Tenuta v. Heckler

102 F.R.D. 583, 1984 U.S. Dist. LEXIS 14724, 6 Soc. Serv. Rev. 907
CourtDistrict Court, E.D. Wisconsin
DecidedJuly 24, 1984
DocketNo. 83-C-1607
StatusPublished

This text of 102 F.R.D. 583 (Tenuta v. Heckler) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tenuta v. Heckler, 102 F.R.D. 583, 1984 U.S. Dist. LEXIS 14724, 6 Soc. Serv. Rev. 907 (E.D. Wis. 1984).

Opinion

DECISION AND ORDER

WARREN, District Judge.

This case and the defendant’s recent motion for an extension of a filing deadline present the sort of procedural dilemma with which the courts of this district and across the nation have become all too familiar—namely, how to supervise the litigation of social security appeals characterized by repeated delays occasioned by the Secretary’s own inability to administer the huge numbers of challenges to her denial of decisions. Having previously placed the Government on notice that Secretary-inspired delays of this sort would not be viewed benignly, the Court today declines the invitation to sanction yet another postponement in the ultimate resolution of this matter.

BACKGROUND

On September 20, 1983, the plaintiff filed this action pursuant to 42 U.S.C. § 405(g), seeking reversal of the Secretary’s decision denying her application for disability benefits. By stipulation of the parties, memorialized in a letter of November 17, 1983, the [584]*584Secretary was afforded an extension of time up to and including December 18, 1983, in which to answer or otherwise plead to the allegations in the complaint.

On December 19, 1983, one day after the expiration of the enlarged period, the Secretary filed a motion for an order remanding this case for further proceedings. The purpose of the requested remand was to enable the Secretary to “locate or reconstruct the claim file.” Defendant’s Motion at 1 (December 19, 1983).

Although the Secretary certified, pursuant to Local Rule 6.01, that she did not intend to file a supporting brief or affidavit, she did invoke the language of 42 U.S.C. § 405(g) in support of her petition. That statute provides, in relevant part, as follows:

The Court may, on motion of the Secretary made for good cause shown before [s]he files h[er] 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 h[er] findings of fact or h[er] 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 h[er] action in modifying or affirming was based.

On January 16, 1984, plaintiff’s counsel filed a letter brief in opposition to the motion to remand in which he chronicled the procedural history of this case and argued, in effect, that the interests of justice would not be promoted if the Secretary’s motion were granted. Among other things, plaintiff’s counsel stated that his client has been disabled since October 2, 1981; that the Administrative Law Judge first hearing this matter determined that the claimant was entitled to benefits and issued a decision memorializing that finding on October 8, 1982; and that the Appeals Council subsequently reversed the decision of the Administrative Law Judge and denied plaintiff’s subsequent petitions for reconsideration and reopening, the latter request based on additional evidence in the form of medical verification of the claimant’s complaints of pain and suffering.

Plaintiff’s attorney also noted that his client had already acquiesced in the sixty-day extension of time afforded the Secretary on November 17, 1983, and that “the defendant has waited until the last minute on each and every procedure.” Plaintiff’s Letter Brief at 2 (January 16, 1984). He •concluded his missive as follows:

My client has now been waiting approximately 2V2 years for Social Security benefits that she is rightfully entitled to .... For these reasons, and at the request of our client, we request that the Court deny the defendant’s motion for remand.

Plaintiff’s Letter Brief at 2 (January 16, 1984). Appended to the letter were copies of the requests for reconsideration and reopening filed with the Appeals Council on the plaintiff’s behalf.

Although the Court did not resolve the motion to remand forthwith, the Government did file, on March 22,1984, an answer to the plaintiff’s complaint and, significantly, a certified copy of the administrative proceedings in this matter. Approximately two weeks later, on April 6, 1984, the Government filed an amended answer which, like the original, seeks dismissal of this case with costs and disbursements and affirmance of the Secretary’s decision denying the plaintiff’s request for disability benefits.

While the Secretary has not notified the Court that her motion to remand is now moot, the Court assumes, in the wake of her filing both an answer and a certified copy of the administrative record, that the claim file has, indeed, been located or reconstructed. Accordingly, the Court will [585]*585deny the Secretary’s motion to remand as moot.

On April 16, 1984, the Clerk of Court issued his scheduling order in this case which, among other things, required that the parties file and serve simultaneous summary motions no later than July 2, 1984. On precisely that date, the plaintiff filed her motion for summary judgment, accompanied by a supporting memorandum of law.

The Secretary, however, chose not to file a motion for summary judgment but instead interposed on July 2, 1984, the present petition for an extension of time up to and including August 1, 1984, in which to file such a motion. In support of her request, the Secretary has attached the affidavit of Attorney Steven J. Plotkin, supervisor of the Social Security Litigation Unit (SSLU) for the office of the Regional Attorney of the Department of Health and Human Services in Chicago, Illinois.

Mr. Plotkin explains in his affidavit the procedure through which the SSLU is notified by the United States Attorney’s Office of any briefing schedules established in social security actions filed pursuant to 42 U.S.C. § 405(g). As the unit responsible for preparing comments and briefs on the Secretary’s behalf in cases such as the present, the SSLU periodically receives from the United States Attorney a civil calendar list identifying those matters in which some action is required in the near future. According to Mr. Plotkin, “[t]he SSLU then informs the U.S. Attorney’s Office whether the brief will be filed timely, whether the SSLU will need more time to prepare the brief, or if some other action needs to be taken.” Affidavit of Steven J. Plotkin at 1 (July 2, 1984).

In the present case, Mr. Plotkin indicates that his unit never received copies of the Clerk's scheduling order of April 16, 1984, despite the United States Attorney’s unequivocal affirmation that the order was mailed to his office along with fifteen others like it. Having noted that some 600 new social security actions are filed in the district courts of this region each month, Mr. Plotkin concludes as follows:

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102 F.R.D. 583, 1984 U.S. Dist. LEXIS 14724, 6 Soc. Serv. Rev. 907, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tenuta-v-heckler-wied-1984.