Petition — Chocallo v. United States
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Supreme Court, U.S.
FELED
JUL29 1980
MICHAEL RODAK, JR., CLE
—— _
80-136
No.
Supreme Court of the United States
October Term, 1980
WANDA P. CHOCALLO, Administrative Law Judge,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT.
Fion. Wanna P. Cuocatyo,
Pro Se
308 Maple Avenue,
Drexel Hill, Pa. 19026
(215) 259-1628
International Printing Co., 711 So. 50th St., Phila., Pa. 19143 — Tel. (215) 727-8711
. Petition for Writ of: Certiorari
(No. 80-136, Oct. Term, 1980
Chocallo, ALJ v. U.S.A.)
ERRATA
The following were inadvertently
omitted from page 3, STATEMENT OF THE CASE:
Insert on line 16 after ''Trachtenberg"
"dated September 18, 1978''
Insert on last line after "order"
"On Dec. 11, 1978, another Appeal Coun-
cil order was issued purporting to dismiss
the request for hearing because it was ad-
vised that the appropriate component of the
SSA was prepared to issue a favorable de-
termination of Macklin's claims. The order
directed ALJ Chocallo forward forthwith the
claim files to Rose Lepore, Regional Com-
missioner, Region III, SSA, Phila., Pa."
QUESTIONS PRESENTED
1. Whether the court lacked jurisdiction to act.
2. Whether the averments of Respondent’s, United States
of America, Complaint state a valid cause of action.
3. Whether ALJ Chocallo’s right and duty to hear and
decide the Macklin case had been unlawfully infringed.
4, Whether departmental regulations (HEW) authorizing
Appeals Council to hear and decide social security cases
are illegal and unconstitutional.
5. Whether Appeals Council Orders of September 18 and
December 11, 1978 were illegal and unconstitutional.
6. Whether the injunction order issued by the court was
fatally defective and unenforceable by a contempt
proceeding.
7. Whether the United States of America, respondent,
failed to establish the right to have remedial punish-
ment imposed on respondent.
8. Whether the contempt proceedings, contempt order
and supplementation of the contempt order are invalid,
in excess of the court’s jurisdiction, an abuse of dis-
cretion and contrary to petitioner's constitutional
ss - rights.
9. Whether the Court erred in denying ALJ Chocallo’s
Motion to Consolidate this action with her action
against the Bureau et al. and Community Legal Serv-
ices Inc. et al. filed July 1, 1977 (CA—No. 77-2310,
DC Eastern District of Pennsylvania ).
10. Whether the court erred in denying petitioner’s Motion
to Dismiss Respondent’s Complaint for Mandamus
Relief.
(i)
TABLE OF CONTENTS.
Page
Se er E 5 b. Vis nib oS vo cedee ap Res cakinckvcasns iii
I SoG cs bss wie ise boun erases euewensece. 1
NE Sas Se esien Viveksu. sheubvsweesabavaure nes aadee
CITATION OF CONSTITUTIONAL PkOvISIONS, STATUTES, ETC ....
Ne OU TE SIRO on kok inno cs Kawaee sys Chek abavinns
REASONS FOR GRANTING THE WRIT ...............ceeeeees ll
IIR 8 Pa Sua the triw ons gaat ee mt 11
I, The APA and SSA Vested a Right and Duty in ALJ
Chocallo to Hold Hearings, Interpret and Apply the
Laws, and to Issue a Decision in Macklin’s Case,
Free From Interruption and Intimidation ......... 12
II. The Court Lacked Jurisdiction to Grant the Relief
WO 58 66 INNA Vans spanned body oe beddeo ccs 18
III. The Civil Contempt Order Issued by the Court Is
MN OP SM ooo os hid Lak bb cckck oulciaee, 21
IN. SEU vers la sasr ck saeanred Ch ncshadeuucets 24
APPENDIX:
Judgment Order, U. S. Court of Appeals, 3rd Circuit,
8 aks a vidie sa hace eeees eek Al
Judgment Order, U. S. Court of Appeals, 3rd Circuit,
Te OP och tenia adie nek it ey A3
Order and Opinion, U. S. Dist. Ct., Eastern District of
Wiig DON Fae BT, TOTO ao ives idahhadlackss: A5
Order and Opinion, U. S. Dist. Ct., Eastern District of
Pa., Dated October 26, 1979 (Filed October 31,
1979)
(ii)
TABLE OF AUTHORITIES.
Cases: Page
A. C, Samtord, Inc. v. United States, 226 F. ee 20
Association of Data Processing Service Organization, Inc. v.
RE, Fe I a ire sh 4cetes cwcavavéndciwcess —s«d8
Butz v. Economou, 43 U. S. 478 (1978) ........... cece eee. 15
Califano v. Sanders, — US—; 45 USLW 4209 (1977) ...... 16, 17
ny re MNO, ME We Be isc sc ute ecncssctaceccvas's 14
Hunt v. Commodity Future Trading Commission, 591 F. 2d
NE cP MMU ee SAUL Ga 540-0 x tee ka Gk Vidiya ke % os 17
International Long. Assn. v. Phila. Mar. T. A. et al., 389 U. S.
i tcc lhais Cis uy Dedede de decwan 21
Nash v. Califano et al. (USCA, 2d Cir.) (1-7-80) .......... 13, 16
Panama Refining Co. v. Ryan, 293 U. S. 388 ............... 18
Porter, Inc. v. Nat. Friction Products, 568 F. 2d 24 (1977) 21
Rizzo v. Goode, 423 U. S. 362, 96 S. Ct. 598 ............... 19
Rondeau v. Mosinee Paper Corp., 722 U. S. 49, 95 S. Ct. 2069 19
Schmidt v. Lessard, 414 U. S. 473 (1974) ................. 21
Terminal Assn. of St. Louis v. U. S., 266 U. S. 17, 45 S. Ct.
EEE TIES EEE AES GIO Ee 22
Warth v. Seldin, 422 U. S. 490 (1975) .............ccc00ce 18
Weinberger v. Salfi, 422 U. 8. 740 ..........ccccccuccceces 17
Wremmeme VW, Semeee, GSE F. BG TOD og. oon cc occecccocescealn 17
Wong Yang Sung v. McGrath, 339 U. S. 33 ................ 16
Statutes and Rules:
Title 5, U. S. C. Section 556(c)(5), (7), (8) wo... cece e eae, 2,13
Title 5 U. S. C. Sections 701-706 ........... ccc ccc ecu ece 17
Dame We Une UWE nn. we ivccccccecccccecnee 2
Title 28 U. S. C. $§ 1331, 1845 and 1361 ................ 6, 17, 21
Title 42 U. S. C. Section 405(g), (h) ..............005. 2, 13, 16
20 Code of Federal Regulations 404.9385 .................. 2,3
20 Code of Federal Regulations 404.941 .............. 2, 7, 13, 17
20 Code of Federal Regulations 404.947a ................. 2
20 Code of Federal Regulations 416.1449 ................. 2,3
(iii)
TABLE OF AUTHORITIES (Continued).
Statutes and Rules (Continued): Page
20 Code of Federal Regulations 416.1459 ................ 2 7, 37
Federal Rules of Civil Procedure, Rule 4(b) and 4(d) ..... 20
Federal Rules of Civil Procedure, Rule 12(a) ............. 20
Federal Rules of Civil Procedure, Rule 65(d) ............. 21
Miscellaneous:
Ff ek 85 ee RNs rere D 19
43A Corpus Juris. Sec. 306, p. 676 .........ccccccccccccces 23
2 Moore Fed. Practice § 4.29, p. 1203 .................... 20
OPINIONS BELOW
The Judgment Orders of the United States Court of
Appeals for the Third Circuit in case Nos. 79-2003 and
79-2619 (D. C. Civil No. 79-0833) are unreported and are
set out in the Appendix, infra, at pp. Al-A4. These cases,
which are related and arise from the same cause of action,
were consolidated by order of the Circuit Court dated
March 6, 1980 on motion filed by the United States of
America (respondent) for Leave to Consolidate Appeals
for Disposition on the Merits.” The Circuit Court, how-
ever, issued separate Judgment Orders, on different dates,
which affirmed without opinion (per curiam) the judg-
ments of the district court. The Circuit Court’s Order
issued in case No. 79-2003 was dated April 30, 1980; that
issued in case No. 79-2619 was dated May 19, 1980. The
Orders and Opinions of the United States District Court,
Eastern District of Pennsylvania, are also unreported and
are set forth in the Appendix, infra at pp. A5-A13.
(1)
2 Petition for Writ of Certiorari
JURISDICTION
The judgment of the United States Court of Appeals
for the Third Circuit in Case No. 79-2003 (D. C. Civil No.
79-0833 ) was entered on April 30, 1980. The judgment of
companion case No. 79-2619 (D. C. Civil No. 79-0833)
was entered by the United States Court of Appeals for the
Third Circuit on May 19, 1980. The jurisdiction of this
Court is invoked pursuant to Title 28 United States Code
Section 1254.
CITATION OF CONSTITUTIONAL
PROVISIONS, ETC.
The pertinent text of the constitutional provisions,
statutes, regulations, etc. involved are set forth in the
Appendix, infra, at pp. Al4-A31.
The citations are as follows:
Title 5 United States Code 556, 557
20 CFR:
404.918(b), 404.934, 404.935, 404.940, 404.941,
404.945, 404.947, 416.1449, 416.1459.
Section 205(g) Social Security Act, 42 USC 405(g)
Section 205(h) Social Security Act, 42 USC 405(h)
Federal Rules of Civil Procedure, Rules 4(b); 4(d) and
65(d), 28 U. S. C.
Petition for Writ of Certiorari 3
STATEMENT OF THE CASE
Three extraordinary writs were summarily granted by
the district court, i.e., mandamus, injunction and summary
judgment, without hearing, answer and service and with-
out the Government’s meeting the standards and criteria
imposed by law and established by judicial precedent. A
writ of attachment for civil contempt also was issued under
circumstances repugnant to traditional American concepts
of justice.
During the course of proceedings before petitioner,
Wanda P. Chocallo, a Social Security Administration
(SSA), Bureau of Hearings and Appeals (BHA) presiding
Administrative Law Judge (ALJ) in the William L. Mack-
lin, Sr. case, Macklin’s Community Legal Services attorney
(CLS), Andrea Illig, succeeded in obtaining an Appeals
Council Order from the Bureau Director—Chairman of
Appeals Council, Robert L. Trachtenberg, which purported
to remove the case to Appeals Council for hearing and dis-
position under departmental regulations 20 CFR 404.935
and 416.1449. Trachtenberg issued the order though he was
fully aware that he, as we!! as other Appeals Council mem-
bers were precluded from holding social security hearings
and issuing decisions *inder the Administrative Procedure
Act since they were not appointed pursuant to its terms.
Petitioner knew that the order was issued without any in-
tention on the part of Trachtenberg to have the matter
“heard” by Appeals Council as required by the applicable
regulations. In the past he issued similar orders during
the course of proceedings before petitioner, for the sole
purpose of having the cases reassigned to another more
“acceptable” ALJ in order to control the outcome of the
case. The order in question also purported, without war-
rant in law, to direct petitioner to surrender to Appeals
Council on a date specified, which preceded the date on
which she received a copy of the order.
4 Petition for Writ of Certiorari
Mr. Trachtenberg first introduced this device of re-
moval and reassignment of cases to circumvent the pro-
visions of the APA in the Pearl Taylor case, referred to
infra.
As a result of ex parte contacts made by Macklin’s
CLS attorney with agency and other public officials (and
those made by her client), the Administration, dehors the
record and with no evidence before it, agreed to pay social
security benefits to Macklin although his claims had been
twice denied and he filed an untimely (4 months late) re-
quest for hearing from the reconsideration denial. The
next step required was to terminate proceedings before
petitioner. Ms. Illig was told by agency officials she and
Macklin need not appear at the hearings scheduled by
petitioner. She made this admission on the record at a
hearing held on July 10, 1978. Because of the appearance
of impropriety (and the actual fact of impropriety as a
result of pressures exerted against petitioner by various
public and agency officials'), Ms. Illig was advised the
matter would have to be disposed of on the basis of a full
and complete record developed in the “open courtroom.”
This she did not want. Nor did the agency officials want a
ruling on the record by petitioner.
Through an arrangement between CLS and the Bu-
reau, attorneys who wished to have their cases removed
from ALJ Chocallo and reassigned to another judge,
simply contacted “Don Przybylinski of Appeals Council”
who would have an appropriate Appeals Council Order
1. Mr. O'Leary, Asst. Manager, Dover Delaware District
Office; Clarence Petersen, Bureau Disability Insurance, Regional
Office, SSA, Philadelphia; Gary Patterson, Senator William Roth’s
Office, Dover, Delaware; Herman Snyder, Chief Deputy to
Regional Chief ALJ Sol Gitman. Written memoranda of such ex
parte communications were prepared by petitioner's staff members
and admitted by her into evidence as Exhibit 40 of Macklin’s case.
Petition for Writ of Certiorari 5
issued. This scheme was disclosed under oath by one of
CLS'’s staff members, Miguel Bentacourt, and is discussed
in Exhibit “A” attached to the United States of America
(respondent) “Supplemental Material in Support of Plain-
tiffs Opposition to Defendant’s Request for an Enlarge-
ment of Time Within Which to Respond to Complaint.”
This is the procedure Ms. Illig followed. However, her
request also was made in writing and contained her ad-
mission that she knew Appeals Council was without lawful
authority to review ALJ Chocallo’s actions prior to the
issuance of a final decision after close of hearings. None-
theless, she requested this be done, or in the alternative
that Appeals Council remove “the request for hearing” to
itself.
In a lengthy letter to the Bureau dated November 24,
1978 (Exhibit “K” of Respondent’s Complaint for Manda-
mus Relief), petitioner advised that she believed the
order issued by the Director was not only fatally defective
but a subterfuge employed by him to evade the law, as
substantiated by fact and law. Further, that because a
judge’s obligation is to his faithful, fearless and inde-
pendent interpretation of the law and Constitution and
to safeguard private and public rights and interests, with-
out fear of reprisal or blandishment of reward, she was
obliged to conclude that the regulations cited in the Di-
rectors order, in addition to being null and void on their
face, were invoked with fraudulent intent. A fortiori, she
was precluded by her judicial oath and the Code of Ethics
for Government Service from giving the order legal efficacy.
She further pointed out that at the ex parte request of
claimants CLS representatives, the Director issued similar
orders in other cases while proceedings were pending
before her; viz., Carmelita Verden, Dominic Valentime,
Stelia Barauskas, Albert Blackwell, Francisco and Iraida
Ocasio, Margaret Leech. An examination of the records
6 Petition for Writ of Certiorari
revealed these cases were not heard by Appeals Council
as required by the regulations but were sent back to the
Philadelphia Hearing Office, often falsely marked “Re-
manded”, for reassignment to another more acceptable
AL]. ,
On March 1, the United States of America, asserting
as the basis for the court’s jurisdiction Title 28, United
States Code, §§ 1331, 1345 and 1361, instituted this action
for an injunction directing petitioner to immediately de-
liver the Macklin case files in accordance with Appeals
Council Orders of September 18 and December 11, 1979,
the latter of which had never been served on petitioner
and of which she had no prior knowledge. Although the
Complaint did not allege immediate or imminent irrepar-
able harm, or any injury in fact; failed to allege any ex-
press statutory right to the files; failed to allege any
clear mandatory duty on the part of petitioner to honor
and validate Appeals Council’s order and, without service,
answer and hearing, the district court summarily granted
the injunction requested, which was affirmed, per curiam,
by the circuit court.
ALJ Chocallo’s request that she be furnished counsel
at government expense was denied. She defended herself
on her own time and entirely with her own resources.
She moved to dismiss the complaint challenging, inter
alia, the couri’s lack of in personam and subject matter
jurisdiction; the validity of the service of process and
summons issued; the validity of the cause of action; re-
spondent’s legal standing and capacity to maintain the
action; the validity and constitutionality of appeals coun-
cil orders; the validity and constitutionality of the regula-
tions authorizing Appeals Council, whose members are
not appointed under the APA, to hear and decide Social
Security cases; and that the action was barred by the doc-
trine of judicial and sovereign immunity.
’ Petition for Writ of Certiorari 7
ALJ Chocallo also moved to have the government's
case consolidated with a suit filed by her on July 1, 1977
(CA No. 77-2310, DC, EDPa.) against BHA, Trachten-
berg et al. and Community Legal Services, Inc. (CLS)
et al., which though reassigned to 3 judges in succession
is still pending. In her complaint she alleged, inter alia:
(1) BHA Director, Robert Trachtenberg, in complicity
with CLS lawyer Jonathein Stein (who had been repudi-
ated and discharged by Pearl Taylor) issued an unlawful
order dated June 10, 1977 which purported to do the fol-
lowing: (a) vacate ALJ Chocallo’s interlocutory order
excluding Stein from further participation in the Pearl
Taylor case because of his unethical conduct and obstruc-
tive behavior; (b) remove the Taylor case to Appeals
Council for hearing pursuant to 20 CFR 404.941 and
416.1459; and (c) remand the case to Acting Regional
Chief ALJ Sol Gitman with directions that he reassign the
case to another judge. (2) Mrs. Taylor testified before
petitioner on June 13, 1977 that her CLS lawyer, Bartholo-
mew Poindexter, who replaced Stein, phoned her Sunday,
June 12, 1977, to inform her (during a three way conver-
sation participated in by Stein,) that her case was being
taken away from ALJ Chocallo and they were awaiting
another ‘udge to be assigned to the case; that she should
not appear at the hearing scheduled for the following day.
She told them she did not ask for another judge; did not
want another judge and intended to appear and present
her case to ALJ Chocallo on June 13th. They said she
had to choose sides; that if she did not join them in the
battle against ALJ Chocallo, she would go down in defeat.
They openly admitted there was a conspiracy to have
petitioner removed from office; that appeals council order
was “a means to an end.” (3) ARCALJ Gitman met with
Mrs. Taylor and Stein immediately before the February
13, 1977 hearing. Gitman told Taylor ALJ Chocallo de-
8 Petition for Writ of Certiorari
nied 15 cases similar to hers (a bold lie); that if, in effect,
she helped provide evidence for ALJ Chocallo’s removal,
she would receive disability benefits even though denied
by ALJ Chocallo. (4) The Bureau and CLS, unlawfully
and covertly, solicited attorneys, etc. to file complaints
against ALJ Chocallo as an aftermath of the John C. Cole-
man case, over which she presided. Coleman’s CLS at-
torney engaged in ex parte contacts with agency officials
for the purpose of pressuring her. ALJ Chocallo dis-
covered Coleman and his attorney concealed the fact that
substantial fraud had been committed by him. ALJ
Chocallo would not yield to such pressures, despite the
agency's threat that she would be “investigated and
fired”. She requested the Secretary of HEW and the
Civil Service Commission to investigate these and other
unlawful activities. Bureau Director Trachtenberg
countered by advising petitioner he planned to recom-
mend she be removed from office. Thus, the secret smear
campaign was undertaken. (5) At Trachtenberg’s direc-
tion, petitioner's locked office was unlawfully broken into,
entered, searched and seizure made of some of her papers.
The purpose of the break-in was to remove the Taylor
tanes and case files, which were not there. In her Com-
plaint, petitioner requested, inter alia, Bureau defendants
be enjoined from practices contrary to the APA that in-
fringed on the impartiality and independence of ALJS;
further, that they and CLS be enjoined from interfering,
hindering and impeding her in the discharge of her
judicial functions.
As a result of her suit, Trachtenberg, in retaliation,
filed a letter of charges with the Civil Service Commission
requesting ALJ Chocallo be removed from office for (1)
failing to comply with Appeals Council’s Order in the
Pearl Taylor case and (2) for refusing to surrender the
Taylor file. An appeal is presently pending from the Com-
Petition for Writ of Certiorari 9
mission's adverse decision. She was also sued by the
United States of America in a mandamus action for return
of the Taylor files. That suit was dismissed and summary
judgment entered for ALJ Chocallo. With this background
in mind, the events in the Macklin case may be better
understood.
On July 27, 1979, the district court entered summary
judgment for respondent. ALj Chocallo had no prior
knowledge that the Government moved for summary
Judgment. No notice had been served on her. Nor had
the court ordered the matter for argument or hearing,
which, certainly, would have alerted petitioner and given
her an opportunity to counter such motion. The court’s
injunctive order simply stated: “Defendant shall comply
fully and completely with the Appeals Council Orders
dated September 18, 1978 and December 11, 1978, within
five (5) days after entry of this Order.” A copy was re-
ceived by ALJ Chocallo on July 31, 1979. In its opinion,
the court stated petitioner’s motion to dismiss was denied.
It failed to address any of the issues raised by her.
On August 1, 1979, ALJ Chocallo filed an appeal to
the Circuit Court. On September 17, 1979 at 3:15 P. M.,
she was served with respondent’s Motion for the issuance
of a contempt order signed by the court on September 4,
1979 and made returnable September 21, 1979. On
September 21, 1979, ALJ Chocallo appeared and requested
a two weeks continuance so that she could adequately
prepare her defense. Only a week’s continuance was
granted although petitioner had her full time duties as an
ALJ to discharge. On September 28, 1979, petitioner,
who in the meantime had suffered a hypertensive crisis and
was totally incapacitated, was represented by counsel.
Counsel's application for a continuance on these grounds
(as supported by medical certification) was denied on the
ground, as stated by the court, “her physical presence in
10 Petition for Writ of Certiorari
court is not required in order to comply with the order of
the Court even at the present time.” (NT 14, 15) The
court entered an order stating if the files were not turned
over to the “Administration” by October 2, 1979, she would
be fined $100.a day and if at the end of five days from
October 2, 1979 the files had not been turned over to the
Administrator in Philadelphia, she would be put in jail.
Motions to dismiss ti 2 contempt proceedings and for
reconsideration and recission of the Order of September
28, 1979 were filed on be!.alf of ALJ Chocallo. The records
of the Macklin case were attached with the latter motion
and filed with the Clerk of the District Court with the re-
quest they be retained by the latter until ALJ Chocallo’s
appeal was adjudicated by the circuit court. On October
29, 1979, ALJ Chocallo filed an appeal from the contempt
order of September 28, 1979. On October 31, 1979, after
jurisdiction was in the court of appeals, the District Court
entered an order directing the Clerk of the Court to, inter
alia, deliver to the attorney for the government for delivery
to the SSA, the entire Social Security claim file annexed to
the Motion for Reconsideration, etc. At the same time it
denied ALJ Chocallo’s Motion.
The actions of the district court were affirmed, with-
out opinion, by the circuit court.
Petition for Writ of Certiorari 11
REASONS FOR GRANTING THE WRIT
Introduction
A reign of terror and absolutism prevails within SSA,
BHA (now OHA). Administrative Law Judges are not
free. The independence mandated by Congress is a mere
statutory myth. Every phase of their “judgmental” ac-
tivities is constantly being encroached upon and con-
trolled. Abuses and assaufts against the independence and
integrity of the administrative judicial process are the rule
and not the exception. Administrators, in their zeal to
control the American pocketbook (the agency dispenses
billions of dollars) twist, torture and misapply the best of
laws. An ALJ with an inflexible rule not to betray the
integrity of his/her mind soon becomes a target of un-
limited harassment, reprisals and a vicious smear campaign.
An ALJ who refuses to submit to agency pressures and the
dictates of such “public interest groups” as Community
Legal Services will soon become a victim of a conspiratorial
removal drive.
Petitioner risked her job and possibly her reputation
because she refused to acquiesce in what she knew was
wrong and would not go along, as expected, with practices
that violated her judicial and personal code of conduct.
There is greater honor and honesty in being a free mendi-
cant rather than an enslaved and servile judge. Subservient
judges contaminate impartiality and mean an enslaved
people.
Great emphasis has been placed by this Court on the
importance of preserving the independent judgments of
ALJs in all stages of the proceedings before them to insure
fair and impartial hearings. Chief Justice Warren Burger
stressed the need for independent judges in an interview
by U. S. News World Report, Inc. on December 19, 1977
12 Petition for Writ of Certiorari
with respect to a bill proposed by Senator Sam Nunn for a
commission to review charges of misbehavior by a judge.
The Chief Justice commented that it must be used with
great caution and alertness “never to impinge on the de-
cisional independence of federal judges.” He declared
that to subject federal judges to the suggested reconfirma-
tion proceedings at certain intervals “would strike at the
heart of the independence of the judges.”
Justice Brandeis cautioned: “One naturally should be
alert and vigilant to repel invasions of his independence by
evil rulers; that the greatest danger to independence and
freedom lurks in insidious encroachments by men of zeal,
however well intentioned, but without understanding.”
Our forefathers, by adding commandments to the Consti-
tution, knew that governments are administered by average
men and that the mating of mediocrity with public office
has never yet begotten genius, but has often begotten delu-
sions of personal grandeur and an ambition to administer
civilization.
The mandates of this Court on the subject are clear.
However, the district court so far departed from such man-
dates and from the accepted and usual course of judicial
proceedings, which departures were sanctioned by the Cir-
cuit Court, as to call for an exercise of this Court’s power
of supervision.
IL
The APA and SSA Vested a Right and Duty in ALJ
Chocallo to Hold Hearings, Interpret and Apply the
Laws, and to Issue a Decision in Macklin’s Case, Free
From Interruption and Intimidation
The APA, SSA and Department of HEW’s implement-
ing regulations placed in ALJ Chocallo, once the Macklin
case properly came before her, responsibility for regula-
Petition for Writ of Ccrtiorari 13
tion of the course of the hearing, disposition of procedural
requests or similar matters and the production of an initial
decision. 5 USC 556(c)(5)(7),(8), 42 USC 205(b) (h),
20 CFR 404.918(b), 404.941 et seq. Her jurisdiction and
control over these matters terminates only upon the filing
of an appeal from her decision. As a social security AL]
she had a dual responsibility. It was her duty to safe-
guard the rights and interests of Macklin and the public
as well.
It also was her duty to assure the correct administra-
tion of the SSA, the APA and all other applicable statutes
and legal regulations, to resolve issues, and to protect pub-
lic and private rights by assuring that benefits will not be
improperly paid but will be granted only to those entitled
under the law on the basis of substantial credible evidence
of record. The public's legitimate interests precluded her
from giving validity to an order that clearly violated statu-
tory and constitutional inhibitions, public and private rights
and was calculated to disturb the course of impartial jus-
tice. The decision that Appeals Council’s order was ille-
gal and could not be validated by her, constituted an
exercise of her APA adjudicatory responsibilities and was
not a purely ministerial act, as characterized by the district
court in its opinion.
Mr. Trachtenberg ipse dixit was fully cognizant of the
limitations imposed by the APA upon his and Appeals Coun-
cil’s powers, and of the illegal nature of the regulations
fraudulently invoked. In the case of Nash v. Califano et
al., (USCA, 2d. Cir., 1-7-80) — F.2d. —, where Nash con-
tested the Secretary's delegation of the power to hold hear-
ings to non-ALJ Appeals Council members, the court in
its opinion stated: “But Director Trachtenberg avers that
no member of the Appeals Council has ever tried a case in
that capacity.”
It is eminently clear that Trachtenberg sought to cir-
cumvent and nullify the commands of the APA by issuing
14 Petition for Writ of Certiorari
the orders in question. To give his ultra vires orders vital-
ity would set at naught principles deeply rooted in law on
which rests the integrity of our judicial system.
Congress in enacting the APA, and this Court in its
decisions, have condemned the practices employed by the
Bureau Director, Community Legal Services and other
agency and public officials who improperly injected them-
selves in the Macklin case. The essential right of judges
to be free from intimidation and to conduct their business
in an untrammelled and uninterrupted way lies at the foun-
dation of our system of government. It is also a general
principle of the highest importance to the proper adminis-
tration of justice that a judicial officer in exercising the au-
thority vested in him shall be free to act upon his own
convictions without fear of personal hazard for there are
procedures available to determine whether claimants re-
ceive a fair hearing.
Certainly, what occurred here does not contribute to
principled and fearless decision-making. It seriously dis-
rupts, hinders and obstructs the orderly and impartial ad-
ministration of justice and abrogates the rights and dignity
of the judge which must be as scrupulously guarded as
those of litigants and lawyers. Ex parte Secombe, 60 US 9.
Judges must not be obsequious toadies in their atti-
tudes towards high ranking officials and their obligation to
safeguard public and private rights with equal protection
under the laws does not permit a timorous reluctance to
take whatever action is warranted by the circumstances of
the case. The people must depend upon courageous, inde-
pendent judges for decisions and judicial conduct that will
ensure society as a whole and its individuals against those
who would undermine and destroy the orderly and impar-
tial course of justice. The administration of justice should
not be made unduly difficult by irresponsible acts of public
officials, litigants and lawyers as outlined above.
Petition for Writ of Certiorari 15
This court, in its opinion in Butz v. Economou, 438
U.S. 478 (1978), wisely stated:
“In light of these safeguards, we think the risk of an
unconstitutional act by one presiding at an agency
hearing is clearly outweighed by the importance of
preserving the independent judgment of these men
and women ... Those who complain of error in such
proceedings must seek agency or judicial review.”
(Italics supplied )
The decision of the district court, affirmed by the Cir-
cuit Court, provides the vehicle whereby agencies may
avoid entirely the provisions of the APA and nullify the
commandments of Congress. It obviously has already
provided the vehicle for the Social Security Administra-
tion to conduct hearings behind the scenes and pay out
claims without any evidence “on the record”. This is
boldly admitted by the request in its Complaint that the
Court sanctify its actions by ordering petitioner to “furnish
the evidence” so that the payments may be “justified.”
This court condemned such practices and as supervisors of
the federal system, it is the duty of the courts to see that
the law is enforced not selectively but in all cases coming
before them. Concern over administrative impartiality
and the fact that such power ofttimes was put to arbitrary
and biased use, led to the enactment of the APA. Un-
fortunately, the evils it sought to remedy are blatantly
perpetuated within the Social Security Administration and
condoned by the courts in this case. It is well established
that neither the courts nor administrative bodies are free
to disregard Congressional policy concerning the manner
in which administrative hearings are to be conducted
merely because the administrative record may disclose a
meritorious case. It is their duty to look beyond the
merits of the individual case towards the effectuation of
16 Petition for Writ of Certiorari
a broad policy of insuring fair and impartial hearings to
all. Any other approach would result in chaos and uncer-
tainty. Wong Yang Sung. v. McGrath, 339 U. S. 33.
Courts are not obliged to stand aside and rubber stamp
their affirmance of administrative decisions that they
deem inconsistent with the statutory mandate or that
frustrate the Congressional policy underlying a statute.
What was said by the court in the Nash case, supra,
is most significant:
“The Social Security Administration has, moreover,
recognized the limitations upon its power over the
ALJ's decisionmaking process. The position descrip-
tion for ALJs issued by the Administration’s Bureau
of Hearings and Appeals states that ALJs possess
‘full and complete individual independence of action
and decision . . . without review [and] full respon-
sibility and authority’ for the conduct of hearings and
the disposition of cases. “The social Security and
Administrative Procedure Acts,’ the description con-
tinues, ‘prohibit substantive review and supervision
of the [ALJ] in the performance of his quasi-judicial
functions. His decisions may not be reviewed before
publication, and after publication only by the Appeals
Council in certain prescribed circumstances. He is
subject only to such administrative supervision as
may be required in the course of general office man-
agement.
The exclusive remedy for review of the decision
issued after hearing is limited by the restrictive language
of §205(h) 42 USC 405(h) of the Social Security Act,
which routes review of social security cases such as this
through § 205(g) of the Act, 42 USC 405 which has been
held by the rulings of this Court in Califano v. Sanders,
Petition for Writ of Certiorari 17
— US — 45 U. S. L. W. 4209 (1977) and Weinberger v.
Salfi, 422 U. S. 749, to preclude review by Appeals Coun-
cil and by the court under 28 USC 1331, the Administra-
tive Procedure Act, 5 USC 701-706 or any other act.
Since, in the words of Mr. Justice Stewart in Cali-
fano v. Sanders, supra, “the second sentence should be
read to mean exactly what it says, “a fortiori the regula-
tions authorizing Appeals Council to review the decisions
of ALJs (who are directly delegated by him to conduct
hearings and issue final decisions ) are illegal and null and
void. It must be remembered that Appeals Council is
not a creature of statute or Congressional mandate. Its
genesis was conceived by reference to it in departmental
regulations cited above.
Irrespective of the dubious legitimacy of Appeals
Council, injunctive relief will not be granted against a
judge where the record demonstrates plaintiff was simply
dissatisfied with a judge’s rulings. Wilkins v. Rogers, 581
F, 2d 399,
Nor will the courts provide statutory or injunctive re-
lief interrupting administrative proceedings absent special
circumstances. Hunt v. Commodity Future’s Trading
Commission, 591 F. 2d 1234, To hold otherwise, would
render the orderly administrative procedure impossible as
demonstrated in this case.
There can be no doubt that 20 CFR 404.94] and 20
CFR 416.1459 delegating authority to conduct SSA hear-
ings to Appeals Council members, who are appointed by
the Bureau Director and are not protected by the safe-
guards provided in the Administrative Procedure Act,
contravene the prohibitions in the APA. A fortiori, they
are illegal and unenforceable.
From the beginning of Government, Congress has
conferred upon executive officers the power to make regu-
lations—“not for the Government of their department but
18 Petition for Writ of Certiorari
for administering the laws which did govern.” Such regu-
lations only become binding rules of conduct if they are
valid; and they are valid only as subordinate rules and
when found to be within the framework of the policy
which the legislature has sufficiently defined. Panama
Refining Co. v. Ryan, 293 U. S. 388.
Il.
The Court Lacked Jurisdiction to Grant the Relief
Requested
Article III of the Constitution limits federal judicial
power to the adjudication of “cases or controversies.”
Thus, a threshold question in every suit is whether plain-
tiff has alleged that it has in fact suffered (or is im-
minently subject to suffering ) a cognizable injury. Warth
v. Seldin, 422 U. S. 490 (1975). Jurisdiction must be
ascertained from a reading of the Complaint. The merits
are not to be considered. Association of Data Processing
Service Organization, Inc. v. Camp, 397 U. S. 150 at 153.
No substantial, real and irreparable injury is averred
in respondent's Complaint. In paragraph 20, respondent
alleged that Macklin “will soon be receiving, or has al-
ready begun to receive, monthly DIB benefits. Payments
to Mr. Macklin are being made on an emergency basis,
but will not become part of the regular payment system
until the medical evidence supporting the determination
that Mr. Macklin is disabled, which is contained in the
file being held by the defendant, is forwarded to ODO.
Issuing payments on an emergency basis rather than
through the regular payment system strains the limited
manpower resources of the ODO, Social Security Admin-
istration, causes administrative inconvenienc?, and may
result in the interruption of payments to the claimant.
ODO must review the documents contained in the file
Petition for Writ of Certiorari 19
being held by the defendant in order to avoid the over-
payment or underpayment of benefits to claimant
Macklin.”
The basis of injunctive relief in federal courts has al-
ways been (1) irreparable harm and (2) inadequacy of
legal remedies. Rondeau v. Mosinee Paper Corp., 95 S. Ct.
2069, 722 US 49; Rizzo v. Goode, 96 S. Ct. 598, 423 US
362. The injury must be material and consequential, ex-
isting or presently threatened, and not one that is technical,
theoretical, doubtful, eventual or contingent to warrant
judicial intervention.
It has also been declared that the basis for injunctive
relief must be interference with a legal right of the plain-
tiff not of a third party, for the complainant cannot suc-
ceed because someone else may be hurt. 42 Am. Jur. 2d
§ 29, p. 764 et seq. The principal beneficiary of these
extraordinary proceedings initiated by the Government at
public expense is Macklin who, through the “undertow of
extraneous influences” is the recipient of a special type of
justice and bounty not available to others entitled to the
equal protections of the law.
The public’s legitimate interests and the integrity of
the adjudicative process dictated that the parties should
have pursued the ordinary processes of the law rather than
chosen the extraordinary ones. Moreover, it was the duty
of the court to enforce the law not selectively but uni-
formly. Extraordinary remedies are seldom granted and
only when no other course of action is available and under
very special circumstances.
The court also lacked requisite jurisdiction over ALJ
Chocallo’s person. Service of process was not made in ac-
cordance with the requirements of Rule 4(d), Federal
Rules of Civil Procedure governing service upon officers
of the United States. Personal service of the complaint on
ALJ Chocallo was never made. It was served on “Cathy
20 Petition for Writ of Certiorari
Ingram” at the offices of BHA, 1528 Walnut Street, who
was falsely certified by the Deputy Marshall in his affidavit
of service, “to be a person of suitable age and discretion
then residing in the defendant's usual place of abode.”
Ms. Ingram did not reside at ALJ Chocallo’s usual place of
abode and was not served there. Nor was she authorized
to accept service in behalf of petitioner Ms. Ingram
worked as a hearing assistant for the Bureau.
In actions seeking mandamus or injunctive relief, per-
sonal service must be made upon the officer or agency
pursuant to FRCP Rule 4(d) in view of the fact that a
violation of a court order entered in such an action is
punishable by contempt proceedings. Even in a declara-
tory action which seeks an in personam adjudication, as
opposed to in rem relief, there should be personal service.
Service on the United States attorney or one of the official’s
subordinates is not sufficient to obtain jurisdiction over the
official, unless the subordinate upon whom personal service
is made had been appointed by the official as his agent
upon whom service could be made. 2 Moore Fed. Prac-
tice, § 4.29, p. 1203.
In addition to the invalid service, the summons is
fatally defective since it recites a date for filing an answer
other than that prescribed by FRCP, Rule 12(a), as re-
quired by FRCP Rule 4(b). Rule 12(a) requires that an
officer of the United States shall serve an answer to the
complaint within 60 days after the service upon the United
States Attorney of the pleading in which the claim is as-
serted. There is authority that a writ returnable at a time
not authorized by law is void and, therefore, not amend-
able. A. C. Samford, Inc. v. United States, 226 F. Supp.
72.
Petition for Writ of Certiorari 21
Il.
The Civil Contempt Order Issued by the Court Is Con-
trary to Law
Where the court, as here, merely incorporates by ref-
erence to the Complaint or other document the act sought
to be directed or restrained, the order ignores the manda-
tory requirement of Rule 65(d), FRCP, 28 USC and thus
the error in the order is serious and decisive and pre-
cluded plaintiff from successfully invoking the district
court's contempt powers. Schmidt v. Lessard, 414 U. S.
473 (1974); H. K. Porter Co., Inc. v. Nat. Friction
Products, 568 F. 2d 24 (1977), 7th Cr. Ct. App. See also
Internat Long. Assn. v. Phila. Mar. T. A. et al., 389 U. S.
64, 88 S. Ct .201.
It is beyond cavil the court’s injunctive order failed
to comply with Rule 65(d). It is also beyond cavil that the
two Appeals Council orders in question are contradictory.
The failure of the court below to spell out in its injunctive
order the specific obligations resting upon ALJ Chocallo
ipso facto is fatal to the contempt proceedings.
To sustain the conviction of a person for civil con-
tempt, there must exist not only jurisdiction in the court to
grant the order allegedly disobeyed but also a valid cause
of action in the aggrieved party. There can be no doubt
the court lacked requisite jurisdiction of ALJ Chocallo’s
person and was without jurisdiction to grant the relief
requested.
The district court was without jurisdiction to act on
the motion for reconsideration of its contempt judgment
and to supplement or implement its judgment after ALJ
Chocallo filed an appeal from the contempt order. Inas-
much as notice of appeal from the contempt judgment had
been filed prior to the court’s action on ALJ Chocallo’s
Motion was filed, jurisdiction was vested in the appellate
22 Petition for Writ of Certiorari
court and the district court was without jurisdiction to
supplement its contempt judgment after the filing of the
notice of appeal. Its action was ultra vires, exceeded the
limitations upon its powers and is null and void.
The contempt order likewise was improperly entered
because the Government failed to prove it had been in-
jured, which is essential in a civil contempt proceeding.
If a complainant has not been damaged by the violation
of a decree or injunction, he is not entitled to have any
remedial punishment imposed on the violator. There must
be proof of clear injury to plaintiff. No such proof was
required by the court or shown by respondent. Petitioner,
a fortiori, could not be held in contempt for alleged non-
compliance with the court’s decree whether considered in-
junctive or mandamus in nature. Terminal R. Assn. of St.
Louis v. U. S., 45 S. Ct. 5, 266 U. S. 17.
The court committed a clear abuse of discretion by
refusing to continue the hearing, though petitioner's illness
disabled her for more than three weeks, for the simple rea-
son that it felt her presence wasn’t required for him to hold
her in contempt. Had it not been for the imperiled state
of her health, she most assuredly would have elected to
appear and go to jail rather than betray her public trust
and judicial obligations. Unfortunately, it would have
been foolhardy to risk a heart attack or stroke.
The power to punish by contempt, vested in district
courts by statute, is not an unbridled one and appellate
courts have special responsibility for determining that the
power is not abused. The courts have a special duty to
exercise their extraordinary powers with utmost responsi-
bility and circumspection. There can be no doubt that
the power of contempt was not used by the court in the
instant case with great caution and alert self-restraint.
It was applied without clear and convincing proof estab-
lished by the government. It was irresponsibly applied
Petition for Writ of Certiorari 23
without affording ALJ Chocallo the opportunity to defend
and the benefit of every reasonable doubt to which she
was entitled. It was applied in the absence of any proof
of clear injury to respondent, which is essential in a civil
contempt proceeding.
The following requirements likewise were not met,
which nullifies the contempt judgment: (1) It must be
sufficient on its face to show jurisdiction and justification
for the punishment. (2) It should contain a statement of
the facts constituting the contempt, mere conclusions are
insufficient. It must be definite and certain as to the pun-
ishment imposed and if a fine is imposed, it should desig-
nate the person to whom it is to be paid. (3) It cannot,
in absence of express statutory authorization, include as
part thereof a modification or enlargement of the injunction
order. (4) It must state that the alleged offense was cal-
culated to, or actually did impair, impede, or prejudice the
rights and remedies of plaintiff. 43A C. J. S. 306, p. 676
et seq. and cases cited therein,
The law governing extraordinary writs, as firmly es-
tablished by this court, has been patently violated by the
district court and given the imprimatur of the Circuit
Court.
The painful aspect of the district court’s decision, af-
firmed per curiam by the Circuit Court, is that its rationale
is as impermissible as its consequences. There is simply
no indication in the Complaint itself, or in the court's
opinion, of the statutory basis for summarily conferring on
the respondent the right to the Macklin files and the duty
on petitioner to surrender them to those who are not a
party to these proceedings and have no statutorily con-
ferred right to such files; viz., Rose Lapore and the un-
identified body called appeals council, although peti-
tioner’s jurisdiction over the Macklin case by Congressional
edict does not terminate until she issued a decision in
24 Petition for Writ of Certiorari
the case. It is difficult to understand how the court ar-
rived at its decision.
Of even greater concern is the total lack of regard
by the district and circuit courts for the constitutional and
statutory rights of ALJ Chocallo, who acted with utmost
fidelity in discharging her public trust, and those of the
public whose interests she had a positive duty to protect.
What is also alarming is that the highly irregular practices
and taint that stigmatize the integrity of the social security
system and its administrative judicial process are given
these courts’ official imprimatur. It is dangerous precedent
and a threat to every freedom if allowed to stand.
CONCLUSION
For the reasons stated above, the Petition for Writ of
Certiorari should be granted.
Respectfully submitted,
Hon. Wanpba P. CHOcALLO
Pro Se
308 Maple Ave.,
Drexel Hill, Pa. 19026
Appendix.
UNITED STATES COURT OF APPEALS
For THE TuHirp Circuit
No. 79-2619
UNITED STATES OF AMERICA
v,
CHOCALLO, WANDA P.,
ADMINISTRATIVE LAW JUDGE
Wanda P. Chocallo, Appellant
APPEAL FROM THE UNITED STATES Districr Court
For THE EASTERN DistTrRICT OF PENNSYLVANIA
D. C. Civil No. 79-0833
Submitted April 25, 1980
Before: ALDISERT, ROsENN, and Gartu, Circuit Judges
Judgment Order
After consideration of all contentions raised by ap-
pellant, it is
(Al)
A2 Court of Appeals Judgment Order (5/19/80)
ApJjupceEp and Orperep that the judgment of the dis-
trict court be and is hereby affirmed.
Costs taxed against appellant.
By THE COURT,
/s/ Max RosENN
Circuit Judge
Attest:
/s/ THomas F. Quinn
Thomas F. Quinn
Clerk
DaTEp: May 19, 1980
Certified as a true copy and issued in lieu of a formal
mandate on June 10, 1980.
Test: THomas F, Quinn
Clerk, United States Court of Appeals for the Third
Circuit.
Court of Appeals Judgment Order (4/30/80) A38
UNITED STATES COURT OF APPEALS
For THE THIRD CIRCUIT
No. 79-2003
UNITED STATES OF AMERICA
v.
CHOCALLO, WANDA P.,
ADMINISTRATIVE LAW JUDGE
WANDA P. CHOCALLO,
Appellant
APPEAL FROM THE UNITED STATES District Court
For THE EASTERN DistTRICT OF PENNSYLVANIA
(D. C. Civil No. 79-0833 )
Submitted Under Third Circuit Rule 12(6)
April 25, 1980
Before: ALpiserT, Ros—eNN and Gartu, Circuit Judges.
Judgment Order
After consideration of all contentions raised by ap-
pellant, and for the reasons set forth in the district court
opinion by the Honorable John P. Fullam, United States
v. Chocallo, Civ. No. 79-0833 (E. D. Pa. July 27, 1979);
it is
A4 Court of Appeals Judgment Order (4/30/80)
ADJUDGED AND OrpERED that the judgment of the dis-
trict court be and is hereby affirmed.
Costs taxed against appeallant.
By THE COURT,
/s/ ALDISERT
Circuit Judge
Attest:
/s/ Tuomas F. Quinn,
Thomas F. Quinn
Clerk
Datep: April 30, 1980
Certified as a true copy and issued in lieu of a formal
mandate on May 22, 1980.
Test: THomMas F. Quinn
Clerk, United States Court of Appeals for the Third
Circuit.
District Court Order and Opinion (7/27/79) — A5
IN THE
UNITED STATES DISTRICT COURT
For THE EASTERN District OF PENNSYLVANIA
Civil Action No. 79-833
UNITED STATES OF AMERICA
Plaintiff
v.
WANDA P. CHOCALLO,
Defendant
Order
AnD Now, this 27th day of July, 1979, upon con-
sideration of the parties’ Cross-Motions for Summary
Judgment, it is hereby Orperep that:
1. Summary Judgment is entered in favor of the Gov-
ernment and against the defendant.
2. Defendant shall comply fully and completely with
the Appeals Council Orders dated September 18, 1978
and December 11, 1978, within five (5) days after entry
of this Order.
/s/ Joun P. FuttaAm
A6 District Court Order and Opinion (7/27/79)
IN THE
UNITED STATES DISTRICT COURT
For THE EASTERN DisTRICT OF PENNSYLVANIA
Civil Action No. 79-833
UNITED STATES OF AMERICA,
Plaintiff
v.
WANDA P. CHOCALLO,
Defendant
Memorandum and Order
FuLuaM, J. JuLy 26, 1979
The United States, on behalf of the Secretary of
Health, Education and Weifare, brings the instant action
for declaratory, mandamus and injunctive relief. Juris-
diction is based upon 28 U. S. C. §§ 1331, 1345 and 1361.
Plaintiff has filed a Motion for Summary Judgment and
defendant has filed a Motion to Dismiss and/or for Sum-
mary Judgment. These will be treated as Cross-Motions
for Summary Judgment. There are no genuine issues of
material fact. A summary of the undisputed facts follows.
On March 14, 1977, William L. Macklin, Sr. (claim-
ant), pursuant to Social Security Administration pro-
cedures, filed a claim for disability insurance benefits and
supplemental security income benefits. The initial ap-
plication for benefits was denied and upon request for
reconsideration the claim for benefits again was rejected.
District Court Order and Opinion (7/27/79) AT
On December 16, 1977, claimant filed with the office of
Hearings and Appeals (OHA) a request for a hearing
de novo. Defendant, an Administrative Law Judge em-
ployed by the OHA, randomly was assigned to be the
presiding officer at the hearing. Pursuant to claimant’s
request, a hearing was scheduled initially for June 9, 1978,
and, upon claimant’s request for continuance, was re-
scheduled for July 10, 1978.
Some time after the claimant’s request for reconsid-
eration was denied, the Social Security Administration
(SSA) Case Review Section (CRS) randomly selected
for review claimant's application. CRS returned the ap-
plication to the Disability Determination Service (DDS)
of the State of Delaware, the office which denied benefits
initially, with a recommendation that DDS reconsider the
claim. DDS requested that claimant undergo further
medical tests and, upon review of the results of those tests,
reversed its initial decision and determined that claimant
was eligible to receive benefits. This favorable determina-
tion was made before December 16, 1977, but, for some
reason not stated in the record, claimant was not aware
of the determination until late June or early July of 1978.
Upon learning of the favorable CRS determination,
the claimant’s attorney requested that the defendant dis-
miss the hearing request and cancel the hearing scheduled
for July 10, 1978. The defendant refused to do so. In
late August of 1978, the claimant's attorney petitioned the
Appeals Council either to vacate defendant’s denial of the
request to dismiss the hearing request, or to remove the
matter from the defendant’s jurisdiction and assume juris-
diction itself.
On September 18, 1978, Robert L. Trachtenberg,
chairman of the Appeals Council, issued an order removing
the matter from defendant’s jurisdiction pursuant to 20
A8 District Court Order and Opinion (7/27/79)
C. F. R. §§ 404.941 * and 416.1459, and ordering defendant
to forward Macklin’s claims file to the Appeals Council no
later than September 25, 1978. The defendant did not
receive a copy of the September 18 Order until October 2,
1978, but, upon receipt, refused to heed it. After various
superiors repeatedly urged that she comply with the Ap-
peals Council Order, the defendant, by letter dated No-
vember 24, 1978, informed Chief Administrative Law
Judge Philip T. Brown that she intended to disregard the
Order. A second Order directing defendant to surrender
Macklin’s claims file was issued by the Appeals Council on
December 11, 1978, and was mailed to defendant. De-
fendant has not responded to the December 11 Order, nor
has she forwarded Macklin’s claims file to the Appeals
Council.
Because SSA does not have access to certain informa-
tion contained in the claims file, a complete and final de-
termination of the benefits due claimant Macklin has not
been made. Macklin, however, is receiving benefits under
the SSA emergency payment system entitled Immediate
Payment Critical Case (IMPACC). Use of this system
entails continuing administrative expense for SSA.
Upon review of the entire record, it is evident that the
Appeals Council is empowered to divest the defendant of
jurisdiction over the Macklin claim under 20 C. F. R.
§§ 404.941 and 416.1459, and to determine the matter
1. § 404.941. Removal of Hearing to Appeals Council.
The Appeals Council on its own motion may remove to it-
self any request for hearing pending before a presiding off-
cer. The hearing on any matter so removed to the Appeals
Council shall be conducted in accordance with the require-
ments of §§ 404.924, to 404.938, inclusive. Notice of such re-
moval shall be mailed to the parties at their last known ad-
dress.
The provisions of § 416.1459 parallel directly the provisions of
§ 404.941.
District Court Order and Opinion (7/27/79) — A9
itself. Defendant's compliance with the September 18 and
December 11, 1978 Orders of the Appeals Council is man-
datory. Compliance or non-compliance is not a matter left
to the discretion of the defendant. The Orders require a
Government officer to perform a legal duty of a ministerial
character. The Government’s Motion for Summary Judg-
ment will be granted.
In support of her motion, defendant has advanced nu-
merous arguments. Each of these has been considered and
rejected by the Court. The defendant’s motion will be
denied.
Al0_ District Court Order and Opinion (10/26/79)
IN THE
UNITED STATES DISTRICT COURT
FoR THE EASTERN District OF PENNSYLVANIA
Civil Action No. 79-833
UNITED STATES OF AMERICA,
Plaintiff
v~.
WANDA P. CHOCALLO,
Defendant
Order
(Filed October 31, 1979)
And Now, this 26th day of October, 1979, it is Or-
DERED that the Clerk of this Court is directed to deliver to
the attorney for the Government, for delivery to the Social
Security Administration, the entire Social Security claim
file which is annexed to the defendant’s “Motion for Re-
consideration and Rescission . . .” filed October 5, 1979.
Counsel for the Government may obtain said file, upon re-
quest, at the Clerk’s office, by furnishing to the Clerk a
written receipt for the same; whereupon, counsel for the
Government shall deliver the file to the Appeals Council
in conformity with this Court’s Order of July 27, 1979.
/s/ Joun P, FuLLAM
District Court Order and Opinion (10/26/ 79) All
IN THE
UNITED STATES DISTRICT COURT
FoR THE EASTERN DistTrIct OF PENNSYLVANIA
Civil Action No, 79-833
_
UNITED STATES OF AMERICA,
Plaintiff
v.
WANDA P. CHOCALLO,
Defendant
Memorandum and Order
Ocroser 26, 1979
FuLiaM, J.
On July 27, 1979, this Court ordered the defendant,
an Administrative Law Judge in the Social Security Ad-
ministration, to comply with certain Orders previously is-
sued by the Appeals Council directing her to surrender a
certain case file to the Appeals Council. Defendant un-
successfully sought a stay of that Order, both from this
Court and from the Court of Appeals of the Third Circuit.
Defendant failed to comply with this Court’s Order of July
27, 1979, and was cited for contempt.
A hearing on the contempt citation was held on Sep-
tember 28, 1979. Defendant did not appear at the hearing,
but was represented by retained counsel, who unsuccess-
fully sought a postponement. I ruled from the Bench that
the defendant was indeed in contempt of this Court’s Or-
der of July 27, 1979, but that she could purge herself of
contempt by delivering the case file in question to this
Court not later than October 3, 1979." It was also ordered
1. Counsel’s request for a postponement was based upen his
lack of familiarity with the case (having only recently been re-
Al2 District Court Order and Opinion (10/26/79)
that failure to deliver the file by the specified deadline
would result in the imposition of cumulative fines at the
rate of $100 per day until the file was delivered; and that
if the fines did not produce compliance after five days, the
defendant would be arrested and held in custody until the
Order was complied with.
On October 5, 1979, the defendant filed a “Motion
for Reconsideration and Rescission of the Court’s Order
of September 28, 1979 and for Deposit of Documents,
the Subject of this Action, into the Registry of the Court.”
Attached to that Motion is the case-file which the defend-
ant had been ordered to produce. The text of the Motion
reflects that the defendant
«<<
. moves the Court to reconsider and rescind its
order of September 28, 1979 and to receive into the
registry of the court certain documents, which are
the subject of this action, and for other interlocutory
relief pending final disposition of this matter by the
Circuit Court of Appeals for the Third Judicial Cir-
cuit of the United States.”
1. (Cont'd. )
tained); the alleged illness of the defendant and difficulties in
communicating with his client (counsel stated that his client re-
fused to give him her home telephone number, he did not know
where she was then staying, and it was unlikely that she could be
reached at her office. It was represented that the sole communica-
tion between client and counsel would consist of telephone calls
originated by the client). I ruled that the alleged illness would
not prevent physical delivery of the file in question, but granted
the delay until] October 3 to enable counsel to communicate with
his client and effect the necessary arrangements. The option of
delivering the file to the Court (rather than to the Appeals Coun-
cil directly ) was designed to make it easier for counsel to aid his
client in complying with the Court’s Order, and also to neutralize
some of the emotional pressures which, it was thought, might have
been a factor in defendant’s failure to comply with the Court’s
earlier Orders.
District Court Order and Opinion (10/26/79) A13
The Memorandum accompanying this Motion includes
the following language:
“Accordingly, the documents, which are the subject
of this action, are attached hereto and are deposited
into the registry of the court and the court is urged
to retain custody thereof pending final disposition
of the matter by the appellate court. . . .”
The Government interprets this language as a request
that delivery of the case file to the Appeals Council should
be withheld until all appeals which have been or may be
filed by the defendant from this Court’s Orders have
been finally resolved by the appellate courts. The Gov-
ernment has therefore filed a “Motion for an Order Imple-
menting This Court’s July 27, 1979 Decree,” in which the
Court is requested to provide the Social Security Admin-
istration with either the original case file or a duplicate
copy thereof.
The Government’s Motion will be granted. Indeed,
delivery of the file to the Government is a necessary step
in carrying out this Court’s mandate of July 27, 1979,
which this Court’s Order of September 28, 1979 was
intended to enforce.
Defendant’s request that this Court retain the file
pending appeals is simply another request for a stay.
The requested stay has previously been denied by this
Court, and has repeatedly been denied by the Court of
Appeals (by a panel on September 20, 1979, and by the
Court en banc on October 1, 1979).
It should be noted that delivery of the file to the
Social Security Adniinistration at this time does not render
the entire case moot. The defendant did not deliver the
file within the time limits specified by the Court, and she
is therefore still subject to the imposition of fines for civil
contempt.
Al4 Constitutional Provisions, etc.
Constitutional Provisions, Statutes, Regulations, Etc.
5 U. S. C. 556 provides:
§ 556. Hearings; presiding employees; powers and
duties; burden of proof; evidence; record as basis
of decision
(a) This section applies, according to the pro-
visions thereof, to hearings required by section 553
or 554 of this title to be conducted in accordance
with this section.
(b) There shall preside at the taking of evi-
dence—
(1) the agency;
(2) one or more members of the body
which comprises the agency; or
(3) one or more hearing examiners ap-
pointed under section 3105 of this title.
This subchapter does not supersede the conduct of
specified classes of proceedings, in whole or in part,
by or before boards or other employees specially
provided for by or designated under statute. The
functions of presiding employees and of employees
participating in decisions in accordance with section
557 of this title shall be conducted in an impartial
manner. A presiding or participating employee may
at any time disqualify himself. On the filing in good
faith of a timely and sufficient affidavit of personal
bias or other disqualification of a presiding or par-
ticipating employee, the agency shall determine the
matter as a part of the record and decision in the
case.
—
Constitutional Provisions, etc. Al5
(c) Subject to published rules of the agency
and within its powers, employees presiding at hear-
ings may—
(1) administer oaths and affirmations;
(2) issue subpenas authorized by law;
(3) rule on offers of proof and receive rele-
vant evidence;
(4) take depositions or have depositions
taken when the ends of justice would be served:
(5) regulate the course of the hearing;
(6) hold conferences for the settlement or
simplification of the issues by consent of the
parties;
(7) dispose of procedural requests or simi-
lar matters;
(8) make or recommend decisions in ac-
cordance with section 557 of this title; and
(9) take other action authorized by agency
rule consistent with this subchapter.
(d) Except as otherwise provided by statute,
the proponent of a rule or order has the burden of
proof. Any oral or documentary evidence may be
received, but the agency as a matter of policy shall
provide for the exclusion of irrelevant, immaterial,
or unduly repetitious evidence. A sanction may not
be imposed or rule or order issued except on con-
sideration of the whole record or those parts thereof
cited by a party and supported by and in accordance
with the reliable, probative, and substantial evidence.
The agency may, to the extent consistent with the
interests of justice and the policy of the underlying
statutes administered by the agency, consider a vio-
Al6 Constitutional Provisions, etc.
lation of section 557(d) of this title sufficient grounds
for a decision adverse to a party who has knowingly
committed such violation or knowingly caused such
violation to occur. A party is entitled to present his
case or defense by oral or documentary evidence, to
submit rebuttal evidence, and to conduct such cross-
examination as may be required for a full and true
disclosure of the facts. In rule making or deter-
mining claims for money or benefits or applications
for initial licenses an agency may, when a party will
not be prejudiced thereby, adopt procedures for the
submission of all or part of the evidence in written
form.
(e) The transcript of testimony and exhibits,
together with all papers and requests filed in the
proceeding, constitutes the exclusive record for de-
cision in accordance with section 557 of this title and,
on payment of lawfully prescribed costs, shall be
made available to the parties. When an agency
decision rests on official notice of a material fact not
appearing in the evidence in the record, a party is
entitled, on timely request, to an opportunity to show
the contrary.
5 U. S. C. 557 provides:
§ 557. Initial decisions; conclusiveness; review by
agency; submissions by parties; contents of de-
cisions; record
(a) This section applies, according to the pro-
visions thereof, when a hearing is required to be
conducted in accordance with section 556 of this
title.
(b) When the agency did not preside at the
reception of the evidence, the presiding employee or,
Constitutional Provisions, etc. Al7
in cases not subject to section 554(d) of this title,
an employee qualified to preside at hearings pursuant
to section 556 of this title, shall initially decide the
case unless the agency requires, either in specific
cases or by general rule, the entire record to be
certified to it for decision. When the presiding em-
ployee makes an initial decision, that decision then
becomes the decision of the agency without further
proceedings unless there is an appeal to, or review
on motion of, the agency within time provided by
rule. On appeal from or review of the initial deci-
sion, the agency has all the powers which it would
have in making the initial decision except as it may
limit the issues on notice or by rule. When the
agency makes the decision without having presided
at the reception of the evidence, the presiding em-
ployee or an employee qualified to preside at hearings
pursuant to section 556 of this title shall first recom-
mend a decision, except that in rule making or
determining applications for initial licenses—
(1) instead thereof the agency may issue a
tentative decision or one of its responsible em-
ployees may recommend a decision; or
(2) this procedure may be omitted in a
case in which the agency finds on the record
that due and timely execution of its functions
imperatively and unavoidably so requires.
(c) Before a recommended, initial, or tentative
decision, or a decision on agency review of the de-
cision of subordinate employees, the parties are en-
titled to a reasonable opportunity to submit for
the consideration of the employees participating in the
decisions—
Al8
Constitutional Provisions, etc.
(1) proposed findings and conclusions; or
(2) exceptions to the decisions or recom-
mended decisions of subordinate employees or to
tentative agency decisions; and
(3) supporting reasons for the exceptions or
proposed findings or conclusions.
The record shall show the ruling on each finding, con-
clusion, or exception presented. All decisions, in-
cluding initial, recommended, and tentative decisions,
are a part of the record and shall include a statement
of—
(A) findings and conclusions, and the rea-
sons or basis therefor, on all the material issues of
fact, law, or discretion presented on the record;
and
(B) the appropriate rule, order, sanction, re-
lief, or denial thereof.
(d)(1) In any agency proceeding which is sub-
ject to subsection (a) of this section, except to the
extent required for the disposition of ex parte mat-
ters as authorized by law—
(A) no interested person outside the agency
shall make or knowingly cause to be made to any
member of the body comprising the agency, ad-
ministrative law judge, or other employee who
is or may reasonably be expected to be involved
in the decisional process of the proceeding, an
ex parte communication relevant to the merits
of the proceeding;
(B) no member of the body comprising the
agency, administrative law judge, or other em-
ployee who is or may reasonably be expected to
Constitutional Provisions, etc. Al9
be involved in the decisional process of the pro-
ceeding, shall make or knowingly cause to be
made to any interested person outside the agency
an ex parte communication relevant to the merits
of the proceeding;
(C) a member of the kody comprising the
agency, administrative law judge, or other em-
ployee who is or may reasonably be expected to
be involved in the decisional process of such pro-
ceeding who receives, or who makes or knowingly
causes to be made, a communication prohibited
by this subsection shall place on the public rec-
ord of the proceeding:
(i) all such written communications;
(ii) memoranda stating the substance of
all such oral communications; and
(iii) all written responses, and memo-
randa stating the substance of all oral re-
sponses, to tne materials described in clauses
(i) and (ii) of this subparagraph;
(D) upon receipt of a communication know-
ingly made or knowingly caused to be made by
a party in violation of this subsection, the agency,
administrative law judge, or other employee pre-
siding at the hearing may, to the extent consistent
with the interests of justice and the policy of the
underlying statutes, require the party to show
cause why his claim or interest in the proceed-
ing should not be dismissed, denied, disregarded,
or otherwise adversely affected on account of such
violation; and
(E) the prohibitions of this subsection shall
apply beginning at such time as the agency may
A20
Constitutional Provisions, etc.
designate, but in no case shall they begin to apply
later than the time at which a proceeding is no-
ticed for hearing unless the person responsible for
the communication has knowledge that it will be
noticed, in which case the prohibitions shall apply
beginning at the time of his acquisition of such
knowledge.
(2) This subsection does not constitute authority
to withhold information from Congress.
29 U.S. C. 1331 provides:
1331. Federal question; amount in controvers 5
y
costs
(a) The district courts shall have original juris-
diction of all civil actions wherein the matter in con-
troversy exceeds the sum or value of $10,000, exclusive
of interests and costs, and arises under the Constitu-
tion, laws or treaties of the United States, ex-
cept that no such sum or value shall be required in
any such action brought against the United States,
any agency thereof, or any officer or employee therecf
in his official capacity.
(b) Except when express provision therefor is
otherwise made in a statute of the United States,
where the plaintiff is finally adjudged to be entitled to
recover less than the sum or value of $10,000, com-
puted without regard to any setoff or counterclaim to
which the defendant may be adjudged to be entitled,
and exclusive of interests and costs, the district court
may deny costs to the plaintiff and, in addition, may
impose costs on the plaintiff.
Constitutional Provisions, etc. A21
28 U.S. C. 1345 provides:
§ 1345. United States as plaintiff
Except as otherwise provided by Act of Congress,
the district courts shall have original jurisdiction of
all civil actions, suits or proceedings commenced by
the United States, or by any agency or officer thereof
expressly authorized to sue by Act of Congress.
28 U.S. C. 1361 provides:
§ 1361. Action to compel an officer of the United
States to perform his duty
The district courts shall have original jurisdiction °
of any action in the nature of mandamus to compel an
officer or employee of the United States or any agency
thereof to perform a duty owed to the plaintiff.
20 C. F. R. 404.935 provides:
§ 404.935 Dismissal of request for hearing; by ap-
plication of party
With the approval of the presiding officer at any
time prior to the mailing of notice of the decision, a
request for a hearing may be withdrawn or dismissed
upon the application of the party or parties filing the
request for such hearing. A party may request a dis-
missal by filing a written notice of such request with
the presiding officer or orally stating such request at
the hearing.
20 C. F. R. 404.941 provides:
§ 404.941 Removal of hearing to Appeals Council
The Appeals Council on its own motion may re-
move to itself any request for hearing pending before
a presiding officer. The hearing on any matter so
removed to the Appeals Council shall be conducted
A22 Constitutional Provisions, etc.
in accordance with the requirements of §§ 404.924 to
404.938, inclusive. Notice of such removal shall be
mailed to the parties at their last known addresses.
20 C. F. R. 416.1449 provides:
§ 416.1449 Dismissal of request for hearing; by
application of party
With the approval of the presiding officer at any
time prior to the mailing of notice of the decision, a
request for a hearing may be withdrawn or dismissed
upon the application of the party or parties filing the
request for such hearing. A party may request a
dismissal by filing a written notice of such request
with the presiding officer or orally stating such re-
quest at the hearing. Where a request for hearing
is withdrawn or dismissed the findings in the initial
or the reconsidered determination are final and bind-
ing (see § 416.1453).
20 C. F. R. 416.1459 provides:
§ 416.1459 Removal of hearing to Appeals Council
The Appeals Council on its own motion may re-
move to itself any request for hearing pending before
a presiding officer. The hearing on any request so
removed to the Appeals Council shall be conducted
in accordance with the requirements of §§ 416.1433
to 416.1446, inclusive. Notice of such removal shall
be mailed to the parties at their last known addresses.
Federal Rules of Civil Procedure, Rule 4 in pertinent part
provides:
(d) Summons: PERSONAL SERVICE. The sum-
mons and complaint shall be served together. The
plaintiff shall furnish the person making service with
Constitutional Provisions, etc. A23
such copies as are necessary. Service shall: be made
as follows:
(1) Upon an individual other than an in-
fant or an incompetent person, by delivering a
copy of the summons and of the complaint to
him personally or by leaving copies thereof at his
dwelling house or usual place of abode with
some person of suitable age and discretion then
residing therein or by delivering a copy of the
summons and of the complaint to an agent au-
thorized by appointment or by law to receive
service of process.
(2)..(3)..(4) Upon the United States, by
delivering a copy of the summons and of the
complaint to the United States attorney for the
district in which the action is brought or to an
assistant United States attorney or clerical em-
ployee designated by the United States attorney
in a writing filed with the clerk of the court and
by sending a copy of the summons and of the
complaint by registered mail to the Attorney
General of the United States at Washington,
District of Columbia, and in any action attacking
the validity of an order of an officer or agency
of the United States not made a party, by also
sending a copy of the summons and of the com-
plaint by registered mail to such officer or
agency.
(5) Upon an officer or agency of the United
States, by serving the United States and by de-
livering a copy of the summons and of the com-
plaint to such officer or agency. If the agency
is a corporation the copy shall be delivered as
provided in paragraph (3) of this subdivision
of this rule.
A24 Constitutional Provisions, etc.
Federal Rules of Civil Procedure, Rule 65(d) in pertinent
part provides:
(D) Form anp Score or INJUNCTION oR RE-
STRAINING ORDER. Every order granting an injunc-
tion and every restraining order shall set forth the
reasons for its issuance; shall be specific in terms;
shall describe in reasonable detail and not by refer-
ence to the complaint or other document, the act or
acts sought to be restrained; and is binding only upon
the parties to the action, their officers, agents, servants
employees, and attorneys, and upon those persons in
active concert or participation with them who re-
ceive actual notice of the order by personal service
or otherwise.
20 CFR
20 CFR § 404.918b provides:
Prehearing case review.
(a) General. Under the circumstances set forth
in this section, a case in which a request for hearing
has been filed, may at any time prior to the hearing,
be forwarded to the component of the Social Security
Administration (including a State Agency) which is-
sued the determination upon which the request for
hearing was based for the purpose of determining
whether such determination may be revised. The par-
ties to the pre-hearing case review shall be the parties
referred to in § 404.919.
(b) Criteria for prehearing case review. Prehear-
ing case review shall be applicable where:
(1) Additional evidence is submitted in con-
nection with the request for hearing or,
(2) There is an allegation or indication that
additional evidence is available; or
Constitutional Provisions, etc. A25
(3) There are other indications that the prior
determination may be revised, e.g., error noted in
the file, a change in law or regulation.
(c) Prehearing case review and determination.
The component of the Social Security Administration
which issued the determination upon which the re-
quest for hearing was filed shall, upon receipt of the
case, ascertain whether such determination may be
revised. A revised determination may be either
wholly or partially favorable to the claimant. Pre-
hearing review shall not delay the scheduling of a
hearing in the regular order unless the claimant con-
sents to the continuation of such review. Where the
prehearing review is not completed prior to the date on
which the case is to be scheduled for hearing, the case
shall be forwarded to the presiding officer for hearing,
except where a favorable revised determination is in
process or the parties, in writing, consent to the sched-
uling of the hearing being delayed until the comple-
tion of such review.
(d) Notice of prehearing revised determination.
Where a revised determination is made as a result of
the prehearing case review, notice of such revised de-
termination, and the basis therefor shall be sent to the
parties to such revised determination and the request
for hearing at their last known addresses.
(1) Revised determination wholly favorable.
Where the revised determination is wholly fa-
vorable to the claimant, the notice shall also in-
form the claimant that the presiding officer may
dismiss the request for hearing unless the parties
request in writing, within 30 days after the mail-
ing date of notice of such revised determination,
that the presiding officer proceed with the request
for hearing.
A26 Constitutional Provisions, etc.
(2) Revised determination partially favor-
able. Where the revised determination is par-
tially favorable to the claimant, the notice of such
revised determination shall also inform the claim-
ant of the matter not found favorable to the claim-
ant. The notice shall also inform the claimant
that the presiding officer shall proceed with the
hearing, unless the parties to such revised deter-
mination and the request for hearing affirmatively
assent to the dismissal of the hearing request.
(3) Right to hearing on prehearing revised
determination. The notice shall also advise the
parties of their right to file, within 60 days after
the notice of the prehearing revised determina-
tion, a request for hearing on such revised deter-
mination, as provided in § 404.961(b).” [4] FR
54755, Dec. 15, 1976]
20 Code of Federal Regulations § 404.940 provides:
Effect of presiding officer’s decision.
The presiding officer’s decision, provided for in
§ 404.939, shall be final and binding upon all parties
to the hearing unless it is reviewed by the Appeals
Council (see §§ 404.948-404.950) or unless it is re-
vised in accordance with § 404.956, or unless the ex-
pedited appeals process is used, in accordance with
§ 404.916a. If a party’s request for review of the pre-
siding officer’s decision is denied (see § 404.952), such
decision shall be final and binding upon all parties to
the hearing unless a civil action is filed in a district
court of the United States, as is provided in section
205(g) of the Act, or unless the decision is revised in
accordance with § 404.956.
Constitutional Provisions, etc. A27
20 CFR § 404.945 provides:
Right to request review of presiding officer’s decision
or dismissal.
If a presiding officer has made a decision, as pro-
vided in § 404.939, or dismissed a request for hearing,
as provided in §{ 404.935 through 404.937, any party
thereto may request the Appeals Council to review
such decision or dismissal.
20 CFR § 404.947 provides:
Action by Appeals Council on review.
The Appeals Council may dismiss (see § 404.952 )
or, in its discretion, deny or grant a party’s request for
review of a presiding officer’s decision, or may, on its
own motion, within 60 days after the date of the no-
tice of such decision, reopen such decision for review
or for the purpose of dismissing the party’s request for
hearing for any reason for which it could have been
dismissed by the presiding officer (see §§ 404.935
through 404.937). Notice of the action by the Appeals
Council shall be mailed to the party at his last known
address. [4] FR 54753, Dec. 15, 1976]
20 CFR § 404.947a provides:
Basis for review of the presiding officer’s decision or
dismissal by Appeals Council.
(a) The Appeals Council, on its own motion or
on request for review, will review a hearing decision
or dismissal where:
(1) There appears to be an abuse of dis-
cretion by the presiding officer;
(2) There is an error of law;
(3) The presiding officer’s action, findings,
or conclusions are not supported by substantial
evidence; or
A28 Constitutional Provisions, etc.
(4) There is a broad policy or procedural is-
sue which may affect the general public interest.
(b) Where new and material evidence is sub-
mitted with the request for review, the entire record
will be evaluated and review will be granted where
the Appeals Council finds that the presiding officer's
action, findings, or conclusion is contrary to the weight
of the evidence currently of record. [4] FR 51588,
Nov. 23, 1976]
20 CFR § 404.934(a) provides:
Fully favorable decision on the record.
Where evidence of record including evidence, if
any, submitted with the request for hearing or re-
ceived in prehearing preparation support a decision
on the record which is fully favorable to the party
or parties, the presiding officer, at his discretion, may
issue a decision on such record without an oral hear-
ing. The record for such decision shall be made as
set forth in § 404.934(c). The notice of such deci-
sion issued on the record shall inform the party or
parties of their right to an oral hearing, and the right
to examine the evidence received in the record. [4]
FR 51587. Nov. 23, 1976]
20 CFR § 404.934(b), (c) provide in pertinent part:
(b) Waiver of right to appear. A waiver of the
right to appear and present evidence and allegations
as to facts and law shall be made in writing filed
with the presiding officer. Such waiver may be with-
drawn by a party at any time prior to the mailing of
notice of the decision in the case. Even though all
of the parties have filed a waiver of the right to
appear and present evidence and contentions at a
hearing before the presiding officer, the presiding
officer may, nevertheless, give notice of a time and
Constitutional Provisions, etc. A29
place and conduct a hearing as provided in §§ 404.923
to 404.932 inclusive, if he believes that the personal
appearance and testimony of the party or parties
would assist him to ascertain the facts in issue in the
case.
(c) Record as basis for decision. Where all of
the parties have waived their right to appear in per-
son or through a representative and the presiding
officer does not schedule an oral hearing, the presid-
ing officer shall render a decision based on the record.
* * * In any case where an oral hearing is not sched-
uled and the decision is to be based on the record, the
presiding officer shall make a record of the relevant
written evidence, including applications, written
statements, certificates, affidavits, reports, and other
documents which were considered in connection with
the initial determination and reconsideration, and
whatever additional relevant and material evidence
the party or parties may present in writing for con-
sideration by the presiding officer. Such documents
shall be considered as all of the evidence in the case,
and the decision, as provided, shall be based thereon.
[4] FR 51587, Nov. 23, 1976 |
Social Security Act, Section 205(g)
(g) Any individual, after any final decision of the Sec-
retary made after a hearing to which he was a party, ir-
respective 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 plain-
tiff 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 District Court of
A30 Constitutional Provisions, etc.
the United States 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 case for a rehearing. The findings of the
Secretary as to any fact, if supported by substantial evi-
dence, shall be conclusive, and where a claim has been
denied by the Secretary or a decision is rendered under
subsection (b) hereof which is adverse to an individual
who was a party to the hearing before the Secretary, be-
cause of failure of the claimant or such individual to sub-
mit proof in conformity with any regulation prescribed
under subsection (a) hereof, the court shall review only
the question of conformity with such regulations and the
validity of such regulations. The court shall, on motion
of the Secretary made before he files his answer, remand
the case to the Secretary for further action by the Secre-
tary, and may, at any time, on good cause shown, order
additional evidence to be taken before the Secretary, 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 find-
ings 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 find-
ings 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 ex-
cept 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 notwith-
Constitutional Provisions, etc. A31
standing any change in the person occupying the office of
Secretary or any vacancy in such office.
Social Security Act, Section 205(h)
(h) The findings and decision of the Secretary after
a hearing shall be binding upon all individuals who were
parties to such hearing. No findings of fact or decision
of the Secretary shall be reviewed by any person, tribunal,
or government agency except as herein provided. No ac-
tion against the United States, the Secretary, or any of-
ficer or employee thereof shall be brought under Section
24 of the Judicial Code of the United States to recover on
any claim arising under this title.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.