Kistner v. Califano

• Decision Date: 02 August 1978
• Docket Number: No. 77-3192,77-3192
• Citation: 579 F.2d 1004
• Parties: Helen C. KISTNER, Plaintiff-Appellant, v. Joseph A. CALIFANO, Secretary, Dept. of Health, Education and Welfare, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1004

579 F.2d 1004

Helen C. KISTNER, Plaintiff-Appellant, v. Joseph A. CALIFANO, Secretary, Dept. of Health, Education and Welfare, Defendant-Appellee.

No. 77-3192.

United States Court of Appeals Sixth Circuit.

Argued June 15, 1978.

Decided July 14, 1978.

As Amended Aug. 2, 1978.

William S. Wyler, Boyd, Wyler & McKew, Cincinnati, Ohio, for plaintiff-appellant.

William W. Milligan, James C. Cissell, U. S. Attys., Anthony W. Nyktas, Asst. U. S. Atty., Cincinnati, Ohio, Ronald R. Glancz, Mary Gallagher, Dept. of Justice, Washington, D. C., for defendant-appellee.

Before PHILLIPS, Chief Judge, and LIVELY and KEITH, Circuit Judges.

PER CURIAM.

This is an appeal from the district court's Sua sponte grant of summary judgment to the Secretary of Health, Education and Welfare on this claim for social security disability insurance benefits. We vacate the judgment of the district court and remand this case for further proceedings.

On June 3, 1976, plaintiff filed an action in the district court for judicial review pursuant to 42 U.S.C. § 405(g) (1970) of the Secretary's final decision of May 18, 1976, denying her claim for a period of disability and for disability insurance benefits, pursuant to 42 U.S.C. §§ 416(i), 423 (1970). On August 18, 1976, the Secretary filed an answer in the district court denying that claimant is or was disabled, and asserting that the findings of fact of the Secretary were supported by substantial evidence and should be affirmed. A copy of the administrative record was filed with the answer. The Secretary requested that the complaint be dismissed.

No further pleadings or motions were filed in this matter, and no hearing or conference or other proceeding was held before the district court. Of particular relevance to our disposition of this appeal, neither party filed a motion for summary judgment pursuant to Rule 56, Federal Rules of Civil Procedure. Nonetheless, on February 9, 1977, the district court entered summary judgment for the Secretary, Sua sponte and without prior notice to either party. The court stated in its Order that "(t)his matter is before the Court upon the pleadings of the parties which shall be treated as cross motions for summary judgment." Kistner v. Mathews, Sec'y., H.E.W., No. C-1-76-287 (S.D.Ohio Feb. 9, 1977) slip op. at 1.

Rule 56(a) and (b) provide that either party to a civil action may move for summary judgment. The party seeking to recover on a claim, or seeking a declaratory judgment, may move at any time after the expiration of twenty days from the commencement of the action, and the defending party may move for summary judgment at any time. Rule 56(c) provides:

(c) Motion and Proceedings Thereon. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

The rule thus provides for (1) the service by at least one party of a motion for summary judgment, and notice to all parties of the motion at least ten days prior to the hearing thereon, (2) optional service of affidavits in opposition to the motion, (Rule 56(a) and (b) provide for the optional service by the moving party of affidavits in support of the motion), and (3) a hearing. In the district court in which this action arose supporting memoranda of law would normally accompany both the motion for summary judgment and the opposition to the motion. E. g., Local Court Rule 3.5.1, Rules of the United States District Court for the Southern District of Ohio.

Noncompliance with the time provision of the rule deprives the court of authority to grant summary judgment, Adams v. Campbell County School District, 483 F.2d 1351 (10th Cir. 1973), unless the opposing party has waived this requirement, United States v. Miller, 318 F.2d 637 (7th Cir. 1963), or there has been no prejudice to the opposing party by the court's failure to comply with this provision of the rule. Oppenheimer v. Morton Hotel Corp., 324 F.2d 766 (6th Cir. 1963). In the instant case appellant did not waive the ten day notice provision of the rule because she had no notice that the district court would consider the pleadings as crossmotions for summary judgment. She was prejudiced by not having an opportunity to respond in opposition prior to the district court's entry of summary judgment for the Secretary. Although the Local Court Rules for the United...