking security officer is expected to take whatever action his/her judgment dictates as necessary and essential to prevent the loss of life, bodily injury, or property damage. All such actions taken which result in a custody increase, assignment of segregation status, removal from Work/Study Release, or institutional transfer, are tentative and subject to review by an Institutional Classification Committee and the Central Classification Board.

Division Guidelines #823

# 823 V. Authority

Except where otherwise specified in this Guideline, authority for dll inmate custody assignments is vested in the Central Classification Board.

# 823 VIII. C. Assignment of and Removal from Segregation Status

1. Definition of Terms

a. Segregation: Segregation is not defined as a custody level. It is a type of housing reserved as special purpose bed assignments at major institutions and field units utilized under proper administrative process for the protective care and custodial management of inmates. Segregation is designed to provide stringent custodial control and surveillance over those prisoners who pose a serious threat and cannot exist in a general population setting. Segregation should not be confused with isolation nor is it a means to punish inmates. Additionally, segregation is not to be used as a routine means for handling prisoners in a given category. For example, an inmate facing pending criminal charges is not to be placed in segregation automatically, but only if the ICC feels that he will present a security threat if left in the general population.

2. All assignments to and removal from segregation status require formal ICC hearings and are subject to the review and approval of the institution superintendent. In the case of inmates assigned to segregation, all such actions require the final approval of the Central Classification Board.

The institution superintendent, however, on the basis of ICC recommendations may effect the release of prisoners from segregation status absent Central Classification Board review and approval, provided such action does not require or involve institutional transfers. Where • possible, prisoners who are recommended for release from segregation will be reviewed by the superintendent on a same day basis and released from segregation status should the superintendent concur. Should the superintendent disapprove the ICC’s action, he/she will note the reasons for this decision and forward the Committee’s recommendations to the Central Classification Board for final disposition.

All ICC recommendations for continued confinement in segregation status will be subject to final review and approval' of the Central Classification Board.

3. As described in DGL No. 861.1, “Minimum Standards for Isolation, Segregation, and Detention,” a prisoner assigned segregation status will be reviewed by the assigned Management Team within forty-five calendar days from the date he was placed in segregated confinement. The Management Team has the option at this point of continuing the inmate’s assignment or referring him to an Institutional Classification Committee for review and possible removal from segregation status. Within ninety calendar days from the date the prisoner was assigned segregation status, he will be reviewed again by the Management Team and referred with recommendations for or against release from segregation to an ICC for review. Institutional Classification Committee review observing all procedural safeguards for formal hearings outlined in DGL No. 821, “Institutional Classification Management,” Section IX-B, pp. 15-17, is mandatory at this point. Should the prisoner be retained in segregation status, he will be reviewed again by the Management Team every forty-five days thereafter with optional and mandatory referral to an ICC on an alternating basis as described above until the prisoner is released from segregation status.

Division Guidelines #825

# 825 IV. B. Administrative Transfer Request

1. An inmate may be referred administratively to an Institutional Classification Committee for transfer consideration in the manner described in DGL 821, “Institutional Classification Management.” (See Section VIII, E-l, pp. 8-9)

#825 VI. C. Institutional Classification Committee Hearing Request

The Institutional Classification Committee hearing requirements outlined in DGL No. 821 as they apply to institutional transfers will be observed. (See DGL 821, Section IX, pp. 14-16)

# 825 VI. D.

3. On the first working day following the emergency situation, the institution or regional superintendent, will notify the Assistant Director in chargé of Classification and Records or his designee of any transfer action taken. The Assistant Director in charge of Classification and Records or his designee will initiate a review of the prisoner’s record at the Central Classification Board level and issue appropriate written transfer authorization which will remain in effect pending the final outcome of an Institutional Classification Committee hearing and subsequent Central Classification Board review where such is required.

4. Once a prisoner is received at an institution through temporary transfer action, he becomes the full responsibility of the receiving institution superintendent in the area of custody and care. However, it will remain incumbent upon the sending institution superintendent to assure that the necessary written forms and/or reports are completed and all Adjustment or Classification Committee hearings as required by Division Guideline are properly conducted and reported.

5. In an emergency situation, where possible, Adjustment and Classification Committee hearings, as required, will be conducted prior to initiating transfer action. Where such is not possible, the appropriate committee(s) will convene at the receiving institution.

6. Except where otherwise specified in this Guideline, all temporary emergency transfer actions will be subject to final review and approval by the Central Classification Board.

Division Guidelines #861.1

# 861.1 IV. B. Segregation

1. Segregation is a protective care and custodial management measure exercised by the institution or unit for the welfare of the inmate or the facility, or both.

2. Segregation is not a disciplinary measure but a means of preventive control.

3. Segregation is a special purpose bed assignment operated under maximum security regulations and procedures. Inmates assigned to segregation ordinarily include inmates presenting chronic behavior problems or those who present a serious threat to themselves or to others. They may be severe escape risks or seriously aggressive individuals.

# 861.1 IV. B. 5. Segregation Program

The inmate’s behavior and attitude will be continuously observed and evaluated. Within 45 days the Institutional Treatment Team consisting of the ranking correctional officer in the Segregation Unit, the assigned counselor and one other staff member from the Segregation Unit will review the inmate’s behavior and decide to keep the inmate in segregation another 45 days or refer the inmate to the ICC for possible reclassification. The ICC will hear the inmate when referred by the Treatment Team in the first 45 day period and will hear the inmate at the end of the second 45 days at the mandatory request of the Treatment Team. The Treatment Team will document its decision and rationale and record this information in counseling file, the institutional file and, if necessary, forward a copy to the ICC. The ICC will follow the procedure set forth in the Division guideline on classification.

The Treatment Team and the ICC will make their decision on the inmate’s behavior as well as progress in his treatment program plan. It must also be determined whether the inmate may be returned to the general population and if he is a threat to security or his own life may be in danger due to enemies in the general population. If the latter is true and his progress merits a new assignment, it may be possible to transfer him to another institution.

Division Guidelines #863

# 863 I. Purpose — Occasionally, situations arise where it is necessary to transfer an inmate from segregation at one institution to segregation at another institution..

This will usually involve a situation where a particúlar inmate is a serious and present threat to discipline or security in the segregation area or where his life is in imminent danger from other inmates. In such cases it is imperative that transfers be immediately effected for the safety of the institution or the inmate.

II. Administration — When a situation arises where the superintendent of the institution feels that a situation might exist where an immediate transfer should be made in order to protect the life of an inmate or to preserve the discipline and security of the segregation facility, a full oral report, which shall include consideration of the conditions at the segregation unit of the proposed receiving facility, shall be rendered immediately by telephone to . the Assistant Director of the Division of Institutional Services requesting that the transfer be made.

The Regional Administrator acting for the Assistant Director of the Division of Institutional Services shall approve or disapprove the transfer, based on oral information furnished by the institutional superintendent.

In the event that the Assistant Director for Security or the Director of the Division of Corrections cannot be contacted, the transfer may be made upon mutual agreement of the two superintendents, subject to final review and approval by the Assistant Director of Security as soon as he may be contacted. All action, including the report of the investigation, shall be, as soon as possible, reduced to writing and signed by the appropriate staff members.

      . Both parties agree that plaintiff has no liberty interest deriving from the Due Process Clause itself.

      . The Court suggests that such procedures may be created to enable prison officials to exercise their discretion intelligently. Such procedures may also serve a therapeutic purpose by permitting inmate participation in the decision-making process. Id. at 251, fn. 13, 103 S.Ct. at 1748, fn. 13, 75 L.Ed.2d at 824, fn. 13.

      . Statute § 53.1-21 — Transfer of prisoners into and between state and local correctional facilities.
      A. Any person who (1) is accused or convicted of an offense .(a) in violation of any county, city or town ordinance within the Commonwealth, (b) against the laws of the Commonwealth or (c) against the laws of any other state or county, or (2) is a witness held in any case in which the Commonwealth is a party and who is confined in a state or local correctional facility, may be transferred by the Director to any other state or local correctional facility which he may designate.


author: JOYCE HENS GREEN, District Judge.

text:
    ASSOCIATION OF ADMINISTRATIVE LAW JUDGES, INC., Plaintiff, v. Margaret M. HECKLER, et al., Defendants.
    Civ. A. No. 83-0124.
    United States District Court, District of Columbia.
    Sept. 10, 1984.

      Elliott L. Richardson, Péter E. Halle, Mil-bank, Tweed, Hadley & McCloy, Washington, D.C., for plaintiff.
    Richard A. Levie, U.S. Dept, of Justice, Washington, D.C., for defendants.
   MEMORANDUM OPINION AND ORDER

JOYCE HENS GREEN, District Judge.

Plaintiff, the Association of Administrative Law Judges, is a not-for-profit corporation whose members are administrative law judges (AUs) employed by the Department of Health and Human Services (HHS) and assigned to the Office of Hearings and Appeals (OHA) of the Social Security Administration (SSA). Plaintiff’s members adjudicate claims for disability benefits under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401 et seq. (1982) and 42 U.S.C. §§ 1381 et seq. (1982). Plaintiff brought this lawsuit to challenge the “Bellmon Review Program”, which defendants instituted to implement Section 304(q) of the Social Security Disability Amendments of 1980, the “Bellmon Amendment”. Plaintiff alleges that this program violates the rights of its members to decisional independence under the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq. (1982).

State agencies administer the Social Security Disability Insurance Program pursuant to agreements with the SSA. Based upon medical information received from various sources and applying SSA guidelines, the state disability determination service issues the decision of SSA. A claimant who is denied benefits may file for reconsideration at the state level and if dissatisfied may then seek relief on the federal level. The AU hearing is a de novo proceeding. The AU is the first agency personnel in the review process to interview the claimant in person. .The claimant may submit additional evidence, produce expert witnesses, and be represented by counsel. If his or her claim is denied by the AU, the claimant may appeal to the Appeals Council, which is the last step in the administrative process.

The Appeals Council has the authority to review all decisions of AUs, at its own discretion (“own motion”), or at the request of a claimant. In either case, the Appeals Council is authorized to exercise jurisdiction only when: (1) there appears to be an abuse of discretion by the'AU; (2) there is an error of law; (3) the action, findings or conclusions of the AU are not supported by substantial evidence; or (4) there is a broad policy or procedural issue that may affect the general public interest. 20 C.F.R. § 404.970(a), 416.1470(a) (1984). Based upon its review, the Appeals Council may modify, affirm, reverse or remand the AU’s decision. When the Appeals Council reverses or remands an AU’s decision, it issues an opinion stating the grounds for reversal or remand and identifying dispositive abuses of discretion, errors of law, problems with conclusions of law and findings of fact, insufficiencies of evidence, and policy or procedural issues of concern to SSA. If a case is remanded, the AU must take any action ordered by the Appeals Council, but may also take any additional action that is not inconsistent with the remand order.

The Bellmon Amendment directed the Secretary of HHS to resume review of decisions of ALJs on her own motion. Congress expressed concern at that time about the high rate at which AUs were reversing determinations made at the state level and the variance in these rates among AUs. See H.R.Rep. No. 944, 96th Cong., 2d Sess. 57 (1980), reprinted in [1980] U.S.Code Cong. & Ad.News 1392,. 1405; S.Rep. No. 408, 96th Cong., 2d Sess. 53 (1980), reprinted in [1980] U.S.Code Cong. & Ad.News 1277, 1331.

A study performed pursuant to the Bellmon Amendment and described in a report to Congress in January 1982 (PX-1), indicated that the Appeals Council more often would have changed decisions by AUs allowing benefits made by AUs with above average allowance rates than allowance decisions made by AUs with average or below-average allowance rates. The Bellmon Review Program, a series of measures designed to improve decisional quality and accuracy, began in October, 1981. Associate Commissioner of SSA, Louis B. Hays, announced that four categories of cases would be selected for possible “own motion” review:

(1) National random sample 21%

(2) Allowance decisions of new AUs

(3) Decisions referred by SSA’s Office of Disability Operations 16%

Individual AUs 63%

Initially, individual AUs with allowance rates of 70% or higher were to have 100% of their allowance decisions reviewed for accuracy and hearing offices with allowance rates of 74% or higher would also be reviewed. 106 AUs, or approximately 13% of all AUs in SSA, were placed on Bellmon Review because of their high allowance rates. The selection of entire hearing offices for review was soon discontinued. The other three categories of review were not yet operative.

An overview of the program was communicated to the AU corps in a Memorandum dated September 24, 1982 from Mr. Hays. (PX-111) (“Hays Memorandum”). That Memorandum explained that Bellmon Review was being instituted because of Congressional concern about high allowance rates and because only AU decisions denying benefits were generally subject to further review. Allowance rates were used as the basis for selecting the initial review group, in part, because studies had shown that decisions in this group would be the most likely to contain errors which would otherwise go uncorrected.

Based upon own-motion rates (the frequency with which the Appeals Council takes action to correct an AUs decision, as calculated by the Office of Appraisal) the individual AUs were divided into four groups: 100% review; 75% review; 50% review and 25% review. In determining whether an ÁU should be removed from review, the Appeals Council considered only decisional accuracy, defined as a 5% own motion rate for three consecutive months. An AU with a 5% own motion rate could be said to be 95% accurate. Shortly after implementation, the criteria for removing targeted AUs from review were amended. The 5% own motion rate was abandoned in-favor of an own motion rate approximating that of the national random sample.

A companion system for providing individualized feedback and counseling on the results of the review was also described in the Hays Memorandum. Never implemented, this feedback system was intended to complement the case-by-case feedback which occurs through the process of reversals and remands by advising ALJs of “decisional weaknesses and providing] a mechanism for achieving long term improvement.” Plaintiffs members believed that the feedback memoranda developed for peer counseling sessions that were scheduled to be held in January 1983 would direct high allowance AUs how to develop, hear and decide cases. No counseling sessions under this program were ever conducted. Defendants decided not to initiate the feedback proposal except with respect to AUs who choose to-participate.

Finally, the Hays Memorandum advised that if, after further review an AU’s performance had not improved, “other steps” would be considered. Understandably, plaintiffs members viewed that as a warning that OHA would recommend that charges be brought before the Merit Systems Protection Board (MSPB) seeking.adverse personnel action, which could include dismissal. See testimony of Francis May-hue, Robert B. Murdock.

The Bellmon Review Program has evolved substantially since the Hays Memorandum was issued. Significantly, in April 1982, before this lawsuit was filed, defendants stopped using allowance rates to target AUs for Bellmon Review once own motion data became available. The .AUs whose allowance decisions were reviewed were selected for individual review solely on the basis of their own motion rates under the national random sample.

In mid-1983, OHA began to include in Bellmon Review unappealed decisions denying benefits by AUs with high “grant-reviéw” rates — the rates at which the Appeals Council grants claimants requests for review of denial decisions. This part of the program was not communicated to the AU corps at large, nor were written rules or procedures for this part of the program developed.

Most recently, OHA, under a new Associate Commissioner, has eliminated entirely the individual AU portion of Bellmon Review. Notice of Filing June 22, 1984, Memorandum to all AUs, June 21, 1984. This Memorandum indicates that the number of cases reviewed under the national random sample will be increased. Apparently, the results of Bellmon Review demonstrated that the difference between the own motion rates of the selected AU and national random sample portions of the review- had progressively narrowed, which suggested that overall, decisional quality and consistency had improved. The review of unappealed denial decisions by high grant-review AUs has also been discontinued to be replaced by review of a national random sample of such decisions. These changes have been instituted on an interim basis only.

Plaintiff charged that the targeting of individual AUs under Bellmon Review, based upon allowance rates and then own motion rates, was in essence an attempt to influence AUs to reduce their allowance rates and thereby compromise their decisional independence.

The president of plaintiff Association, Charles Bono, sent a Mailgram to Associate Commissioner Hays (PX-110) in response to the Hays Memorandum requesting that the Bellmon Review Program be abandoned. Mr. Bono stated that the Bellmon Review Program would result in illegal performance ratings of AUs and would have the effect of chilling AU decisional independence. Mr. Hays did not respond to this Mailgram.

Mr. Hays sought advice from the Office of the General Counsel for SSA, concerning the legality of targeting high allowance AUs for Bellmon Review. (PX-387). The Office of General Counsel recognized that the - Senate version of the Bellmon Amendment required such targeting but that the Conference Report did not. The Office of General Counsel inferred from the legislative history that targeting may have been perceived as having a possible chilling effect on the decisional independence of targeted AUs. It concluded that while the law did not directly preclude targeting, there could be some legal risk, and suggested the desirability of reviewing some denial decisions. Although Mr. Hays had solicited the advice of the General Counsel, he did not accept it, viewing the matter differently. He testified at trial that he interpreted the Bellmon Amendment and its legislative history to require the focus on allowance decisions only. His decision to focus initially on allowance decisions only was based upon several additional factors: the findings of the Bellmon study later reported to Congress; that own motion data was not yet completely available; that a high proportion of denial decisions were already being reviewed on requests of claimants; that the grant-review rate for denial decisions was fairly low; that data from review of the Fort Smith (Arkansas) Hearing Office demonstrated that denial decisions were generally correct; and the efficient allocation of limited resources.

Plaintiff presented evidence that there were significant problems with unappealed denial decisions which Mr. Hays did not take into account in his initial implementation of Bellmon Review. (PX-163). Moreover, the Bellmon “work group” had concluded in August 1980, that at least some denial decisions should be included in the Bellmon Review process to avoid biased adjudication and any denial of due. process. (PX-407).

It was plaintiff’s view that Mr. Hays had a financial incentive to pressure AUs to reduce their allowance rates. As a member of the Senior Executive Service, he had a performance plan which stated as one of its goals or objectives, the reduction of allowance rates. (PX-368C, 368B). Mr. Hays’ performance was rated higher in FY 1981, a year in which such a reduction took place, than in FY 1982, when it did not. Mr. Hays stressed that his performance plan goal, to improve the quality of adjudication in OHA, was derived in response to Congressional criticism. Studies had shown a correlation between high allowance rates and high error rates. Thus, Mr. Hays expected that improved quality of adjudication would lead to some reduction in allowance rates, particularly since allowance decisions had not been subject to review by the Appeals Council for several years. Mr. Hays denied that the reduction of allowance rates was an independent goal in the performance plan. See also PX-301, 309.

Plaintiff also charged that OHA had at least considered allowance rate goals for the AU corps. One option for removal of targeted AUs from review which was not implemented, was to remove AUs from review when their allowance rates equaled or surpassed OHA’s fiscal year goals. (PX-29). Mr. Hays disapproved this option and noted specifically, at that time, that no goal existed to reduce allowance rates, only one to improve decisional quality and consistency, which could have, as one effect, a reduction in allowance rates. Mr. Ogden testified that when he used the term “goal”, he meant rather a budgetary assumption. Both Mr. Ogden and Mr. Hays explained that SSA must project allowance rates for budgetary purposes. Both denied that OHA made any attempt to keep allowance rates within the projections for any given year. OHA provided information to SSA, but did not determine the final estimates. See PX-288. Nonetheless, OHA continued to use the term “goals” to describe SSA projections of allowance rates. The insensitive choice of that term could reasonably have indicated that SSA considered a certain number of allowances too many.

Evidence apart from the budgetary projections cumulatively, and strongly, suggested that OHA had an ulterior goal to reduce AU allowance rates. When Mr. Hays first became Associate Commissioner, he issued a memorandum to the AUs, in which he noted a perception that AU allowance rates were “untenable”. (PX-157). Sometime later, he sent a memorandum to SSA, in which he described as “good news” a decline in allowance rates. (PX-360). Mr. Hays received a memorandum from SSA’s Office of Management Coordination, which requested a decrease in the variance among allowance rates and a decrease in allowance rates overall. (PX-324). See also PX-187, PX-189, PX-193, PX-197, PX-198, PX-199, PX-200, PX-201 (Reports on Bellmon Review tracking allowance rates of AUs on Bellmon Review without mention of quality and consistency).

Much of the testimony in this case involved the Fort Smith, Arkansas Hearing Office. On December 10, 1980, prior to the institution of the Bellmon Review Program, Deputy Chief AU J. Robert Brown visited the Fort Smith Hearing Office to discuss with AUs Jerry Thomasson, Francis May-hue and David Hubbard the possible reasons why the allowance rate of the Fort Smith Hearing Office was significantly higher than the allowance rate of the Little Rock, Arkansas Hearing Office, which received cases from the same state agency. The allowance rate at Fort Smith was approximately 90%. See testimony, of Andrew J. Young. AUs Thomasson and Mayhue suggested that the Appeals Council review 100% of their decisions. These AUs voluntarily submitted some of their decisions to Judge Brown, who reviewed and discussed them with other OHA personnel. In many cases, these decisions did not clearly convey what factors were considered in reaching the decision. Judge Brown provided the Fort Smith-AUs with an instructional memorandum that included samples of decisions from Fort Smith, both as they were written and as OHA had revised them. The results of the decisions were not changed.

The Fort Smith AUs were subsequently advised by Chief AU Phillip Brown, that effective August 17, 1981, the Appeals Council would begin reviewing all of their decisions. The Fort Smith Review was a separate program entirely from Bellmon Review. During the course of its review OHA discovered significant deficiencies in the quality and accuracy of the Fort Smith Hearing Office decisions. See, e.g., DX-J6. See testimony of Burton Berkley regarding decisions of Judge Thomasson; DX-Y2; DX-P6. OHA decided to provide training to AUs Thomasson and Mayhue on the application of the Social Security disability regulations and the sequential evaluation process of adjudicating cases. Judge Hubbard was not included in the training because he appeared generally to understand the regulatory scheme.

• The training took place in January 1982 at OHA Headquarters in Arlington, Virginia. The individuals conducting the training, William LaVere, Deputy Director of the Office of Appeals Operations, and Burton Berkley, Deputy Chairman of the Appeals Council, testified that the sole purpose of the training was to help the Fort Smith AUs issue correct decisions and not to pressure them to reduce allowance rates. Indeed, Mr. Berkley testified that he did not even know the allowance rates of the Fort Smith AUs.

Judge Thomasson believed that the training was prompted by the high allowance rates and labor-management problems in the Fort Smith office, and designed to pressure him to allow fewer claims for benefits. He testified, as did Judge Mayhue, that Mr. LaVere had told them both that the only way to be free of OHA scrutiny was to lower their allowance rates to the national average of 45-55%. However, Mr. LaVere testified that he merely informed them of the national average in response to Judge Mayhue’s inquiry. Mr. LaVere also testified that Judge Thomasson stated in the training session that he did not read the regulations of the Secretary. Mr. LaVere recommended that Judge Thomasson be place on 100% Bellmon Review based upon his own motion rate. (DX-H3). Mr. Berkley testified that Judge Thomasson’s writing did not improve at all while he was on Fort Smith Review.

In December 1981, Don Przybylinski, Special Counsel of OHA, visited the Fort Smith Hearing Office to conduct a preliminary investigation of complaints concerning labor-management problems, alleged time- and-attendance violations, and unfair labor practice charges that had been filed against OHA by employees of the Fort Smith office. This visit was independent of OHA’s concern about the Fort Smith AUs’ allowance rates. Mr. Przybylinski testified that Judge Thomasson introduced the subject of allowance rates during that visit but that he did not discuss that subject. He denied telling Judge Thomasson that' the allowance rates in the Fort Smith office must be lowered, as Judge Thomasson had testified, and as Betty Davis stated in her deposition. From all of this evidence it appears that OHA was genuinely concerned about the quality of Judge Thomasson’s decisions and not his allowance rate.

Judge Mayhue had been relying on Court cases which did not conform to the Secretary’s regulations and cases which pre-dated certain of the Secretary’s regulations. Yet, it was never suggested to Judge May-hue that he could be disciplined for those decisions. In fact, Mr. Berkley testified that the quality of Judge Mayhue’s decisions increased markedly. Nonetheless, Judge Mayhue was put on Bellmon Review when Fort Smith Review ended. (PX-328). Judge Hubbard was also placed on Bellmon Review. As part of this training Judges Thomasson and Mayhue were sent to Southfield, Michigan to hold hearings on remand in cases which they had decided. An administrative decision was made that the education of these AUs outweighed any expense and delay involved. No punishment of any sort was intended.

At trial, plaintiff identified other practices of defendants, which allegedly interfere with AU decisional independence. First, plaintiff objected to the Secretary’s policy of nonacquiescence in certain federal court decisions. See Testimony of Jerry Thomasson, Francis Mayhue, David Hubbard. The position description for AUs (PX-103) requires AUs to take those decisions into account in the decisionmaking process. Thus, plaintiff asserted that some AU allowance decisions are considered erroneous by the Appeals Council when, in fact, they would be upheld on appeal to a United States District Court. Own motion rates, therefore, are inflated because they do not reflect the ultimate judicial disposition of the AUs own motion cases.

The Secretary’s policy of nonacquiescence, as explained by Mr. Berkley, has been in existence since SSA was established. The Secretary follows only the decisions of the Supreme Court of the United States, or those decisions which she decides to adopt by changing the regulations and those decisions in which the Commission decides to acquiesce. This system is intended to insure that claimants in all parts of the country are governed by the same laws, rules and regulations.

Second, plaintiff asserted that OHA personnel which represent SSA in disability hearings before ALJs under the experimental Government Representative Program, act as prosecutors in cases where the claimant is represented by counsel. Mr. Hays testified that the government representative develops a case for both sides based upon the prehearing record to determine whether or not the representation should be undertaken. The development work would be made available to the AU, at which time the government representative might recommend that the ALJ issue a fully favorable decision on the record. Alternatively, the government representative presents the government’s case at the hearing. If the ALJ decides in favor of the claimant, the government representative may refer the case to the Appeals Council for possible review on its own motion.

As the program is now structured, the government representatives are ultimately responsible to the head of OHA, the same individual who supervises AUs and has the authority to recommend disciplinary action. To remedy this problem, plaintiff requested that the Government Representative Program be administered outside of OHA. Mr. Hays testified that the program could function elsewhere in SSA.

Third, plaintiff objected to the Appeals Council’s ex parte use of the opinions of medical support staff. However, Mr. Berkley satisfactorily explained that when the Appeals Council relies on an opinion of a member of its medical support staff as the underlying basis for reversal of an ALJ decision, whether favorable or unfavorable, the medical support staff opinion is entered into the administrative record after the claimant has been given the opportunity to review and comment on it. Were this otherwise, an incomplete administrative record would be presented to the federal court ultimately reviewing the agency decision. Opinions of medical support staff are used primarily where new evidence is presented to the Appeals Council and where the ALJ clearly did not appear to understand the medical evidence, in which case the medical support staff would prepare a summary of the evidence in the record.

With reason, plaintiff and its members viewed defendants’ combined actions as a message to ALJs to tip the balance against claimants in close cases to avoid reversal or remand by the Appeals Council, which would increase their own motion rate, which would result in being placed on Bellmon Review, with the added potential for peer counseling and MSPB proceedings. Judge Ainsworth H. Brown testified that he felt compelled to practice defensive adjudication in order to protect himself and the record. In sum, Bellmon Review, according to plaintiff, had the purpose and effect of chilling AU decisional independence so as to lower the AU allowance rate. See testimony of Charles Bono, Jerry Thomasson, Francis Mayhue.

Defendants’ position, throughout this litigation, expressed by Mr. Hays emphatically at trial, has been that there is no agency policy to reduce allowance rates. The agency’s policy is to reduce inconsistency in the application of law and regulations both within the AU corps and in the different levels of the adjudicatory process, and to reduce the number of decisions that do not correctly apply substantive agency policy. In keeping with this policy, OHA recognized that high allowance rates may indicate undue inconsistency of adjudicatory standards within SSA and that a reduction of that inconsistency may result in or be reflected by some reduction in allowance rates, among other things. Defendants maintained that AUs were not ranked by allowance rates.

' Defendants insist that no adverse action is planned against any AU based on the AU’s failure to maintain an acceptable level of decisional correctness, but have not ruled out the possibility that such action may be necessary in the future in an extreme case. Indeed, participants at a meeting about feedback under Bellmon Review considered that in phase three of the feedback program, “assuming no changed behavior on the part of the individual AU, OA [Office of Appraisal] would initiate a memorandum to the AU recommending that the AU file be turned over to the Office Special Counsel for Administrative processing through OPM [Office of Personnel Management] for appropriate action.” (PX-17). See testimony of Levi J. Ogden.

Yet, Mr. Hays denied any intention to pursue disciplinary action when he referred to “other steps” in the Hays Memorandum. He never even imagined that the Bellmon Review Program could have a chilling effect on AUs, particularly since their denial decisions had always been subject to review. He believed that AUs would successfully resist any possible pressure.

The APA contains a number of provisions designed to safeguard the decisional independence of ALJs. See generally, Butz v. Economou, 438 U.S. 478, 513-14, 98 S.Ct. 2894, 2914-15, 57 L.Ed.2d 895 (1978); Ramspeck v. Federal Trial Examiners Conference, 345 U.S. 128, 132, 73 S.Ct. 570, 573, 97 L.Ed. 872 (1953); Nash v. Califano, 613 F.2d 10, 15-16 (2d Cir.1980). Although employees of the selecting agency, AUs are entitled to pay prescribed by the Office of Personnel Management independently of agency recommendations or ratings. 5 U.S.C. § 5372 (1982), 5 U.S.C. § 554 (1982). They are exempted from the performance appraisals to which other Civil Service employees are subject. 5 U.S.C. § 4301(2)(D) (1982). See also 5 C.F.R. § 930.211 (1984). AUs do not receive monetary awards or periodic step increases based upon performance. Cases must be assigned whenever possible, in rotation, an AU may not be assigned duties inconsistent with his or her responsibilities as an AU, and an AU may not communicate ex parte with anyone inside or outside the agency about the facts of a particular case. 5 U.S.C. §§ 3105, 557(d)(1) (1982).

In order to institute an adverse action against an AU, the employing agency must establish good cause after an opportunity for a hearing before the MSPB. 5 U.S.C. § 7521(a) (1982). This section permits the institution of performance-related adverse actions despite the proscription of 5 U.S.C. § 4301. See Drew v. U.S. Dep’t of the Navy, 672 F.2d 197, 201 (D.C.Cir.) cert. denied, 459 U.S. 1072, 103 S.Ct. 493, 74 L.Ed.2d 634 (1982). By implication, then, an agency may gather data and form an opinion of an ALJ’s performance. See J. Mashaw, et al., Social Security Hearings and Appeals 123 (1978). Accordingly, the mere calculation and maintenance of own motion, and grant-review data does not violate 5 U.S.C. § 4301.

While the position of an ALJ is not “constitutionally protected,” Ramspeck v. Federal Trial Examiners Conference, 345 U.S. at 133, 73 S.Ct. at 573, in many respects, it is “functionally comparable” to that of a federal judge. Butz v. Economou, 438 U.S. at 513, 98 S.Ct. at 2914. The ALJ serves as the factfinder and decisionmaker. AUs in SSA must provide claimants “full hearings under the Secretary’s regulations and in accordance with the beneficient purposes” of the Social Security Act. Gold v. Secretary of HEW, 463 F.2d 38, 43 (2d Cir.1972); see also Echevarria v. Secretary of HHS, 685 F.2d 751, 755 (2d Cir.1982). To provide a full hearing, the ALT must “scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.” Gold v. Secretary of HEW, 463 F.2d at 43; Diabo v. Secretary of HEW, 627 F.2d 278, 281-82 (D.C.Cir.1980). The ALT must develop all of the evidence, including that contrary to the claimant’s position. Richardson v. Perales, 402 U.S. 389, 408-410, 91 S.Ct. 1420, 1430-1431, 28 L.Ed.2d 842 (1971); Bowman v. Heckler, 706 F.2d 564, 567-68 (5th Cir.1983). The conduct of the hearing rests generally in the ALT’s discretion, Richardson v. Perales, 402 U.S. at 400, 91 S.Ct. at 1426; the ALT conducts the hearing according to his own understanding and conscience. Cf. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 266-67, 74 S.Ct. 499, 502-03, 98 L.Ed. 681 (1954). Finally, the ALT must issue a decision based upon the complete hearing record which may include numerous subjective, elements! The complete position description for ALJs in SSA (PX-103) is set out in the Appendix made part of this Memorandum Opinion.

On matters of law and policy, however, ALJs are entirely subject to the agency. E.g., D’Amico v. Schweiker, 698 F.2d 903, 907 (7th Cir.1983); See Scalia, The ALJ Fiasco — A Reprise, 47 U.Chi.L.Rev. 57, 62 (1980). Although an ALT may dispute the validity of agency policy, the agency may impose its policy through the administrative appeals process. In reviewing an ALT’s decision the agency retains “all the powers which it would have in making the initial decision.” 5 U.S.C. § 557(b) (1982). If the agency accepts the ALT’s decision, or if that decision is not appealed, it becomes the final decision of the agency. “The statute authorizes the Secretary, not the ALT, to make reviewable final decisions in disability cases.” Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir.1984). The Secretary has delegated that authority to the Appeals Council. It is the Appeals Council’s decision, not the ALT’s, that a court reviews to determine whether the agency's decision is based upon substantial evidence. Id. In sum, the ALT’S right to decisional independence is qualified.

The sole issue in this case is whether that qualified right has been violated by the now discontinued individual ALT portion of the Bellmon Review Program, which targeted individual ALJs initially on the basis of their allowance rates and then on the basis of their own motion rates. Although the evidence at trial did not suggest that defendants intend to resume the practice of targeting high allowance AUs for Bellmon Review, and although targeted review based upon own motion rates and grant-review rates of individual AUs is no longer in effect, defendants have advised the AU corps of the possibility that Bellmon Review could be resumed. Notice of Filing June 22, 1984, Memorandum to all AUs June 21, 1984. For this reason, there remains a live controversy between the parties. See e.g., Murphy v. Hunt, 455 U.S. 478, 480, 102 S.Ct. 1181, 1182, 71 L.Ed.2d 353. (1982).

At the same time, perhaps in response to this litigation, defendants have modified the Bellmon Review Program significantly for the better. The worthiness of defendants’ stated goal of improving the quality and accuracy of decisions notwithstanding, targeting high allowance AUs for review, counseling and possible disciplinary action was of dubious legality for at least two reasons. First, that practice was not consistent with the language of the Bellmon Amendment nor its sparse legislative history. Neither directed SSA to focus on allowance decisions or target for review only AUs with high allowance rates. In his introductory remarks, Senator Bellmon did state that SSA was to review the allowance decisions of those AUs with high allowance rates but those remarks were not incorporated into the law. See Staff of Senate Comm, on Governmental Affairs, 98th Cong., 1st Sess., The Role of the Administrative Law Judge in the Title II Social Security Disability Insurance Program 9 (Comm.Print 1983) (“Senate Comm. Print”). Second, high allowance AUs were initially targeted for review without regard to their actual own motion rates in an overbroad sweep.

The practice of targeting AUs on the basis of own motion rates, once that data became available, did reflect defendants’ stated goal of improving the quality and accuracy of AU decisions. However, the evidence as a whole, persuasively demonstrated that defendants retained an unjustifiable preoccupation with allowance rates, to the extent that AUs could reasonably feel pressure to issue fewer allowance decisions in the name of accuracy. While there was no evidence that an AU consciously succumbed to such pressure, in close cases, and, in particular, where the determination of disability may have been based largely on subjective factors, as a matter of common sense, that pressure may have intruded upon the factfinding process and may have influenced some outcomes. In denying this contention, even as a possibility, Mr. Hays may have paid the AUs an undue compliment. Selecting allowance decisions and unappealed denial decisions- for review for accuracy from the national random sample is undeniably a more equitable and more conciliatory means of accomplishing the same purpose and does not compromise AU independence by focusing excessively on allowance rates.

The evidence, on balance, did not suggest that in the controversial proposed feedback system, if it had been implemented, AUs would have been directed to deny deserving claims for benefits. If a case discussed in a feedback session or memorandum was to be remanded, a different AU would be assigned to hear that case. Nor did the evidence suggest that AUs would be disciplined simply for allowing a large number of deserving claims. Should disciplinary action ever be instituted against an AU who failed to maintain an acceptable level of decisions correctness, the MSPB would have to determine whether that constituted “good cause” under the statute. 5 U.S.C. § 7521(a) (1982).

The AU is not insulated from review by the Appeals Council for decisional correctness. See Chocallo v. Bureau of Hearings and Appeals, 548 F.Supp. 1349, 1361-62 (E.D.Pa.1982), aff’d without opinion, 716 F.2d 889 (3d Cir.), cert. denied, — U.S. —, 104 S.Ct. 426, 78 L.Ed.2d 360 (1983). It appears that AUs often differ with the Appeals Council as to the definition of correctness in particular cases. This is a matter to be resolved on a case-by-case basis should a claimant appeal the final decision of the agency to a federal district court. See Baker v. Heckler, 730 F.2d at 1150. While the AU may have difficulty discerning the correct result in a given case because of the Secretary’s policy of nonacquiescence in certain federal court decisions, there was no evidence that because of that policy any AU denied benefits which should have been paid, the questionable legality of that policy notwithstanding.

Nor did the evidence demonstrate that the Government Representative Program has interfered with the decisional independence of any AU. While any potential for conflict built into the structure of the program is sharply reduced now that AUs are no longer subject to Bellmon Review based upon allowance rates or own motion rates, the agency would do well to consider whether any potential of the appearance of conflict might be avoided by some organizational modification.

In sum, the Court concludes, that defendants’ unremitting focus on allowance rates in the individual AU portion of the Bellmon Review Program created an untenable atmosphere of tension and unfairness which violated the spirit of the APA, if no specific provision thereof. Defendants’ insensitivity to that degree of decisional independence the APA affords to administrative law judges and the injudicious use of phrases such as “targeting”, “goals” and “behavior modification” could have tended to corrupt the ability of administrative law judges to exercise that independence in the vital cases that they decide. However, defendants appear to have shifted their focus, obviating the need for any injunctive relief or restructuring of the agency at this time. While it is incumbent upon the agency to reexamine the role and function of the Appeals Council and its relationship to the AUs in light of this litigation, it would be unsuitable for the Court to order any affirmative relief under the present circumstances. Plaintiff has achieved considerable success in its valid attempt to reveal and change agency practices.

It is, therefore, by the Court, this 10th day of September, 1984

ORDERED that judgment be entered in favor of defendants and that this cause stands dismissed.

APPENDIX

Position Description, Administrative Law Judge, Social Security Administration

BUREAU OF HEARINGS AND APPEALS SOCIAL SECURITY ADMINISTRATION

POSITION DESCRIPTION

ADMINISTRATIVE LAW JUDGE (LICENSING AND BENEFITS)

I. INTRODUCTION

Administrative law judges within the Department of Health, Education, and Welfare, Social Security Administration, Bureau of Hearings and Appeals, are located throughout nine geographically dispersed DHEW regions, encompassing the entire United States and Puerto Rico. Administrative law judge offices are established in 60 major cities throughout the nation.

Under the direct delegation from the Secretary of Health, Education and Welfare, and in the manner prescribed by the Administrative Procedure Act, the administrative law judge holds hearings and makes and issues decisions on appeals from determinations made in the course of administration of Titles II and XVIII of the Social Security Act. The basic types of cases are: (a) appeals by individuals from determinations dealing with entitlement to disability benefits under Title II; (b) appeals under Title II involving entitlement of individuals to old age and survivors’ benefits; (c) appeals by hospitals and various health and care institutions and agencies dissatisfied with the determination that they do not meet the licensing and regulatory provisions covering “Providers of Services” under Title XVIII; and (d) appeals by individuals from determinations involving entitlement and/or amount of hospital services or medical and health services. Since cases are assigned on a rotation basis, each administrative law judge handles all types of cases regardless of the degree of difficulty or complexity of the issues.

Administrative law judges’ decisions are final decisions of the Secretary unless subsequently reviewed as provided in the regulations. They either affirm, modify,' or reverse any previous determinations and are issued and forwarded directly to the parties in the administrative law judge’s own name.

II. DUTIES AND RESPONSIBILITIES

Under the provisions of Titles II and XVIII of the Social Security Act and applicable Federal, State, and foreign laws, and in conformity with the Administrative Procedure Act, and with full and complete individual independence of action and decision, and without review, the administrative law judge has full responsibility and authority to (1) dismiss or allow requests for hearings and rule on requésts for extensions; (2) identify problems and issues to be resolved; (3) analyze all previously developed evidence and appraise previous licensing, regulatory, and adjudicative processes by the administrative agency; (4) determine whether there are other parties with adverse interest to be joined in the case; (5) issue subpoenas and rule on petitions to revoke subpoenas; (6) correlate and resolve conflicting evidence; (7) hear testimony and rule on all motions, petitions, or exceptions involving questions of law, procedure, .and.the admissibility of evidence; (8) hold prehearing conferences with the appellant and/or his counsel and the government representative; (9) make all evidence of record available to the parties and inform them of any evidence or expert testimony required in connection with a material point or issue; (10) administer oaths and affirmations; (11) govern the conduct of the parties at the hearing, and in general regulate the entire course of the proceedings; (12) control the examination and cross-examination of witnesses; (13) introduce into the record documentary and other evidence deemed necessary for the completion or full development of the record; (14) hear oral argument, and receive and consider briefs that are submitted; (15) appraise the' credibility of witnesses, and resolve conflicts in lay and expert evidence; (16) consider and dispose of proposed findings of fact and conclusions of law submitted by the claimant’s or government representatives; (17) make findings of fact on each issue, giving the reasons therefore and render conclusions of law as sole trier of fact and law; (18) fully consider all the evidence of record and issue decisions within the requirements of the Administrative Procedure Act, which decisions are completely independent and final, signed only by him, and published to parties in interest without prior review; and (19) entertain petitions for attorney’s fees and issue orders designating the amount of fee permitted.

The administrative law judge may also take other action not inconsistent with the Administrative Procedure Act such as perfecting a record or presiding at hearings and issuing decisions in matters remanded by the Federal courts. Administrative law judges also hear and decide cases arising under Title VI of the Civil Rights Act of 1964 involving providers of service, and may act as administrative law judge for other administrative agencies (on assignment by the Civil Service Commission) to hear and decide Title VI cases.

III. SUPERVISION AND GUIDANCE

The Social Security and Administrative Procedure Acts prohibit substantive review and supervision of the administrative law judge in the performance of his quasi-judicial functions. His decisions may not be reviewed before publication, and after publication only by the Appeals Council in certain prescribed circumstances. He is subject only to such administrative supervision as may be required in the course of general office management. His decisions take into account all applicable Federal, State, and foreign laws, statutes, regulations, rulings, and decisions of the Federal courts. In cases involving the licensing of “Providers of Services” under Title XVIII, the administrative law Judge’s decision can only be reviewed at the request of a party (the institution involved or the government). In other cases, a decision can be reviewed at the request of a claimant, or by the Council on i';s own motion. In any event, the Council takes jurisdiction only on a certiorari basis. Final decisions of' the administrative law judge may be appeals to the Federal courts, and the Social Security Act (Sec. 205(g)) requires that courts uphold the administrative law judge’s finding of fact when supported by substantial evidence.

IV.. SPECIAL ■ KNOWLEDGE AND ABILITIES REQUIRED

The administrative law judge must have expert knowledge of judicial practice; exceptional professional attainment; a capacity for analysis and articulation; the ability to balance important and conflicting considerations; a proven ability to assure a fair hearings; and be able to discharge effectively the responsibilities placed upon him for bringing all matters coming before him to a prompt and just final decision. Inherent demands of the job include such characteristics as tact, poise, firmness, impartiality, diplomacy, originality, imagination, initiative, professional bearing, the ability to control the emotionalism of opposing counsel, claimants, witnesses, or other individuals whose conduct may threaten the orderly conduct of the proceedings; and he must possess the ability to meet novel and taxing legal problems. The administrative law judge is required to appraise the issues promptly and thoroughly before any testimony is adduced. If the pleadings are insufficient the administrative law judge must have the necessary legal ability to take any and all action required to clarify the issues. With the issues defined, he will exercise initiative in obtaining stipulations of fact. Since, unlike a judge, an administrative law judge has no contempt powers, poise and diplomacy in meeting delicate situations are essential.

The administrative law judge must obtain a clear and concise record, containing all relevant facts, while excluding all immaterial matters. He must use judgment and initiative in the calling of expert or other witnesses and in requesting either the government representative or the appellants’ counsel for evidence on any material point at issue. A broad knowledge of all technical, legal, medical, and economic factors involved is necessary in order that the administrative law judge may develop a complete record of the hearing.

The administrative law judge must be aware of current practices in the fields of medical treatment, hospital administration, costs of medical services, safety standards, and like matters in order to render well informed and proper decisions in regulatory and licensing proceedings under Title XVIII. His decisions have a substantial impact upon the Administration’s policies and procedures in this health insurance program in which there is a great deal of public interest.

In the disability program under Title II, the administrative law judge must decide cases involving a wide variety of physical and mental impairments, and the effect such impairments have on the ability of an individual to work. To reach informed judgments in these cases, the administrative law judge must possess a knowledge of the medical, psychological, and vocational factors involved in each case. The administrative law judge called upon to perform in this program must develop a background in the medicolegal field not normally inherent in other legal positions in the Government service.

In old age and survivors’ benefit cases, the administrative law judge is required to have extensive knowledge of State, Federal and foreign laws dealing with difficult and complex questions in such fields as conflicts of law, domestic relations, descent and distribution, employer-employee relations, contracts, trusts, partnerships, corporations, accounting, and related subjects. For example, in the Social Security Act there are a number of express references to the Internal Revenue Code, the Immigration and Naturalization Act, the Agricultural Marketing Act, and other laws. In the Internal Revenue field alone, the administrative law judge is required to have the necessary expertise to make findings on such matters as adjusted gross and net income; evasion and avoidance of taxes; whether there exists a bona fide corporation or partnership; and the reasonableness of salaries paid to corporate officers. The administrative law judge is not bound in such cases by findings of the Treasury Department or other Government agencies. The increasing interest by the courts in the interrelated medical and vocational factors has made it necessary to utilize oral testimony of vocational and medical experts, most of whom are eminent authorities in their respective fields. He is the sole person charged with evaluating the credibility of witnesses in making a judgment on the evidence developed at the hearing. The administrative law judge is required to have the skillful and comprehensive interrogation of expert witnesses. He must be able to analyze and summarize in decisional format.complex facts and laws clearly and concisely, and to create a dignified and objective atmosphere at the hearing.

      . Pub.L. No. 96-265 (1980) (discussed at 42 U.S.C. § 421 (1982)).

      . Plaintiff faulted this study because its results were reached during the time the “short form fully favorable" was in use. That form was phased out after Bellmon Review began. Many of the ALJs who were placed on Bellmon Review as a result of this study did not have experience .with the sequential evaluation process of writing decisions.

      . The removal criteria were originally set forth in a Memorandum from Levi J. Ogden, Director of OHA’s Office of Appraisal, to Mr. Hays. (PX-29). Three options were presented. Option 1 provided that ALJs in the 25% review category would be removed from review when the 95% level of accuracy had been approached and maintained for one month. (This option was ultimately approved with a modification by Mr. Hays, who changed one month to three months). Mr. Ogden recognized at the time that the 95% level could be difficult to achieve but that its employment could result in lowered allowance rates. (PX-29). In fact, Mr. Ogden testified, no ALJs were ever removed from review on the basis of having achieved a 5% own motion rate. Mr. Hays testified that at the time he approved Option 1, as modified, he questioned whether the 5% own motion rate was a realistic standard. He had been advised by the Office of Policy and Procedures that the 5% own motion rate was "unrealistic, essentially arbitrary ... and possibly inequitable." (PX-29A).

      . However, this change was not communicated to the ALJ corps at large. The national random sample did not include a certain portion of decisions of ALJs under Bellmon Review.

      . The proposed feedback system under Bellmon Review resembles the defunct Appellate Appraisal System. See PX-266. ■ However, unlike that System, under Bellmon Review, the Appeals Council would not have been involved with the feedback process apart from issuing opinions reversing or remanding ALJ decisions.

      . The Appeals Council had not routinely exercised its own authority for several years prior to the Bellmon Amendment.

      . Grant-review was instituted despite a study of unappealed denial decisions by low allowance ALJs conducted by the Office of Appraisal, which indicated no need for such review except in extreme cases. (PX-352). See testimony of Levi J. Ogden. But see PX-163.

      . At trial, Mr. Hays explained that since this was a matter likely to be raised in litigation, he felt that it was advisable to withhold this information. In addition, the relatively small size of the grant-review portion of the Bellmon Review rendered it a less appropriate subject for a general Memorandum. Those ALJs who were placed on grant-review were informed about its operation.
      Had Mr. Hays informed the ALJ corps about this portion of the review, the negative reaction to the initial focus on allowance decisions only may have been tempered somewhat. However, although plaintiff stressed the unfairness of the initial focus on allowance decisions only, counsel argued that even a grant-review program or a low allowance review program initially adopted under Bellmon Review would have violated decisional independence.

      . Some of plaintiff's members felt that maintaining statistics based upon allowance rates constituted illegal performance ratings. See Testimony of Robert M. Murdock; PX-378 (based upon own-motion rates released pursuant to the Freedom of Information Act).

      . Plaintiff challenged numerous other practices of defendants, as well as those described above. Among them, plaintiff charged, without sufficient evidentiary substantiation, that the Office of Appeals Operations, a component of OHA, acts as a prosecutorial body, actively seeking out ALJ allowance decisions to be reversed by the Appeals Council.
      Plaintiff also questioned whether the Appeals Council applies the same standard of review in own motion cases as it does when it reviews cases pursuant to claimant requests. Mr. Berkley testified that, although at one time the possibility of different standards was considered, the standard employed is the same in all cases: The Appeals Council reviews the ALJ’s decision to determine whether it was supported by substantial evidence. (PX-382, PX-420). If substantial evidence is lacking to support a particular finding, the decision will nonetheless be upheld, without an opinion, if the result is supported by substantial evidence. If the Appeals Council reviews a decision of an ALJ on its own motion and reverses or remands the decision because it was not based upon substantial evidence, presumably the ALJ’s own motion rate would be affected.

      . "Targeted Ongoing Review”, or Bellmon Review, according to defendants, "is a multifaceted program to correct ALJ [allowances] and, in the process, promote behavioral change. By behavioral change we mean to correct those aspects of decisional performance which do not reflect the content of the law, regulations or SSA policy.” (PX-379).

      . This conclusion was reached wholly independently of the results of the survey of AUs by Dr. Donna Price Cofer.

      . The remand policy at OH A has been changed in general. Now, remand cases are put into the' regular rotational process in any given hearing office so that a remand case may or may not be assigned to the AU who made the initial decision. However, the ALJ who made the initial decision still receives a copy of the remand order for feedback purposes.

      . The position description for AUs in SSA (PX-103) directs AUs to "take into account all applicable Federal, State and foreign laws, statutes, regulations, rulings, and decisions of the Federal Courts." To the extent the Secretary has not acquiesced in a federal court decision the ALJ is put in the difficult position of "trying to serve two masters; the courts and the Secretary of Health and Human Services." Hillhouse v. Harris, 547 F.Supp. 88, 93 (N.D.Ark.1982), aff’d 715 F.2d 428 (8th Cir.1983) (per curiam ).

      . See Senate Comm. Print at 28-29.