## Facts

- Social Security disability and SSI claimants in the Kingsport, Tennessee hearing office (serving southwest Virginia) challenged an SSA pilot program placing government “representatives” in certain ALJ hearings.
- The program (SSARP), later modified into the Adjudicatory Improvement Project (AIP), applied when claimants were represented by counsel and was presented as a quality-improvement demonstration.
- Representatives developed the evidentiary record before hearings and submitted proposed findings and legal conclusions to ALJs.
- Plaintiffs alleged representatives developed evidence to support denial of claims (e.g., selecting experts unfavorable to claimants and not pursuing potentially supportive examinations for indigent claimants).
- Representatives could recommend that favorable ALJ decisions be reviewed by the Appeals Council, which plaintiffs claimed increased pressure on ALJs.
- SSA initially described the program as a one-year demonstration and later extended and modified it; plaintiffs asserted that substantial changes, including conversion to AIP, occurred without required public notice and rulemaking procedures.
- Plaintiffs sought declaratory and injunctive relief, alleging violations of Fifth Amendment due process, the Social Security Act, SSA regulations, and the APA.

## Issues

1. Whether the court had jurisdiction under 42 U.S.C. § 405(g) to hear a systemic challenge to SSA hearing procedures and whether administrative exhaustion could be waived.
2. Whether the representative program violated procedural due process by converting a nonadversarial disability hearing model into a de facto adversarial process and by skewing record development and ALJ independence.
3. Whether extensions and substantial modifications of the program, including conversion to AIP without publication and notice-and-comment, violated the APA, the Social Security Act, or SSA regulations.

## Decision

- The court held it had jurisdiction under 42 U.S.C. § 405(g) to review the challenged hearing procedures.
- The court waived administrative exhaustion because plaintiffs raised collateral, colorable constitutional claims and alleged irreparable harm from being subjected to the challenged hearing structure.
- On the merits, the court concluded SSA could not implement the project in a manner that effectively altered the basic, nonadversarial character of disability hearings or impaired fair and complete record development.
- The court granted declaratory and injunctive relief restricting or preventing operation of the project to the extent it conflicted with due process, statutory constraints, and APA requirements, including objections tied to unpublicized program modifications.

## Legal Principles

- Section 405(g) permits judicial review of SSA procedures when claimants have presented claims to the agency; exhaustion may be waived for collateral, colorable constitutional challenges where delay risks irreparable harm.
- Social Security disability adjudication is designed to be nonadversarial; procedural due process bars agency structures that systematically bias evidence development or compromise the fairness and neutrality expected of ALJ hearings.
- When an agency extends, expands, or materially changes a pilot program so that it functions as a structural alteration of adjudication, APA publication and notice-and-comment obligations may apply rather than internal, unpublished directives.

## Conclusion

The court allowed a systemic challenge to SSA hearing practices under § 405(g), waived exhaustion, and granted relief limiting a representative-based program that threatened the nonadversarial nature and fairness of disability hearings and raised APA notice-and-comment concerns after substantial, unpublished modifications.


Salling v. Bowen, 641 F. Supp. 1046 (W.D. Va. 1986)