When Congress recently eliminated the $10,000 amount-in-controversy requirement for federal question jurisdiction in suits against the United States, its agencies, and its officers, Congress effectively resolved, for most cases, the problem of finding subject matter jurisdiction for federal judicial review of federal administrative agency action. Whatever the resolution of such distinct issues as whether there is a cause of action, whether sovereign immunity is waived, and whether administrative remedies have been exhausted, subject matter jurisdiction, at least, will be provided, if nowhere else, by the amended federal question jurisdiction statute, 28 U.S.C. § 1331. The applicability of section 1331, however, is specifically precluded in an important class of cases: those arising out of the Social Security Act. In such cases the Act itself often, though not always, provides jurisdiction for judicial review. When the Act does not clearly provide such jurisdiction, difficult issues arise. May Congress constitutionally deny judicial review of assertedly illegal or unconstitutional agency actions by means of statutorily precluding any cause of action for such review? If it cannot, can it achieve the same effect by limiting the subject matter jurisdiction of the federal courts? The issues are fundamental and perplexing, and the Supreme Court has repeatedly indicated that it will go out of its way to avoid them. No attempt will be made here to go where giants fear to tread. Instead, the jurisdictional statutes will be examined in an attempt, consistent with existing precedent, to interpret the statutes to maximize the furtherance of both the congressional policy of strictly limiting judicial review outside of the Social Security Act and the constitutionally-based policy of permitting federal courts to resolve constitutional issues in the final instance.
John M. Rogers, A Way Out of the Social Security Jurisdiction Tangle, 21 Ariz. L. Rev. 689 (1979).