Petition — Chocallo v. Bureau of Hearings & Appeals
Supreme Court brief1983
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Suprer ny
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a
SEP 26 1993
Alexsnder L. Steves, Clerk
No. =
in the Supreme Court of the
United States
TERM, 1983
WANDA P. CHOCALLO, Administrative Law Judge,
Petitioner
Vv.
BUREAU OF HEARINGS AND APPEALS, SSA, HEW;:
ROBERT L. TRACHTENBERG, Director, BHA, HEW;
PHILIP BROWN, Chief Administrative Law Judge, BHA;
SOL R. GITMAN, Regional Chief Administrative Law
Judge, Region II, BHA; JAMES C. LIGHTFOOT, Adminis-
trative Law Judge in Charge, Philadelphia Office, BHA;
JAMES B. CARDWELL, Commissioner, Social Security Ad-
ministration; COMMUNITY LEGAL SERVICES, INC. and
JONATHAN M. STEIN; RICHARD WEISHAUPT; EDWIN
MONTES; LINDA BERNSTEIN; MARJORIE JANOSKI;
DEBORAH KOOPERMAN; EILEEN WOOD; MARILYN
DORIA WEILER, all of Community Legal Services, Inc.;
JOSEPH CALIFANO, Secretary, Department of Health,
Education and Welfare; JOHN C. COLEMAN; JOHN
ENNIS, Bureau of Hearings and Appeals, SSA; JACK
ROSEMAN, Bureau of Hearings and Appeals, SSA;
CLAIRE KURIGER, Bureau of Hearings and Appeals, SSA,
Respondents
PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE THIRD CIR-
HON. WANDA P. CHOCALLO
Pro Se
308 Maple Avenue
Drexel Hill, Pa. 19026
(215) 259-1628
Murrelle Printing Co., Box 100, Sayre, Pa. 18840—(717) 888-2244
Emily J. Graves, 409 Chucry St, Clifton Heights, Pa 19018,
Delaware County Representative
Questions Presented
QUESTIONS PRESENTED
1. Whether the Court’s failure to rule on
dismissal and summary judgment motions for a period
of more than 5 years is unconstitutional and con-
stitutes a denial of due process?
2. Whether the district court, on the papers
before it, was without jurisdiction and power to
decide issues on the merits, that include the ap-
plicability of the doctrines of official immunity, col-
lateral estoppel and privilege?
3. Whether a judicially enforceable remedy is
available under the Civil Rights Act, 42 USC 1985, to
federal administrative law judg s against interference,
harassment and injury by agency officials and public
service lawyers, acting in concert, during and on ac-
count of the lawtul discharge of judicial functions?
4. Whether the Court has a duty to prevent the
requirements of the Administrative Procedure Act from
in any manner or form of indirection being nullified
or circumvented?
5. Whether the complaint sufficiently alleges a
cause of action?
6. Whether the denial of a motion for judgment
on the pleadings on the basis of the record is un-
constitutional and contrary to law?
7. Whether the judgment of the court below is
contrary to law and unconstitutional?
i
TABLE OF CONTENTS
Onetioms Prememted......................0..
NE
EE, re
ES
ES
Constitutional Provisions, Statutes, Regulations
SS yess ccc tet eee ee
re
Reasons for Granting the Writ ...............
cc te tee ttc ose eee
APPENDIX:
cere veces esc e cece
Memorandum and Order, No. 77-2310........
Te yy pcs esses es cesces.
Exhibit “C”—Letter, P. T. Brown to W.
Chocallo with Letter, J. M. Stein to
ee
Exhibit H—64-66—Letter Dated June 7,
1977 to James C. Lightfoot ............
Exhibit H —68— Letter Dated April 6, 1977
to James C. Lightfoot .................
Exhibit H—73—Letter Dated September
28, 1976 from P. T. Brown to W.
EG vey conc scsccrces
Exhibit H—74-75— Letter Dated September
17, 1976 from Linda Bernstein to P. T.
GCE vo sec ctor ccsccrsces
Exhibit H—78-79— Letter Dated April 28,
1976 from W. Chocallo to David
| RP ret oe re rey re ee
Exhibit H —80— Letter Dated April 5, 1976
from R. L. Trachtenberg to W. Chocallo
Exhibit H-—81—Letter Dated March §8,
1976 from W. Chocallo to David
Pe Pe yet ate eae Es
Exhibit H—82-86— Letter Dated February
27, 1976 from W. Chocallo to R. L.
BE Te A te Pi
Exhibit H—87-88— Letter Dated February
17, 1976 from P. T. Brown to W.
PETE RET CR Peron oe anar”
Exhibit H—96-97—Letter Dated January
29, 1976 from Linda M. Bernstein to
fatal <S. SRIGOEE. 5 ok cs eateeas eae
Exhibit H—101—Letter Dated January 7,
1976 from W. Chocallo to James C.
Bn PP es tp eer Ore ne
Exhibit H—102—Letter Dated January 6,
1976 from James C. Lightfoot to W.
COMING. os. cai vacceve sete
Exhibit H—103-106— Letter Dated Decem-
ber 31, 1975 from Linda M. Bernstein to
Jonnes <); LAO oso. ce aka
Amended Complaint (First) ..................
Amended Complaint (Second)................
Affidavit of Robert L. Trachtenberg ..........
Enclosure— Letter Dated April 1, 1976
from Robert L. Trachtenberg to Office of
GConmal Coutell . . 5502 n i scdaas
,
iii
106a
109a
llla
1l3a
123a
126a
Enclosure— Letter Dated May 20, 1976
from Lois Schutt to Wanda P. Chocallo . 155a
Enclosure— Letter Dated June 28, 1976
from Robert L. Trachtenberg to Charles
DIE x oy 2 epleacersin bhp bietce's es bee ee 156a
Enclosure— Letter Dated July 29, 1976
from Robert L. Trachtenberg to Charles
gg Re rere a nen US Sopra yeas 160a
The Civil Rights Act, Title 42 United States
eS. . ee Oe rere rage l6la
Crimes, Title 18 United States Code:
EE rnc oc aa ee ahs « Suis wees 163a
eer, bos Sea ret eas be ae 163a
Ee OU Vag remade Ve kee 163a
Social Security Act, Title 42 United States Code:
ARE eS re ee 165a
RI ats usd blaibg a a aerate oleate 167a
Regulations of the Secretary of HEW, Section
ME ears etic Seti a ent see 168a
Administrative Procedure Act, Title 5, United
States Code:
RE oN eo a 9 6 a atace aoe Ra is 169a
Oa sk ng pee ataw @ Acase eae esl 173a
Ry SG een ee oie Bes 173a
ERR CRSR TS BAB DOS EArt arte aaa te 173a
Federal Rules of Civil Procedure:
BNI re icc cre ches vi gigins gattcd 2 a ae een 175a
I AS eee Be Nee ARES Ke oat 175a
PM eh) Reng Oi et ne oe ae oa 175a
DE is is as Uae ena hakwen ees 176a
REE OR rac a ce ener err 176a
Order on Petition for Rehearing.............. l77a
iv
TABLE OF CITATIONS
CASEs:
Assoc. of ALJs, Inc. v. Schweiker et al., CA 83-
en Gi Ries MOM ccc andswnnedane.
Bell v. Hood, 327 U.S. 678 ............ Ap ya
Butz v. Economou, 438 U.S. 478 (1978) .......
Conley v. Gibson; 355 U.S. 411 ..............
Fitzgerald v. Seamans, 553 F.2d 220 (1977,
DREGE cht oc dct sss oa owen
Gomez v. Toledo, 446 U.S. 635, 100 S.Ct.
Reels ee sees Ue OE oo 5 ve swine cctaeeen
Halperin v. Kissinger, 604 F.2d 1192 (1979,
Wes Re Flv b v'e docs cp ne ches cael
Harlow v. Fitzgerald, 73 L.Ed. 2d 396, 102
EN UME oe 17, 19, 20,
Hart & Co. v. Recordgraph Corp., 169 F.2d
Be Oe 8 See 18,
Marbury v. Madison, 1 Cranch 137 (1803).....
Patterson v. Colorodo, 205 U.S. 454 ..........
Poller v. Columbia Broadcasting System, 368
U.S. 464, 7 L.Ed. 2d 458, 82 S.Ct. 486
DEE koh ats Ck eaacr kn. Dore taki aN
Stern v. U.S. Gypsum, Inc., 547 F.2d 1329....
U.S. v. City of Philadelphia, 644 F.2d 187 (3rd
es MII Pasa ww ha 5d Oats cated Nie cence
U.S. v. Nixon, 418 U.S. 683 (1974) ...........
U.S. v. L.A. Tucker Lines, 344 U.S. 33, 73
ED Sec cc ck Peach ue ce eeeee
CONSTITUTION:
United States Constitution:
NS ERO OE Ra Se oe 4, 22,
Cee eee. eehs 4,
ESS EE ee Pore oe 4,
PN oo ba -ois.0.4's cee SRE wae
RULEs:
Federal Rtles of Civil Procedure:
Digs ss 'cintn cs bc babs cea nacanuennn
STATUTES:
Civil Rights Act, 42 USC 1985 et seq.....4, 14, 15,
Freedom of Information/Privacy Act, 5 USC
REVOVE ORS et ee eee CE re
Social Security Act, 42 USC 401 et seq.........
rer ns as eas ge see Ks ae Rie eon
I ice VG wa 8 in bs 2 ee ae eS
EL 7. at hice vias vicina ak bocce tire aap ee 5,
EE COC} Sinise one cake nee 5,
—_—
aa aw»
Petition
No.
IN THE SUPREME COURT OF THE UNITED
STATES
Term, 1983
WANDA P. CHOCALLO,
Petitioner
Vv.
THE BUREAU OF HEARINGS AND APPEALS et
al.,
Respondents
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
THIRD CIRCUIT
Petitioner, Administrative Law Judge Wanda P.
Chocallo, petitions for a writ of certiorari to review
the per curiam judgment order of the United States
Court of Appeals for the Third Circuit dated June 1,
1983 affirming the judgment of the District Court for
the Eastern District of Pennsylvania.
Opinions Below and Jurisdiction
OPINIONS BELOW
The court of appeals opinion is not reported
(App. la). The district court's opinion is reported, 548
F.Supp. 1365 (App. 3a).
JURISDICTION
The judgment of the court of appeals was entered
June 1, 1983. A timely petition for rehearing was
denied on June 27, 1983. 28 USC 1343. The jurisdic-
tion of this Court is invoked under 28 USC 1254.
Constitutional Provisions, Statutes,
Regulations Involved
CONSTITUTIONAL PROVISIONS, STATUTES,
REGULATIONS INVOLVED
The constitutional provisions, statutes and regula-
tions involved, which are set forth in Appendix, 16la
et seq., infra, are: The Civil Rights Act, Title 42 USC
Sec. 1985(1)(2) and (3); Crimes, Title 18 U.S. Code,
Sees. 372, 241, 1505; Social Security Act, Title 42 USC
Secs. 405, 1631; Regulations, Secretary of Health,
Education and Welfare, 20 C.F.R. Sec. 404.922: Ad-
ministrative Procedure Act, Title 5 USC Sees. 552(d),
552(e)(1) to (3)(d), inclusive and Sec. 552(g)(1) to
(4)(B), inclusive; Administrative Procedure Act, Title 5
USC Secs. 554, 556 and 557; Federal Rules of Civil
Procedure, Rule 7(a)(b), Rule 8 (a)(b)(c), Rule
12(a)(b)(e), Rule 38(a) and Rule 56(c),.
Statement of the Case
STATEMENT OF THE CASE
By complaint filed July 1, 1977, petitioner, Wan-
da P. Chocallo, invoked the jurisdiction of the federal
court to assist in the execution of her duties as a Social
Security Administrative Law Judge (ALJ) and to pro-
tect her from interference, pressure and intimidation
by agency officials and public service lawyers, acting
in concert, and from illegal agency policies and prac-
tices adverse to impartial justice. A jury trial was
demanded. The complaint was amended twice in
August, 1977 to add new causes of action and join ad-
ditional parties.
Injunctive, declaratory and monetary relief are
requested based on an alleged conspiracy to violate
petitioner's constitutional and statutory rights; deprive
her of her office; interfere, hinder, obstruct and injure
her on account of the lawful discharge of her obliga-
tions, and for safeguarding claimants’ and the public’s
interests under the Social Security Act and the Fifth
Amendment; discredit and defame her; deter her and
retaliate against her for free speech, thought and peti-
tion.
The allegations made raise claims under the Civil
Rights Act, 42 USC 1985; the Administrative Pro-
cedure Act, 5 USC 101 et seq.; the Social Security Act,
42 USC 401 et seq.; the Freedom of Information/-
Privacy Act, 5 USC 552(a) et seq.; the First, Fourth,
Fifth and Ninth Amendments to the United States
vu
Statement of the Case
Constitution; libel laws of Pennsylvania, and inferred
statutory causes of action under 3 USC 7211; 18 USC
372; 18 USC 241; and 18 USC 1505.
The Court is asked to enjoin the conspiracy; il-
legal policies and practices: a threatened ultra vires
adverse employment action by the director: to declare
null and void an ultra vires Appeals Council order
issued during the course of proceedings that purported
tu divest her of jurisdiction, vacate an interlocutory
order, remand the case to the Chief Regional Ad-
ministrative Law Judge and direct him to reassign the
case; to declare invalid departmeatal regulations
authorizing Appeals Council, whose members are not
ALJs appointed under the APA by the Secretary but
are appointees and subordinates of the director, to
hear and decide social security cases and to review
ALJs’ final decisions; and to order a full inquiry fmto
the alleged illegal and criminal activities of the agency
and Community Legal Services, Inc. of Philadelphia.
Damages include injury, at the hands of the con-
spirators, to career; reputation; economic advantage;
dignity; privacy; mental anguish and physical and
emotional distress. Also damages for violations by
agency Officials arising under the Freedom of Informa-
tion/Privacy Act.
Respondents are the Bureau of Hearings and Ap-
peals (BHA), Social Security Administration (SSA), its
director, Trachtenberg, and his ministerial subor-
dinates Brown, Gitman, Lightfoot, Ennis, Roseman
and Kuriger, sued individually and officially for ac-
tions outside the scope of their legal authority; Card-
well, the Commissioner of SSA, sued officially as the
Statement of the Case
person designated by regulation to decide appeals
under the FOIA/Privacy Act by those denied access to
their records; the Secretary of HEW and claimant
Coleman, joined merely as interested parties; Com-
munity Legal Services, Inc. of Philadelphia (CLS) and
attorneys and paralegals employed by it, sued official-
ly and individually, viz., Stein; Bernstein; Weishaupt;
Montes; Janoski; Kooperman; Wood and Weiler.
No answers were filed. CLS respondents moved in
the district court for dismissal. BHA respondents mov-
ed for dismissal and in the alternative for summary
judgment on the basis of affidavits. In opposition,
petitioner responded with affidavits of her own. No
motion was filed by the Social Security Commissioner.
On May 14, 1981, the district court, without giv-
ing respondents an opportunity to reply, denied,
without comment, petitioner's motion for judgment on
the pleadings filed May 8, 1981.
On October 8, 1982, the district court granted
respondent’s dismissal and summary judgment mo-
tions. On the papers before it, the court proceeded to
decide the case on the merits. The district court's ac-
tions were affirmed by the Circuit Court panel,
without deciding the questions before it on appeal and
without comment.
The gravamen of petitioner's complaint is that
rights and duties, conferred upon her and other ALJs
by statutes, legal regulations and prior agency prac-
tice, are being continuously infringed by BHA’s actions
without authority in law. Such actions are directly or
indirectly coercive and impair the impartiality of the
~I
Statement of the Case
social security justice system and imperil the integrity
of its fund. They are calculated to divest ALJs of their
statutory plenary, discretionary powers by _ ad-
ministrative fiat, without legislation, and to subject
them to agency supervision and control.
The allegations are supported by numerous at-
tached Exhibits which reflect the broad conspiracy.
Petitioner is an employee of the Department of
HEW. In July, 1974, she was appointed a hearing ex-
aminer by the Secretary and assigned to the
Philadelphia BHA hearing office. In January, 1976, by
Act of Congress, she was appointed a temporary Ad-
ministrative Law Judge. She was promoted to GS-14
on April 11, 1976 by Civil Service Commission
reclassification. In January, 1978, by further Act of
Congress, she was appointed a career absolute ALJ
and promoted to GS-15. Pursuant to Act of Congress,
she was directly delegated all the Secretary's statutory
plenary discretionary powers to adjudicate social
security cases under Titles II, XVI and XVIII of the
Act. SSA ALJs issue final decisions to parties in their
own names. Their official position description, issued
by respondent BHA, provides that the “Social Security
and Administrative Procedure Acts prohibit supervision
and substantive review” of the ALJs’ judicial functions;
that they are “subject only to such administrative
supervision as may be.required in the gouree of general
4
office anag fa eee i: oe
cogsel fi Cardwell appointed Trachtenberg
Director, BHA, in January, 1975 to nullify, by ad-
ministrative fiat, the statutory autonomy of ALJs.
Trachtenberg also served as Chairman of Appeals
| her des
Statement of the Case
Council. a non-statutory body. He appointed its
members. Appeals Councils, by regulations, are
authorized to hear and decide cases and to review
ALJs’ final decisions on a certiorari basis under certain
prescribed conditions.
Trachtenberg also appointed his managerial
assistants. Respondents Brown, Gitman and Lightfoot
were among those appointed. Under the guise of
management reforms, his managerial assistants im-
plemented his unlawful policies, which are the subject
matter of the complaint. ALJs were subjected to ex-
traneous factors intended to influence proceedings, in-
evitably calculated to disturb the course of justice or
psychologically calculated to disturb the exercise of an
impartial and equitable judgment.
The events leading to the conspiracy had their
genesis in the John C. Coleman SSI case heard on
December 29. 1975, at which time petitioner
discovered Coleman and his attorney, respondent
Bernstein, suppressed material evidence that affected
entitlement to SSI payments. They were directed to
submit post-hearing documentation. They never did.
Following the hearing, Bernstein, Lightfoot, Git-
man. Brown and Trachtenberg undertook a trial by ex
parte letters (App. 10la, 103a, 126a, 128a, 130a,
13la) and extra-judicial proceedings. Bernstein wanted
petitioner out of the case. Fraud was uncovered by
petitioner. BHA abetted the fraud. Petitioner was sub-
jected to a pervasive pattern of harassment and threats
to drive her out of the case. In letters to Lightfoot and
Brown, which went squarely to the merits of the case
proceeding, Bernstein impugned petitioner's fairness,
motives and honesty. Lightfoot requested petitioner to
Statement of the Case
respond to her false and malicious accusations; fur-
ther, that she voluntarily withdraw from the case. She
would not. She was directed to be at Gitman’s office
on January 19, 1976 to discuss the case, At that time,
Gitman threatened she would be investigated and fired
for refusing to engage in private talk about the case.
On January 15 and 22, 1976, petitioner reported the
threats and unwarranted interference to Trachtenberg
for remedial action. Instead, he sent a bludgeoning
reply on February 17, 1976 (App. 113a, 123a). In it,
he accused petitioner of not performing her job as an
ALJ. He stated she grossly misinterpreted an ALJ's in-
dependence; misunderstood the hearing process;
rendered a disservice to Coleman and the public by
taking his testimony instead of hearing legal argument
as proposed by Bernstein; that her failure to cooperate
with Lightfoot and Gitman, whose actions he fully
supported, could be construed as insubordination; that
she was non-productive. Brown informed petitioner in
September, 1976, based on Bernstein's letter to him,
petitioner's decision, when issued, would be reviewed
by Appeals Council.
Petitioner was being constantly harassed to sur-
render the case files under various pretexts. On
February 27, 1976, Gitman, at Trachtenberg’s direc-
tion, demanded she relinquish them within three
hours. She would not.
Respondents conduct had a disruptive, threaten-
ing impact. It impeded and obstructed the prompt,
proper and full development of the record. BHA
counseled, condoned and supported Bernstein's refusal
to comply with 3 hearing notices for supplementary
10
Statement of the Case
hearings and with subpoenas issued on her and her
client directing them to appear and produce documen-
tation required by law. Bernstein testified as a witness
for Coleman at the December hearing.
So that the case could be properly adjudicated,
petitioner was compelled to develop the record herself
from collateral sources. The documentation obtained
revealed Coleman defrauded the government of $3000
which he was ordered to repay. Petitioner's decision
dated October 29, 1976 is attached to the complaint as
Exhibit “H”.
On February 29, 1976 (App. 106a, llla), the
Secretary was petitioned to investigate the entire mat-
ter, including other detailed and documented charges.
A copy was sent to Congress with a request for an in-
dependent inquiry.
Therafter, petitioner became Trachtenberg’s
prime target. A concerted campaign, participated in
by BHA, CLS and the Civil Service Commission
(CSC) was immediately undertaken to discredit and
destroy her and to contrive evidence to justify her
removal. Only the Secretary under the APA can hire
and fire ALJs. This power cannot be delegated. Secret,
extensive investigations of petitioner's background were
carried out and, as a result, misrepresented her
trustworthiness. Malicious, false rumors were spread;
false charges and reports contrived and circulated im-
pugning her professional competency and _ integrity.
Her staff and other BHA personnel were pressured to
spy on her and furnish contrived complaints. Her deci-
sions were subject to selective review rather than the
customary ad hoc one. Other forms of harassment
were directed against her. She was denied support
ll
Statement of the Case
staff. Cases were not assigned by rotation. She got the
oldest and worst cases. Trachtenberg refused to process
her appointment emporary ALJ and her promo-
tion due by law (Re ed her attendance and
payroll records. Trachtenberg advised her on April 5,
1976 (App. 109a, 145a, 150a) he considered it inap-
propriate to respond to her letter of February 29,
1976, though requested by the Secretary to do so,
because he decided to file an adverse employment ac-
tion against her based on his careful consideration of
the materials submitted. CSC counseled, advised and
helped draft the charges. They were never served on
petitioner. They were based on the events in the Cole-
man case and appear in the appendix.
Significantly, in a response sent by Cardwell,
dated April 2, 1976, to Congress's inquiry into the
matter, he advised it would be inappropriate to
answer the charges because of Trachtenberg’s proposed
adverse action. He added:
“The concept of supervision without in-
terference in the exercise of an ALJ's judgment
seems to be the issue. I would note that both Mr.
Trachtenberg and I support the need for ALJ's to
accept supervision in this sense. Beyond that, I do
not think I should comment further in light of the
plan for the Bureau of Hearings and Appeals to
take the matter to the Civil Service Commission.”
The covert investigation of petitioner proved
unavailing. A new strategy was devised. CLS filed
unauthorized motions to disqualify in two cases before
petitioner in February, 1977. These were in the form
of letters signed by CLS. The motions were designed
12
Statement of the Case
to make evidence by claiming petitioner was biased
against CLS lawyers and those claimants who did not
work and had psychiatric disorders. Both motions
were repudiated by respective claimants when ap-
prised of them. However, it was the first motion, with
accompanying attachments (Exhibit “F", Complaint)
that furnished proof of what petitioner suspected and
knew but was without supporting documentation. The
attached letters outlined a course of conduct
deliberately calculated to deprive petitioner of her
constitutional and civil rights.
Finally, claimant Pearl Taylor testified at a hear-
ing before petitioner that Stein of CLS admitted to her
that an ultra vireg yp als_oungi order, issued in her
case on Tine 9, 19AJwas part of Tn Aire con-
spiracy to remove petitioner. He threatened she would
go down in defeat if she didn’t join them in the battle
but appeared at a further hearing before petitioner set
for June 13, 1977. She also disclosed Gitman told her
petitioner denied 15 other claims like hers because of
prejudice against poor people and those with nervous
disorders. He promised her she would receive benefits
if she helped them get evidence to effect petitioner's
removal. Taylor denounced BHA for issuing the ultra
vires Appeals Council order without her knowledge
and consent. She charged BHA and CLS with
violating her rights and repudiated the order. She had
also charged CLS with misusing and abusing her for
their own evil ambitions. Because she appeared at the
June 13th hearing, CLS returned the files in another
case of hers they were handling. CLS was barred by
the Public Service Corporation Act, effective at the
13
Statement of the Case
time, from representing Taylor in her social security
claim because hers was a fee-generating case. She
received a lump sum payment of approximately
$10,000 for retroactive disability benefits (4pp.S3a- lle)
Following the hearing, petitioner met with the
United States Attorney and reported these obstructions
of justice for investigation. He declined to act.
BHA made several attempts during the course of
the Taylor proceedings to divest petitioner of the files.
During petitioner's absence, at Trachtenberg’s direc-
tion, her locked office was broken into and an
unlawful search and seizure made (Second Amended
Complaint, p. 143a).
After this action was filed on July 1, 1977,
Trachtenberg filed another retaliatory removal action
with Civil Service, which charged her with no offense
known to law. It merely stated petitioner disobeyed a
lawful order of Appeals Council by holding a hearing
in the Taylor case on June 13, 1977: by failing to
relinquish ea it and by holding an unfair hearing
in the Coleman Acases. Petitioner's complaint was
amended to add this further violation of her rights and
as proof of the conspiracy.( |e} Qrntuded , (YOu /HJa)
Stein, repudiated by Taylor on‘Feb. 15,
1977, unknown to her, then wrote unauthor-
ized ex parte letters to Gitman et al. pur-
porting to speak for her and demanding peti-
tioner's removal from office and the case.
The language u faba Jestgned to ridicule
and subject neshes contempt and aid the con-
spirators in their plot to discredit; fire;
interfere with and obstruct her in the con-
duct of the Taylor proceedings. (§15Comp.,
54a; &2a; Attachmenta-to Rspdts' Affidavits)
14
Reasons for Granting Writ
REASONS FOR GPANTING THE WRIT
Petitioner's request for writ of certiorari, it is
respectfully submitted, meets the requirements of Rule
17.1(a) and (c). The district court has so far departed
from the accepted and usual course of judicial pro-
ceedings, sanctioned by the federal court of appeals, so
as to call for an exercise of this Court’s power of
supervision. Important questions of federal law should
be settled by this Court and conflicts with applicable
decisions of this Court remedied.
This case presents questions of first impression in
the construction of an Administrative Law Judge's
(ALJ’s) rights under the Civil Rights Act, 42 USC
1985. This is the first lawsuit brought by an ALJ for
protection from interference, harassment and injury
during and on account of the lawful discharge of
judicial duties. It should be closely watched by every
concerned citizen and meticulously scrutinized by this
Court because it will point to a legal standard. A suit
brought in behalf of ALJs employed by the Health and
Human Services Department to restrain certain illegal
practices by OHA officials of HHS ard SSA is pending
before the United States Dist. Ct., Dist. of Col.
(Assoc. of ALJs, Inc. v. Schweiker et al., CA 83-0124).
There are serious questions affecting the public in-
terests which this Court has a legal interest to resolve.
The decision in this case poses a dangerous threat to
the entire federal justice system and to individual
15
Reasons for Granting Writ
liberty. It must necessarily constitute a precedent. It
will soon be accepted as a final decision on the ques-
tions by all branches of government, as well as
lawyers and litigants, irrespective of its patent con-
stitutional and legal defects. It will at once come
before the Executive Branch and be construed as pro-
viding license to lawless conduct and judicial sanction
for intimidating and controlling ALJs in the course of
administrative proceedings.
An important consideration for this Court is that
Congress condemned the practices alleged and this
Court, as supervisors of the federal system, should see
that the law is enforced not selectively but in all cases
coming before it.
Congress, by enacting the Civil Rights Act, 42
USC 1985, and its criminal counterparts, 18 USC 372
and 18 USC 1505, soundly determined that the federal
interests in carrying out of federal functions should be
protected. Every government official, entrusted by the
very terms of his office with powers and duties to be
exercised and discharged for the general welfare, has a
right to apply to the courts for any proper assistance
in the exercise of the one and the discharge of the
other. Stern v. U.S. Gypsum, Inc., 547 F.2d 1329;
Bell v. Hood, 327 U.S. 678.
Congress, by enacting the Administrative Pro-
cedure Act, forbids direction and supervision of ALJs
in the performance of their judicial functions. It
sought to remedy what were believed to be evils in the
way in which administrative agencies exercised their
authority prior to its enactment on June 11, 1946. It is
a sweeping piece of remedial legislation that cannot be
16
Reasons for Granting Writ
divorced from the evils Congress sought to prevent and
correct. U.S. v. L.A. Tucker Lines, 344 U.S. 33, 73 S.
Ct. 67. In addition, the Supreme Court in the last
decade has repeatedly recognized the importance of
the proper respect of the independent role of ALJs
within the executive branch of our federal system of
justice. It soundly determined that it is a fundamental
necessity to maintain ALJs free from the control and
coercive influences, either direct or indirect, of the ex-
ecutive, legislative or politics, and from pressures by
the parties or other officials within the agency. Butz v.
Economou, 438 U.S. 478 (1978).
This Court has consistently held that once a
department head has by regulation delegated his
discretionary powers pursuant to law, he denies
himself the authority to exercise the discretion
delegated even though the original authority was his
and he could reassert it by amending the regulation.
So long as the regulation remains in force, the
sovereign, composed of the three branches, is bound to
respect and to enforce it. United States v. Nixon, 418
U.S. 683 (1974).
These doctrines gave root to petitioner's claims.
Pursuant to the mandates of the Code of Judicial Con-
duct, cited in her complaint, Petitioner took positive
measures to protect the sovereign’s interest in the in-
tegrity and fairness of the social security justice
system, as well as her rights as a federal officer, judge
and person. In the opinion of the district and circuit
courts, a person who accepts a position as an ALJ
thereby forfeits his civil, constitutional and statutory
rights.
Reasons for Granting Writ
The entire proceedings in this case bear the taint
not only of an appearance of impropriety and un-
fairness but that of actual impropriety and unfairness.
An unconscionable delay of five and a half (5'2) years
in ruling on the motions before the court is ipso facto
unconstitutional. It constitutes a clear denial of due
process. The mandate of F.R.C.P., Rule 56, requires a
quick resolution of the issues presented on motion for
summary judgment. This Court has frequently em-
phasized that “insubstantial lawsuits can be quickly
terminated by federal courts.” Harlow v. Fitzgerald,
73 L.Ed. 2d 396, 102 S.Ct. (1982). The federal
rules, as mandated by Rule 1. must be construed to
“secure the just, speedy, and inexpensive determination
of every action.” The highly prejudicial and uncon-
scionable action of the district court, sanctioned by the
appeals court, calls for the supervision of this Court.
Justice delayed is justice denied is not an idle maxim.
It has been given validity by this Court. The appeals
court failed to rule on this vital issue.
Paradoxically, the district court acted with ex-
treme haste in ruling on petitioner's motion for judg-
ment on the pleadings. Within six days it entered an
order denying the motion, without giving respondents
an opportunity to reply and petitioner reasons for its
action. Under Rule 56, there is no express extension of
time for filing responsive pleadings until disposition of
the motion for summary judgment. Respondents made
no application for an extension of time beyond that
originally granted. And the Court did not enter an
order postponing the filing of answers until disposition
of the motions. It is clear petitioner is entitled to such
judgment.
18
Reasons for Granting Writ
Our system of government guarantees the right to
petition the courts for redress of grievances. It is
among the most precious liberties safeguarded by the
Bill of Rights. The right of trial by jury on issues of
fact is also among its sacred guarantees. This is a
substantial right loved and cherished by the American
people. The average judgment of twelve jurymen of
average sense, drawn as they are from all walks of life
and impartially selected, is more likely to reach a
practical and honest result in sifting, weighing, reject-
ing, reconciling proof, and deciding facts than is the
trained judge.
The summary judgment statute is drastic and may
not be used as a perversion of justice and abuse of it.
The court does not try the facts upon affidavits but
merely decides whether the case presents facts to be
tried by a jury. Hart & Co. v. Recordgraph Corp.,
169 F.2d 580 (1948, 3rd Cir.).
The district court, though inconsistent with ap-
plicable law and the unique facts of this case, conclud-
ed petitioner has no remedy for the wrongs committed
nor a right to trial by jury. To achieve this result, the
court exercised powers it does not possess. The district
court went beyond its province to resolve issues that
would arise on the merits.
The sole dispositive issue presented the district
court is whether the complaint sufficiently alleges a
cause of action under any state of facts. The defenses
of immunity, collateral estoppel and privilege were not
before it. Responsive pleadings were not filed. The
court lacked power and jurisdiction to consider and
decide these issues that arise on the merits.
19
Reasons for Granting Writ
It is well settled that on dismissal motion, the
court must assume that all well-pleaded allegations of
the complaint are true and must set out the facts
alleged in the light most favorable to plaintiff. The
complaint should not be dismissed unless it appears to
a certainty that plaintiff would not be entitled to relief
under any state of facts which could be proved in sup-
port of her claim; further, no matter how likely it
may seem that the pleader will be unable to prove her
case, she is entitled, upon averring a claim, to an op-
portunity to try to prove it. Conley vt. Gibson, 355
U.S. 411.
In determining whether summary judgment is
proper, a court ordinarily must look at the record in
the light most favorable to the party opposing the mo-
tion, drawing all inferences most favorable to that
party. Harlow v. Fitzgerald, supra, fn. 26; Poller v.
Columbia Broadcasting System, 368 U.S. 464, 7 L.Ed.
2d 458, 82 S.Ct. 486 (1962); Fitzgerald v. Seamans,
553 F.2d 220 (1977 D.C. Cir.). Under this rule plain-
tiffs affidavits must be taken as true—with ll
disputes resolved in her favor as the party opposing
summary judgment. Affidavits filed in support of mo-
tions to dismiss and summary judgment may be con-
sidered for purposes of ascertaining whether an issue
of fact is presented, but they cannot be used as a basis
for deciding the fact issue. An affidavit cannot be
treated, for purposes of motion, as proof contradictory
to well-pleaded facts in the complaint. Hart v.
Recordgraph, supra.
The principles stated were not adhered to by the
District Court in its disposition of respondents’ mo-
20
Reasons for Granting Writ
tions. Its opinion makes it evident that it failed to
properly confine the scope of its consideration and that
it proceeded to decide the fact issues. Until now, the
Circuit Court consistently adhered to these proposi-
tions. It recognized that an inferior court in the
federal hierarchy is compelled to apply the law an-
nounced by the Supreme Court as found on the date
of its decision. U.S. v. City of Philadelphia, 644 F.2d
187 (3rd Cir. 1989).
One issue that would arise on the merits is the
applicability of tne doctrine of official immunity,
either as an absolute immunity or qualified immunity.
On the papers before it, the district court was
precluded from deciding Trachtenberg acted in good
faith and is entitled to qualified immunity and that
Brown, Gitman et al. are entitled to absolute immuni-
ty because of their ALJ titles. Parenthetically the court
casually abandoned the functional approach to im-
munity that has run through all the decisions of the
Supreme Court.
It is well established that immunity must be
pleaded as an affirmative defense in actions under the
constitution and laws of the United States and the
burden of proof is on defendants. Gomez v. Toledo,
446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed. 2d 572;
Harlow v. Fitzgerald, supra.
Another issue that would arise on the merits is the
applicability of the doctrine of collateral estoppel. Col-
lateral estoppel, too, is an affirmative defense that
must be factually pleaded and subject to the same
rules. The district court was without power to rule
2]
Reasons for Granting Writ
that the claims asserted under the Social Security and
Administrative Procedures Acts are barred by the doc-
trine of collateral estoppel. It ruled petitioner is barred
from challenging the validity of the ultra vires June 9,
1977 Appeals Council order issued by Trachtenberg in
the Taylor case; the validity of departmental regula-
tions authorizing Appeals Council to hear and decide
social security cases; and her independent status as a
judge by virtue of the Secretary's delegation and the
provisions of the Social Security and Administrative
Procedure Acts (as confirmed by the positign.des ip-
tion). He found these matters were decided in my oiog
recommended decision, which was properly before the
court. The decision, moreover, had no finality. Under
the FOIA/Privacy Act it is not a public record accessi-
ble to the public since it is not a final decision. It is
the court’s duty to rule on the validity of ad-
ministrative regulations.
The applicability of the doctrine of privilege is a
further issue that would arise on the merits. Privilege
is an affirmative defense that must be pleaded. The
district court ruled, based on their motion to dismiss,
CLS respondents’ actions are privileged. It found they
merely exercised their constitutional and statutory
rights of free speech “by filing complaints with peti-
tioner’s supervisors about the manner in which she
performed her duties.” It emphasized the importance
of protecting the independent status of attorneys. It
made no reference to the alleged need to preserve the
ALJ’s independence. It inaccurately stated the com-
plaint only charges them with “vigorous advocacy.” It
also ruled no statutory and constitutional rights were
Reasons for Granting Writ
violated under the Fifth Amendment. It made no rul-
ing on petitioner's First Amendment claims, including
retaliation for petitioning for redress of her grievances
and invasions of privacy and defamation. It dismissed
all claims against CLS. It also erroneously ruled that
no claims against CLS are asserted under the Civil
Rights Act, 42 USC 1985. This too involves an issue
that would arise on the merits.
The provisions of Section 1985(3) of the Civil
Rights Act provide that the act of one conspirator is
binding on all and any one or all is liable for
damages. The court chose to ignore this.
‘The district court entered summary judgment for
BHA respondents on the claims under the Freedom of
Information Act. It ruled there was “no evidence of
record’ the agency acted intentionally and willfully. It
also found there is no basis for injunctive relief. Yet,
the law requires a de novo hearing before the court.
It entered summary judgment on the Privacy Act
claims by deciding the letters, solicited covertly and
without compliance with the provisions of the Act, are
relevant and necessary to a determination whether
petitioner properly performed her functions as an ALJ.
It entered summary judgment for Ennis, Roseman
and Kuriger by deciding they were acting at the direc-
tion of Gitman and entered and searched petitioner's
locked office to obtain the Taylor files. It found they
did not violate the Fourth Amendment.
It made no ruling on petitioner’s other First
Amendment claims.
23
Reasons for Granting Writ
The Circuit Court in its decision did not dispose
of these issues which were squarely presented. It con-
clusorily stated in its judgment order that there are no
disputed facts and errors of law. The records before
the court precluded the rulings made by it. The court's
action cannot be sustained when examined in tradi-
tional manner and in light of traditional judicial
sources. It is patently wrong and illegal. Its decisions,
moreover, do not accurately and fully represent the
facts in this case.
The theory of our judicial system is that the con-
clusions to be reached in a case will be induced only
by evidence and argument in open court, and not by
any outside influence, whether by private talk or
public print. Patterson v. Colorodo, 205 U.S. 454.
Legal trials are not elections to be won through use of
meeting halls. Administrative law judges should be
protected from unnecessary interference and ~harass-
ment.
The potential danger of what occurred here is
that it permits a small group of unscrupulous public
service lawyers with a “rule or ruin” motto and of-
ficials with a “might makes right policy” to, by con-
spiratorial means, hold a judge hostage by threat of a
removal drive. It is petitioner today. Tomorrow it will
be others. The tide must be turned for the common
good before it is too late. When the people neglect
their interests, they afford their rulers an opportunity
of retreating from freedom back toward despotism.
Though the system remains literally the same, the of-
ficers take advantage of its defects and mostly, by
gradual abuses, entrench themselves and friends in of-
24
Reasons for Granting Writ
fice until the general interest as much as possible is
put out of view.
Courts exist to assure each individual he, as an in-
dividual, has enforceable rights that he may pursue to
achieve a peaceful redress of his legitimate grievances.
Damages have been regarded as the ordinary remedy
for an invasion of personal interests in liberty,
Halperin v. Kissinger, 604 F.2d 1192 (1979) (D.C.
Cir.). The principle that should guide the Court in its
decision was stated long ago by Chief Justice Marshall:
“The very essence of civil liberties consists in the right
of every individual to claim the protections of the law
whenever he receives an injury.” Marbury v. Madison,
1 Cranch 137 (1803). Courts have a traditional func-
tion of enforcing federally guaranteed rights. Our
courts held there is a public interest in vindicating
First Amendment rights of public employees.
The number of cases protecting judges (including
ALJs) against suits for wrongs committed by them
against party litigants during the course of judicial
proceedings is legion. This Court recently noted in
Harlow v. Fitzgerald, supra: “We—judges collectively
—have held that the common law provides us with
absolute immunity for ourselves with respect to
judicial acts however erroneous or ill advised.” This
right is not a creature of statute or Constitution. It is
a product of judicial insemination.
This Court is now called upon to chart a new
course, one that will protect the right of judges, albeit
Administrative Law Judges, to sue for wrongs against
them on account of their lawful judicial acts. This is a
25
Reasons for Granting Writ
legitimate right. It was spawned by Congress and the
Constitution,
A 48 page opinion, on the papers before it, where
the court refused to rule on motions for more than 5
years, and where it went beyond its legitimate func-
tions and powers to decide the case on the merits so as
to absolve the wrongdoers for actions Congress made
criminally punishable and to discredit and present the
victim in a false and unfavorable light, on its face,
warrants an exercise of this Court's supervisory
powers. In addition, for an appeals court to sanction
and compound such radical departures from substan-
tive and legal modes of procedure in a case seriously
impugning the executive judicial system, manifests an
urgent need for remedial action an orm, by this
Court to restore integrity at confidence in. the
American system of justice. "
It is the solemn obligation of the court to search
for and tell the truth. Truth is indispensable to justice.
The courts here did not present the true facts. Justice
was not rendered.
CONCLUSION
For the reasons stated above, the Petition for Writ
of Certiorari should be granted.
Respectfulty submitted
HoNoraBLe WaNbA P. CHOCALLO
Pro Se
308 Maple Ave.
Drexel Hill, PA 19026
la
Judgment Order
APPENDIX
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 82-1754
WANDA P. CHOCALLO
Vv.
BUREAU OF HEARINGS AND APPEALS, SSA et al.
HON. WANDA P. CHOCALLO, APPELLANT
(D.C. Civil No, 77-2310)
ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT OF PENN-
SYLVANIA
Hon. JAMES T. GILES, DISTRICT J UDGE
Submitted Under Third Circuit Rule 12(6) June 1, 1985
Before: GIBBONS, HUNTER and Maris, Circuit Judges
2a
Judgment Order
JUDGMENT ORDER
Wanda P. Chocallo, a former Administrative Law
Judge with the Social Security Administration, appeals
from a final judgment dismissing some counts of her com-
plaint for failure to state a claim on which relief can be
granted, and granting summary judgment on the remaining
counts. The defendants include Community Legal Ser-
vices, Inc. and some attorneys employed by it, the Bureau
of Hearings and Appeals, some individual Administrative
Law Judges and some officials of the Social Security Ad-
ministration. The trial judge carefully considered sepa-
rately each ground for relief alleged against each defendant.
We agree that those claims which were dismissed pursu-
ant to Rule 12(b) (6) fail to state a claim on which relief
can be granted. As to those claims on which summary
judgment was entered we find no material disputed fact
issues, and no legal error.
It is ORDERED AND ADJUDGED that the iudg-
ment of the district court is affirmed. Costs are taxed in
favor of appellees.
BY THE COURT,
s/JOHN J. GIBBONS
Circuit Judge
Attest:
s/Sally Mrvos
Sally Mrvos, Clerk
Dated: Jun 1, 1983
3a
Memorandum and Order, No. 77-2310
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
Civil Action No. 77-2310
WANDA P. CHOCALLO
v.
BUREAU OF HEARINGS AND APPEALS, SSA, et al.
MEMORANDUM AND ORDER
GILES, J., October 8, 1982
INTRODUCTION
This is an action by a former Administrative Law
Judge (“ALJ”) Wanda P. Chocallo (‘‘Chocallo”), which
in the main, challenges on constitutional and statutory
grounds certain federal agency actions which she claims
prevented her from discharging her duties as an ALJ, in-
terfered with her judicial independence and integrity and
disqualified her from hearing certain social security cases
assigned to her.
Chocallo sues all named defendants, private and
governmental, as members of a conspiracy allegedly cog-
nizable under 42 U.S.C. §1985. She also asserts viola-
4a
Memorandum and Order, No. 77-2310
tions of the Fifth Amendment, the Privacy Act of 1974,
5 U.S.C. §552 (a) (g) (1), et. seg. and the Administrative
Procedure Act, 5 U.S.C. §101 et seg. Jurisdiction is prop-
erly asserted under 28 U.S.C. §§1331 and 1343 (1976).
Each defendant has moved either to dismiss the com-
plaint for failure to state a claim under Fed. R. Civ. P.
12(b) (6), or alternatively, for summary judgment under
Fed. R. Civ. P. 56. For the reasons which follow the
motions shall be granted and judgment shall be entered in
favor of all defendants and against plaintiff.
I. BACKGROUND
When bringing this action in July of 1977, plaintiff
held the position of temporary ALJ assigned to the Bureau
of Hearings and Appeals of the Social Security Admin-
istration, Department of Health, Education and Welfare
(“‘DHEW”). In this capacity, she heard claimants’ ap-
peals from initial adverse determinations of social security
insurance benefit eligibility, and rendered decisions. Her
ALJ decisions were reviewable on the merits by the Ap-
peals Council of the Social Security Administration. If
affirmed at that level, the ALJ’s opinion became the final
decision of the Secretary of the Department.
Based on allegations of conduct unbecoming her of-
fice, arising largely from the incidents underlying the
complaint in this court, Chocallo was subsequently re-
moved from her temporary position as ALJ. The decision
to remove her was made by the Merits Protection Board
and affirmed by the United States District Court for the
5a
Memorandum and Order, No. 77-2310
District of Columbia in Chocallo vy. Prokop, No. 80-1053
(D.D.C. October 10, 1980). The incidents giving rise to
Chocallo’s complaint basically cover a one and one half
year period between December, 1975 through June, 1977,
and are best described as four separate series of events.
A. The Pearl Taylor Case
Commencement of this action coincided with plain-
tiff’s refusal to cooperate in the reassignment to another
AL] of the social security claim file of one Pearl Taylor,
a claimant who sought disability status by reason of a
mental condition. At all times material to this proceed-
ing Taylor was represented by defendant Community Le-
gal Services, Inc. (““CLS’’) through its employee Jonathan
Stein, Esquire, and Edwin Montes, a paralegal to Stein.
Prior to a February, 1977 hearing before plaintiff on the
Taylor claim Stein had filed a request with plaintiff, sup-
ported by affidavits, asking that she recuse herself as the
ALJ in the matter because of alleged bias against all social
security claimants who had mental problems and who
were represented by CLS. The recusal motion also alleged
general bias and prejudice against CLS representatives.
Plaintiff refused to recuse herself at the February 15, 1977
hearing. At that time, plaintiff also interrogated the
claimant over the objections of counsel, about various
aspects of her attorney/client relationship, as well as
claimant’s involvement in the recusal motion, out of the
presence of her attorney (Complaint, Exh. D. p. 9), (Com-
plaint “£ 13, 14 15). Chocallo terminated the hearing
6a
Memorandum and Order, No. 77-2310
without decision because of Stein’s vigorous objections to
plaintiff’s actions.
Following the hearing, Stein filed a written complaint
to the Appeals Council, demanding reassignment of the
case for bias demonstrated at the hearing and inviting its
review of the hearing transcript. (Complaint, £ 15, Brown
Affidavit, £ 8). Defendant, Philip T. Brown, Chief Ad-
ministrative Law Judge, received Stein’s letter complaint
dated February 15, 1977. He addressed an internal com-
munication to Chocallo on March 10, 1977 advising her
of his concern over the possibility that claimants were
becoming victims of an obviously poor relationship be-
tween CLS and plaintiff. (Brown Affidavit £8). Speak-
ing on behalf of the Appeals Council, Brown stated that
no action would be taken until it had reviewed the tran-
script and tape recording of the February 1977 hearing.
(Complaint, £17). On March 15, 1977, Chocallo wrote
to claimant Taylor, ex parte, informing her that on Feb-
ruary 17, 1977 an attempt had been made by “the Ad-
ministrative Officer of this Office’ to secure Taylor’s files.
(Complaint { 16, Exhibit B).
On May 10, 1977, before the Appeals Council could
act Chocallo entered a decision and order barring both
Stein and Montes from further participation in the pro-
ceedings on behalf of Taylor. (Complaint, £ 18, Exhibit
D). In the opinion, plaintiff expressed the belief that
Stein had breached his professional responsibility to the
claimant by failing to disclose the recusal motion to his
client.’ Chocallo’s opinion incorporated a newspaper ar-
1The Code of Professional Responsibility, adopted by the
American Bar Association, Ethical Considerations EC 7-9 and
EC 7-11 support the use of discretion by an attorney not to dis-
close to a client information such as a recusal motion.
7a
Memorandum and Order, No. 77-2310
ticle critical of CLS, and particularly Stein, on a subject
totally unrelated to either the claimant, the merits of claim
or the field of social security benefits. Jd. Prior to
rendering her decision, she had mailed a copy of the same
newspaper article, ex parte, to Taylor. (Brown Affidavit,
£9). Plaintiff’s barring order required claimant to obtain
substitute counsel within 30 days.
The order was issued without notice or a hearing,
in the face of a statutory provision and implementing
regulations which require prior notice and a hearing before
a duly designated or appointed representative can be dis-
missed from practicing before the Social Security Admin-
istration. 42 U.S.C. §1383 (d) (2); 20 C.F.R. §§416.1503,
416.1540-.1565. The barring order came to the attention
of the Chief Administrative Law Judge Brown, who deter-
mined that it was contrary to law. (Brown Affidavit, {
11). On his motion, the Appeals Council issued an order
dated June 9, 1977 removing the Taylor case to the Coun-
cil pursuant to 20 C.F.R. §416.1459. The case was then
remanded to the Regional Chief Administrative Law Judge
for reassignment to another ALJ.
A copy of the Appeals Council order was served on
plaintiff on June 10, 1977 by defendant Sol Gitman, As-
sistant Regional Chief Judge. Defendant James C. Light-
foot, Administrative Law Judge in charge of the Phila-
delphia Office of the Bureau of Hearings and Appeals,
and defendant John Ennis, another ALJ, were also present.
Gitman made an oral demand upon plaintiff to return the
file but she responded that she did not have it in her of-
fice and even if she did, she would not surrender it to
him (Gitman Affidavit, £ 15). Later, a written demand
was made on the same day, to which plaintiff made no
8a
Memorandum and Order, No. 77-2310
response. (Gitman Affidavit, £ 16). Her refusal was
then reported to Chief ALJ Brown.
Plaintiff ignored the statutory and regulatory authority
for the case reassignment action, contending that it was
violative of her rights as a presiding judge and as protector
of the interests of the claimant Taylor and the public.
(Complaint, ££ 26, 27, 28). Following receipt of the Ap-
peals Council Order, plaintiff contacted Taylor by tele-
phone. The claimant had already been informed of the
removal action and was under directive to obtain another
representative. During the telephone conversation, Taylor
told Chocallo that she did not want another ALJ. Plain-
tiff retained control of the file and scheduled a further
hearing on June 13, 1977. Pursuant to a June 9, 1977
order issued by Chocallo, claimant appeared without her
CLS representatives. They had advised her not to appear
since the case had been taken from Chocallo and was be-
ing reassigned. Taylor appeared with her sister and
minister. One of plaintiff's allegations is that CLS failed
or refused to represent claimant at this unauthorized hear-
ing. (Complaint ££ 19-24).
On June 21, 1977, defendants Jack H. Roseman and
John W. Ennis, both ALJ’s, and defendant Claire R.
Kuriger, entered Chocallo’s locked office in her absence
and made a visual inspection for purposes of locating and
obtaining the Taylor files. They were unsuccessful.
Chocallo retained the files and proceeded to “decide” the
claimant’s case in her favor, thus mooting a mandamus
suit filed in this court by the government to compel her
to return the files. (United States of America v. Wanda
P. Chocallo, No. 77-2437, dismissed as moot). In keep-
ing with the routine practice of relinquishing files in de-
9a
Memorandum and Order, No. 77-2310
cided cases, she turned the Taylor file over after making
the decision. See United States of America v. Wanda P.
Chocallo, E.D. Pa., Civil Action No. 77-2437.
These actions were the primary basis for initiation
by the agency of removal charges against plaintiff on
June 20, 1977 (Trachtenberg Affidavit © 7).
B. The Coleman Case
Plaintiff’s second group of allegations arise out of the
December, 1975 social security disability hearing of de-
fendant John C. Coleman, a 74 year old blind man whose
case was assigned to Chocallo. Chocallo failed to appear
at the Coleman hearing allegedly due to illness. His coun-
sel, defendant Linda Bernstein, Esquire, wrote to Chocallo
expressing her concern at Chocallo’s non-appearance, par-
ticularly in light of the resulting inconvenience to Cole-
man. At the next scheduled hearing, Chocallo accused
Coleman of dishonesty and Bernstein of unethical and
unprofessional conduct. On December 31, 1975, Bern-
stein complained in writing to the Chief ALJ of what she
regarded as vituperative conduct by Chocallo. As a result
of these complaints, Chocallo was counselled by Light-
foot, in his capacity as Regional Chief ALJ, to avoid such
confrontations with counsel, which might result in claims
of partiality. Lightfoot suggested that plaintiff consider
voluntarily recusing herself from the Coleman case. Plain-
tiff refused to withdraw. The Coleman case was not
reassigned, despite the complaints from Bernstein, on the
stated presumption that plaintiff could conduct a fair,
10a
Memorandum and Order, No. 77-2310
impartial hearing and render a just decision. (Complaint,
17 33 A-Q, X-2) .
In late January, May and July, of 1976, Chocallo
attempted to schedule supplementary hearings in the Cole-
man matter. Neither Bernstein nor Coleman appeared,
believing that the matter had been concluded on the merits
at the December, 1976 hearing.’
In September, 1976 nearly nine months after the
hearing on the merits, Coleman’s attorney Bernstein com-
plained in writing to Chief ALJ Brown about what she
considered an inordinate delay in the issuance of a deci-
sion. (Brown Affidavit, © 5). Brown gave plaintiff a
copy of the Bernstein letter and asked her when the deci-
sion would be rendered, advising her that if a date were
not given, the Appeals Council would have to review the
case and make a decision. Plaintiff promised a decision
by the first week in October, 1976. As of November 1,
1976, no decision had been made and Brown requested
the Appeals Council to remove and consider the case be-
cause of the delay. On November 2, 1976, the Appeals
Council informed Brown that a decision adverse to Cole-
man had been rendered on October 29, 1976. On June
2In early February,\976, for the purpose of defending a
federal class action brought against the Secretary of DHEW, a
request was made for the Coleman file by the Office of General
Counsel of DHEW through the Assistant Commissioner of the
Bureau of Supplemental Security Income. (Gitman Affidavit,
9 6, 8, Attachment No. 2). All case files involved in that law-
suit had been obtained except the Coleman file which was in the
possession of, or under the control of, plaintiff. Despite the
stated need of the General Counsel's Office for the file, she re-
fused to surrender it. Jd.
lla
Memorandum and Order, No. 77-2310
15, 1977, the Appeals Council reversed and remanded be-
cause of demonstrated hostility against the claimant and
attorney through the hearing process and the decision it-
self. The case was then reassigned to another ALJ for
decision.
In September, 1977, ostensibly acting as a self-ap-
pointed private attorney general endeavoring to attack the
validity of the Appeals Council’s order of June 15, 1977,
Chocallo filed a first amended complaint in this court to
add as defendants the Secretary of DHEW and the claim-
ant Coleman.
C. Denial of Promotion and Lack of Productivity
On February 29, 1976, Chocallo communicated with
David Matthews of DHEW requesting a full investigation
into defendants’ conduct in the Coleman case. By letter
dated April 9, 1976, defendant Robert L. Trachtenberg,
Director of the Bureau of Hearings and Appeals, advised
Chocallo that he planned to recommend instituting an ad-
verse action against her, and that he felt it improper to
reply to her letter which had been referred to him by Mat-
thews. Because of the contemplated adverse action,
Trachtenberg decided to withhold Chocallo’s promotion
which would ordinarily have been effective by operation
of law on April 11, 1976. (Trachtenberg Affidavit { 4).
On May 25, 1976, Chocallo reported Trachtenberg’s ac-
tions to the Civil Service Commission which ultimately
directed Trachtenberg to initiate retroactive corrective ac-
tion. The action was taken and Chocallo received a re-
troactive promotion and backpay. Subsequently, on April
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Memorandum and Order, No. 77-2310
29, 1977, Chocallo was informed by Brown that her pro-
duction was unacceptably low, and was instructed to in-
crease her out-put within sixty days. Apparently, the
“productivity” issue had been raised previously in Jan-
uary, 1976 by Gitman due to a ‘multitude of complaints”
which were filed by persons who had appeared before
Chocallo and who complained of delayed decisions. (Git-
man Affidavit, £10, 11). Ultimately, on May 31, 1977,
Gitman addressed a letter to Chocallo requesting her to
inform him on a weekly basis of the number of case dis-
positions. (Complaint £ 37). Chocallo asserts that if
her productivity was low, it was because she was denied
an adequate support staff. (Complaint, © 34).
D. Denial of Access to Personnel File
Finally, plaintiff alleges that her rights under the
Privacy Act were violated by defendants Trachtenberg,
Gitman and Lightfoot who delayed and/or refused to
furnish her copies of all records and data concerning her
which were in the Bureau’s possession. Further, she
claims that her Privacy Act rights were violated since de-
fendants collected irrelevant and damaging information,
in particular, complaints filed by attorneys and claimants
concerning her performance which were disseminated
without her knowledge. Based on the above events, plain-
tiff sues the following group of defendants.
Memorandum and Order, No. 77-2310
I]. THE COMMUNITY LEGAL SERVICES (“‘CLS’’)
DEFENDANTS
Chocallo claims that various attorneys affiliated with
CLS, who represented claimants appearing before her,
conspired with the federal defendants to violate her consti-
tutional and statutory rights. The CLS defendants include
Linda Bernstein, Esquire, Marjorie Janoski, Esquire, Bar-
tholomew Poindexter, Esquire, Richard Weishaupt, Es-
quire and Deborah Kooperman, Eileen Wood and Marilyn
Davis Weiler, CLS paralegals.’ It is unclear what con-
stitutional rights were allegedly violated by the CLS de-
fendants. Chocallo appears to claim that she had a con-
Stitutional right to be an “independent judge,’’ to continue
to hold office (Complaint © 40, 48), and not to be “‘un-
lawfully deprived of her liberty to use the powers of her
mind, judgment and experience. . .”’. (Complaint © 48).
In addition, Chocallo claims that the public’s rights and
the rights of claimants in Social Security appeals were
3 Each CLS defendant is charged with: (1) making ‘‘er
parte’’ complaints to Chocallo’s superiors concerning her conduct
as a hearing examiner, (Compaint © 24, 27, 30, 31); (2) con-
spiring to prevent her from discharging her duties as a judge
(Complaint, © 12) and (3) being ‘‘unruly’’ and ‘‘offensive’’ at
hearing before Chocallo (Complaint, © 14), Based on these fac-
tual representations, Chocallo claims ‘at her rights under the due
process clause of the Fifth Amendment and under 42 U.S.C. §1985
were violated by the CLS defendants. Chocallo also alleges causes
of action under the Administrative Procedure Act, 5 U.S.C. §101,
et seq.; the Social Security Act, 42 U.S.C. §301, et seq. and the
Privacy Act, 5 U.S.C. §552. Fairly read, however, the complaint
does not allege that the CLS defendants violated any of these
provisions.
l4a
Memorandum and Order, No. 77-2310
violated. (Complaint, £ 41, 43). Based on these allega-
tions, the CLS defendants have moved to dismiss the com-
plaint for failure to state a claim upon which relief can be
granted under Fed. R. Civ. P. 12(b) (6). Even accepting
all of the well-pleaded facts in plaintiff's complaint as
true, I find that the CLS defendants’ motion must be
granted. Chocallo claims relief under all three sections of
42 U.S.C. §1985 (1976) .*
I address these claims in reverse order.
#42 U.S.C. §1985 provides:
(1) If two or more persons in any State or Territory
conspire to prevent, by force, intimidation, or threat, any
person from accepting or holding any office, trusts, or place
of confidence under the United States, or from discharging
any duties thereof; or to induce by like means any officer
of the United States to leave any State, district, or place,
where his duties as an afficer are required to be performed,
or to injure him in his person or property on account of his
lawful discharge of the duties of his office, or while engaged
in the lawful discharge thereof, or to injure his property so
as to molest, interrupt, hinder or impede him in the discharge
of his official duties;
(2) If two or more persons in any State or Territory
conspire to deter, by force, intimidation, or threat, any party
or witness in any court of the United States from attending
such court, or from testifying to any matter pending therein,
freely, fully, and truthfully, or to injure such party or wit-
ness in his person“or property on account of his having so
attended or testified,... ; or if two or more persons conspire
for the purpose of impeding, hindering, obstructing, or de-
feating, in any manner, the due course of justice in any State
or Territory, with intent to deny to any citizen the equal
protection of the laws, or to injure him or his property for
lawfully enforcing, or attempting to enforce, the right of any
person, or class of persons, to the equal protection of the laws;
Memorandum and Order, No. 77-2310
A. 42U.S.C. §1985(3)
To state a cause of action under §1985 (3), the plain-
tiff must show (1) that a federally secured right has been
invaded by the defendants, (2) that the defendants con-
spired to deprive the plaintiff of her rights, and (3) that
the defendants’ actions were motivated by a “class-based,
invidiously discriminatory animus. . . .” Griffin v.
Breckenridge, 403 U.S. 88, 102 (1971). Waits v. Me-
Gowan, 516 F.2d 203, 208-09 (3d Cir. 1975); See also
Robinson v. McCorkle, 462 F.2d 111, 113 (3d Cir.), cert.
denied, 407 U.S. 1042 (1972); Local No. 1 (ACA) v.
I.B.T., C. W. & H., 419 F. Supp. 263, 275-77 (E.D. Pa.
1976). “ ‘Section [1985(3)] provides no substantive
right itself; it merely provides a remedy for violation of
rights it designates.’’’ Marino v. Bowers, 657 F.2d 13635,
1371 (3d Cir. 1981), (quoting Great Amerian Federal
(3) If two or more persons in any State or Territory
conspire... for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protec-
tion of the laws, or of equal privileges and immunities under
the laws; or for the purpose of preventing or hindering the
constituted authorities of any State or Territory from giving
or securing to all persons within such State or Territory the
equal protection of the laws; ... in any case of conspiracy
set forth in this section, if one or more persons engaged there-
in do, or cause to be done, any act in furtherance of the ob-
ject of such conspiracy, whereby another is injured in his
person or property, or deprived of having and exercising any
right or privilege of a citizen of the United States, the party
so injured or deprived may have an action for the recovery
of damages occasioned by such injury or deprivation, against
any one or more of the conspirators.
16a
Memorandum and Order, No. 77-2310
Savings & Loan Ass’n v. Novotny, 442 U.S. 366, 372
(1979)).
With respect to the claim of constitutional violations,
plaintiff alleges only that her rights to due process and
equal protection under the Fifth Amendment were in-
fringed by the actions of the CLS defendants. However,
plaintiff alleges no facts that would establish that the CLS
defendants violated these rights. Although she alleges
that the CLS defendants were obstructive, rude and offen-
sive, that they sought to disqualify her from sitting in cer-
tain cases, and that they failed to properly represent cer-
tain clients in cases before her, none of these allegations
implicates plaintiff's constitutional rights. As a judge,
she has no constitutional right to be free from criticism,
disqualification, or even ridicule. Cf. In re Dellinger, 461
F.2d 389, 400 (7th Cir. 1972). (Attorneys given latitude
as vigorous advocates and mere disrespect or insult not
necessarily punishable as contempt.) Quite to the con-
trary, the actions complained of are themselves protected
by the First and Sixth Amendments. The CLS defendants
are entitled under the Constitution and federal law to
criticize plaintiff as a judge and federal official. See, e.g.,
Wood v. Georgia, 370 U.S. 375, 388-91 (1962); In re
Sawyer, 360 U.S. 622, 632-33 (1959); In re Oliver, 452
F.2d 111, 114-15 (7th Cir. 1977). See also Canon 7,
ABA Code of Professional Responsibility.
Moreover, in particular cases, where the assigned
judge may be biased, prejudiced, or predisposed as to the
outcome, the attorney may have an obligation to file a mo-
tion for disqualification. Indeed, the regulations which
control the hearing procedures inve'ving administrative
law judges specifically provide for di. ualification of
17a
Memorandum and Order, No. 77-2310
presiding officers. 20 C.F.R. §416.1430. Plaintiff has
no constitutional right to be exempted from this provision.
Finally, in the course of representing their clients,
CLS attorneys are entitled to make a wide range of tactical
and legal decisions, and only the client, and not a third
party such as any administrative law judge, has standing
to complain that these decisions and actions violate the
constitutional rights of the client. See, e.g., O'Malley v.
Brierley, 477 F.2d 785, 789 (3d Cir. 1973) (litigant may
assert only his own constitutional rights or immunities) .
The Supreme Court has repeatedly emphasized the
importance of protecting the independence of attorneys
and ensuring zealous advocacy on behalf of clients under
our adversary system of justice. See, e.g., In re Sawyer,
360 U.S. 622, 635-36 (1959). See also In re Dellinger,
461 F.2d at 400. These principles must be followed with
special care with respect to legal service organizations
where, because of funding and other considerations, there
is a high risk of interference and control by the govern-
ment or the courts. Fairly read, plaintiff’s requests for
relief, if granted, would seriously encroach upon the pro-
tected activities of the CLS defendants.
It is also clear that plaintiff's complaint fails to sat-
isfy the requirement that defendants’ actions be motivated
by a class-based, discriminatory animus. Such allegations
must allege discrimination against a well defined class,
and discrimination that “(1) affects a traditionally dis-
advantaged group (e.g., ‘suspect’ classification); (2) is
irrational; or (3) unnecessarily burdens plaintiff’s exercise
of a ‘fundamental’ right.’’ Santiago v. City of Philadel-
phia, 435 F. Supp. 136, 156 (E.D. Pa. 1977). Plaintiff
fails to satisfy any of these standards.
18a
Memorandum and Order, No. 77-2310
Plaintiff does not allege discrimination based on race,
sex, alienage, or any other suspect classification. Nor
does she claim discrimination against administrative law
judges as a class. Thus, she fails to state a claim under
§1985 (3).
B. 42U.S.C. $1985 (2)
The Third Circuit construes section 1985(2) as sub-
divided into two parts—one part preceding and the other
following the semi-colon. Brawer v. Horowitz, 535 F.2d
830, 840 (3d Cir. 1976). The second half of section
1985(2), proscribing obstructions of justice having as
their object the denial of equal protection of the laws,
Haefner v. County of Lancaster, 520 F. Supp. 131, 134
(E.D. Pa. 1981), has been construed to require the same
class-based, invidiously discriminatory animus as that
which has been required under §1985(3). Brawer, 535
F.2d at 840. Accordingly, for the reasons stated above,
plaintiff's claim under this section must also be dismissed.
The first clause of subsection (2) is aimed at con-
spiracies to intimidate or pressure witnesses, parties and
jurors in the performance of their duties in any court of
the United States. Brawer, 535 F.2d at 840. This section
does not provide judges or others involved in the judicial
process, who are not specified in the statute, with any
protection. Plaintiff as a judge, does not have standing
under this statute to raise the constitutional claims of liti-
gants who appear before her. O'Malley v. Brierley, 477
F.2d at 789 (one cannot sue for deprivation of another’s
civil rights.)
19a
Memorandum and Order, No. 77-2310
C. Section 1985(1)
Section 1985(1) has not been definitively construed
by the Third Circuit. However, in a carefully considered
Opinion, with which I am in agreement, the Seventh Cir-
cuit has construed it to consist of four component parts.
Stern v. United States Gypsum, Inc., 547 F.2d 1329, 1336
(7th Cir.) cert. denied, 434 U.S. 975 (1977). Parts one
and two proscribe conspiracies to prevent federal officers,
by the use of “force, intimidation, or threat” from holding
office or discharging their duties. Also proscribed are
conspiracies to induce federal officers to leave a place
where their duties must be performed. Stern, 547 F.2d
at 1336. Here, plaintiff alleges no facts whatsoever to
establish conduct by CLS defendants which rises to the
level of force, intimidation or threats. The CLS defend-
ants have, as outlined above, merely exercised their statu-
tory and constitutional responsibilities as attorneys and
paralegals. Thus, these portions of section 1985(1) are
not implicated by the alleged conduct. Parts three and
four, however, proscribe conduct which falls short of
force, intimidation or threats. Conspiracies to injure a
federal officer in his person or property on account of, or
during the lawful discharge of his duties are not permitted.
Also forbidden are conspiracies to injure his property in
order to impede him in the discharge of his duties. Plain-
tiff presumably claims that the alleged conduct falls with-
in these proscriptions. However, as in Stern, the grava-
men of plaintiff's complaint against the CLS defendants
is that they interfered with the discharge of plaintiff's
duties by overzealous advocacy and by filing complaints
with her supervisors about the manner in which she per-
20a
Memorandum and Order, No. 77-2310
formed her duties. I find, as did the court in Stern, that
section 1985(1) must be read narrowly so as not to impli-
cate these constitutionally protected activities. In Stern,
the court found that plaintiff, an IRS agent who had sued
a corporation and its officers for filing complaints with
plaintiff’s superiors concerning the performance of duties
during an audit, did not state a claim under §1985(1).
It found such activity to be protected by the First Amend-
ment since ‘‘public criticism of governmental policy and
those responsible for government operations is at the very
core of the constitutionally protected free speech area,”
Stern, 547 F.2d at 1342, and “presenting complaints to
responsible government officials about the conduct of their
subordinates with whom the complainer has had official
dealings is analagously central to the protections of the
right to petition.” Jd. at 1342-43. The court found it
irrelevant that the exercise of this right may cause profes-
sional injury to the official in question. Nor was it rele-
vant that the complainant may be aware of, and desire,
such injury to occur, at least when the complaints are
lodged through the proper and established channels. /d.
at 1343. Likewise, in this case, the CLS defendants have
merely exercised their statutory and constitutional respon-
sibilities as attorneys and paralegals, as outlined above.
They have not, as a result, deprived plaintiff of any
federaliy secured right under section 1985(1).
D. The Fifth Amendment
It appears that any authority for a direct cause of ac-
tion under the Fifth Amendment derives from Bivens v.
21a
Memorandum and Order, No. 77-2310
Six Unknown Agents, 403 U.S. 388 (1971). However,
two fundamental requirements must be satisfied before a
Bivens cause of action can be stated. First, the plaintiff
must be deprived of a constitutionally protected right un-
der the specific Amendment; second, the defendants’ ac-
tions must have been taken under color of law. Bivens,
403 U.S. at 392-397. As indicated, there is no showing
that the CLS defendants did anything illegal to plaintiff.
Consequently, they have deprived her of no constitutionally
protected right and her claim directly under the Fifth
Amendment must also fail.
II]. DEFENDANT JOHN C. COLEMAN, SOCIAL
SECURITY CLAIMANT
Plaintiff filed an amended complaint on August 15,
1977 (Docket Entry No. 5) wherein John C. Coleman is
named as adefendant. In that complaint, plaintiff protests
an Order of the Appeals Council removing Coleman’s
case from her and reassigning it to another administrative
law judge. Coleman moved to dismiss, asserting that the
complaint fails to state a claim against him. I agree. A
review of the amended complaint fails to disclose any al-
legation as to any actions taken by Coleman, acting in-
dependently of his attorney, that were directed against
plaintiff. To the extent that Coleman is involved, it is
only through his attorney against whom the action has
been dismissed for failure to state a claim. Thus, the
action against Coleman, the client, must be dismissed for
the same reasons.
22a
Memorandum and Order, No. 77-2310
IV. DEFENDANT, JOSEPH CALIFANO FORMER
SECRETARY OF DHEW
In the same August 15, 1977 amended complaint,
plaintiff sued the Secretary of DHEW complaining that the
Appeals Council’s removal and remand order in the Cole-
man case was contrary to the applicable provisions of the
Administrative Procedure Act, and in violation of rights
guaranteed under the Fifth Amendment. Although not
stated, it is apparent that Califano was sued in his official
capacity. Plaintiff requested this court to direct the Secre-
tary to overrule the Appeals Council and to adopt, as his
own, her decision denying Coleman benefits. Califano
moved to dismiss plaintiff's complaint for failure to state
a claim against him. I agree that dismissal is proper be-
cause plaintiff lacks standing to challenge the action taken
by the Appeals Council. To have standing, plaintiff must
demonstrate both that (1) ‘‘the challenged action has
caused [her] injury in fact, economic or otherwise,” and
(2) that the interest sought to be protected is “arguably
within the zone of interests to be protected by or regulated
by the statute or constitutional guarantee in question.”
Association of Data Processing Service Organization, Inc.
v. Camp, 397 U.S. 150, 152-53 (1970). Plaintiff com-
pletely fails to establish either element.
Plaintiff cannot show that she was deprived of any
legally protected interest by the Appeals Council Order of
June 9, 1977, according Coleman a new hearing before
another administrative law judge. As a presiding officer
assigned to determine the eligibility of a claimant for sup-
plemental social security benefits, the plaintiff had a statu-
23a
Memorandum and Order, No. 77-2310
tory obligation to decide, without prejudice, the merits of
the case before her. 5 U.S.C. §556(a). Any partiality
on the part of the presiding officer in a pending matter
requires disqualification. Social Security Administration
regulations, 20 C.F.R. §416.1430 provide in pertinent
part:
§416.1450 Disqualification of pending officer.
No presiding officer shall conduct a hearing in a
case in which he is prejudiced or partial with respect
to any party, or where he has any interest in the mat-
ter pending for decision before him. (Emphasis
added).
Plaintiff, therefore, could not properly have any interest
in the claim before her. Consequently, as a matter of law,
plaintiff has no interest in the outcome of Coleman’s claim.
Even if she did have standing, plaintiff has no basis
upon which to challenge the propriety of the Appeals
Councils’ action in the Coleman case. Her complaint is
that Califano, through the Appeals Council, lacked au-
thority to vacate her decision in the Coleman case and
remand it to another ALJ because (1) it is illegally con-
stituted as a review body, and (2) it was not authorized
by statute or regulation to remove the case from her or to
reassign it to another ALJ. The former argument was
raised in plaintiff's removal proceedings held before Judge
McCarthy. After conducting a full evidentiary hearing,
Judge McCarthy concluded that this argument was merit-
less.”
* Judge McCarthy found unpersuasive Chocallo’s argument
that sections 205(g) and (k) of the SSA, 42 U.S.C. 405(g) and
(h), prohibit review of a ‘‘presiding judges’’’ decision by any
24a
Memorandum and Order, No. 77-2310
Judge McCarthy’s findings were affirmed by the
Merit System Protections Board (MSPB), In re Wanda
Chocallo, MSPB Memorandum Opinion and Order dated
March 20, 1980 which was in turn affirmed by the United
States District Court. Chocallo vy. Prokop, C.A. No. 80-
1053 (D.D.C. October 19, 1980).
Collateral estoppel, thus, applies to bar plaintiff’s re-
litigation of this issue. “Once an issue is actually and
necessarily determined by a court of competent jurisdic-
tion, that determination is conclusive on subsequent suits
based on a different cause of action involving a party to
the prior litigation.” Montana v. United States, 440 U.S.
147, 153 (1979). In addition, the party to be precluded
from relitigating the issue must have had a full and fair
Opportunity to contest the issue. Jd. Collateral estoppel
also applies to administrative proceedings where an ad-
ministrative agency acts in a judicial capacity to resolve
disputed issues of fact which the parties have had a full
Opportunity to litigate. United States v. Utah Construction
& Mining Co., 384 U.S. 394, 422 (1966). Since a full
evidentiary hearing was held before Judge McCarthy on
person, agency or tribunal except the federal district court. To
the contrary, he found that these sections refer only to the deci-
sions of the ‘‘Secretary’’ and contain no mention of a ‘‘presiding
judges’’ decision. He found that plaintiff's assumption that she
is ‘‘the Secretary’’ since an ALJ has delegated authority to render
decisions, ignores the fact that the Appeals Council also has dele-
gated authority to review these decisions. See 20 C.F.R. §416.-
1459-61 (regulation assigning review functions to Council). He
found that section 205 of the APA, 42 U.S.C. §405, does not pre-
clude a delegation of authority to an ALJ to make findings and
a decision, subject to review by an appeals council before these
decisions become final and binding.
25a
Memorandum and Order, No. 77-2310
the issue of whether the Appeals Counci! is a legally con-
stituted review board, it is appropriate to apply collateral
estoppel to this issue.”
Plaintiff's second argument that Califano, through
the Appeals Council, was not authorized by statute or
regulation to remove the Coleman case, is without merit.
Under 20 C.F.R. 416.1461 a party to a hearing may re-
quest review by the Appeals Council of a decision issued
by an ALJ. After review, the Appeals Council may af-
firm, modify, reverse or remand the case to a presiding
officer. 20 C.F.R. §416.1467-68. These regulations
were strictly followed in Coleman’s case. On November
19, 1977 he requested review, which was granted. The
Council found that he had been denied a fair hearing and
it accordingly vacated and remanded the case to another
ALJ. Thus, the Council’s order in the Coleman case was
consistent with the applicable regulations.
For these reasons, plaintiff's complaint against former
Secretary Califano must be dismissed.
* Plaintiff argues that the defense of collateral estoppel was
waived since it was not raised until the federal defendants filed
renewed motions to dismiss raising the collatral estoppel issue. The
collateral estoppel issue was briefed pursuant to my order. I do
not find the waiver argument persuasive. Plaintiff's argument
that all defenses must be asserted initially or be deemed waived
misconstrues Fed. R. Civ. P. 12(b) which provides that certain
enumerated defenses, not including collateral estoppel, must be
raised in the responsive pleading.
26a
Memorandum and Order, No. 77-2310
V. FEDERAL DEFENDANTS, JOHN W. ENNIS, JACK
ROSEMAN AND CLAIRE KURIGER
In a second amended complaint filed in September,
1977 plaintiff named as additional defendants AL]’s
John W. Ennis and Jack Roseman, the Bureau of Hearing
and Appeals, SSA and Claire Kuriger, secretary to original
defendant James C. Lightfoot, who was the ALJ in charge
of the Philadelphia office through which plaintiff received
her case assignments. These three defendants have been
sued in both their official and individual capacities. Cho
callo charges violations of her Fourth Amendment rights
by virtue of their search of her office during her absence
on June 21, 1977 to secure the Taylor files and tapes. All
three defendants move to dismiss. In view of the affida-
vits submitted by both sides, the court shall treat defend-
ants’ motion to dismiss as a motion for summary judg-
ment. Federal Rule of Civil Procedure 56(c) provides
that summary judgment may be granted when there are no
genuine issues of material fact and judgment as a matter
of law is appropriate. Applying these standards to the
undisputed facts as set forth below, I find that summary
judgment must be granted in favor of defendants Kuriger,
Ennis and Roseman.
Pursuant to the Appeals Council order of June 9,
1977, the Taylor matter was remanded to the Philadelphia
Regional Office with direction to reassign the case to an-
other ALJ. Acting on instructions from his superiors, the
Assistant Regional Chief ALJ for Region III (Philadel-
phia) Sol Gitman, served on plaintiff copies of the order
and made an oral demand for the Taylor file. (Gitman
Affidavit, © 15). Plaintiff does not deny that she told
27a
Memorandum and Order, No. 77-2310
Gitman, and defendants Lightfoot and Ennis who were
also present, that she did not have the file and that even
if she did, she would not surrender it. (J/d.; Plaintiff's
Reply to Gitman’s Affidavit, £ 15). Plaintiff admits that
later on the same morning Gitman served her with a
written memorandum directing her to surrender the Taylor
file pursuant to the order of the Appeals Council and that
she did not comply.
On June 21, 1977, eleven days later, the Taylor file
still had not been turned over by plaintiff nor had its
whereabouts been made known. In the absence of Light-
foot, who was then on vacation Ennis was Acting Admin-
istrative Law Judge in charge of the Philadelphia office.
On that day he had been instructed orally by Gitman to
obtain the Taylor file from the locked office of plaintiff.
(Ennis Affidavit, £ 5). Plaintiff had been out of the
Philadelphia office since June 14, 1977, and her where-
abouts were not known to Gitman. She remained absent
through June 23, 1977. Acting on Gitman’s directive,
Ennis proceeded to plaintiff’s office to obtain the file. He
was accompanied by defendant Roseman, ALJ Morris
Chernock, and defendant Kuriger. Also present outside
the office was Nancy Parkinson, plaintiff’s hearing as-
sistant. (Ennis Affidavit, { 6).
According to Ennis he obtained the key to the of-
fice from Kuriger, the Regional Chief ALJ’s secretary,
who kept office keys, then unlocked and opened the door
in the presence of the above named witnesses. Ennis gave
Kuriger instructions to enter the office and to make a
visual inspection of plaintiff's desk and table for the Tay-
lor file, but not to open any drawers or file cabinets.
While the witnesses remained outside the open door and
28a
Memorandum and Order, No. 77-2310
observed, Kuriger entered and made a visual inspection.
According to Ennis, she followed these directions to the
letter, spending two or three minutes looking but not lo
cating the file, and then exiting the office without touch-
ing, disturbing, or removing any item from the office.
Ennis then closed and locked the door in the presence of
the same wi‘ resses.
Plai:..it: alleges in her reply that her secretary Parkin-
son told ‘er that her office was broken into while plain-
tiff was out of the office and that a new lockset had been
installed. Plaintiff's Reply Affidavit, £6. The statement
attributed to Parkinson is hearsay, inadmissible under any
exception to that rule and must, therefore, be disregarded.
Notably, there is no affidavit from Parkinson. Plaintiff’s
assertion that her office was in a privately owned building
is not material since her office space was government
owned or leased. Neither do I find it material that she
may have installed her own lock on the government door.
There is a strong argument that once installed, it became
the property of the government as lessee. In any event,
these allegations obscure the central inquiry which is
whether plaintiff had a “reasonable expectation of pri-
vacy,’”’ which was violated by defendants’ conduct. While
there are clearly circumstances under which an individual
may have a reasonable expectation of privacy in her office
and its contents, Gillard v. Schmidt, 579 F.2d 825, 829
fn.1 (3d Cir. 1978) such circumstances are not present
here. Under the exceptional facts of this case, plaintiff
could have no reasonable expectation of freedom from a
perusal of government office space to ascertain the where-
abouts of a file which she admittedly possessed but persis-
tently refused to relinquish. (See Plaintiff's Reply Affida-
29a
Memorandum and Order, No. 77-2310
vit © 6). United States v. Nasser, 476 F.2d 1111, 1123
(7th Cir. 1973) (work related warrantless search upheld) .”
Without question, the sole purpose of the search here was
work related and reasonably foreseeable by plaintiff who
had refused the active efforts of her supervisors to locate
and recover the Taylor file, which was government prop-
erty.” By the June 9, 1977 order of the Appeal’s Council,
the Taylor case had been remanded with instructions to
reassign it. Chocallo admittedly refused to turn over the
file and at the time of the search had improperly retained
the file for eleven days. Under these circumstances, I do
not find that defendants’ actions in entering and searching
her office to obtain the Taylor file amounted to a viola-
tion of plaintiff's Fourth Amendment rights. Accordingly,
*The Third Circuit's decision in Gillard v. Schmidt, 579 F.
2d 825 (3d Cir. 1978) is not contrary to the rule set forth in
Nasser that a public employer may search an employee's office
when the search is ‘‘work-related.’’ In Gillard, a Fourth Amend-
ment violation was held to be alleged where a school board mem-
ber made a search of guidance counselor's desk containing sensi-
tive student records, since the counselor had a reasonable expecta-
tion of privacy. Jd. at 828. However, the court specifically de-
clined to consider the force of precedents such as Nasser, since
there was no evidence that the employer in Gillard was seeking
to recover government property. Jd. at 829 n.1. Here, by con-
trast, defendants sought merely to obtain a file which was being
improperly retained by Chocallo for official use.
* Plaint’’?’s refusal to relinquish the file led to a mandamus
action agains. her. United States v. Wanda P. Chocallo, E.D. Pa.
Civil Action No. 77-2437. It is obvious why plaintiff refused to
give up the file on June 10 and thereafter. She had scheduled
and was intent on holding an unauthorized hearing in the Taylor
case.
30a
Memorandum and Order, No. 77-2310
the actions against defendants Ennis, Roseman and
Kuriger must be dismissed for failure to state a claim.
VI. DEFENDANT BUREAU OF HEARING AND APPEALS
To the extent that plaintiff sues the Bureau of Hear-
ing and Appeals claiming damage liability, the doctrine
of sovereign immunity applies to bar her claim. Such a
suit constitutes an action against the United States as to
which it has not waived its immunity. See City of Whit-
tier v. United States Department of Justice, 598 F.2d 561,
562 (9th Cir. 1979); Midwest Growers Co-op Corp. v.
Kirkemo, 533 F.2d 455, 465 (9th Cir. 1976) (quoting
Blackmar v. Guerre, 342 U.S. 512, 515 (1952).)
VII. FEDERAL DEFENDANTS, TRACHTENBERG,
GITMAN, LIGHTFOOT, BROWN
Chocallo sues Robert L. Trachtenberg, Director of
the Bureau of Hearings and Appeals, Philip T. Brown,
Chief ALJ, Sol R. Gitman, Regional Chief ALJ, James C.
Lightfoot, ALJ in charge of the Philadelphia office and
James B. Cardwell, Commissioner of the Social Security
Administration, alleging violations of 42 U.S.C. §1985, the
Fifth Amendment Administrative Procedure Act (5 U.S.C.
§101 et seg.) ; the Social Security Act of 1936, as amend-
ed, 42 U.S.C. §405(g) and (h), and the Privacy Act of
1974, 5 U.S.C. §552A(g) (1). As against these defend-
ants, Chocallo claims a conspiracy inter se and with the
31a
Memorandum and Order, No. 77-2310
CLS defendants to destroy her integrity, efficacy and in-
dependence as an ALJ. Because matters outside the plead-
ings have been submitted by both parties, the motions to
dismiss will be treated as motions for summary judgment.
The various claims as to these defendants are set forth
separately.
A. 42U.S.C. §1985 and Fifth Amendment
Basically, plaintiff asserts that defendants Gitman,
Brown, Trachtenberg and Lightfoot violated her rights un-
der 42 U.S.C. §1985 and the Fifth Amendment by con-
tributing to and participating in the events leading to the
removal and remand of the Taylor and Coleman cases.
Defendant Brown allegedly: (1) received and acted upon
Stein’s letter requesting removal in the Taylor case; (2)
received and acted upon Bernstein’s letter complaining of
Chocallo’s conduct of the Coleman case; (3) wrote to
Chocallo on March 10, 1977 asking her to resolve her dif-
ferences with Stein and petitioned the Appeals Council to
vacate the Taylor order and remand the case for reassign-
ment; (4) wrote to Chocallo informing her of his inten-
tion to have her decision in Coleman reviewed and ulti-
mately petitioned the Appeals Council to remand the
Coleman decision; and (5) wrote to Chocallo asking her
to increase her production.
As to defendant Gitman, the complaint alleges that
he (1) received Stein’s letter in the Taylor case; (2) par-
ticipated in obtaining the Taylor files from Chocallo; (3)
solicited complaints about plaintiff from CLS attorneys;
(4) met with Chocallo to discuss her productivity and her
32a
Memorandum and Order, No. 77-2310
conduct of the Coleman case; and (5) asked Chocallo to
inform him of her case dispositions on a weekly basis.
Defendant Lightfoot allegedly: (1) participated in
obtaining the Taylor f*'es; (2) solicited complaints from
CLS attorneys; (3) received and acted upon Bernstein’s
letters regarding plaintiff’s conduct of the Coleman case;
and (4) did not assign her cases from January, 1976 to
October, 1976 and from February, 1977 on, due to her low
productivity.
Defendant Trachtenberg allegedly: (1) received Git-
man’s letter requesting her removal in the Taylor case;
(2) ordered Gitman and Lightfoot to obtain the Taylor
file; (3) received her complaints in the Coleman case;
(4) attacked her low productivity; (5) instituted the ad-
verse action seeking her removal; and (6) improperly
denied her a promotion.
Assuming arguendo that the conduct alleged against
each defendant violates a cognizable interest under either
42 U.S.C. §1985 or the Fifth Amendment, each of these
defendants is entitled to immunity.
1. Absolute Immunity
All of the claims asserted against defendants Gitman,
Brown and Lightfoot pursuant to §1985 and the Fifth
Amendment arise from actions undertaken in their capac-
ity as Administrative Law Judges. These defendants prop-
erly assert that they are immune from suit for monetary
damages under the Fifth Amendment. Butz v. Economou,
438 U.S. 478 (1978). In Butz, the Supreme Court held
33a
Memorandum and Order, No. 77-2310
that persons performing adjudicatory functions within a
federal agency are entitled to absolute immunity from
damage liability for their judicial acts. Jd. at 514. This
immunity applies as well to suits brought under the Civil
Rights Act, here section 1985. See Ross v. Meagan, 638
F.2d 646, 649 n.2 (3d Cir. 1980). In the parallel con-
text of absolute immunity for judges, the Supreme Court
has stated that the essential inquiry in determining whether
such immunity attaches is whether, at the time the judge
took the challenged judicial action, he had jurisdiction
over the subject matter before him. Stump v. Sparkman,
435 U.S. 349, 356-57 (1978). “A judge will not be de-
prived of immunity because the action he took was in
error, was done maliciously or was in excess of his au-
thority, rather, he will be subject to liability only when he
acted in the ‘clear absence of all jurisdiction.’” Id. at
356-57 (quoting Bradley v. Fisher, 80 U.S. (13 Wall.)
335,351 (1872)).
It is clear that none of the judicial acts complained
of were done “in the clear absence of all jurisdiction.”
Plaintiff's averments relate solely to actions regarding case
assignments, the removal and remand of cases, and the
supervision of plaintiff. All of these actions are encom-
passed within the description of defendants’ responsibili-
ties and duties, as set forth in their affidavits. A second
pertinent inquiry is whether defendants’ acts were “‘judi-
cial acts,” so that they fall within the zone of protected
activity. Whether an act is a judicial act depends upon
(1) whether it is a function normally performed by a
judge and (2) whether the parties dealt with the judge in
their judicial capacity. Sparkman, 435 U.S. at 361-62.
The actions alleged here are all functions normally per-
34a
Memorandum and Order, No. 77-2310
formed by the Chief Administrative Law Judge, the Re-
gional Administrative Law Judge and the Administrative
Law Judge in charge of the Philadelphia office, as evi-
denced by their respective position descriptions. Further,
it is clear that plaintiff dealt with these defendants at all
times in their judicial capacities. Under the controlling
cases, they are immune from liability for damages under
§1985 and the Fifth Amendment.’
2. Qualified Immunity
As to defendant Trachtenberg, the Director of the
Bureau of Hearings and Appeals, a defense of qualified
immunity applies to bar plaintiff's claims for damages
arising out of the performance of his duties. At all rele-
vant times, Trachtenberg was acting within the scope of his
authorized duties as Director. In that capacity, he was a
public official who was charged with the performance of
duties involving the exercise of discretion. As such, he
is entitled to a qualified immunity from liability in a suit
for damages arising from unconstitutional action. See
Harlow vy. Fitzgerald, 30 U.S.L.W. 4815 (U.S. June 24,
1982); Butz v. Economou, 438 U.S. 478 (1978). The
Supreme Court has recently held that to be entitled to this
®While the absolute immunity doctrine may not extend to
suits for injunctive relief, without deciding this issue, I find that
plaintiff’s claims for injunctive relief have been rendered moot
by her removal from office, which the United States District Court
for the District of Columbia affirmed in Chocallo v. Prokop, Civil
Action No. 80-1053 (D.D.C. October 10, 1980). See DeFunis v.
Odegaard, 416 U.S. 312 (1974).
35a
Memorandum and Order, No. 77-2310
immunity, a government official must establish that he
acted in good faith. Harlow v. Fitzgerald, 50 U.S.L.W. at
4819. That is, his conduct must not violate clearly estab-
lished statutory or constitutional rights of which a reason-
able person would have known. Jd. at 4819. In Harlow
v. Fitzgerald, the court specifically found that “reliance
on the objective reasonableness of an official’s conduct,
as measured by reference to clearly established law, should
avoid excessive disruption of government and permit the
resolution of many insubstantial claims on summary judg-
ment.” Id. at 4820. Thus, if the affidavit of Trachten-
berg establishes that he acted in good faith, in accordance
with the above definition, he is entitled to assert the de-
fense of qualified immunity.
One of plaintiff’s principal allegations against Trach-
tenberg is that he recommended removal action be under-
taken against her. Plaintiff contends this action was initi-
ated by Trachtenberg in bad faith. While it is true that
Trachtenberg did recommend adverse action, in view of
the final judicial decision affirming the removal action, it
cannot be said that the recommendation was without some
legitimate foundation or justification. Nor can it be said
that Trachtenberg acted in violation of plaintiff’s clearly
established statutory or constitutional rights.
Plaintiff’s other major contention is that Trachtenberg
deliberately and intentionally deprived her of a promotion
for a period of approximately five months. Plaintiff had
been appointed as an Attorney Examiner or Hearing Ex-
aminer SSI GS-905, and not an administrative law judge
under 5 U.S.C. §3105. An Act of Congress, P.L. 94-202
approved January 2, 1976, authorized the Secretary of
DHEW to treat hearing examiners as temporary adminis-
36a
Memorandum and Order, No. 77-2310
trative law mas until December 31, 1978. Under this
Act, the examiners could hear social security claims under
Titles II, XVI and XVIII of the Social Security Act as
though they were qualified and appointed under 5 U.S.C.
§3105. On March 3, 1976, the Secretary of DHEW dele-
gated to Trachtenberg, as Director of Hearings and Ap-
peals, the task of implementing P.L. 94-202. Immediately,
plaintiff and other persons holding appointments as hear-
ing examiners became Temporary Administrative Law
Judges. On April 6, 1976, Trachtenberg advised plaintiff
of his intention to recommend that adverse action be taken
against her. Although plaintiff had been designated for a
promotion effective April 11, 1976, the papers were not
processed because of the adverse charges pending against
her. On May 26, 1976, defendant advised plaintiff that
an increase to a higher grade was not appropriate because
an adverse action against her had been recommended.
Plaintiff was informed that a promotion would not only
be inconsistent with the adverse charges stemming from
her refusal to turn over the Coleman file in February,
1976, but would also jeopardize the integrity of the ad-
verse action. Plaintiff complained to the Civil Service
Commission on May 25, 1976, which ruled on July 8,
1976, that the denial or suspension of the promotion to a
higher grade was contrary to pertinent regulation 5 C.F.R.
930.204. Plaintiff then promptly received the grade in-
crease and a retroactive lump sum payment.
The Civil Service Commission ruled that since the
classifications of all ALJ’s were being upgraded, incum-
bents were entitled to the grade increase without regard
to merit. In effect, the Commission ruled that the in-
crease was not intended to reflect a “promotion” in the
37a
Memorandum and Order, No. 77-2310
commonly understood sense but rather an “across the
board” increase for all such positions. Plaintiff lost no
pay as the result of her successful grievance filed with the
Civil Service Commission.
Plaintiff's allegation against Trachtenberg with re-
spect to the promotion issue is that he acted maliciously,
willfully and intentionally (Complaint, £ 44); not that he
acted in violation of a limitation placed upon his conduct
by the Constitution or by statute. There is no doubt that
Trachtenberg had authority to recommend adverse action
for actions of a subordinate which were deliberate im-
pediments to the execution of his delegated authority.
Although he erred in not processing plaintiff’s promotion
or grade increase because of the pendency of adverse ac-
tion, believing a promotion to be inconsistent with the
proposed discipline, it cannot be said that by so doing he
acted in violation of plaintiff’s clearly established statutory
Or constitutional rights. A review of the uncontested
portions of the record shows that the object of Trachten-
berg’s action was to recommend effective disciplinary ac-
tion. It was not to construe the application of wage in-
creases for all Temporary Administrative Law Judges.
He communicated to plaintiff through the Personnel De-
partment that the basis for her non-promotion was disci-
pline related. The final administrative decision on the
question as to whether plaintiff was entitled to a promo-
tional increase did not rest with Trachtenberg but rather
with the Civil Service Commission. Very simply, I find
that Trachtenberg’s actions with regard to plaintiff’s pro-
motion were taken in ‘“‘good faith.’’ He reasonably be-
lieved that where an adverse action was to be instituted,
it was improper to grant plaintiff a promotion. The Com-
38a
Memorandum and Order, No. 77-2310
mission later determined that he erred. However, under
the circumstances, it cannot be said that plaintiff’s statu-
tory right to a promotion was so clear that Trachtenberg’s
withholding of it rose to the level of ‘‘bad faith.”
Finally, plaintiff contends that Trachtenberg’s recom-
mendation for the adverse action initiated in June, 1977
was violative of her constitutional rights in that she was
harassed and retaliated against for exercising quasi-judi-
cial independence. This argument fails. Plaintiff’s con-
tention is premised upon the wholly erroneous assumption
that she could resist lawful directives of the Appeals
Council in the Taylor and Coleman cases. Plaintiff defied
this directive at her own risk, including the risk of adverse
action for deliberate insubordination. That being the case,
plaintiff cannot be heard to argue that Trachtenberg vio-
lated her constitutional rights by the institution of removal
proceedings.
B. Social Security Act
As to the federal defendants, plaintiff also asserts that
they acted in violation of sections 205(g) and (h) of the
Social Security Act, 42 U.S.C. §405(g) and (h) (1976).
She asserts, in essence: (1) her social security decisions
are not reviewable by any entity other than the federal
district court (Amended complaint, £ 56); (2) The Ap-
peals Council was without authority under the statute and
regulations to review her decision in the Taylor case and
(3) the Appeals Council was without authority to remand
the Coleman case. Plaintiff is barred by principles of col-
lateral estoppel from relitigating the first issue here, since
39a
Memorandum and Order, No. 77-2310
it was fully and fairly litigated before Judge McCarthy
in plaintiff's removal proceedings. See text accompany-
ing notes 5-6, supra. Collateral estoppel also bars relitiga-
tion of the second issue. Judge McCarthy fully addressed
the issue of whether the Appeals Council had statutory
authority to review and remand her Taylor order and con-
cluded that it had such authority. Plaintiff's final con-
tention, that the Council lacked authority to review and
remand the Coleman case, is without merit, as discussed
supra. See 20 C.F.R. §416.1467-68. Accordingly, sum-
mary judgment is granted in favor of the federal defend-
ants on these claims.
VIII. Privacy Act CLAIMS
Plaintiff complains that the Bureau and individual
officials including James B. Cardwell, Commissioner of the
Social Security Administration, violated the Privacy Act of
1974, 5 U.S.C. §$552a(e), by secretly collecting informa-
tion about her that was not relevant and necessary to
carry out lawful operations and functions and by dis-
seminating this information without her knowledge or con-
sent and to her detriment. (Complaint, £ 45-48). The
gravamen of the complaint is that the Social Security and
Bureau defendants solicited, received and retained in the
Bureau’s records, the complaints of ‘‘attorneys and other
individuals” about plaintiff and that these complaints may
be exposed to potential employers.
Plaintiff has not specifically alleged what “com-
plaints” she is referring to, even though these records were
made available for her inspection. (Declaration of Peter
40a
Memorandum and Order, No. 77-2310
James Kurapka, £ 5, Exhibit F). These vague and unsup-
ported allegations do not give defendants fair notice of the
wrongs with which they are charged. Plaintiff has not
indicated what documents, if any, were improperly col-
lected and disseminated. Nor has she indicated the man-
ner in which defendants collected such data. This alone,
provides a basis for dismissal of these complaints. See,
e.g., Harper v. United States, 423 F. Supp. 192, 196
(D.S.C. 1976). However, even assuming that plaintiff
charges defendants with receiving and retaining com-
plaints made by CLS attorneys on behalf of their clients,
I do not find from the undisputed facts that there was
any violation of Privacy Act, 5 U.S.C. §502(e). The
statute proscribes the collection of irrelevant information
which is not necessary to accomplish a purpose of
the agency. Clearly, letters written by attorneys appearing
before Chocallo, which criticized her conduct are “rele-
vant and necessary” within the meaning of the statute.
They certainly are relevant to a determination of whether
plaintiff was adequately and properly performing her duties
as an ALJ. Thus, I find no violation of this section of
the Privacy Act.
Plaintiff also complains that her rights under the
Privacy Act were violated when defendants failed to re-
spond to her request for all records pertaining to her main-
tained by the Bureau. I find no violation of the Act be-
cause her request was answered specifically, By letter
dated May 25, 1977, plaintiff was advised by the Bureau
that there existed and were available for her inspection,
an official personnel file and a correspondence file. She
was informed that these contained correspondence be-
tween her and various Bureau officials, production rec-
4la
Memorandum and Order, No. 77-2310
ords, pay, leave and attendance records and an employee
record extension file. (Declaration of Peter Kurapka, £
5, Exhibit F thereto). Not satisfied with that response,
plaintiff filed an appeal to the Secretary through Card-
well. The appeal was denied because not only had plain-
tiff been given the records, but she did not then complain
that access to the records was denied. Thereafter on
November 16, 1977, plaintiff made a request for informa-
tion pertaining to the work activities of other ALJ’s. On
January 3, 1978, the Bureau made a specific reply identi-
fying documents in response to the request and notifying
her of their availability for copying and inspection.
(Declaration of Kurapka © 10—Exhibit K thereto).
Plaintiff seeks damages against the individual defend-
ants for “willful and intentional withholding of the re-
quested data in plaintiff's files... .’’ Complaint, © 15, p.
26. Any liability for a violation of the Privacy Act rests
solely upon the agency and not the individuals. Bruce v.
United States, 621 F.2d 914, 916, n.2 (8th Cir, 1980).
Therefore, plaintiff's actions against them must be dis-
missed. Defendants argue that in cases such as this, the
only remedy available to plaintiff would be injunctive re-
lief. 5 U.S.C, §552(g) (1) (3) (A). Clearly, there is no
basis for injunctive relief here since plaintiff does not con-
tend that the agency has withheld the requested informa-
tion. She claims merely that defendants engaged in dila-
tory tactics. Even if plaintiff is entitled to a claim for
statutory damages, 5 U.S.C. §552(g) (1) (4), she does not
meet the statutory requirement that she prove ‘‘intentional
and willful” conduct by the agency. There is simply no
evidence of record that the agency acted in such a manner.
The correspondence between the parties demonstrates that
42a
Memorandum and Order, No. 77-2310
the agency attempted to comply promptly with plaintiff's
request. Within two (2) weeks of plaintiff's request, the
agency informed her of its need for more specific identi-
fying information in order to comply with her request.
Her subsequent letter to Trachtenberg on May 5, 1977
was referred to the agency for action and within three
weeks she was informed of the records regarding her
which were maintained by the Bureau. These facts, very
simply, do not demonstrate the “intentional and willful’
conduct which is required by the Act before liability for
statutory damages attaches. Thus, summary judgment is
granted in favor of the Bureau on plaintiff's Privacy Act
claims against it.
D. Productivity Requirement, Case Assignments and
Peer Review Program
Plaintiff asserts that defendant imposed upon her cer-
tain requirements in violation of the Administrative Pro-
cedure Act. While the APA may confer a qualified right
of decisional independence upon ALJ’s, Nash v. Califano,
613 F.2d 10, 15 (2d Cir. 1980), I do not find this right
to have been violated by the practices of which plaintiff
complains. The gravamen of her complaint is that defend-
ants, in particular Brown, Gitman, Trachtenberg and
Lightfoot complained at various intervals about plaintiff's
productivity. For example, on February 17, 1976, the
Chief Administrative Law Judge, Phillip Brown, ‘‘earnest-
ly” requested plaintiff to take steps to increase her pro-
ductivity. (Complaint, Exh. H-88). Then, on April 6,
1976, he asked her, as he had asked other ALJ’s, to report
the disposition of cases and the number of hearings held
43a
Memorandum and Order, No. 77-2310
on a weekly basis. (Brown Affidavit, £ 14). Plaintiff,
in her reply to Brown’s affidavit, does not state that there
was a production requirement, but rather a reporting re-
quirement. No penalty was attached to her failing to
reach a quota. Therefore, there was no quota system im-
posed on plaintiff. Merely requesting ALJ’s to account
administratively to the Chief ALJ for the fullfillment of
their assignments cannot constitute a constitutional viola-
tion nor a violation of the APA, to the extent that it rec-
ognizes a qualified right of decisional independence of
AL]’s.
Plaintiff also asserts that she was not assigned cases
On a rotational basis during certain periods. Presumably,
plaintiff alleges that this violates the APA, 5 U.S.C.
§3105 which provides that ‘‘Hearing examiners shall be
assigned to cases in rotation sv far as practicable... .”
The statute expressly limits any ‘‘right’’ to be assigned cases
on a rotational basis by providing the qualifying language
“so far as practicable.” Here the affidavit of James C.
Lightfoot sets forth circumstances which indicate that in
plaintiffs case, assignment on that basis was not practi-
cable. He explained that Chocallo was appointed as
a temporary judge and thus was not authorized to hear
and dispose of the full range of cases. In addition, as a
result of the tremendous backlog of cases, individual
judge’s dockets are examined to attain equitable case-
loads, so that a judge will not be overloaded. Care is
also taken to assure that judges are not given an inordinate
number of out-of-city assignments. Lightfoot asserts that
Chocallo was assigned cases according to these guidelines,
and Chocallo has not come forward with evidence to sug-
gest otherwise.
44a
Memorandum and Order, No. 77-2310
Finally, she asserts that the imposition of a ‘Peer Re-
view Program” upon all ALJ's, including her, violated her
right to decisional independence under the SSA, APA, and
violated unspecified constitutional rights. She seeks an
injunction against the continued implementation of this
program by defendants. Her claim of constitutional viola-
tion is without merit. Any right to decisional indepen-
dence on the part of an ALJ is a matter of statutory right.
As to the claim of statutory violations, she attacks the
Peer Review Program only in an abstract manner. Such
a system is not necessarily violative of the APA and SSA.
However, plaintiff does not allege that this Review Sys-
tem actually infringed upon her decisional independence.
Thus, she has failed to even state a claim. In any event,
her individual claim for injunctive relief vis-a-vis the Peer
Review Program has been rendered moot by her removal
from office, which the United States District Court for the
District of Columbia found was supported by substantial
evidence in Chocallo v. Prokop, Civil Action No. 80-1053
(D.D.C. October 10, 1980). See DeFunis v. Odegaard,
416 U.S. 312 (1974).
For the foregoing reasons, plaintiff’s claims against
all federal defendants are dismissed.
An appropriate order follows,
45a
Memorandum and Order, No. 77-2310
ORDER
AND NOW this 8th day of October, 1982, it is here-
by ORDERED that the defendants’ Motions to Dismiss,
or in the Alternative, Motions for Summary Judgment are
GRANTED. Judgment is hereby entered in favor of all
defendants and against plaintiff.
By the Court:
(s) James T. Giles
J.
46a
Complaint
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
Civil Action No. 77-2310
WANDA P. CHOCALLO
v.
BUREAU OF HEARINGS AND APPEALS, SSA and
ROBERT L. TRACHTENBERG, Director, Bureau of
Hearings and Appeals, SSA, HEW et al.
Jury Trial Demanded
Filed: July 1, 1977
COMPLAINT
1. Plaintiff is an adult female citizen of the United
States and resides at 308 Maple Avenue, Drexel Hill,
Pennsylvania 19026. She is an attorney and is employed
as an Administrative Law Judge by the Bureau of Hear-
ings and Appeals of the Social Security Administration,
an independent agency within the Department of Health,
Education and Welfare. She has been employed by the
Bureau since July 22, 1974.
47a
Complaint
2. This action arises under the Civil Rights Act of
June 25, 1948, c. 646, 62 Stat. 932, as amended, Title 28
USC section 1343; Title 42 USC section 1985; the Fifth
Amendment of the Constitution of the United States; the
Administrative Procedure Act, P.L. 89-554, Sept. 6, 1966,
5 USCA 101 et seq.; the Social Security Act of 1936, as
amended, and the Privacy Act of 1974, P.L. 93-579, 88
Stat. 1897, 5 USC 552 (a) (g) (1).
3. Defendants are the Bureau of Hearings and Ap-
peals of the Social Security Administration and the fol-
lowing employees thereof: Robert L. Trachtenberg, Direc-
tor, with offices at the Bolton Tower +2 Building, 301
N. Randolph St., Arlington, Virginia; Philip Brown, Chief
Administrative Law Judge, Tower +2 Building, 801 N.
Randolph St., Arlington, Virginia (both of whom are
citizens of the State of Virginia); Sol R. Gitman, Regional
Chief Administrative Law Judge, Region III, with offices
at the Gateway Building, 3636 Market Street and 1528
Walnut St., Philadelphia, Pa., and James C. Lightfoot, Ad-
ministrative Law Judge in Charge, Philadelphia Office,
with offices at 1528 Walnut Street, 10th Floor, Phila-
delphia, Pa.
4. Allof the defendants named in Paragraph 3 here-
of are ministerial officers within the Bureau whose powers
and responsibilities are circumscribed by law and are
limited to administrative and management functions. They
are required to fastidiously observe the limitations on their
powers and, pursuant to Section 551 of 5 USC, the Ad-
ministrative Procedures Act, are required to follow Con-
gressional mandates whether explicit or ascertainable as
inherent in underlying policy and are precluded from giv-
48a
Complaint
ing effect to their own notions as to what is wise, just or
politic with respect to the quasi-judicial functions of the
administrative law judges passing upon Bureau cases. Said
defendants are being sued in their official capacity as
ministerial officers and in their individual and private
capacity as well, jointly and severally.
5. Defendant, James B. Cardwell, is sued in his of-
ficial capacity as Commissioner of Social Security, an
agency within the Department of Health, Education and
Welfare. In this capacity he has been designated by the
Secretary of Health, Education and Welfare, in regula-
tions published on October 8, 1973, 40 Fed. Reg. 47412,
to implement the provisions of The Privacy Act of 1974
as the individual to decide appeals by persons who have
been denied access to their records by officials of the So-
cial Security Administration.
6. Defendants, Community Legal Services, Inc., is
an organization funded by governmental entities for the
purpose of providing free legal services to the needy, with
its principal office at Sylvania House, Juniper and Locust
Streets, Philadelphia, Pa. Defendants, Jonathan M. Stein,
Esquire; Linda Bernstein, Esquire; Marjorie A. Janoski,
Esquire; Richard Weishaupt, Esquire; Marilyn Doria
Weiler, Esquire; Edwin Montes, paralegal; Bartholomew
Poindexter, Esquire; Deborah Kooperman, paralegal, and
Eileen Wood, paralegal, are, and/or at the times in ques-
tion set forth hereinafter, have been employees of Com-
munity Legal Services, Inc., have been acting as its agent,
servant or employee and are sued in their official and in-
dividual apacities, jointly and severally.
: 49a
Complaint
7. In order to preserve their impartiality and to
make them independent of pressures from agencies whose
cases they pass upon, administrative law judges, pursuant
to the Administrative Procedures Act, P.L. 89-554, Sept.
6, 1966, 5 USC 101 et seq., are granted independent status.
They are entitled to compensation prescribed by the Civil
Service Commission, independently of agency recommen-
dations or ratings and are not included in the annual ser-
vice rating program applicable to most other Civil Service
employees for the purpose of measuring and recording
efficiency as provided by section 5362 of 5 USC. They
can be removed only for good cause established and de-
termined by the Civil Service Commission on the record
after opportunity for hearing under section 7521 of 5 USC.
Section 3105 of 5 USC requires that administrative law
judges shall be assigned to cases in rotation.
8. Under the direct delegation from the Secretary
of Health, Education and Welfare, and in the manner pre-
scribed by the Administrative Procedure Act (as codified
in 5 USC), the administrative law judge within the De-
partment of Health, Education and Welfare, Social Se-
curity Administration, holds hearings and makes and is-
sues decisions on appeals from determinations made in
course of administration of Title XVI and section 216 (i)
and 223 of Title II of the Social Security Act. Adminis-
trative Law Judges decisions are final decisions of the
Secretary unless subsequently reviewed as provided in the
regulations. They either affirm, modify, or reverse the
previous determination and are issued and forwarded di-
rectly to the parties in the administrative law judge’s own
name, Defendant Bureau’s “Peer Review Program” as
50a
Complaint
set forth in Exhibit I’, made a part hereof, violates the
Social Security Act and Administrative Procedure Act and
the constitutional and civil rights of administrative law
judges, claimants and the public.
9. Plaintiff’s position description, a copy of which
is attached hereto as Exhibit “A” and incorporated herein
by reference expressly provides, inter alia, under “III.
SUPERVISION AND GUIDANCE RECEIVED”. “The
Social Security and Administrative Procedure Acts pro-
hibit substantive review and supervision of the adminis-
trative law judge in the performance of his quasi-judicial
functions. His decisions may not be reviewed before pub-
lication, and after publication only by the Appeals Coun-
cil in certain prescribed circumstances. He is subject only
to such administrative supervision as may be required in
the course of general office management. His decisions
take into account all applicable Federal, State and foreign
laws, statutes, regulations, rulings and decisions of the
Federal Courts. Decisions can be reviewed at the request
of a claimant, or by the Council on its own motion. In
any event, the Council takes jurisdiction only on a cer-
tiorari basis. Final decisions of the administrative law
judge may be appealed to the Federal courts, and the So-
cial Security Act (Sec. 205(g)) requires that the courts
uphold the administrative law judge’s findings of fact when
supported by substantial evidence.
10. The Major Duties and Responsibilities of plain-
tiff, as set forth in the position description, consist of the
following: “Under the provisions of Title II and XVI of
the Social Security Act and applicable Federal, State and
foreign laws, and in conformity with the Administrative
5la
Complaint
Procedure Act, and with full and complete individual in-
dependence of action and decision, and without review,
the administrative law judge has full responsibility and
authority to (1) dismiss or grant requests for hearings and
rule on requests for extensions; (2) identify problems and
issues to be resolved; (3) analyze all previously developed
evidence and appraise previous adjudicative processes by
the administrative agency; (4) determine whether there
are other parties with adverse interest to be joined in the
case; (5) issue subpoenas and rule on petitions to revoke
subpoenas; (6) correlate and resolve conflicting evidence;
(7) hear testimony and rule on all motions, petitions, or
exceptions involving questions of law, procedure, and the
admissibility of evidence; (8) hold prehearing confer-
ences with the appellant and or his counsel; (9) make all
evidence of record available to the parties and inform them
of any evidence or expert testimony required in connection
with a material point or issue; (10) obtain expert voca-
tional and medical testimony where required for a sound
record; (11) administer oaths and affirmations; (12)
govern the conduct of the parties at the hearing, and in
general regulate the entire course of the proceedings; (13)
control the examination and cross-examination of wit-
nesses; (14) introduce into the record documentary and
other evidence deemed necessary for a complete and sound
record; (15) hear oral argument, and receive and consider
briefs that are submitted; (16) appraise the credibility of
witnesses, and resclve conflicts in lay and expert evidence;
(17) consider and dispose of proposed findings of fact and
conclusions of law submitted by the claimant’s representa-
tives; (18) make findings of fact on each issue, giving the
reasons therefor and render conclusions of law as sole
52a
Complaint
trier of fact and law; (19) fully consider all the evidence
of record and issue decisions within the requirements of
the Administrative Procedure Act, which decisions are
completely independent and final, signed only by him, and
published to parties in interest without prior review; and
(20) entertain petitions for attorney’s fees and issue or-
ders designating the amount of fee permitted; (21) pre-
side ** hearings and issue decisions in matters remanded
by :.~ ‘ederal courts. The administrative law judge may
also take other action not inconsistent with the Adminis-
trative Procedure Act.”
11. The Code of Judicial Conduct, which governs
anyone who is an officer of a judicial system performing
judicial functions, whether or not a lawyer, expressly pro-
vides in Canon 1: “An independent and honorable judi-
ciary is indispensable to justice in our society. A judge
should participate in establishing, maintaining, and enforc-
ing, and should himself observe, high standards of con-
duct so that the integrity and independence of the judiciary
may be preserved. The provisions of this Code should be
construed and applied to further that objective.”
12. The above named Bureau officials, defendants,
“conspired with each other and with employees defendants
of Community Legal Services to (1) prevent plaintiff, by
intimidation or threat, from discharging some of the duties
of her office; injure her in her property on account of her
lawful discharge of the duties of her office; and while en-
gaged in the lawful discharge thereof, to injure her prop-
erty so as to interrupt, hinder, or impede her in the dis-
charge of her official duties; (2) to deter, by intimidation
a party to a proceeding before plaintiff from testifying to
53a
Complaint
a matter pending therein, freely, fully and truthfully and
injured such party in her property on account of her hav-
ing so attended and testified; and to impede, hinder, ob-
struct, or defeat the due course of justice within the State
of Pennsylvania, with intent to deny its citizens the equal
protection of the laws, and to injure plaintiff in her prop-
erty for lawfully enforcing or attempting to enforce the
rights of claimants to the equal protection of the laws;
and (3) deprive, either directly or indirectly, plaintiff and
claimants of the equal protection of the laws, or of the
equal privileges and immunities under the laws, as herein-
after specifically set forth.
13. On February 15, 1977, Pearl Taylor, social se-
curity disability claimant, testified at a hearing before
plaintiff, at which defendants Jonathan Stein, Esquire,
and Edwin Montes were present, that she had absolutely
no knowledge that said defendants filed a motion in her
behalf requesting plaintiff disqualify herself from the
case; that said request or motion had never been discussed
with her by anyone at Community Legal Services; that she
never requested or authorized anyone to file it in her be-
half; that she did not know the judge; that the judge did
not do anything to her and it would be unfair both to her-
self and the j@lge to make any statements against the lat-
ter. She stated defendants’ actions were “‘politics”’,
‘stoned politics”; that they “misused” her; that she “lived
in this world long enough to know that people make people
do their dirty work and misuse other people for their
stepping stones”; that she did not know why her case was
transferred in about September 1976 from Community
Legal Services Law Center West, located at 5219 Chestnut
54a
Complaint
Street (where she had been going for years) to the down-
town office at the Sylvania House, Juniper and Locust
Streets; that ‘that’s just where they told me to go”; that
defendant, Community Legal Services, “make a rag mop
out of you, they throw you from one place to another,
from one place to the other and confuse your mind, so no
wonder the hospitals are full of people, they’re disgusted
with this, and people ought to be shamed of themselves
who just misuse people and walk over top of them for
their own ambition.”
14. Because of Mr. Stein’s obstructive tactics and
unruly and offensive remarks and manner, as aided and
abetted by Mr. Montes, against which he was repeatedly
warned and admonished by plaintiff against repetition,
without compliance, the plaintiff, with the consent of
claimant, was compelled to terminate the hearing and defer
taking testimony on the merits of the claim until a later
date.
15. On February 15, 1977, defendants -Jonathan’
Stein and Edwin Montes, contrary to the Administrative
Procedure Act, 5 USC section 557, and the Code of Pro-
fessional Responsibility, and in furtherance of the con-
spiracy alleged, addressed an ex parte communication to
defendant, Sol Gitman. with copies to defendants Philip
Brown and Robert Trachtenberg (as Appeals Council Mem-
ber) and Laurence Weiner, Appeals Council Member,
wherein, inter alia, they made a variety of serious allega-
tions against plaintiff (including intimidating claimant),
presented their version of the facts of the hearing, re-
quested defendant Brown to remove plaintiff from Mrs.
Taylor’s case as well as from all Social Security cases and
55a
Complaint
requested that he obtain and review a transcription of the
hearing. The letter further states: “I am providing fur-
ther copies of this letter to relevant Appeals Council mem-
bers so they too may be apprised of Mrs. Chocallo’s be-
havior which they should not be forced to remedy on an
ad hoc case by case review, as we are concerned about the
claimant whose cases may not go up to them, and those
claimants like Mrs. Taylor, who should not be forced to
undergo months of delay in appeals to the Council to right
fundamental wrongs in the hearing process that are due
to the incompetence and bias of a particular ALJ. May
we have your response as to the transcription and review
of this record for conformity to basic standards of decency
and fairness by an A.L.J. We shall be happy to provide
you with further copies of affidavits and letters we have
submitted to substantiate Mrs. Chocallo’s past bias. (They
May not include the recent incident last week when Mrs.
Chocallo*ordered out of a hearing a CLS staff attorney,
Henry Sommer, Esq., who was attempting to supervise a
paralegal advocate a [sic] a hearing.) ”’
No copy of said letter was sent by defendants to the
plaintiff. A copy thereof is attached hereto and made a
part hereof as Exhibit “C”’, being a part of letter dated
March 10, 1977 from defendant Brown to plaintiff here-
inafter referred to.
16. On February 17, 1977, while plaintiff was ab-
sent from the office and without her knowledge and con-
sent, the Administrative Officer of the Philadelphia BHA
office, acting at the direction of defendants Bureau ad-
ministrators, attempted to secure Mrs. Taylor’s files from
plaintiff's secretary without success inasmuch as precau-
56a
Complaint
tionary measures had been taken by plaintiff to protect
said files. On March 15, 1977, plaintiff addressed a com-
munication to claimant calling her attention to this fact,
a copy of which is attached hereto and made a part hereof
as Exhibit “B’’, together with memorandum of February
18, 1977 to the Administrative Officer.
17. On March 17, 1977, plaintiff received a letter
dated March 10, 1977 from defendant Philip Brown, to-
gether with a copy of the letter dated February 15, 1977
which he received from Mr. Jonathan M. Stein. The letter
states, inter alia, that he had not formed a judgment on
the truth or falsity of the allegations and that he will not
do so until he has all the facts, including plaintiff’s state-
ment of the events. Mr. Brown further stated: “It is my
sincere hope that you will be able to resolve your differ-
ences with Communily Legal Services to the extent that
the public will receive the prompt and courteous service
they have a right to expect.” A copy of said letter and
attachment, is attached hereto as Exhibit ‘“‘C” and made a
part hereof.
18. On May 10, 1977, plaintiff entered an inter-
locutory order excluding Messrs. Stein and Montes from
further participation in Pearl Taylor’s case in order to
assure the orderly conduct of the proceedings and the
proper and efficient administration of justice and to safe-
guard claimant’s and the public’s interest to the full ex-
tent of their rights and the rights and dignity of the tri-
bunal. Claimant was given thirty days to secure other
representation. Plaintiff's Memorandum attached to the
aforesaid interlocutory order discussed in detail the rea-
sons therefor and stated, inter alia, that ‘““The tactics em-
57a
Complaint
ployed [by Mr. Stein] were deliberately orchestrated to
create a charged and unmanageable atmosphere in order
to seriously disrupt the adjudicative processes and degrade
the dignity and authority of the presiding judge. His
motives, obviously, were not intended to subserve the best
interests of the claimant but, conversely, were concerned
with covert purposes, i.e., to contrive evidence in behalf
of a colleague and certain Bureau officials in a case on
appeal. Further: “In reaching their decisions, neither the
courts nor administrative bodies should ignore the realities
of life and disregard common knowledge even though such
knowledge may not have achieved a place within the pur-
view of judicial notice. . . It is a matter of common or pub-
lic knowledge that other blacks have been ‘misused’ by Mr.
Stein, as reported by the news media on March 24, 1977...
As reported, two of Mr. Stein’s black clients confessed be-
fore the federal courts, their testimony under oath was
‘fixed ...a lie’; that Stein had ‘instruction sessions’ where-
in he pressured them to repudiate the scattered housing
they liked and lived in and to tell the judge presiding over
the trial that their civil rights had been ‘violated’ and that
the violation could only be remedied by building the long-
disputed housing project. One of them stated the ‘Stein
pressure wore (her) down’, that she was ‘tired of being
used’ in furtherance of a Stein scheme she didn’t believe
in.” A copy of said interlocutory order and memorandum
are attached hereto as Exhibit ‘“‘D” and made a part here-
of.
19. Although Mrs. Taylor was advised on May 24,
1977 by Bartholomew E. Poindexter, Esquire of Com-
munity Legal Services, assigned to her, that he was going
58a
Complaint
,.to notify plaintiff of his representation and request a hear-
ing be scheduled, he failed to do so until June 3, 1977, by
letter dated May 27, 1977. A hearing was scheduled for
June 13, 1977 at 9:30 A.M.
20. On June 10, 1977, defendants Gitman and
Lightfoot, accompanied by Judge John Ennis, entered
plaintiff's office at 11:10 A.M. and demanded she im-
mediately surrender Mrs. Taylor’s files. They then left an
envelope which contained a copy of a letter dated June 9,
1977 from Jan J. Sagett, Deputy Chairman, Appeals Coun-
cil, addressed to Mrs. Taylor, and copy of an Order dated
June 9, 1977, which are attached hereto as Exhibit “E”’
and made a part hereof. Said Order, on petition of de-
fendant Brown, vacated the interlocutory order of May 10,
1977 referred to in Paragraph 18 and “‘remanded”’ the case
to defendant Gitman for reassignment to another judge in
10 days, contrary to the express statutory powers and limi-
tations imposed on Appeal Counci. governing review.
21. On June 10, 1977, Mrs. Taylor advised*by phone
that she had not received a copy of the aforesaid letter of »
June 9, 1977 and order; that Mr. Poindexter phoned and
told her plaintiff’s “superior”, Judge Brown, defendant
herein, was taking the case away from plaintiff; that she
did not want another judge and it was her intention to
appear and present her case on Monday, June 13, 1977.
22. Mrs. Taylor appeared with her minister before
plaintiff on June 13, 1977 and stated she wished to pro-
ceed without representation and without Mr. Poindexter,
who she testified “refused to be here when I told him the
date and time.” She also testified she never received a
copy of the Order or memorandum dated June 9, 1977 by
59a
Complaint
Judge Brown to Deputy Chairman, Appeals Council; that
Mr. Poindexter informed her of it and explained that her
case “‘got confused’’; that she should wait until June 13,
1977 “to hear from him about a set date and a change of
judge in this matter because they had to separate my case
from yours”; that “I told him I strictly was against it. I
had started something and once | start something [ see it
through. Not their way but my way. And I chose him to
defend me or to stand for me as speaker because of his
position with legal aid but I didn’t ask him to think for
me or deny me my right to think for me. And they in-
sisted on telling me what I should do.” She stated they
“openly admitted” there is this conspiracy against plain-
tiff; ‘it was a battle’ and she “had to choose sides.”’
23. With respect to the order of June 9, 1977, claim-
ant testified: ‘This was purposely done because obvious
there’s a conspiracy against you. I had a three way con-
versation between Poindexter, Mr. Stein and myself, and
he openly stated that this was a battle to me and openly
came out between the lines and said you either join us or
be defeated if you do not choose to fight the battle with
us and that’s just what he said. And I had no other chOice
than to drop all matters with him and told him to his
teeth this is not my fight. I gut my own battles to fight
and if any side be chose, I chose mine a long time ago and
he couldn’t change it. And they insisted on doing the
thing their way. And I let them know I couldn’t care less
about their insistence by ignoring them. See that’s the
way they run people today. That’s the way they rule
people today, insisting on what you had to do. See, I
know what it’s all about.” They indicated this was a
60a
Complaint
means to depose plaintiff from office; that, as testified by
her, ‘‘They just said this was the means to the end, This
is the purpose of all of this.”
24. According to information furnished by Mrs.
Taylor, a meeting took place at the Bureau’s offices, 1528
Walnut Street, immediately prior to the hearing of Febru-
ary 13, 1977 between defendants, Messrs. Stein, Montes
and an individual presented to her as plaintiff's “superior”,
identified by her as defendant Gitman, who stated 15 other
cases had been heard and turned down by plaintiff on the
same grounds; that plaintiff discriminated against welfare
seekers with psychiatric conditions—that they could at
least get work as ticket sellers in movie houses; that he
assured her she would receive disability benefits irrespec-
tive of whether plaintiff denied her claim. The purpose
of these statements, as conveyed to her, was to get evi-
dence against plaintiff in order to have her removed from
office.
25. On June 18, 1977, plaintiff, who was absent
from the office on sick leave since June 14, 1977, received
through the mail a letter from Mr. Jan Sagett dated June,
14, 1977, threatening her with appropriate action if she
failed to deliver to the Acting ALJIC all records, files, etc.
in Mgs. Taylor’s case by June 16, 1977. Mr. Sagett failed
to send Mrs. Taylor a copy thereof nor was she advised by
him, or by the other defendants of her rights in the matter.
26. Pursuant to law, it is plaintiff's duty to safe-
guard the rights and interests of Mrs. Taylor and also to
safeguard the rights and interests of the public who are
not represented by counsel in these proceedings and she
6la
Complaint
is precluded from giving force and effect and obeying un-
lawful orders.
27. Defendant, Philip Brown, who is under the au-
thority and supervision of defendant Robert Trachtenberg,
Bureau Director who also serves as Chairman of Appeals
Council, is not a party to Mrs. Taylor’s case and was with-
out legal standing to petition the Deputy Chairman of Ap-
peals Council, who acted in concert, to vacate plaintiff’s
interlocutory order excluding Mr. Stein from further par-
ticipation in her case, alleging that her rights would be
violated by implementation of said order. Defendant was
serving the interests of Mr. Stein and deprived claimant of
the equal protection of the law and acted arbitrarily, sum-
marily and contrary to her rights and interests. Such ac-
tion not only constituted an unlawful abuse of his minis-
terial powers and duties but was in furtherance of the con-
spiracy to prevent, hinder and interfere with plaintiff in
the performance of her duties and deny claimant the equal
privileges of the law.
28. Appeals Council, viz. Messrs. Sagett and Fried-
enberg, whose jurisdiction is prescribed by law, lacked
legal authority to vacate the interlocutory order of May
10, 1977 and to remand the case to defendant Gitman for
reassignment. Pursuant to Regs. No. 16, sections 416.1457,
416.1464 and 416.1465, it may, on its own motion or on
request for review by claimant, review a hearing decision
filed by a presiding judge after close of a hearing, and
* may remand to the presiding officer for rehearing, receipt
of evidence, and detision any case on which review is
granted, pursuant to section 416.1467 of Regs. No. 16.
Because on June 9, 1977, the date of the order, Mrs. Tay-
62a
Complaint
lor’s case had not been closed and no hearing decision had
been filed by plaintiff, Mrs. Taylor’s case was not before
Appeals Council for review, and, therefore, it had nothing
before it to remand.
29. On February 10, 1977, at a hearing before the
plaintiff in a claim filed by applicant in behalf of her minor
son (referred to herein as the Smith case), the applicant
testified that she had never been informed that defendants
Marjorie A. Janoski and Deborah Kooperman filed a re-
quest that plaintiff disqualify herself from the case on the
ground that she was “‘biased’”’ against Community Legal
Services employees, etc., together with “Affidavits and
Exhibits”; that defendant Weishaupt, who represented her
at the hearing, never discussed it; that she had no knowl-
edge thereof; did not authorize it and was opposed to it;
that she wished to proceed before plaintiff since she felt
plaintiff would give her son a fair hearing and would
render an impartial decision in the matter.
30. Defendant Richard Weishaupt testified under
oath at the aforementioned February 10, 1977 hearing that
defendant Judge Gitman cofftacted him orally about six
months prior thereto and “‘asked if I would please file a
formal complaint” against plaintiff ‘because of certain ir-
regularities that occurred at another hearing” that took
place in the summer of 1976 before plaintiff; said “ir-
regularities” were identified by him as plaintiff's alleged
failure to grant a continuance and to issue a subpoena;
that he thought “they did protest the judge’s failure to give
a continuance and her failure to issue a subpoena in the
case but I’m not sure.”” The records of the case referred
to by Weishaupt show Community Legal Services was
63a
Complaint
granted two continuances in the case and never requested
the issuance of a subpoena. He further testified that he
did not furnish Gitman with the complaint requested and
could not remember whether defendant Lightfoot made a
similar request and whether he complied.
31. Defendants Gitman and Lightfoot and Linda
Bernstein covertly solicited complaints against plaintiff
from Lawrence Mendelson, a former Communty Legal
Services attorney who appeared before her on February 20,
1975, as evidenced by letters dated March 18, 1976 ad-
dressed to Lightfoot and September 20, 1976 addressed to
Gitman, copies of which were attached to defendants
Janoski and Kooperman’s letter to plaintiff dated January
28, 1977 requesting that she disqualify herself from pre-
siding over the case heard on February 10, 1977 referred
to in Paragraphs 29 and 30. Copies of Mr. Mendelson’s
letters are attached hereto as Exhibit “‘F’’ and made a part
hereof.
32. Defendant, Linda, Bernstein, Esq., in conspiracy
with Lightfoot, Gitman et al. ~xequested that Marilyn Doria
Weiler, defendant, attorney with Community Legal Ser-
vices filed a complaint against plaintiff as evidenced by
copy of her letter dated March 3, 1976, addressed to de-
fendant Lightfoot, marked ‘““CONFIDENTIAL AND PER-
SONAL”, which also was attached to Miss Janoski’s letter
of January 28, 1977. A copy of said letter is attached
hereto as Exhibit ““G” and made a part hereof.
33. Defendants Lightfoot, Gitman, Brown and
Trachtenberg and Linda Bernstein conspired by intimida-
tion and threat to prevent, impede, hinder and obstruct
64a
Complaint
plaintiff from performing her duties in the Mr. Doe Case
(fictitious name) and did in fact grossly interfere in her
judicial functions in this case, heard by plaintiff on De-
cember 29, 1975, in the following manner:
(a) Ms. Bernstein, Mr. Doe’s attorney, testified in
his behalf. Mr. Doe’s testimony revealed he withheld
from the Pa. Dept. of Welfare and the Social Security
Administration, from whom he and his wife had been re-
ceiving welfare payments and supplemental security in-
come payments, respectively, the fact that he was em-
ployed and had been working continually for 32 years.
Claimant and counsel were requested to submit certain
relevant documentation post hearing, which they did not
do. -
(b) On December 31, 1975, Ms. Bernstein ad-
dressed an ex parte communication to defendant Lightfoot
wherein she discussed the merits of the case, made allega-
tions against plaintiff and requested him to remove plain-
tiff from the case. «
(c) On January 6, 1976, Lightfoot wrote to plain-
tiff asking her to respond to Ms. Bernstein’s allegations
both to him and to her indicating that plaintiff should
“recuse” herself from the case.
: (d) ‘ On Januarv 7, 1976, plaintiff wrote Lightfoot
advising him, inter alia, he infringed upon her indepen-
dence as the presiding judge and attempted to influence her
actions in violation of the law and his professional obliga-
tions; that while the case was within her jurisdiction she
would not condone or permit it to be litigated or argued
by counsel or claimant, nor would it be discussed or de-
65a
Complaint
cided other than in the proper forum, in the proper man-
ner and in accordance with applicable statutes, procedures,
regulations and appropriate precedents.
(e) On January 8, 1976, Lightfoot notified Bern-
stein by detter that plaintiff declined to voluntarily “recuse”
herself and to respond to the allegations made concerning
her behavior; that he assumed this was based on plaintiff’s
feeling she was able to conduct a fair and impartial hear-
ing and reach a fair and impartial decision; that “since
apparently the case has been concluded on the merits and
is awaiting decision this office contemplates no further ac-
tion in that area.”” He also advised her what remedies
she could pursue.
(f) On January 14, 1976, plaintiff was directed by
telephone to present herself at Gitman’s office, 3636 Mar-
ket St., on January 19, 1976 at 9:00 A.M. to discuss Mr.
Doe’s case as well as her “‘productivity.’’ She advised that
although she would appear, professional ethics precluded
such discussion and she would not deviate from the posi-
tio set forth in her letter of January 7, 1976 to -Light-
foot; moreover, any conversation with Gitman Nae have
to be recorded so there could be no misundersfanding as
to what transpired. The subject conference was aborted
at the outset when Gitman refused to have the conversa-
tion taped and threatened plaintiff that he was going to
have her investigated and fired.
(g) On January 15 and 22, 1976, the aforegoing
threats, intimidation and attempts to interfere with plain-
tiff’s independent and impartial handling of Mr. Doe’s case
were reported to defendant Trachtenberg. (Ex. H89-95)
66a
Complaint
(h) By letter dated February 17, 1976, Trachten-
berg responded through Brown threatening plaintiff with
“insubordination”; condoning Gitman’s and Lightfoot’s
actions and also attacking her “productivity.” (Ex. H87,
82-86)
(i) On January 23, 1976, Mr. Doe and Bernstein
were notified to appear at a hearing scheduled by plaintiff
for January 30, 1976 for the taking of additional testimony.
They failed to appear or to explain or apologize to plain-
tiff for their defiance of her order.
(j) On January 29, 1976, Bernstein communicated
with Lightfoot advising him, inter alia, that she “‘too
thought that the case had been concluded on the merits”’;
that neither she nor claimant would appear before plain-
tiff. A copy of said letter mysteriously appeared sans en-
velope in plaintiff’s mail box late the afternoon of Janu-
ary 30,1976. (Ex. H-96, 97)
(k) On February 27, 1976, Gitman and Lightfoot,
who stated they were carrying out the oral directions of
Trachtenberg, verbally directed plaintiff to surrender the
entire file in Mr. Doe’s case within 3 hours.
(1) On March 9, 1977, plaintiff was requested by
phone to forward Mr. Doe’s entire files to a staff member
of Appeals Council, who was asked to submit a written
request setting forth his reasons so that it could be prop-
erly considered by plaintiff. This was never done.
(m) A subpoena duces tecum was issued upon Mr.
Doe by plaintiff directing him to appear at a hearing
scheduled for May 19, 1976 and bring with him certain
records, as specified therein.
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Complaint
(n) A subpoena was issued upon Bernstein direct-
ing her to appear for further examination at a hearing
scheduled for May 18, 1976.
(0) Mr. Doe and Bernstein failed to comply with
the subpoenas at, it is believed and averred, the instruc-
tion and with the urging and approval of defendants, Git-
man, Lightfoot, Brown and Trachtenberg.
(p) Additional information obtained by plaintiff
from the District Offices in June and July 1976 indicated
that because Mr. Doe had not disclosed and reported his
earnings as required, he and his wife collected approxi-
mately $3000.00 in benefits to which they were not en-
titled under the law inasmuch as they did not qualify for
supplemental security income. A supplementary hearing
was scheduled by plaintiff for July 22, 1976, with notice
to Mr. and Mrs. Doe and Ms. Bernstein, on the new issue,
to wit, whether there was an overpayment and, if so, for
what months and whether recovery of the overpayment
may be waived under the provisions of the Social Security
Act. Mrs. Doe was joined as a party to the proceedings.
The parties and Ms. Bernstein failed to appear.
(q) On February 29, 1976, plaintiff communicated
with Secretary David Mathews of the Department of
Health, Education and Welfare requesting that a full in-
vestigation be made cf defendants conduct in this case
and other illegitimate practices reported.
(r) By letter dated April 9, 1976, Trachtenberg ad-
vised plaintiff thet the Secretary referred the aforesaid
letter to him for reply; that he decided to recommend that
an adverse action be taken against plaintiff and, therefore,
it would be improper for him to reply. (Exhibit H 80)
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Complaint
(s) On April 28, 1976, plaintiff communicated
with Secretary Mathews calling his attention to the fact
that Trachtenberg’s proposed action was contrary to De-
partmental regulations which forbid any retaliatory mea-
sures (either direct or tacit) reprisals, threats, interfer-
ence, intimidation or withholding of compensation or pro-
motion, where a complaint, request for investigation, griev-
ance, etc. was filed or intended to be filed. A declaration
of his policy was requested. (Ex. H-78, 79)
(t) On March 8, 1976, plaintiff communicated
with Secretary Mathews advising him that she had been
discreetly informed that defendants Gitman, Lightfoot et
al. were covertly soliciting, collecting and pressuring vari-
ous personnel to furnish complaints or adverse statements
against plaintiff. (Ex. H-81)
(u) On May 5, 1976, plaintiff wrote Trachtenberg
requesting an explanation as to why she had not received
a promotion effective April 11, 1976 due her by operation
of law. He failed to reply. On May 26, 1976, as a re-
sult of several calls made by plaintiff, the Personnel Of-
ficer notified her that as per Trachtenberg’s directions “‘it
would be inappropriate to institute a personnel action
since the Bureau Director was recommending an adverse
action.”
(v) On May 25, 1976 the plaintiff reported
Trachtenberg’s actions to the Civil Service Commission.
As a result, he was directed to initiate retroactive correc-
tive action effective April 11, 1976, with copy to CSC.
On August 7, 1976, plaintiff received a Notification of
Personnel Action, dated July 30, 1976 which falsely stated
“Retroactive Promotion due to administrative error.” She
69a
Complaint
subsequently received a lump sum check for back pay.
(Ex. H-76, 77)
(w) On October 29, 1976, plaintiff issued her de-
cision in Mr. Doe’s case, a copy of which is attached here-
to as Exhibit ““H”’.
(x) On September 17, 1976, Ms. Bernstein ad-
dressed a letter to defendant ‘Phil Brown” wherein, inter
alia, she requested him to intervene in the case and pre-
sented her version of the facts and merits of the case. She
failed to send a copy thereof to plaintiff but sent copies, as
indicated thereon, to Gitman. (Ex. H-74, 75)
(y) On October 5, 1976, plaintiff received a letter
from Brown to which he attached a copy of Bernstein's
letter. He stated that it was his intention to have plain-
tiff’s decision (when issued) reviewed by Appeals Coun-
cil on the basis of Ms. Bernstein’s dehors the record, ex
pate allegations. (Ex. H-73)
(z) On November 2, 1976, Lawrence Weiner,
member of Appeals Council phoned plaintiff and told her
defendant, Brown, had asked him to take Mr. Doe’s case
away from her and to write the decision; that this was an
unusual request and had never happened before and,
therefore, he wanted to discuss the status of the case be-
fore taking any action. He was advised that the decision
had been issued by plaintiff on October 29, 1976. An
appeal was taken by claimant from said decision, which
discussed in detail the ebove events.
34. Contrary to the provisions of the Administra-
tive Procedures Act requiring that cases be assigned to ad-
70a
Complaint
ministrative law judges by rotation (5 USC 3105), in or-
der to further threaten and intimidate plaintiff and prevent
her from performing her functions and work, defendant
Lightfoot failed and refused to assign cases to plaintiff
from January 1976 until October 1976 and from February
1977 onward. On April 6, 1977, plaintiff wrote defend-
ant Lightfoot requesting an explanation as to why cases
were not being assigned as required by iaw. He responded
on April 15, 1977 attacking, inter alia, plaintiff's ‘“‘pro-
duction” record. On June 7, 1977, plaintiff replied there-
to wherein she pointed out that certain judges’ decisions,
for which they were receiving credit, were being written
by their
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