989 F.2d 1332

A. LEON HIGGINBOTHAM, Jr., Circuit Judge,
dissenting.
Suppose a class of plaintiffs alleged that the Secretary of Health and Human Services had adopted a secret policy under which claimants living in hispanic, black or poor white communities were presumed to be generally “less deserving” of social security disability benefits. Would a federal district have the authority to conduct a de novo fact-finding trial in ruling on plaintiffs’ claim, or would the district court only have the authority to review the Secretary’s findings of facts under a limited standard of review?
According to Bowen v. City of New York, 476 U.S. 467, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986) and McNary v. Haitian Refugee Center, Inc., 498 U.S. 499, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991), the district court would have the power to conduct a de novo fact-finding trial. Why? Because, collateral classwide constitutional or statutory challenges to an agency’s practices or policies are reviewed de novo by the courts. Haitian Refugee Center, 111 S.Ct. at 897; Bowen v. City of New York, 476 U.S. at 483, 106 S.Ct. at 2031-32.
Now substitute the entirely fictional hypothetical scenario described above for the actual complaint brought by the present class of plaintiffs. According to the complaint, AU Rowell has allegedly adopted a biased policy under which he believes that claimants living in hispanic, black or poor white communities are only “attempting to milk the system”, that they are “perfectly capable of going out and earning a living”, that they “prefered living on public monies,” “that he had no intention of paying them” and that “he did not care what the evidence showed.” Should a federal district court have the authority to conduct a de novo fact-finding trial in reviewing plaintiffs’ claim, or should the district court only have the power to review the agency’s findings under a limited standard of review?
The majority today answers that the district court does not have the authority to conduct a de novo trial, but instead only has the authority to review the agency’s findings under a limited standard of review. I respectfully dissent. Why? Because, plaintiffs’ claim of general bias is a collateral challenge to an unconstitutional practice, no less so because adopted by an AU than had it been adopted by the Secretary. As such the district court has the authority to conduct a de novo trial in reviewing plaintiffs’ claim.
This dissent proceeds in two parts. In the first part I will refute each ground advanced by the majority for its holding. In the second part, I will submit an alternative reasoning to that of the majority.
I.
The majority relies on four grounds for holding that the district court lacks the authority to make independent findings of fact in a classwide suit alleging unconstitutional and statutorily unlawful bias on the part of an AU.
First, the majority finds that the express language of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), “creates a scheme in which a district court may conduct a restricted review of the Secretary’s findings and may remand a case for new findings, but this scheme makes no provision for a district court to make any findings of its own.” Majority Op at 1338. Second, the majority reasons that our decision in Hummel “stated flatly that ‘the district courts have no fact-finding role in Social Security cases. ” Majority Op at 1338. Third, the majority finds that no decision from the Supreme Court or this court, including Bowen v. City of New York, has ever expressly held that the district court has the authority to make findings of fact regarding the alleged bias of an AU. Instead, according to the majority, in the only instances in which the district court engaged in fact-finding, the fact in question concerned the existence of a hidden unlawful agency or practice — a question on which the Secretary could not function as an impartial fact-finder. Majority Op at 1342. Fourth, the majority argues that this court should be reluctant to allow the district court to make independent findings of fact regarding the bias of an AU because “such fact-finding would have a deleterious effect on the independence of AUs and thus on the administrative process.” Majority Op at 1344. None of these grounds are valid.
A.
As the district court correctly recognized, social security cases brought in federal district court generally fall into two categories. Bowen v. City of New York, 476 U.S. at 484, 106 S.Ct. at 2032. The first category is the individual review ease. This involves an appeal to the district court from a final decision of the Secretary denying Social Security or SSI benefits. In this sort of appeal, the district court is asked to examine whether on the facts of the case the claimant is entitled to benefits. Id. The second category of social security cases is a collateral class action. This involves an action in the district court challenging the agency’s policies or practices as unconstitutional or statutorily unlawful. In this sort of action, the district court is not asked to determine whether any of the class plaintiffs are actually entitled to benefits. Id.
Section 205(g) sets out the district court’s jurisdiction and applicable standard of review in individual review cases. It provides in relevant part:
Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such a decision by a civil action commenced within sixty days after the mailing to him of such decision or within such further time as the Secretary may allow.... The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive, and where a claim has been denied by the Secretary or a decision rendered under subsection (b) of this section which is adverse to an individual who was a party to the. hearing before the Secretary, because of failure of the claimant or such individual to submit proof in conformity with any regulation prescribed under subsection (a) of this section, the court shall review only the question of conformity with such regulations and the validity of such regulations, (emphasis added).
All that section 205(g) plainly says is that a claimant who has been denied benefits after a “hearing” to which the claimant was a “party” may petition the district court for review of the Secretary’s decision, irrespective of the “amount in controversy,” and that, in ruling on the denial of benefits, the court shall consider “conclusive” findings of the Secretary as to any fact, if supported by “substantial evidence.” Stated another way, section 205(g) provides that in individual review cases district courts have jurisdiction to review denial of benefits by the Secretary, and in such cases the district court’s fact-finding role is limited to affirming the findings of the Secretary if supported by substantial evidence.
Section 205(g), however, leaves unanswered two questions: first, does the federal district court have jurisdiction over collateral class actions where plaintiffs challenge a practice or policy of the agency as unconstitutional or statutorily unlawful, without challenging the underlying merits of the denial of their claims for benefits? Second, if the federal district court has jurisdiction over collateral class actions, what is the proper standard of review to be exercised by the court in such actions?
In Califano v. Yamasaki, 442 U.S. 682, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979), the Supreme Court answered the first question in the affirmative. The court found that section 205(g) does not preclude federal district courts from assuming jurisdiction over social security class actions. Yamasaki, 442 U.S. at 700-701, 99 S.Ct. at 2557. Instead, the court held that the plain language of section 205(g) is consistent with the exercise by district courts of their usual authority under the Federal Rules of Civil Procedure to conduct cases, including Social Security cases, as class actions:
Section 205(g) contains no express limitation of class relief. It prescribes that judicial review shall be by the usual type of ‘civil action’ brought routinely in district court in connection with the array of civil litigation.... In the absence of a direct expression by Congress of its intent to depart from the usual course of trying ‘all suits of a civil nature’ under the Rules established for that purpose, class relief is appropriate in civil actions brought in federal court, including those seeking to overturn determinations of the departments of the Executive Branch of the Government in cases where judicial review of such determinations is authorized. (citations omitted).
Id.
Just as section 205(g) does not expressly address the question of whether federal district courts have jurisdiction over collateral class actions, it leaves untouched the question of the standard of review applicable in such actions. The majority claims, however, that, even in collateral class actions, the plain language of the statute “creates a scheme in which a district court may conduct a restricted review of the Secretary’s findings and may remand a case for new findings, but this scheme makes no provision for a district court to make any findings of its own.” Majority op at 1338. In so concluding, the majority homes in on a single phrase in section 205(g): “The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive ...”. According to the majority, that phase “seems quite clearly to mean that the district court must review the Secretary’s findings [even in collateral class actions] rather than setting out to make independent findings of its own.” Majority Op at 1338-39.
Respectfully, the majority is wrong. The phrase does not “quite clearly” mean that the district court is bound by the Secretary’s findings in collateral class actions for the quite simple reason that section 205(g) deals solely with individual review cases. While the majority does a good job of focussing on the phrase that the Secretary’s findings are conclusive if supported by substantial evidence, it inexplicably ignores the other provisions of section 205(g) which surrounds that phrase and give it context and meaning.
For example, section 205(g) states that “any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision.... ” The use of the terms “hearing to which he was a party” clearly contemplates an individual determination of eligibility for benefits at an actual proceeding where an individual claimant was present and was given the opportunity to present evidence. Moreover the use of the term “amount in controversy” also contemplate a determination of eligibility for benefits where the claimant and the Secretary seek to ascertain a dollar amount in benefits to which the claimant is entitled. These characteristics of the terms “hearing at which he was a party” and “amount in controversy” are only present in individual review cases where the claimant challenges the merits of the denial of benefits by the Secretary. By contrast, in most collateral review cases, plaintiffs may challenge a particular aspect of the Secretary’s practice or policy without any reference to a hearing where plaintiffs were present. Moreover, since in a collateral action case, plaintiffs do not challenge the merits of the denial of their benefits, by definition there is no “amount in controversy.”
The majority maintains that this reasoning is “foreclosed by Yamasaki." Majority op at 1339. According to the majority, the Supreme Court in Yamasaki, held that “Section 205(g) applies to class actions as well as to individual review cases,” and that the above reasoning “is directly contrary to the Yamasaki reasoning and holding.” Majority at 1341. However, a careful reading of Yamasaki reveals that it is not contrary to the above reasoning. In Yamasaki, the Supreme Court stated that “Section 205(g) contains no express limitation on class relief.” Yamasaki, 442 U.S. at 699, 99 S.Ct. at 2557. The court explained that Section 205(g) is simply silent on the question-of whether federal courts may exercise jurisdiction over social security class actions. Id. at 700, 99 S.Ct. at 2557. According to the court, in the absence of clear expression by Congress of its intent to exempt social security class actions from the usual course of trying all suits of a civil nature, class actions were not precluded by Section 205(g). Id. All that the Supreme Court held in Yamasaki is that Section 205(g) did not limit federal court jurisdiction over social security class actions, just as here Section 205(g) does not limit the standard of review exercised by federal courts over those actions.
Recently, the Supreme Court engaged in the exact same analysis of a similar statute. In McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991), a class of plaintiffs made up of unlawful alien farmworkers sued the Immigration and Naturalization Service (INS) under the Immigration Reform Control Act of 1986 (the Act). Plaintiffs claimed that the INS had denied their application for lawful status in violation of the due process guarantees of the Fifth Amendment to the Constitution. The Act itself prescribed the jurisdiction and standard of review by the courts in reviewing the denial by the INS of applications for lawful status. It provided in relevant part:
There shall be no administrative or judicial review of a determination respecting an application for adjustment of status under this section except in accordance with this subsection.
8 U.S.C. § 1160(e)(1).
There shall be judicial review of such a denial only in the judicial review of an order of exclusion or deportation under section 1105a of this title.
8 U.S.C. § 1160(e)(3).
Such judicial review shall be based solely upon the administrative record established by the appellate authority and the findings of fact and determinations contained in such record shall be conclusive unless the applicant can establish abuse of discretion or that the findings are directly contrary to clear and convincing facts contained in the record considered as a whole.
8 U.S.C. § 1160(e)(3)(B).
Much as the majority maintains in the present case, the INS argued before the Supreme Court that the “plain language” of the Act restricted judicial review of, not only individual appeals of denial of status adjustment by the INS, but also collateral classwide constitutional and statutory challenges to INS policies and practices. The Court rejected the argument. The Court reasoned:
the critical words [§ 1160(e)(1) ] describe the provision as referring only to review “of a determination respecting an application” for SAW status. Significantly, the reference to “a determination” describes a single act rather than a group of decisions or a practice or procedure employed in making decisions. Moreover, when [§ 1160(e)(3) further clarifies that the only judicial review permitted is in the context of deportation proceeding, it refers to “judicial review of such a denial” — again referring to a single act, and again making clear that the earlier reference to “a determination respecting an application” describes the denial of an individual application. We therefore agree with the District Court’s and Court of Appeals’ reading of this language as describing the process of direct review of individual denials of SAW status, rather than as referring to general collateral challenges to unconstitutional practices and policies used by the agency in processing applications, (emphasis in original).
McNary v. Haitian Refugee Center, Inc., 498 U.S. at 491-92, 111 S.Ct. at 896.
Similarly, the critical words of Section 205(g) describe the provision as referring to judicial review of “any final decision” made after “a hearing” at which an individual was “a party”, irrespective of “the amount in controversy.” These words describe a “single act rather than a group of decisions or a practice or procedure employed in making decisions.” Moreover, Section 205(g), prescribes that the findings of the Secretary shall be conclusive where “a claim has been denied” or when the Secretary renders “a decision” which is adverse to “an individual who was a party to the hearing before the Secretary.” Again, these words refer to “a single act”, namely the “denial of an individual application.” Therefore, as the Supreme Court concluded in McNary v. Haitian Refugee Center, the language of Section 205(g) describes the process of direct review of individual denials of social security benefits, rather than refer to general collateral challenges to unconstitutional practices and policies used by the agency, or the AU, in processing applications for benefits.
The majority summarily dismisses the analogy between McNary and the present case by stating that “McNary concerned a different question under a different statute.” Majority op at 1342. Of course, the majority is superficially correct. McNary did involve a different statute. But that statute is remarkably similar to Section 205(g). Like Section 205(g), that statute provides for limited judicial review of an agency’s denial of an individual application. The Supreme Court, however, held that the statute described “the process of direct review of individual denials [], rather than refer[ed] to general collateral challenges to unconstitutional practices used by the agency in processing applications.” McNary, 498 U.S. at 492, 111 S.Ct. at 888. Moreover, contrary to the majority’s assertion, the Supreme Court in McNary faced precisely the same before this court today; namely the standard of review to be exercised by federal courts in “collateral challenges to unconstitutional practices and policies used by an agency in processing applications.” Id. The majority can point to no language in section 205(g) which expressly states that, even in collateral class actions, federal district courts are limited to the Secretary’ findings of fact and have no power to engage in independent fact-finding. Instead, the majority grasps unto an isolated phrase in the whole of section 205(g) and uses that disconnected phrase to expand the meaning of section 205(g) without any evidence that Congress intended the statute to have such broad application.
B.
The second ground upon which the majority relies is our decision in Hummel v. Heckler, 736 F.2d 91 (3d Cir.1984). According to the majority, in Hummel “we stated flatly that ‘the district court have no fact-finding role in Social Security cases’.” Majority Op at 1338. But, as with its selective reading of the language of section 205(g), the majority again quotes out of context this court’s statement in Hummel. Only one paragraph prior to the statement that “district courts have no fact finding role in Social Security cases”, the court explicitly wrote that “district courts have no fact-finding role in social security review cases.” In other words, the statement that district courts have no fact-finding role in social security cases must be read to refer obviously to social security individual review cases.
Indeed Hummel itself was an individual review case. To fully understand the nature of the case, a careful examination of the facts and the holding is necessary. The Hummel panel described the case as follows:
Jeannette E. Hummel appeals from a summary judgment in favor of the Secretary of Health and Human Services in her action, pursuant to 42 U.S.C. § 405(g) (Sup. V 1981), for review of the denial of disability benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1385 (1976 Supp V 1981). Hum-mel contends that the district court erred in concluding that the Secretary’s decision is supported by substantial evidence. Alternatively, she contends that the district court erred in ruling on the Secretary’s motion for summary judgment while her motions to compel discovery were outstanding. Those discovery requests sought information concerning possible bias of the administrative law judge who presided at her hearing.
Hummel, 736 F.2d at 92.
In other words, in Hummel plaintiff had made two separate arguments before the district court. First, plaintiff claimed that the Secretary’s denial of her benefits was not supported by substantial evidence. Second, plaintiff requested further discovery so as to be able to show that the AU who ruled on her claims for benefits was biased against her. Plaintiff argued that proof of bias on the part of the AU would demonstrate that the denial of her benefits was not supported by substantial evidence. The district court rejected both of plaintiff’s arguments and granted summary judgment in favor of the Secretary. The court concluded that the Secretary’s findings were supported by substantial evidence. The court also concluded that proof of bias on the part of the AU would be irrelevant because the objective medical evidence contained in the administrative record more than amply supported the Secretary’s conclusion that the plaintiff was not entitled to benefits.
On appeal to this court, plaintiff reiterated the same two arguments made before the district court. As to the first argument, we agreed with the district court and held that “in the absence of a finding of bias, the Secretary’s decision denying benefits [was] supported by substantial evidence.” Id. at 95. However, as to plaintiff’s second argument, we reversed the district court and held that “where information relating to a contention bearing on the fundamental fairness of the agency hearing is in possession of the government, discovery is available to the section 405(g) plaintiff so that she can attempt to convince the district court that a remand to the Secretary for the taking of new evidence is appropriate.” Id. In other words, instead of finding that allegations of bias were irrelevant because of the “objective” nature of the medical evidence, we reasoned that such allegations, if proven true, would be highly relevant inasmuch as bias on the part of the AU may affect the sort of “objective” evidence which ends up or does not end up in the record. Thus, we concluded as follows:
“We hold, therefore, that in the absence of a finding of bias, the Secretary’s decision denying benefits is supported by substantial evidence. In the event that a finding of bias is made on remand, a new hearing must be held before an administrative law judge to determine the merits of Hummel’s claim.”
Id.
In short, even though the claimant in Hummel had made a claim that she was denied benefits because the AU judge may have been biased against her, it was clear that she was seeking to challenge the merits of the denial of her benefits. Claimant in Hummel claimed that the Secretary’s denial of benefits was not supported by substantial evidence and sought to so prove by showing that the AU who ruled on her case may have been biased against her. Claimant did not request the court to assume jurisdiction over her case or to make independent findings regarding the bias of the AU. Claimant’s argument that the AU may have been biased was simply a method of proving that the district court should have reversed the denial of her benefits because, pursuant to section 205(g), the findings of the Secretary, as reflected in the AU’s ruling, was not supported by substantial evidence. As such, Hummel was an individual review and not a collateral class action case.
The majority here writes:
we made perfectly clear in Hummel that the district court could not make findings regarding the AU’s alleged bias but could at most remand the case to the Secretary so that the Secretary could make such findings.
Majority Op at 1338.
That is a significant expansion of our careful holding in Hummel. As stated in detail above, we held in Hummel that the district court had no independent fact-finding role in an individual review case and, as such, could not make findings of its own regarding the alleged bias of the AU. We remanded the case because remands to the Secretary in social security cases are common. Indeed, since at the time of Hum-mel’s appeal the administrative record contained no findings regarding the alleged bias of the AU, once we reasoned that proof of the AU bias was relevant in determining whether the Secretary’s denial of benefits to Hummel was supported by substantial evidence, we had no choice but to remand the case to the Secretary for fact-finding. Thus, contrary to what the majority suggests, we certainly did not hold that the district court may never, even in collateral class action eases, make independent findings regarding the alleged bias of an AU. The majority has taken a relatively straightforward individual review case which we remanded to the Secretary for further fact-finding and transformed it into a sweeping declaration on the role of federal district courts in classwide constitutional and statutory challenges to the policy and practice of an administrative agency.
C.
The third ground upon which the majority relies is its conclusion that no decision from the Supreme Court or this court has ever expressly held that the district court has the authority to make findings regarding the alleged bias of an AU. Instead, according to the majority, in the only instances in which the district courts engaged in fact-finding, the fact in question concerned the existence of a hidden unlawful agency or practice — a question on which the Secretary could not function as an impartial fact-finder. Majority Op at 1342. None of the cases cited by the majority, indeed none of the cases cited by plaintiffs or by the Secretary, have ever held that the fact-finding role of the district court in social security cases is predicated on whether the Secretary can be expected to be an impartial fact-finder. The only support the majority cites for this broad distinction is “[t]he ancient maxim that no one may be judge in his own cause.” Majority Op at 1342. Publilius Syrus, who first uttered that maxim in the first century B.C., was no doubt right. But the wisdom of the maxim notwithstanding, it cannot serve as a substitute for judicial precedent.
In any event, the maxim itself is not applicable to the present case. The reasoning of the majority seems to be that when the Secretary adopts a policy or engages into a practice, the Secretary cannot be an impartial fact-finder in determining whether that policy or practice is unconstitutional or unlawful. The majority does not explain why this is so, but one supposes that the majority must mean that since the policy or practice is the Secretary’s own, it will lose all objectivity in reviewing its legality. That reasoning is based on a somewhat unrealistic view of administrative agencies. It is as if the majority suggest that the Secretary, as an individual, adopts the policy and the Secretary, as an individual, ends up reviewing its legality. In other words, in the majority’s view, the Secretary runs every aspect of the agency, not only in name but also in fact. There is absolutely no evidence that this is the case. Indeed it may very well be that the branch of the agency which adopts the policy is not the same branch which ultimately reviews its legality.
Moreover, even if one begins to imagine that the majority is correct in assuming that the Secretary develops a strange attachment to its own policies and practices, thereby rendering it incapable of being an impartial fact-finder in ruling on their legality, the fact remains that the same reasoning can be applied to an allegation of bias by an AU. The same Secretary that adopts a policy or practice is the same Secretary that supervises AUs. If, as the majority maintains, the Secretary is incapable of being an impartial fact-finder in reviewing the legality of its policies, there is no reason to think that the Secretary will be any more capable of being an impartial fact-finder in reviewing allegations of unlawful bias on the part of its AU. The majority’s argument seems to be that the Secretary is unable to be an impartial fact-finder with regard to the agency's unlawful policies and practices because the Secretary is not separate from the agency. If that is so, then the same can be said about the relationship between the Secretary and the AU. The Secretary, the AU and various other branches of the agency all constitute part of the same bureaucracy. To separate the Secretary, the agency, and the AU is to insist on pure fiction. And as Justice Holmes would say, “fiction always is a poor ground for changing substantial rights.” Haddock v. Haddock, 201 U.S. 562, 630, 26 S.Ct. 525, 552, 50 L.Ed. 867 (1906) (Holmes, J., dissenting).
D.
The fourth and final ground upon which the majority relies to explain its holding is that this court should be reluctant to allow the district court to make independent findings of bias on the part of an AU because “such fact-finding would have a deleterious effect on the independence of AUs and thus on the administrative process.” Majority Op at 1344 (emphasis in original). According to the majority, “it has long been recognized that attempts to probe the thought and decision making processes of judges and administrators are generally improper." Majority Op at 1344. This is because “efforts to probe the mind of an AU through such evidence pose a substantial threat to the administrative process.” Majority Op at 1345. Moreover, the majority continues, if the sort of trial and discovery sought by the plaintiffs in this case is allowed, “[t]his would seriously interfere with the ability of many AUs to decide the cases that come before them based solely on the evidence and the law.” Majority Op. at 1345.
The picture the majority paints is one where social security AUs reach the decision to award or deny benefits to claimants through an almost “mysterious” process which is not susceptible to judicial review. The majority lists a parade of horribles which will inevitably and inexorably unfold if district courts are permitted to make independent findings of whether social security AUs deny claimants benefits on the basis of unlawful biases. The majority reasoning is based on its determination that courts may not be permitted “to probe the thinking and decision making processes of an officer occupying a position described by the Supreme Court as ‘functionally comparable’ to a judge.” Majority Op at 1344. The Supreme Court may have described AUs as functionally comparable to judges, but the court never held that AUs are federal judges. The independence guaranteed to Article III judges is rooted in the separation of powers doctrine embodied in the Constitution of the United States. By contrast, the independence afforded to AUs, whatever its contours may be, is not rooted in the constitution, but rather is a function of the need for administrative efficiency, the recognition of administrative expertise, and the need to build an adequate administrative record for judicial review. Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 2466, 45 L.Ed.2d 522 (1975).
Accordingly, the independence enjoyed by AUs is not without bounds. For one thing, the need for administrative efficiency is not necessarily controlling in actions where plaintiffs challenge the very legality of the agency’s policy or practice. Bowen v. City of New York, 476 U.S. at 485, 106 S.Ct. at 2033. For another thing, the recognition of administrative expertise, and the need to build an adequate administrative record for judicial review are not applicable when, as in the present case, plaintiffs’ does not seek to have the court review the very area in which the agency is deemed to be expert. Id.
This is of course amply demonstrated by the facts of the present case. The Social Security Administration simply does not have any expertise in reviewing claims of general bias. Granted the agency has in place regulations to determine claims of individual bias. 20 C.F.R. §§ 404.940, 416.-1440. But those regulations are obviously not designed to handle claims of general bias. The Secretary in fact acknowledged that the exiting regulations were not adequate in reviewing claims of general bias. If they were, the Secretary would have relied on them rather than instituting an “ad hoc” method in reviewing plaintiffs’ claim in this case. Moreover, the ad hoc procedure set up by the Secretary is unlikely to produce an adequate record for judicial review. For example in the case of the Secretary’s examination of allegations of bias on the part of AU Rowell, the ad hoc procedure was not established by regulation or statute; it lacked any procedural rules; it lacked discovery mechanisms; and they were no parties and no assignment of burden of proof. In short, the agency does not have the expertise in dealing with claims of general bias, and there is no reason to believe that the ad hoc procedure it has devised will produce an adequate record for judicial review.
Of course, I am convinced that the majority of AUs perform the duties of their office consistent with the statute they are charged to execute and in compliance with the constitution. But I cannot accept the majority’s position that the exercise of independent review by the district courts on the question of general bias by AUs will have a deleterious effect on the administrative process. If anything, such an independent review can only strengthen public confidence in the administrative process. And, an administrative process which enjoys public confidence will in the end function more efficiently.
Having stated the reasons why I believe the majority’s reasoning is flawed, I now turn to the discussion of how I submit this case should have been decided.
II.
The Supreme Court established in Bowen v. City of New York that district courts hear two types of Social Security cases on appeal: individual review of denials of benefits and collateral class claims. Id. 476 U.S. at 484, 106 S.Ct. at 2032. As the court stated, individual review cases are “materially distinguishable” from collateral class claims. Id. An individual review case involves an appeal to the district court from a final decision of the Secretary denying Social Security or SSI disability benefits. The issue before the district court in an individual review case is whether the claimant is entitled to benefits. The district court, pursuant to section 205(g), may affirm the denial of benefits, reverse the denial of benefits, or remand the case to the Secretary for further fact-finding. Moreover, the district, in an individual review case, must accept as conclusive all findings of fact by the Secretary if supported by substantial evidence.
By contrast, a collateral claim is an action in the district court challenging a policy or practice of the agency as unconstitutional or statutorily unlawful, without challenging the underlying merits of their denial for benefits. The issue before the district court in a collateral claim is whether the challenged practice or policy is indeed unlawful. The court never considers the question of whether plaintiffs are actually entitled to benefits because a collateral claim means that the action is separate from the merit disability determination conducted by the agency.
While Bowen v. City of New York clearly established the distinction between individual review cases and collateral claims, it did not explicitly address the issue of the standard of review to be applied by district courts in collateral claims. However, a careful reading of Bowen v. City of New York, demonstrates that it provides strong and convincing support for the conclusion that district courts have the authority to conduct independent fact-finding trials in collateral claims.
A.
Bowen v. City of New York involved two distinct programs of the Social Security Act. The first program, the Social Security Disability Insurance Program, provides benefits to persons who have paid into the program and have become mentally or physically disabled. The second program, the Supplemental Security Income Program, provides benefits to indigent disabled persons. To be eligible for benefits under either program, a claimant must be found to under a disability of such severity that claimant is unable to engage in substantial work of any kind. Pursuant to statutory authority, the Secretary adopts regulations for both programs to evaluate and process applicants for disability benefits.
In Bowen v. City of New York, a class of plaintiffs, composed of claimants who were denied or were about to be denied disability benefits, brought an action in the district court against the Secretary, alleging that the Secretary had adopted an unpublished policy under which deserving claimants were denied benefits. Plaintiffs claimed that the policy was implemented through the use of secret internal memoranda and was never published in the Federal Register. Plaintiffs argued that failure to make the policy known denied class members due process of law. Following a 7-day trail the district court found, not only that the Secretary had followed a covert policy, but also that the policy actually violated the Social Security Act. The Court of Appeals for the Second Circuit affirmed the district court and the Secretary appealed to the Supreme Court.
Before the Supreme Court, the Secretary challenged the judgement of the Court of Appeals on jurisdictional grounds. The Secretary’s jurisdictional argument was twofold: first the Secretary argued that certain members of the class, whose claim for benefits had been finally denied, had failed to bring their action in the district court within 60 days of the final decision; second, the Secretary argued that other members of the class had failed to exhaust administrative remedies before suing in the district court. The Supreme Court rejected both of the Secretary’s arguments. The court held that equitable tolling of the 60-day period was proper as to those plaintiffs who had failed to seek judicial period within the statutory period. The court also held that it was proper to waive the requirement of exhaustion of administrative remedies as to those plaintiffs who had not exhausted their administrative appeals. For purposes of my analysis, the relevant portion of the court's opinion is its discussion regarding waiver of the requirement of exhaustion of administrative remedies.
The court reasoned as follows: Normally only a final judgment from the Secretary is appealable to the district court. Id. at 482, 106 S.Ct. at 2031. The final decision requirement consists of two elements. Id. The first element is that “the claims for benefits must have been presented to the Secretary.” Id. at 483, 106 S.Ct. at 2032. quoting Matthews v. Eldridge, 424 U.S. 319, 328, 96 S.Ct. 893, 901, 47 L.Ed.2d 18 (1976). The second element is that “the administrative remedies prescribed by the Secretary must be exhausted.” Id. at 482-83, 106 S.Ct. at 2031.
Normally, the Secretary has discretion to waive the exhaustion requirement. But, “cases may arise where a claimant’s interest in having a particular issue resolved promptly is so great that deference to the agency’s judgment is inappropriate.” Id. at 483, 106 S.Ct. at 2031. Two factors are significant in determining whether a case is such that deference to the agency’s judgment as to the exhaustion requirement is inappropriate. The first factor is that “the constitutional challenge brought [must be] ‘entirely collateral to [a] substantive claim of entitlement’.” Id. The second factor is that “full relief cannot be obtained at a postdeprivation hearing.” Id.
B.
The same two factors which determine whether district courts should waive the requirement of exhaustion of administrative remedies in collateral claims may also be used to determine whether district courts should exercise restricted or de-novo review of an agency’s findings of facts in collateral claims.
The reason is this: the doctrine exhaustion of administrative remedies and the doctrine of restricted review of an agency’s findings of fact are driven by the same considerations. Specifically, claimants are required to exhaust administrative remedies because, by claimants exhausting their administrative appeals, the administrative machinery “functions efficiently,” the agency has the opportunity to “afford the parties the benefits of its experience and expertise,” and the agency is able to “compile a record which is adequate for judicial review.” Salfi, 422 U.S. at 765, 95 S.Ct. at 2467. Similarly, courts exercise restricted review of an agency’s finding because to exercise de-novo review of the agency’s findings of fact would disturb the efficient functioning of the agency, would unduly disregard the expertise and experience of the agency, and would merely duplicate an already complete record.
Therefore, one can reasonably conclude that, if application of the doctrine of exhaustion of administrative remedies and the doctrine of restricted review of an agency’s findings of fact are driven by the same factors, then the non-application of these two doctrines should also reasonably be driven by the same factors. In Bowen v. City of New York, the Supreme Court stated that district courts may waive the requirement of exhaustion of remedies when the constitutional challenge brought is collateral to a substantive claim of entitlement, and when full relief cannot be obtained at the level of an administrative hearing. Bowen v. City of New York, 476 U.S. at 483, 106 S.Ct. at 2031. Similarly, district courts need not apply restricted review to an agency’s findings of fact but may instead exercise de novo fact-finding review when the constitutional challenge brought is collateral to the substantive claim of entitlement, and when full relief cannot be obtained at the level of an administrative hearing.
C.
The present case satisfies those two factors. As to the first factor, plaintiffs claim that an ALJ denies benefits to deserving claimants on the basis of an unconstitutional and statutorily unlawful general bias. Plaintiffs do not seek to have the district court review the substantive merits of the denial of their benefits. Therefore plaintiffs constitutional challenge is “entirely collateral to a substantive claim of entitlement.”
As to the second factor, plaintiffs are unlikely to obtain full relief at the level of an administrative hearing. I have already described above that the Secretary does not have any regulation or process in place for handling claims of general bias as opposed to claims of individual bias. I have also described above how the ad hoc procedure the Secretary has devised is inadequate to afford plaintiffs a full and fair hearing on the issue of general bias on the part of AU Rowell. The district court was correct when it thoughtfully observed that “the agency cannot properly police itself in a case that has been certified as a class action involving a claim of generalized bias on the part of an Administrative Law Judge especially where the class consists of approximately 700 plaintiffs.” District court opinion at 12.
D.
In the final analysis, when all else has been said, it must be remembered clearly what plaintiffs are claiming here. Plaintiffs claim that, pursuant to the due process clause of the Fifth Amendment to the United States Constitution, they have the right to have their petition for social security benefits heard by an impartial administrative law judge. Plaintiffs claim that their due process rights have been violated because their applications for benefits were denied by an AU who possessed a general bias against a class of plaintiffs because of their race and their economic status. But more importantly, plaintiffs claim that their rights have been violated because the agency is simply not equipped to police claims of general bias. The determination of whether or not plaintiffs’ constitutional right has been violated is the province of the courts and not that of an agency. McNary v. Haitian Refugee Center, Inc., 498 U.S. at 494-95, 111 S.Ct. at 897. Indeed, the decision of the Supreme Court in McNary v. Haitian Refugee Center, Inc. is highly relevant to the present case, for it also deals with the question of whether district courts ought to exercise de novo — as opposed to limited — review of classwide collateral constitutional challenges to an agency’s practice or policy. That case involved a challenge to the manner in which the Immigration and Naturalization Service (INS) was administering the Special Agricultural Workers (SAW) provisions of the Immigration Reform Control Act of 1986. The SAW provisions of the Act required the Attorney General to adjust the status of certain alien farmwork-ers from unlawful aliens to “Special Agricultural Workers” (SAW) lawfully admitted temporary and eventually permanent residents. 8 U.S.C. § 1160(a)(1), (a)(2).
Pursuant to statutory authority, the INS promulgated regulations to determine the eligibility of alien farmworkers for SAW status. Essentially the INS determined eligibility for SAW status based on a personal interview with each applicant. Applicants were required to bring to the interview supporting documents, such as affidavits from employers. If an applicant was found ineligible for SAW status, the Immigration and Nationality Act (INA) barred judicial review of the denial except in the context of judicial review of a deportation order; a review conducted by the court of appeals, not the district court. 8 U.S.C. § 1105(a). Moreover, the INA provided that, in reviewing a denial of SAW status, the court of appeals is restricted to the administrative record and that “the findings of fact contained in such a record [are] conclusive unless the applicant can establish abuse of discretion or that the findings are contrary to clear and convincing facts contained in the record as a whole.” 8 U.S.C. § 1160(e)(3)(B).
In 1988, a group of unsuccessful SAW applicants brought a class action in the district court for the Southern District of Florida against the INS. Plaintiffs alleged that the interview process was'conducted in an arbitrary fashion that deprived applicants of the due process guarantees of the Fifth Amendment to the Constitution. Among the procedures challenged by plaintiffs was a practice by the INS whereby interviewers would “routinely discredit supporting affidavits from a secret list of employers.” McNary v. Haitian Refugee Center, Inc., 498 U.S at 489, 111 S.Ct. at 894 n. 9. The district court found that it had jurisdiction over the class action and, after a de novo trial, ruled on the merits that the practices of the INS were unconstitutional. The Court of Appeals for the Eleventh Circuit affirmed and the INS filed a petition for certiorari to the Supreme Court solely on the question of whether the district court had jurisdiction over the action.
Before the Supreme Court, the INS made two jurisdictional arguments. First, the INS argued that, pursuant to 8 U.S.C. § 1105(a), the district court did not have jurisdiction over plaintiffs' claim. Second, the INS argued that, even if the district court had jurisdiction over the claim, pursuant to 8 U.S.C. § 1160(e)(3)(B), the court did not have the authority to conduct de novo review of the agency’s findings, but was limited to the administrative record, and that the findings of fact in the record were conclusive unless applicants could establish abusé of discretion.
The Supreme Court rejected both arguments and affirmed the court of appeals. Id. at 498-99, 111 S.Ct. at 899. As to the argument that the district court’s review was limited to an abuse of discretion standard, the court held as follows:
[T]he abuse of discretion standard of judicial review under § 210(e)(3)(B) would make no sense if we were to read the Reform Act as requiring constitutional and statutory challenges to INS procedures to be subject to its specialized review provision. Although the abuse-of-discretion standard is appropriate for judicial review of administrative adjudication of the facts of an individual application, such a standard does not apply to constitutional or statutory claims, which are reviewed de novo by the courts.
Id. at 493, 111 S.Ct. at 897.
The same factual and legal matrix exists in the present case. Haitian Refugee Center, involved a statutory scheme which provided for limited judicial review of “an administrative adjudication of the facts of an individual application for SAW status.” Id. Similarly, here this case involves a statutory scheme which provides for limited judicial review of an “administrative adjudication of the facts of an individual application” for social security benefits. In Haitian Refugee Center, plaintiffs brought a classwide collateral challenge to the procedures devised by INS to determine eligibility for SAW status as violative of their due process rights under the Fifth Amendment to the Constitution. Similarly, here plaintiffs have brought a classwide collateral challenge to the practice of the Secretary— as reflected by the general bias of an AU and as reflected in the lack of adequate procedure by the Secretary to deal with general bias — to determine eligibility for benefits as violative of their due process rights under the Fifth Amendment to the Constitution. In Haitian Refugee Center, plaintiffs challenged the practices of the INS without challenging the underlying merit of their SAW applications. Similarly, here plaintiffs challenge the bias of an AU and the Secretary’s lack of procedures for dealing with general bias without challenging the underlying merits of their denial of benefits. In Haitian Refugee Center plaintiffs alleged that interviewers from the INS kept a secret list of employers whose affidavits were routinely rejected. Similarly, here plaintiffs claimed that an AU routinely denied their claims if they belong to a particular economic group. In Haitian Refugee Center, the Supreme Court held that although limited judicial review is appropriate for review of “an administrative adjudication of the facts of an individual application” such limited review “does not apply to constitutional or statutory claims, which are reviewed de novo by the courts.” Id. Similarly, here the district court was correct in finding that, although limited review is appropriate for review of an administrative adjudication of an individual application or benefits, such limited review does not apply to collateral constitutional and statutory claims, which are reviewed de novo by the courts.
III.
By now, to say that administrative agencies exercise broad discretionary power over a wide range of private interests with only intermittent control by the three branches of government is to state a rather obvious proposition. See Sunstein, Interest Groups In American Public Law, 38 Stan.L.Rev. 29, 60 (1985); Stewart, The Reformation of American Administrative Law, 88 Harv.L.Rev. 1669,1716 (1975); See also R. Litan & W. Nordhaus, Reforming Federal Regulation (1983). In recent years, courts have moved to make the administrative process more accountable and responsive to the public. This movement began with the judicial creation of the “hard-look doctrine.” See, Greater Boston Television Corp. v. FCC, 444 F.2d 841, 851 (D.C.Cir.1970. Currently, the hard-look doctrine has four principal elements: 1) the enlargement of the class of interests entitled under the due process clause to an administrative hearing before agency infringement of those interests; 2) the establishment of a presumption in favor of judicial review of agency action or inaction; 3) more scrutinizing judicial review based upon a detailed agency justification for its decision; and 4) the enlargement of the class of interests entitled to judicial review of agency action. See, Stewart, The Reformation of American Administrative Law, 88 Harv.L.Rev. at 1716. Today the majority opinion has abandoned the hard-look doctrine. Instead, it has begun to fashion what can only be called the “quick-glance doctrine.”
Justice Cardozo once wrote:
The great ideals of liberty and equality are preserved against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, the scorn and derision of those who have no patience for general principles, by enshrining them in constitutions, and consecrating to the task of their protection a body of defenders.
In this country courts in general — and federal courts in particular — have been “consecrated” the defenders of constitutional rights against the assaults, encroachments and biases of individuals, be they holders of elected office or recipients of bureaucratic positions. What the majority proposes to do in its holding is effectively to have courts take a back seat to bureaucratic agencies in protecting constitutional liberties. This — even if the majority couches it in terms of administrative efficiency and expertise — is a radical and unwise redefinition of the relationship between federal courts and federal agencies, likely to have an effect far beyond the question of the standard of review exercised by federal courts in collateral actions alleging unlawful bias on the part of a social security administrative law judge.
For the foregoing reasons I respectfully dissent.
. The majority also mentions in a footnote that “McNary distinguished Heckler v. Ringer, [466 U.S. 602, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984) ], which involved Section 205(g).” The majority does not explain why the fact that Heckler v. Ringer was distinguished in McNary should be relevant here. The truth is, it is not at all relevant. In Heckler v. Ringer, four plaintiffs sued to establish a right to reimbursement under the Medicare Act for a particular form of surgery. Plaintiffs sought judicial review of the Secretary’s denial of reimbursement for the surgery without exhausting their administrative remedies as required by Section 205(g). The district court dismissed for lack of jurisdiction under Section 205(g) and plaintiffs appealed. Plaintiffs argued that they were not required to exhaust administrative remedies because their claim was not an individual review case. The Supreme Court disagreed and found that at bottom plaintiffs’ claim was not a collateral challenge but an individual review claim. Id. 466 U.S. at 614, 104 S.Ct. at 2021. In McNary, the Secretary argued that Heckler v. Ringer supported its position that the court should exercise limited review of plaintiffs' claim. The court distinguished Heckler v. Ringer by noting that plaintiffs’ claim in that case was not collateral to their claims for benefits. McNary, 498 U.S. at 494-95, 111 S.Ct. at 897. Here, plaintiffs’ claim is collateral to their claims for benefits.
. The majority tries to gloss over the distinction between individual review cases and collateral class actions by concluding: “Hummel was, to be sure, an individual review case, not a class action, but neither Section 205(g) nor Hummel draws any distinction between individual review cases and class actions.” Majority Op at 1339. This is an indefensible statement given the Supreme Court’s unequivocal statement that social security collateral class actions are “materially distinguishable” from individual review cases. Bowen v. City of New York, 476 U.S. at 484, 106 S.Ct. at 2032.
. The Supreme Court has described the contours of the independence afforded to AU in terms of a rationale for the administrative exhaustion doctrine:
Exhaustion is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct it errors, to afford the parties and the courts the benefit of its expertise, and to compile a record which is adequate for judicial review. Salfi, 422 U.S. at 765, 95 S.Ct. at 2466.
. Cardozo, The Nature of the Judicial Process, P. 17.

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