Full opinion text
OPINION OF THE COURT ALITO, Circuit Judge: This is an interlocutory appeal in a class action brought pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). The question presented is whether the district court may hold a trial and make its own findings of fact regarding the alleged general bias of a Department of Health and Human Services (HHS) administrative law judge (AU) or whether the court must instead review the Secretary’s findings on this question. Based on the express language of Section 205(g), binding circuit precedent, and the effect that such litigation would have on the independence of administrative law judges, we hold that the district court may not make its own findings but may only review the Secretary’s findings and, if necessary, remand to the agency for further proceedings. I. In September 1985, Lois Grant filed an application for Social Security Insurance disability benefits. She asserted that she could not perform any substantial gainful employment because of an injury to her knee, as well as pain, depression, and other conditions stemming from that injury. The state agency handling the application denied her claim. Grant then requested a hearing before an HHS Administrative Law Judge, and her case was assigned to ALJ Russell Rowell. After a hearing, AU Rowell concluded that Grant was not entitled to benefits. He found that the medical evidence did not show that Grant could not perform sedentary work, such as that in which she had previously engaged. App. 36, 39. Furthermore, he found that Grant’s complaints of pain were not credible. App. 37. In reaching this conclusion, he relied on what he termed “a large element of secondary gain” and noted that following her injury Grant’s after-tax benefits from workers’ compensation exceeded her before-tax income prior to the injury. App. 37-38. Grant then sought review of the AU’s decision before the HHS Appeals Council, but the Appeals Council denied her application for review. In 1988, Grant filed a complaint in the United States District Court for the Middle District of Pennsylvania pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), against the Secretary of Health and Human Services, asserting that the decision denying her benefits was contrary to the Social Security Act and the Due Process Clause of the Fifth Amendment. Her complaint specifically alleged (App. 44): ALJ Rowell is inclined in every disability case to deny benefits; he uses his discretion to determine credibility to effect this bias against claimants. Several months later, Grant filed an amended complaint, which added two additional named plaintiffs, Jamie P. Donnelly and Harold Wallace. In addition, the amended complaint was brought on behalf of a class consisting of certain disability claimants whose cases had been or would in the future be assigned to ALJ Rowell. Among other things, the complaint sought a declaratory judgment that ALJ Rowell was biased against disability claimants and that this bias had deprived or would deprive the plaintiffs of a fair hearing. The complaint also sought an injunction requiring that all of the plaintiffs’ claims that AU Rowell had rejected be reheard before other AUs, as well as prohibiting the Secretary “from assigning AU Rowell in the future to any tasks which involve the discretion to determine Social Security and/or SSI disability claims.” App. 62. The Secretary opposed class certification and moved for a protective order preventing the plaintiffs from conducting further discovery. The district court denied the Secretary’s motions. Grant v. Sullivan, 720 F.Supp. 462 (M.D.Pa.1989). In February 1990, the district court certified a class consisting of “all claimants for Social Security disability benefits or Supplemental Security Income disability benefits, or both, who have received, or will receive, an adverse decision from Administrative Law Judge Russell Rowell on or after January 1, 1985, and all disability claimants whose claims have been or will be assigned to AU Rowell for a decision.” Grant v. Sullivan, 131 F.R.D. 436, 450 (M.D.Pa.1990). In the meantime, the Chair of the Social Security Administration Appeals Council, Eileen Bradley, had determined that the agency should conduct its own investigation into the allegations that AU Rowell was generally biased against disability claimants. Ms. Bradley appointed a three-member panel and instructed it to examine the records in a random sample of the disability cases decided by AU Rowell. She stated that the sample was “anticipated to consist of at least 200 eases.” App. 105. She also stated that the panel would seek to determine whether the records in these cases “manifest instances of a pattern of bias of any sort on the part of AU Rowell, based, inter alia, on the conduct of the hearings, the language of the decisions, credibility determinations, evidentiary inferences and the accuracy of characterization of medical exhibits.” Id. In addition, she stated that the plaintiffs and AU Ro-well would have the opportunity to appear, testify, introduce evidence, and call and examine witnesses. Id. After the decision to conduct this administrative investigation was announced, the Secretary filed a motion in the district court asking the court to dismiss or, in the alternative, to stay the case in favor of the administrative investigation. The magistrate judge recommended that the stay be granted provided that the Secretary agreed to postpone the administrative proceeding until the plaintiffs could complete their discovery. The district court, however, rejected this recommendation, stating (App. 133) that it had already decided that the .plaintiffs were entitled to a trial in district court on their claims of bias and that exhaustion of administrative remedies should not be required. Despite the district court’s denial of the motion, the special panel proceeded with the investigation of AU Rowell and set out to examine the records in a statistically significant sampling of his cases. The panel did not attempt to analyze other evidence, such as depositions and statements of co-workers, regarding AU Rowell’s personality or views. The panel determined that AU Rowell had decided 948 disability cases during a five-year period. From these, the panel selected a random sample and was eventually able to examine the files in 212 cases. All pertinent documents in the files were reviewed, and tape recordings of the hearings were studied. In October 1990, the panel issued its report. The panel reported that it had “detected no patterns of irregularity during the hearing process, and no indication in the hearing tapes or transcripts it reviewed that Judge Rowell entertains any bias against any of the claimants, and certainly not against all of them.” App. 168. The report continued (id. at 169): Indeed, as a general rule, the Panel has concluded that at the hearings Judge Ro-well consistently comported himself in a professional, courtly, polite and gentle fashion, displaying neither hostility nor rancor towards any attorney or claimant. ... In addition, our review of the “appeals files” (hearing office records) available to us shows that Judge Rowell is scrupulously conscientious in his preparation for, and conduct of, administrative hearings in Social Security claims. In addition, the report found no statistical evidence that AU Rowell was biased against all disability claimants or that he was biased based on race, ethnicity, gender, or age. Id. at 172-73, 181-82. The report, however, did criticize AU Rowell for employing what the panel termed “irregular language” in about 70 cases. Id. at 174. As examples, the report mentioned cases in which AU Rowell had described a claimant whose testimony he did not believe as “manipulative” or a “malingerer,” as having put on a “performance” or “charade,” or as having attempted to obtain “secondary gain” (i.e., obtain more in benefits than the claimant had previously earned by working). Id. at 174-75. While recognizing that AU Ro-well was required to make credibility determinations, the panel found that his language in these cases exceeded “the bounds of taste and the needs of a legally sufficient, defensible disability determination.” App. 178. The panel also found that AU Rowell had placed too much emphasis on the concept of “secondary gain.” The acting Chair of the Appeals Council, Andrew J. Young, generally accepted the panel’s conclusions, including all of those noted above. In addition, Mr. Young wrote that although he did not “accept the proposition that an abstract psychological inquiry” regarding AU Rowell was appropriate, he had decided, for purposes of completeness, to consider deposition testimony from former co-workers of AU Rowell that had been obtained in civil discovery. App. 144. He stated: I find no persuasive evidence in isolated statements from the deponents as to what they allegedly heard AU Rowell utter, or in their personal opinions of AU Rowell to support a finding that he has a mindset that is biased against claimants generally or certain claimants based on their race, ethnicity, or socioeconomic status, to the exclusion of determining the merits of each case based upon the record evidence. Id. at 144-45. After the Appeals Council had made its findings, the Secretary moved the district court to vacate the orders setting the case on the trial calendar and holding that the plaintiffs need not exhaust their administrative remedies. The Secretary asked that the district court instead review the plaintiffs’ claims on the administrative record. In the alternative, the Secretary asked that the district court stay or postpone the trial of the case pending the disposition of his motions and interlocutory appellate review of that disposition. The district court denied the Secretary’s motion to vacate the orders, but certified an interlocutory appeal under 28 U.S.C. § 1292(b) to determine “whether [the district court] may conduct a trial on Plaintiffs’ claims of general bias.” App. 292. On appeal, the Secretary argues that the district court may not properly conduct a trial and make findings of fact regarding AU Rowell’s alleged general bias. Relying on Section 205(b)(1), (g), and (h) of the Social Security Act, 42 U.S.C. § 405(b)(1), (g), and (h), the Secretary argues that the fact-finding role in Social Security cases is exclusively his and that the district courts have no fact-finding role. The Secretary maintains that his argument is supported by our decision in Hummel v. Heckler, 736 F.2d 91 (3d Cir.1984), that the status of the present case as a class action does not provide a valid basis for distinguishing it from Hummel, and that a trial in district court examining the mindset, thought processes, and predispositions of AU Rowell would be destructive to the integrity of the administrative process. The plaintiffs contend that neither the language of the Social Security Act nor our decision in Hummel precludes the district court from conducting a trial and making findings on the issue of bias because the present case is a class action. The plaintiffs rely primarily on the Supreme Court’s decision in two cases, Califano v. Yamasaki, 442 U.S. 682, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979), and Bowen v. City of New York, 476 U.S. 467, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). The plaintiffs also argue that an inquiry into AU Rowell’s state of mind is justified in this ease because there is substantial evidence of his bias. The plaintiffs highlight the following evidence: their deposition of a “decision-writer” who worked for AU Rowell for five years; planned trial testimony by a former attorney-advisor and decision-writer regarding his conversations with AU Rowell at lunch, during visits at each other’s homes, and on other occasions; a statistical analysis of a sample of AU Rowell’s decisions by their expert; and evidence that AU Rowell allegedly destroyed his notes concerning certain cases after they were sought by plaintiffs in discovery. Appellees’ Br. at 10-18. II. We begin by examining the pertinent provisions of the Social Security Act and governing circuit precedent concerning those provisions. Under Section 205(b)(1) of the Act, 42 U.S.C. 405(b)(1), the Secretary is directed to “make findings of fact, and decisions as to the rights of any individual applying for a payment.” The Secretary's decisions are subject to judicial review under Section 205(g) of the Act, 42 U.S.C. § 405(g), but the scope of that review is circumscribed. Section 205(g) states without qualification or exception: The findings of the Secretary as to any fact, if supported by substantial evidence shall be conclusive.... If a district court rejects a finding pursuant to this standard, Section 205(g) authorizes the court to remand the case for rehearing before the agency. Furthermore, Section 205(g) provides that, if new material evidence becomes available after the conclusion of the administrative proceeding, a district court may order “additional evidence to be taken before the Secretary.” And if any “additional or modified findings of fact” are made on remand, those findings are reviewable only to the same limited extent as the original findings. In short, Section 205(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. Addressing this scheme in Hummel v. Heckler, 736 F.2d at 93, we stated flatly that “the district courts have no fact-finding role in Social Security cases.” See also Johnson v. Heckler, 741 F.2d 948, 952 (7th Cir.1984); Parker v. Harris, 626 F.2d 225 (2d Cir.1980). Hummel, a case in which an individual claimant disputed the denial of benefits, is particularly relevant for present purposes since the claimant contended that the AU who decided her case was biased. She argued that the AU’s bias stemmed from a “Bellmon Review” of his determinations. (The “Bellmon Review” program included a review by the Appeals Council of the allowance decisions of AUs with high allowance rates.) We held that the plaintiff was entitled to discovery to determine whether the AU had undergone a “Bellmon Review” and, if so, to obtain information about it. Id. at 94. We stated that this discovery was needed so that the plaintiff could “attempt to convince the district court that a remand to the Secretary for the taking of new evidence [was] appropriate.” Id. at 95 (emphasis added). Furthermore, we stated that “[i]n the event that a finding of bias [was] made on remand,” the plaintiff would be entitled to a new administrative hearing on the merits of her disability claim. Id. at 95 (emphasis added). Thus, 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. Hummel is of course binding on this panel. The language of Section 205(g) and our decision in Hummel provide strong support for the Secretary’s argument in this case that the district court may not conduct a trial and make its own findings regarding the ALJ’s alleged bias. As we have noted, the Secretary has already conducted an extensive inquiry and has already made findings on this very matter. Thus, the portion of Section 205(g) stating categorically that “the findings of the Secretary as to any fact, if supported by substantial evidence” must be accepted as “conclusive” seems quite clearly to mean that the district court in this case must review the Secretary’s findings on the question of bias rather than making independent findings of its own. Moreover, the entire scheme of judicial review set out in Section 205(b) appears to mean, as we put it in Hummel, 736 F.2d at 93, that “district courts have no fact-finding role in Social Security cases.” 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. III. In response to the language of the Social Security Act and our decision in Hummel, the plaintiffs, the district court, and the dissent all appear to acknowledge that a district court may not generally engage in fact-finding in a case brought under Section 205(g). They maintain, however, that this restriction does not apply in class actions. In support of their position, the plaintiffs do not point to anything in the language of Section 205(g) or any other provision of the Social Security Act or its legislative history. Instead, they rely primarily on two Supreme Court decisions—Califano v. Yamasaki, supra, and Bowen v. City of New York, supra. In addition, they cite a number of lower court decisions. The dissent, taking a somewhat different approach, attempts to find support in the language of Section 205(g), but this argument appears to us to be foreclosed by Yamasaki. The dissent also relies on City of New York, as well as McNary v. Haitian Refugee Center, Inc., 498 U.S. 499, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991), which concerned a provision of the Immigration Reform and Control Act of 1986, 8 U.S.C. § 1160. We find all of these arguments unavailing. We will first discuss the three relevant Supreme Court decisions — Yamasaki, City of New York, and McNary — and then turn to the lower court cases. A. In Yamasaki, a class action was filed by Social Security recipients who contended that the Social Security Administration was required to provide the opportunity for a hearing before beginning to recoup overpayments. In the Supreme Court, the Secretary of Health, Education, and Welfare argued, among other things, that class relief may not be awarded in a case brought under Section 205(g). The Secretary relied on “the language of § 205(g) which authorizes suit by ‘[a]ny individual,’ speaks of judicial review of ‘any final decision of the Secretary made after a hearing to which [the plaintiff] was a party,’ and empowers district courts ‘to enter ... a judgment affirming, modifying, or reversing the decision of the Secretary.’ ” 442 U.S. at 698, 99 S.Ct. at 2556. “This language,” the Secretary contended, indicated that “Congress contemplated a case-by-case adjudication of claims under § 205(g)” rather than class actions. 442 U.S. at 698-99, 99 S.Ct. at 2556. The Supreme Court disagreed. The Court first noted that Section 205(g) “contains no express limitation of class relief.” 442 U.S. at 699, 99 S.Ct. at 2557. The Court next observed that the Federal Rules of Civil Procedure apply to all federal civil actions and that Rule 23 authorizes class actions if specified conditions are met. 442 U.S. at 700, 99 S.Ct. at 2557. The Court therefore reasoned that class relief is available in all federal civil actions “[i]n the absence of a direct expression” of a contrary congressional intent. Id. And the Court found no such “clear expression of congressional intent” in Section 205(g). Id. The Court attached little significance to the use of the term “[a]ny individual,” since other jurisdictional provisions under which class actions may be brought employ similar language. Id. Moreover, the Court concluded that “class relief is consistent with the need for case-by-case adjudication ... so long as the membership of the class is limited to those who meet the requirements of § 205(g).” 442 U.S. at 701, 99 S.Ct. at 2557. Finally, the Court observed that class relief was peculiarly appropriate in the case at hand because the claims turned on “questions of law applicable in the same manner” to all class members. Id. Relying on this portion of the Yamasaki opinion, the plaintiffs advance two arguments, both of which seem to us quite strained. The plaintiffs first appear to argue that the Supreme Court’s decision stands for the broad proposition that in class actions any restrictive language in Section 205(g) should not be interpreted literally. We strongly disagree with this interpretation. It is of course true, as recounted above, that the Yamasaki Court rejected a particular argument based on the language of Section 205(g). It hardly follows, however, as the plaintiffs seem to imply, that every argument based on the literal language of Section 205(g) must also be rejected. Instead, we believe that each such argument must be evaluated separately on its own merits. Furthermore, we believe that the Supreme Court’s reason for rejecting the Secretary’s argument in Yamasaki is inapplicable here. In Yama-saki, as noted, the Court found no clear expression of a congressional intent to bar all class actions under Section 205(g). Here, by contrast, Section 205(g) states explicitly and categorically that the Secretary’s findings if supported by substantial evidence must be accepted as “conclusive,” and Section 205(g) clearly sets out a scheme of judicial review for Social Security cases in which “the district courts have no fact-finding role.” Hummel, 736 F.2d at 93. The plaintiffs’ second argument based on Yamasaki is essentially as follows. Yamasaki held that a class action may be brought under the Section 205(g); fact-finding is necessary to adjudicate some class claims; therefore Yamasaki means that fact-finding by a district court in class actions is allowed. We believe that this argument reads far too much into Yama-saki. As we have noted, Yamasaki held that class relief is not barred in Section 205(g) cases, but Yamasaki did not exempt Section 205(g) class actions from the restrictions that this provision expressly imposes. Consequently, Yamasaki does not mean, as the plaintiffs suggest, that Section 205(g) restrictions of district court fact-finding may simply be disregarded whenever class relief is sought. Such an interpretation of Yamasaki would be especially far-fetched since the Court’s opinion in that case made no mention of district court fact-finding. Indeed, as already noted, the Court observed that “class relief” was “peculiarly appropriate” in that case because the claims “turn[ed] on questions of law applicable in the same manner to each member of the class.” 442 U.S. at 701, 99 S.Ct. at 2557 (emphasis added). While the plaintiffs attempt to draw support for their position from Yamasaki, the dissent propounds an argument that Ya-masaki precludes. In an attempt to find support in the language of Section 205(g) for its distinction between individual review cases and class actions, the dissent focuses on terms in Section 205(g) that the dissent suggests are more applicable to individual review eases than to class actions. See dissenting op. at 1347-48. The dissent includes the following quotation from Section 205(g) with the terms it finds helpful highlighted: 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 regulations and the validity of such regulations, (emphasis added). Dissenting op. at 1347-48 (emphasis added in the dissenting opinion. Based on these highlighted terms, the dissent draws the conclusion that “section 205(g) deals solely with individual review cases.” Id. at 1349. The dissent subsequently reiterates: Section 205(g) sets out the district court’s jurisdiction and applicable standard of review in individual review cases. Id. at 1350. This argument is almost precisely the same as the argument that was advanced by the Secretary and rejected by the Supreme Court in Yamasaki. There, as previously noted, the Secretary argued that many of the same terms highlighted by the dissent indicated that “Congress contemplated a case-by-case adjudication of claims under § 205(g) that is incompatible with class relief.” 442 U.S. at 699, 99 S.Ct. at 2556. The Court, however, disagreed and held that Section 205(g) applies to class actions as well as individual review cases. Thus, the dissent’s argument that “section 205(g) deals solely with individual review eases” (dissenting op. at 1349) is directly contrary to the Yamasaki’s reasoning and holding. B. The other Supreme Court case on which the plaintiffs rely—Bowen v. City of New York, supra—is likewise inapposite. There, a plaintiff class alleged that their disability claims had been denied based on a secret and illegal policy adopted by the Social Security Administration. The district court conducted a seven-day trial and found that the Social Security Administration had indeed followed a secret and illegal policy. In the court of appeals and the Supreme Court, the Secretary and the Commissioner of the Social Security Administration did not challenge either the district court’s authority to make findings, the particular findings that it made, or its ruling that the policy followed by the Social Security Administration was improper. Instead, they raised other arguments not directly relevant here. In relying on City of New York, the plaintiffs appear to reason as follows. City of New York was a Social Security class action; factual findings were made; the Supreme Court did not criticize the district court for making those findings; therefore, factual findings in a Social Security class action must be proper. We do not agree. First and most important, since the district court’s authority to make findings was not challenged or addressed in the district court, the court of appeals, or the Supreme Court, the mere fact that findings were made is inconsequential for precedential purposes. “[Qjuestions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 149, 69 L.Ed. 411 (1925). Accord Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 183, 99 S.Ct. 983, 989, 59 L.Ed.2d 230 (1979); United States v. L.A. Tucker Truck Lines, 344 U.S. 33, 38, 73 S.Ct. 67, 69, 97 L.Ed. 54 (1952); Losada v. Golden Gate Disposal Co., 950 F.2d 1395, 1399 (9th Cir.1991); National Cable Television Ass’n, Inc. v. American Cinema Editors, Inc., 937 F.2d 1572, 1581 (Fed.Cir.1991); R.R. Donnelley & Sons Co. v. FTC, 931 F.2d 430, 433 (7th Cir.1991); Cousins v. Secretary of the U.S. Dep’t of Transportation, 880 F.2d 603, 608 (1st Cir.1989); Soyka v. Alldredge, 481 F.2d 303, 306 (3d Cir.1973). See also Hagans v. Lavine, 415 U.S. 528, 535 n. 5, 94 S.Ct. 1372, 1378 n. 5, 39 L.Ed.2d 577 (1974) (sub silentio rulings on jurisdictional issues are not binding). Second, even if we assumed that it was proper for the district court to engage in fact-finding in City of New York, mandamus jurisdiction, 28 U.S.C. § 1361, rather than Section 205(g), might have provided the basis for doing so. In City of New York, the district court and the court of appeals held that the district court had mandamus jurisdiction, as well as jurisdiction under Section 205(g). City of New York v. Heckler, 578 F.Supp. 1109, 1117-19 (E.D.N.Y.) aff'd, 742 F.2d 729, 734-39 (2d Cir.1984). Mandamus is available only if, among other things, the plaintiff has no other adequate avenue of relief (Heckler v. Ringer, 466 U.S. 602, 616-17, 104 S.Ct. 2013, 2022-23, 80 L.Ed.2d 622 (1984)), and in City of New York the court of appeals held that this requirement had been satisfied. 742 F.2d at 739. In the present case, on the other hand, the plaintiffs have not asserted mandamus jurisdiction, and in any event they have an adequate alternative remedy, since they can seek review of the Secretary’s findings on the issue of AU Rowell’s alleged bias. Moreover, we perceive a significant distinction between the factual questions at issue in cases like the City of New York and the factual question in the present case, a distinction that may have a bearing on the appropriateness of mandamus. In cases like City of New York in which plaintiffs claim that an agency has been following a secret and unlawful policy, it could be argued that normal administrative procedures are inadequate because the agency could not function as an impartial fact-finder. In that situation, the ancient maxim that no one may be a judge in his own case could be invoked. By contrast, when the factual question is simply whether a single ALJ is biased, any argument that the agency could not act as an impartial fact-finder would have far less force. For all of these reasons, therefore, City of New York does not support the plaintiffs’ argument in this case. C. We similarly do not believe that McNary v. Haitian Refugee Center, Inc., 498 U.S. 499, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991), on which the dissent relies (dissenting op. at 1349-51), sheds light on the question before us. In McNary, the Supreme Court held that a district court had general federal question jurisdiction to entertain a class action brought by aliens who claimed that the INS was administering the Special Agricultural Workers (SAW) amnesty program in a way that violated due process and the Immigration Reform and Control Act of 1986. The Court held that 8 U.S.C. § 1160(e)—a provision of the Act that provides the exclusive avenue for judicial review of “an application for adjustment of status” pursuant to the SAW program—did not preclude the district court from exercising its general federal question jurisdiction. The Court relied on the particular language of 8 U.S.C. § 1160(e) (111 S.Ct. at 896-97) and observed that, if the plaintiffs’ district court suit were barred, they “would not as a practical matter be able to obtain meaningful judicial review” of their claims (id. at 898). McNary does not support the dissent’s argument for the simple reason that McNary concerned a different question under a different statute—namely, whether 8 U.S.C. § 1160(e) precluded a district court from exercising general federal question jurisdiction. Here, neither 8 U.S.C. § 1160(e) nor any other immigration statute is implicated, and general federal question jurisdiction has never been invoked. Moreover, while the Court in McNary observed that the plaintiffs could not have obtained meaningful judicial review if their district court action was barred, in this case the plaintiffs can obtain judicial review of the Secretary’s decision regarding AU Rowell’s alleged bias, but that review must be based on the administrative record and the Secretary’s findings of fact. D. In addition to relying on the Supreme Court decisions already discussed, the plaintiffs’ brief cited — but did not discuss — several of our previous decisions. Appellee’s Br. at 29 n. 8. Perhaps the only thing that needs to be said about these cases is that the fact-finding authority of the district court was not challenged or discussed in any of them. For this reason alone, they provide no precedential support for the plaintiffs’ position. In any event, we find all of these cases readily distinguishable from the case before us. In Bailey v. Sullivan, 885 F.2d 52 (3d Cir.1989), a class action was filed contending that the Secretary was following another “alleged secret policy” (id. at 58), this one related to his “severity regulations.” The district court denied class certification on grounds that we found erroneous, and we reversed and instructed the district court to reconsider its decision. Id. at 58-59. We also stated that, if the district court found that the ease should proceed as a class action, it should entertain evidence of “systematic misapplication.” Id. at 59. Thus, Bailey, like City of New York, was a case in which the propriety of district court fact-finding was not challenged or addressed, and the disputed factual question — the existence of a secret, illegal policy — was one on which the Secretary’s ability to make impartial findings could have been challenged. In Wilkerson v. Bowen, 828 F.2d 117 (3d Cir.1987), we remanded a case to the district court and instructed the court to determine whether the plaintiffs were entitled to injunctive relief on their claim that the Secretary was not following our decisions regarding the evaluation of disability claims based on alcoholism. Any fact-finding that might be necessary in that case would again appear to fall into the same category as that in City of New York and Bailey, i.e., fact-finding to determine whether the Secretary was in practice departing from binding legal rules. In Holman v. Califano, 835 F.2d 1056 (3d Cir.1987), we remanded a case for the district court to determine whether the Secretary had violated a duty to make disability payments to claimants within a reasonable time after they were found eligible. The opinion makes no reference to fact-finding. Nor does it suggest that the underlying facts (i.e., statistics on the length of time between a determination of eligibility and the commencement of payments) were either unknown or disputed. Thus, it may well be that the determination to be made by the district court on remand was purely legal, viz., whether any delay shown by the statistics was reasonable. Finally, in several of our cases, while we remanded the case to the district court, our opinion provides no indication that we envisioned that the district would engage in any fact-finding on remand. Mattern v. Mathews, 582 F.2d 248 (3d Cir.1978), cert. denied sub nom. Califano v. Mattern, 443 U.S. 912, 99 S.Ct. 3101, 61 L.Ed.2d 876 (1979); Liberty Alliance of the Blind v. Califano, 568 F.2d 333 (3d Cir.1977). In sum, we find nothing in any decisions of the Supreme Court or this court that supports the authority of the district court, in the face of section 205(g)’s express prohibition, to make its own findings regarding ALJ Rowell’s alleged bias. We are therefore convinced that the district court lacked such authority. IV. Section 205(g)’s restriction. of district court fact-finding is not an empty technical requirement but instead serves a vital role in safeguarding the integrity of the administrative process. In the present context, Section 205(g) protects against discovery and court proceedings that could seriously undermine the independence of Social Security AUs. As the Supreme Court observed in Butz v. Economou, 438 U.S. 478, 513, 98 S.Ct. 2894, 2914, 57 L.Ed.2d 895 (1978), there was considerable concern prior to the passage of the Administrative Procedure Act that “persons hearing administrative cases at the trial level could not exercise independent judgment.” Therefore, “the process of agency adjudication is currently structured so as to assure that the [AU] exercises his independent judgment on the evidence before him, free from pressures by the parties or other officials within the agency.” Id. Relying in part on this structure, the Supreme Court concluded that the role of the modern federal AU is “ ‘functionally comparable’ to that of a judge.” Id. Availability of the type of discovery and trial that the plaintiffs sought in this case would undermine this vital independence. Although Hummel permits some discovery on the issue of bias, that discovery must be limited to the development of those facts and issues that are appropriate, on remand, to the Secretary’s consideration of the existence of bias in connection with those benefit claims that are the subject of the section 205(g) action or actions before the district court. On that premise, we would be reluctant to sanction the type of discovery the district court contemplated in this case because we are convinced that such fact-finding would have a deleterious effect on the independence of AUs and thus on the administrative process. It has long been recognized that attempts to probe the thought and decision making processes of judges and administrators are generally improper. In United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 1004-05, 85 L.Ed. 1429 (1941), the Supreme Court observed that questioning a judge or administrator about the process by which a decision had been reached would undermine the judicial or administrative process. The Court wrote (id.): “Just as a judge cannot be subjected to such a scrutiny ..., so the integrity of the administrative process must be equally respected.” See also Citizens To Preserve Overton Park v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971); Franklin Savings Ass’n v. Ryan, 922 F.2d 209, 211 (4th Cir.1991); NLRB v. Botany Worsted Mills, 106 F.2d 263 (3d Cir.1939) (striking interrogatories probing the decision making process of NLRB members); 3 K Davis, Administrative Law Treatise, § 17.7 (1980). In this case, the plaintiffs, through discovery, have already delved deeply into AU Rowell’s decision making processes, work habits, and private communications. For example, they deposed an opinion-writer who assisted AU Rowell in writing opinions for five years, and they plainly intended to rely heavily on her evidence. During her deposition, under questioning by plaintiffs’ counsel, she gave evidence concerning, among other things, AU Rowell’s instructions concerning opinions that she was assigned to draft, his use of “stock” language in opinions, differences between his work procedures and views and those of other AUs, the length of his opinions and the number of revisions he made, her evaluation of aspects of his work, his consultation of law books, his familiarity with and views about particular rules of law, whether she thought his opinions were principled or result-oriented, how often she disagreed with his decisions, whether she believed that his decisions discriminated against certain groups, how he viewed his role as a Social Security AU, whether he ever uttered racial or ethnic epithets, complaints about him from typists and secretaries, how he evaluated certain types of evidence, the number of hours he worked, his views regarding particular physicians in the area, his views regarding alcoholism and obesity, and many other matters. The plaintiffs also apparently intended to rely heavily on anticipated testimony by another co-worker who “wrote decisions for AU Rowell, [ ] discussed cases [with him] in the office, went to lunch with him nearly every day,” became a “close personal” friend, and visited AU Rowell’s home. This testimony, according to the plaintiffs’ proposed findings of fact, would relate numerous statements allegedly made by AU Rowell regarding his “views of claimants generally and the Social Security disability system and attorneys and doctors of claimants in the system.” Appellees’ Br. at 14. In addition, the plaintiffs sought in discovery AU Rowell’s notes concerning cases that he decided, and the plaintiffs allege that AU Rowell destroyed some of these documents in order to avoid producing them. In short, it appears that the plaintiffs made very extensive efforts to probe the thinking and decision making processes of an officer occupying a position described by the Supreme Court as “functionally comparable” to that of a judge. Such efforts to probe the mind of an AU, if allowed, would pose a substantial threat to the administrative process. Every AU would work under the threat of being subjected to such treatment if his or her pattern of decisions displeased any administrative litigant or group with the resources to put together a suit charging bias. Every AU would know that his or her staff members could be deposed and questioned in detail about the AU’s decision making and thought processes, that co-workers could be subpoenaed and questioned about social conversations, that the AU’s notes and papers could be ordered produced in discovery, and that any evidence gathered by these means could be used, in essence, to put the AU on trial in district court to determine if he or she should be barred from performing the core functions of his or her office. This 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. V. We fully recognize that bias on the part of AUs may undermine the fairness of the administrative process. “Trial before ‘an unbiased judge’ is essential to due process.” Johnson v. Mississippi, 403 U.S. 212, 216, 91 S.Ct. 1778, 1780, 29 L.Ed.2d 423 (1971). “[A]ny tribunal permitted by law to try cases and controversies not only must be unbiased but also must avoid even the appearance of bias.” Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145, 150, 89 S.Ct. 337, 340, 21 L.Ed.2d 301 (1968). See also Haines v. Liggett Group Inc., 975 F.2d 81, 98 (3d Cir.1992); Hummel, 736 F.2d at 93. The type of district court trial and fact-finding that the plaintiffs sought in this case, however, are not necessary in order to safeguard the impartiality of Social Security disability adjudications. Other procedures that pose far less threat to the integrity of the administrative process are readily available. As previously noted, the Social Security Administration has promulgated regulations prohibiting an administrative law judge from conducting a disability hearing “if he or she is prejudiced or partial with respect to any party or has any interest in the matter pending for decision.” 20 C.F.R. §§ 404.940, 416.1440. The regulations allow a claimant to seek the disqualification of an ALJ. Id. If the ALJ refuses to step aside, the claimant can pursue an administrative appeal (id.) and subsequently obtain judicial review. This procedure is analogous to the procedure for seeking disqualification of a federal district court judge. See 28 U.S.C. §§ 144, 455. Furthermore, in the present case the Social Security Administration responded to the allegations against ALJ Rowell by convening a special panel and conducting an extensive analysis of a statistically significant, random sample of his disability decisions. The special panel wrote a lengthy report setting out its findings, and while it did not find any evidence of bias, the panel criticized certain practices that it detected. The acting Chair of the Appeals Council then reviewed this report and accepted its essential conclusions. The Secretary acknowledges that the plaintiffs may seek judicial review of these findings and that the district court, if it finds them insufficient, may remand the matter to the Secretary for further proceedings. We, of course, express no view regarding the correctness of the administrative findings or the adequacy of the special panel’s inquiry, but we are convinced that the plaintiffs’ right to an impartial administrative determination can be fully protected through the process of judicial review of the Secretary’s determination. VI. In conclusion, we hold that the district court in the present case lacks the authority to conduct a trial and make independent findings of fact concerning the alleged bias of ALJ Rowell. We hold, instead, that the district court may only review the findings of the Secretary on this question pursuant to the standard set out in Section 205(g). . This provision states: 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 by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides, or has his principal place of business, or, if he does not reside or have his principal place of business within any such judicial district, in the United States District Court for the District of Columbia. As part of his answer the Secretary shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. 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 is 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. The court may, on motion of the Secretary made for good cause before he files his answer, remand the case to the Secretary for further action by the Secretary, and it may at any time order additional evidence to be taken before the Secretary, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding; and the Secretary shall, after the case is remanded, and after hearing such additional evidence if so ordered, modify or affirm his findings of fact or his decision, or both, and shall file with the court any such additional and modified findings of fact and decision, and a transcript of the additional record and testimony upon which his action in modifying or affirming was based. Such additional or modified findings of fact and decision shall be reviewable only to the extent provided for review of the original findings of fact and decision. The judgment of the court shall be final except that it shall be subject to review in the same manner as a judgment in other civil actions. Any action instituted in accordance with this subsection shall survive notwithstanding any change in the person occupying the office of Secretary or any vacancy in such office. 42 U.S.C. § 405(g). . The amended complaint alleged that ALJ Ro-well had denied the disability claims of both of these men and in doing so had found that they were not credible. App. 55-58. . In addition, the complaint sought that notice be sent to all class members informing them that AU Rowell was biased and that they were entitled to a new hearing. Finally, the complaint sought findings that the named plaintiffs were entitled to benefits. . The Secretary contended that the plaintiffs had waived their claims of bias by failing to raise them during the administrative proceedings, that the claim of AU Rowell’s alleged “general” bias toward disability claimants was not justiciable, and that the district court lacked jurisdiction with respect to those members of the plaintiff class who had not exhausted administrative remedies or filed suit within 60 days of the final administrative order. . Among other things, the court held that the plaintiffs’ bias claims were not barred due to failure to exhaust or failure to file suit within the 60-day period because the plaintiffs and their attorneys could not have reasonably detected ALJ Rowell’s bias until later. Grant v. Sullivan, 720 F.Supp. at 471-74. In doing so, the court reserved decision on "whether [it] should try the bias claims ... or whether [it] should remand these claims to the Secretary for fact-finding" until the court decided the question of class certification. Id. at 474. . Donnelly withdrew as a class representative, and Wallace was dismissed by the court as a class representative. 131 F.R.D. at 448. . The court wrote (App. 133): The Secretary’s motion seeks a stay of proceedings in order to give the Secretary time to try a new ad hoc administrative procedure for determining whether Administrative Law Judge Russell Rowell is biased. In an order dated July 27, 1989, the Court decided the same question which the Secretary has now placed before the Court in the motion to dismiss or for a stay of proceedings — whether we may try the bias claims of the Plaintiffs and the class members or whether we are obliged to remand this action to the Secretary. Grant vs. Sullivan, 720 F.Supp. 462, 474 (M.D.Pa.1989). In that decision we stated that whether we should try the bias claims or whether we should remand the claims to the Secretary for fact-finding depended in large part upon whether we certified a class of Plaintiffs in this action and what size of class we certified. Id. The Court held a hearing on the Plaintiffs’ motion for class certification on January 22-24, 1990. By order dated February 21, 1990, the Court certified a class of approximately 700 persons in this case and determined that the members of the class were not obliged to exhaust administrative remedies before proceeding in this Court on their class claims. The Court determined that proposed class members would suffer irreparable harm by first having to exhaust administrative remedies. . The full text of 42 U.S.C. § 405(b)(1) reads: (b) Administrative determination of entitlement to benefits: findings of fact; hearings; investigations: evidentiary hearings in reconsideration of disability benefit terminations; subsequent applications (1) The Secretary is directed to make findings of fact, and decisions as to the rights of any individual applying for a payment under this subchapter. Any such decision by the Secretary which involves a determination of disability and which is in whole or in part unfavorable to such individual shall contain a statement of the case, in understandable language, setting forth a discussion of the evidence, and stating the Secretary’s determination and the reason or reasons upon which it is based. Upon request by any such individual or upon request by a wife, divorced wife, widow, surviving divorced wife, surviving divorced mother, surviving divorced father, husband, divorced husband, widower, surviving divorced husband, child, or parent who makes a showing in writing that his or her rights may be prejudiced by any decision the Secretary has rendered, he shall give such applicant and such other individual reasonable notice and opportunity for a hearing with respect to such decision, and, if a hearing is held, shall, on the basis of evidence adduced at a hearing, affirm, modify, or reverse his findings of fact and such decision. Any such request with respect to such a decision must be filed within sixty days after notice of such decision is received by the individual making such request. The Secretary is further authorized, on his own motion, to hold such hearings and to conduct such investigations and other proceedings as he may deem necessary or proper for the administration of this subchapter. In the course of any hearing, investigation, or other proceeding, he may administer oaths and affirmations, examine witnesses, and receive evidence. Evidence may be received at any hearing before the Secretary even though inadmissible under rules of evidence applicable to court procedure. . For a description of this program, see Stieberger v. Heckler, 615 F.Supp. 1315, 1377-79 (S.D.N.Y.1985), vacated on other grounds, 801 F.2d 29 (2d Cir.1986); Association of Administrative Law Judges, Inc. v. Heckler, 594 F.Supp. 1132, 1133-36 (D.D.C.1984). Our opinion in the present case should not be interpreted as expressing any view regarding the propriety of this or other similar programs. Courts and commentators have disagreed sharply on this question. Compare Nash v. Bowen, 869 F.2d 675, 678-81 (2d Cir.1989) (upholding program) and Pierce, Political Control Versus Impermissible Bias in Agency Decisionmaking: Lessons from Chevron and Mistretta, 57 U.Chi.L.Rev. 481, 501-19 (1990) (arguing that program was generally valid) with Barry v. Bowen, 825 F.2d 1324, 1330-31 (9th Cir.1987) (program invalid): Salling v. Bowen, 641 F.Supp. 1046, 1055-56, 1073 (W.D.Va.1986) (same); Association of Administrative Law Judges, 594 F.Supp. at 1141-43 (same). . The Court cited 28 U.S.C. § 1343 (civil rights), 28 U.S.C. § 1361 (mandamus), and 29 U.S.C. § 1132(a) (ERISA). . The Supreme Court did not reach this issue. The Court has never decided whether mandamus jurisdiction is available in Social Security cases. See Heckler v. Ringer, 466 U.S. 602, 616—17, 104 S.Ct. 2013, 2022-23, 80 L.Ed.2d 622 (1984). Compare Colonial Penn Ins. Co. v. Heckler, 111 F.2d 431, 437 n. 2 (3d Cir.1983). . The propriety of district court fact-finding in a case such as City of New York is not before us, and we express no view on this question. We merely note that, assuming for the sake of argument that the fact-finding in City of New York was proper, it would not follow that the district court could engage in independent fact-finding here. . Indeed, McNary distinguished Heckler v. Ringer, supra, which involved Section 205(g). . See Heckler v. Ringer, 466 U.S. at 613-16, 104 S.Ct. at 2020-22; (addressing general federal question jurisdiction to entertain claims relating to Social Security); Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975) (same). . We will not describe in detail the decisions of other courts of appeals and district courts on which the plaintiffs rely. The decisions that are most favorable to the plaintiffs—Small v. Sullivan, 820 F.Supp. 1098 (S.D.Ill.1992), and Kendrick v. Sullivan, 784 F.Supp. 94 (S.D.N.Y.1992) — reject many objections raised by the Secretary to class actions similar to the one before us, but the opinions do not directly address the argument that the district court was barred by Section 205(g) from making its own findings of fact regarding the Aids' bias. Virtually all of the other cases involve district court determinations regarding a practice or policy of the Social Security Administration or component of the Social Security system. Luna v. Bowen, 834 F.2d 161 (10th Cir.1987) (policy and practice regarding evaluation of pain); Hyatt v. Heckler, 711 F.Supp. 837 (W.D.N.C.1989), aff’d in part sub nom. Hyatt v. Sullivan, 899 F.2d 329 (4th Cir.1990) (same); Samuels v. Heckler, 668 F.Supp. 656 (W.D.Tenn.1986) (practice regarding instructions to consulting physicians); New York v. Bowen, 655 F.Supp. 136 (S.D.N.Y.1987), aff'd. sub nom. New York v. Sullivan, 906 F.2d 910 (2d Cir.1990). Thus, if these cases involved any fact-finding (as opposed to the interpretation of regulations and Social Security directives), the fact-finding would appear to be analogous to that in Bowen and Bailey and is not, for the reasons already discussed, germane for present purposes. In the final cited case, Barnett v. Bowen, 665 F.Supp. 1096 (D.Vt.1987), in which the district court awarded declaratory and injunctive relief related to delays in scheduling hearings, we see no indication that the court engaged in fact-finding. . See also NLRB v. Permanent Label Corp., 657 F.2d 512, 527-28 (3d Cir.1981) (Aldisert, J., concurring) (discussing independence of AUs), cert. denied, 455 U.S. 940, 102 S.Ct. 1432, 71 L.Ed.2d 651 (1982). . Our decision in Hummel did not approve discovery of the type permitted here. In Hum-mel, we held that a claimant was entitled to discovery as to whether the ALJ had undergone a “Bellmon Review” and, if so, the nature of the review. 736 F.2d at 95. We did not sanction depositions of the ALJ’s co-workers and staff. . Appellees’ Br. at 13. . The parties have called to our attention the fact that similar class actions have recently been filed against several other HHS ALJs. . In addition, an agency may seek recusal of an ALJ in a proceeding before the Merit Sys-terns Protection Board. 5 U.S.C. § 7521.
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 c