transcriber who was not present at the hearing. Some passages must be replayed a number of times where the recording is indistinct, or where several persons talk at once.
Once the record is compiled, it is reviewed within HEW, which is the client of the Department of Justice, to evaluate the question whether the judicial review should be resisted or not. One question would naturally be whether the decision is consistent with HEW policy nationwide, which ought to be uniform.
Only after these internal steps are completed is the client, HEW, in a position to reproduce the transcript and instruct its attorneys in the Department of Justice.
This is the general theme of the 1975 letter. Whether the system is good or bad, whether conditions are the same, or better or worse, the court has no way of knowing.
It does not seem prudent or rational to expect a court having a very limited function on review of an HEW decision, to undertake the obviously massive evidential effort which the collateral issue implicates. What plaintiff seeks to do is to use this single, individual suit for review as a vehicle to have the court oversee the effectiveness and efficiency of internal operations of HEW as a whole.
The court suggested that this object would be achieved better by a suit for mandamus, for which jurisdiction is provided by 28 U.S.C. § 1361 to compel the Secretary of HEW to do her duty, i. e., to file the certified transcript as part of the answer, as commanded by 42 U.S.C. § 405(g), within the 60 days set by F.R.Civ.P. 12. Plaintiff's counsel contends that Weinberger v. Salfi, 422 U.S. 749, 95 S. Ct. 2457, 45 L. Ed. 2d 522 (1975) stands in the way.
On review of that decision, the court is of the view that it does not stand in the way of a mandamus action under § 1361. Weinberger was an action to challenge the constitutionality of statutory definitions of eligible beneficiaries. The court ruled that this issue could be raised and decided only through the vehicle of a § 405(g) judicial review, and not by an independent suit claiming jurisdiction under § 1331 (federal question). The support for the ruling was in the prohibition of suit, found in § 405(h), where the suit is brought under "§ 41 of Title 28". This reference, as observed in footnote 3 in Weinberger, is to the 1940 Edition of the U.S.Code. For reasons best known to the later revisors of the Code, the old reference remains unchanged.
In any event, the court has examined former 28 U.S.C. § 41 (1940) and finds that the jurisdiction encompassed by § 1361 is not within its compass. In fact, § 1361 originated as Pub.L. 87-748, Oct. 5, 1962, long after the former § 41 had been distributed elsewhere by later revisions.
Thus, Weinberger did not consider, much less decide, whether a 1962 grant of jurisdiction, enacted long after 28 U.S.C. § 41 (1940) had disappeared as a meaningful reference, is within the scope of the prohibition of § 405(h). Whether it is or not is not decided here, for the complaint does not seek relief in the nature of mandamus, nor does it assert jurisdiction under § 1361. For that reason, Weinberger does not stand in the way.
Whether or not the disposition made on the motion for extension of time preserves this collateral issue for appeal is a question this court cannot decide. It has recorded all the considerations so that the issue will be preserved, if it can be at all. It may be that a higher court will decide that the issue is of that kind which is capable of repetition, yet evades review. It may decide that there is jurisdiction for mandamus relief under § 1361, despite § 405(h).
Those questions are for the future. For the moment, leave is granted to HEW to file answer, with the certified transcript as part of the answer, on the date recorded by the clerk, as within time. Submit order accordingly.