## Facts

- George Barry applied for Supplemental Security Income (SSI) disability benefits.
- An Administrative Law Judge (ALJ) held a hearing and issued a favorable decision awarding benefits.
- The Social Security Administration operated the “Bellmon Review Program,” under which the Appeals Council selected certain ALJs for heightened scrutiny based on statistical indicators (including high allowance rates and later reversal rates).
- The Appeals Council initiated “own-motion” review of Barry’s case because it was decided by a targeted ALJ.
- The Appeals Council reversed the ALJ and denied benefits; that decision became the Secretary’s final decision for judicial review.
- Barry challenged the program, alleging it undermined adjudicative impartiality in violation of due process and was adopted without required notice-and-comment under the Administrative Procedure Act (APA).
- The district court ruled for Barry, found the program improper, and awarded attorney’s fees under the Equal Access to Justice Act (EAJA).
- The Secretary appealed, disputing the merits and the fee award, and Barry argued the appeal was untimely.

## Issues

1. Whether the Secretary’s appeal was timely when an amended judgment was entered after a post-judgment motion for clarification.
2. Whether the Bellmon Review Program violated due process by compromising ALJ independence and impartiality.
3. Whether the Bellmon Review Program required notice-and-comment rulemaking under the APA.
4. Whether substantial evidence supported the Secretary’s final decision denying SSI disability benefits.
5. Whether the Secretary’s position was “substantially justified” so as to preclude an EAJA fee award.

## Decision

- The court held the appeal timely, measuring the appeal period from the amended judgment that substantively affected rights.
- The court rejected the facial due process attack on the Bellmon Review Program on this record, finding insufficient proof that the program actually deprived Barry of an impartial adjudication.
- The court held the program did not require APA notice-and-comment because it functioned as an internal review/management measure within existing authority, not a substantive change in claimants’ rights.
- The court upheld the Secretary’s denial of benefits as supported by substantial evidence.
- The court reversed or vacated the EAJA fee award, concluding the Secretary’s position was substantially justified.

## Legal Principles

- When a post-judgment motion results in a substantive amended judgment, the time to appeal runs from entry of the amended judgment.
- Due process challenges to agency adjudication require more than inference from agency oversight practices; a claimant must show a concrete deprivation of an impartial decisionmaker in the adjudicative process at issue.
- An agency’s internal allocation of review resources and use of existing “own-motion” review authority may be treated as exempt from APA notice-and-comment where it does not alter substantive standards or legal rights.
- Judicial review of Social Security disability determinations asks whether the final agency decision is supported by substantial evidence.
- Under the EAJA, fees are unavailable if the government’s position had a reasonable basis in law and fact, even if the claimant prevailed below.

## Conclusion

The Ninth Circuit sustained the Appeals Council’s reversal of an ALJ’s favorable SSI decision, upheld the SSA’s Bellmon Review Program against due process and APA challenges on the record presented, and set aside the EAJA fee award because the Secretary’s litigation position was substantially justified.


Barry v. Bowen, 825 F.2d 1324 (9th Cir. 1987)