Sprague v. Heckler
| Decision Date | 09 October 1985 |
| Docket Number | Civ. No. 83-0038 P. |
| Citation | 619 F. Supp. 1289 |
| Parties | Kenneth SPRAGUE, et al., Plaintiffs, v. Margaret M. HECKLER, Secretary, United States Department of Health and Human Services, Defendant. |
| Court | U.S. District Court — District of Maine |
Jack Comart, Linda Christ, Pine Tree Legal Assistance, Augusta, Me., for plaintiffs.
Paula D. Silsby, Asst. U.S. Atty., Portland, Me., Donald A. Gonya, Asst. Gen. Counsel, Baltimore, Md., for defendant.
Plaintiffs move for an award of counsel fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(a), (b), and (d)(1)(A).
Plaintiffs brought this class action suit in February 1983 to challenge the Secretary's policies for adjudicating disability claims involving certain mental impairments. Plaintiffs allege that the Secretary had applied policies to the evaluation of such claims that conflicted with Title II and Title XVI of the Social Security Act. 42 U.S.C. §§ 401, et seq., and §§ 1381, et seq. Specifically, Plaintiffs allege that the agency, instead of following the five-step determination process set out in its regulations at 20 C.F.R. §§ 404.1520 and 416.920, cut short that process if the individual applicant did not have a mental impairment meeting or equaling those listed in 20 C.F.R. Part 404, Subpart P., App. I. Under the regulations, applicants whose impairments do not meet "the listings" must still be evaluated as to their residual functional capacity to work. Plaintiffs allege that residual functional capacity in all younger persons and most older applicants not meeting the listings was effectively presumed, even though many such persons cannot work.
Plaintiffs sought to certify a class consisting of all Maine residents who are suffering from a mental illness whose Social Security benefits have been terminated since April 1, 1980, or whose application for benefits had been denied since April 1, 1980, on the basis that such persons were or are capable of substantial gainful employment despite their mental illness. They sought, among other things, an Order declaring that the Secretary's policies were unlawful, instructing the Secretary to reopen and reconsider the claims of all mentally disabled Title II and Title XVI applicants who have been denied benefits since April 1, 1980, and instructing the Secretary to reinstate benefits to all class members whose benefits were terminated pending reconsideration.
During the pendency of this action, Congress enacted the Social Security Disability Benefits Reform Act of 1984, Pub.L. No. 460, 98 Stat. 1794 (1984), Section 5 of which requires the Secretary to revise her criteria for evaluating mentally impaired claimants and confers certain rights upon mentally impaired persons whose claims were denied or whose benefits were terminated after March 1, 1981.1 On April 1, 1985, this Court entered a consent decree prepared by the parties. In addition to the rights conferred upon class members by the Social Security Disability Benefits Reform Act of 1984, the consent order provides, among other things, that the Secretary shall grant retroactive benefits to those reapplying under the Act for up to one year prior to the new application and that the Secretary shall individually notify class members of their right to reapply. The Plaintiffs thus obtained some of the relief they initially sought, partly through the enactment of the Reform Act and partly through the consent order.
Under 28 U.S.C. § 2412(d)(1)(A) counsel fees may be awarded in actions against the United States if the claimant is the prevailing party, unless the position of the United States was substantially justified or special circumstances make an award unjust. The enactment of the Reform Act during the pendency of this action complicates resolution of the question as to whether Plaintiffs are the prevailing parties for purposes of 28 U.S.C. § 2412(d)(1)(A). The Court need not decide that question, however, because it has determined that, even assuming that Plaintiffs are the prevailing parties, the United States has met its burden of proving its position was substantially justified.
The standard for determining whether the position of the United States was substantially justified has been thoroughly set out as follows:
The determinative issue on the motion for counsel fees under the EAJA is whether the Secretary's position, i.e., the Secretary's decision denying benefits, see Cornella v. Schweiker, 728 F.2d 978, 983 (8th Cir.1984), was substantially justified, which essentially turns upon the reasonableness in law and fact of the action taken. On this issue the government bears the burden. Washington v. Heckler, 756 F.2d 959, 961 (3d Cir.1985); Wolverton v. Heckler, 726 F.2d 580, 583 (9th Cir.1984). Although an adverse decision on the merits does not preclude a finding of substantial justification, Martin v. Heckler, 754 F.2d 1262 at 1264 (5th Cir.1985), the Secretary's position is unreasonable where she presents no evidence to support her position, e.g., Hicks v. Heckler, 756 F.2d 1022, 1025 (4th Cir. 1985), or where she applies an erroneous legal standard, see Washington v. Heckler, 756 F.2d at 967-68; Howard v. Heckler, 581 F.Supp. 1231, 1233 (S.D.Ohio 1984). Similarly, substantial justification does not mean "nonfrivolous," McDonald v. Schweiker, 726 F.2d 311, 316 (7th Cir.1983), and will not be found where the Secretary merely relies on "some evidence" of nondisability, see Tressler v. Heckler, 748 F.2d 146, 150 (3d Cir.1984). Rather, to meet her burden the Secretary must make a "strong showing" that her position was justified. Washington v. Heckler, 756 F.2d at 961; Cornella v. Schweiker, 728 F.2d at 982 & 983 n. 9. But see Guthrie v. Schweiker, 718 F.2d 104, 108 (4th Cir.1983) Secretary's position is substantially justified although she does no more than rely on an arguably defensible administrative record (footnote numbers omitted).
Aldrich v. Heckler, 609 F.Supp. 863, 865 (D.Me.1985).
In this litigation, the Secretary has taken the position that the unlawful policy alleged by Plaintiff to exist has not been applied in Maine. The Secretary asserts that she was required to complete discovery in order to make this determination. In support of her argument that this position was justified, the Secretary relies upon an affidavit and policy memorandum by the Director of Maine Disability Determination Services (DDS), an agency within the Maine Department of Human Services which makes disability determinations for the Social Security Administration pursuant to 20 C.F.R. § 404.1503 and § 416.903, and upon the alleged failure of Plaintiff to produce evidence that an unlawful policy was applied in Maine, despite extensive discovery.
Ann D. DeWitt is the Director of DDS. In a Memorandum to the Professional Staff of DDS, titled "Medical Vocational Considerations for Young Mentally Impaired Claimants," issued February 5, 1980, Ms. DeWitt made clear that, even if the Social Security Administration had intended to apply the policy Plaintiffs described in Maine, that policy was repudiated by the Maine DDS.2 In her affidavit, Ms. DeWitt stated that the policy reflected in the memorandum "is the current Social Security policy, and this memo is still in effect in the Maine DDS." Affidavit of Ann D. DeWitt, ¶ 14.
Thus, despite findings of courts in other jurisdictions,3 the Secretary has proffered substantial evidence that an unlawful policy was not applied in Maine and that, to the contrary, the Director of the Maine program had specifically directed her staff to the effect that persons with mental disabilities not meeting the listings may nonetheless be unable to work and therefore should be allowed benefits. Without rebuttal, this policy memorandum supports the Secretary's position that she was substantially justified in pursuing this litigation on the basis that no unlawful policy was applied in Maine.
Plaintiffs have not produced any direct evidence to rebut the affidavit and memorandum of Ann DeWitt. Plaintiffs rely on two cases in which the courts found that the Department of Health and Human Services (HHS) applied unlawful policies identical or similar to that allegedly applied in Maine. Mental Health Ass'n of Minnesota, 554 F.Supp. 157; City of New York, 578 F.Supp. 1109. In both cases, the district courts found that HHS had disseminated an unlawful policy from its central office under which younger mentally ill persons whose illnesses were not listed in agency regulations as per se meeting the requirements for benefits, could not be allowed benefits because they were presumed to have residual functional capacity. City of New York, 578 F.Supp. at 115; Mental Health Ass'n of Minnesota, 554 F.Supp. at 160-61.
In City of New York, Chief Judge Weinstein found that in 1978 the central office of the Social Security Administration reversed virtually all the determinations of the New York Office of Disability Determination in which younger applicants with psychiatric impairments not meeting the listings were allowed benefits. 578 F.Supp. at 1115. In that case, the Court stated, "Evidence of the fixed clandestine policy against those with mental illness is overwhelming." Id. The Court also found that SSA officials conducted sample reviews of state determinations on a sufficient basis to ensure, with what SSA contended was 95% accuracy, that the uniform policies of the SSA were being followed by the states. Id. at 1114.
The findings of the courts in Mental Health Ass'n of Minnesota and City of New York may justify an inference that the policy alleged here was disseminated on a national basis and therefore that it was in effect in Maine. However, the Secretary has produced direct evidence to the contrary (supra at 1292). In addition, in Mental Health...
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