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CHOCALLO v. BUREAU OF HEARINGS & APPEALS

October 8, 1982

WANDA P. CHOCALLO
v.
BUREAU OF HEARINGS AND APPEALS, SSA, et al.



The opinion of the court was delivered by: GILES

 GILES, J.

 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, interfered 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 cognizable under 42 U.S.C. § 1985. She also asserts violations of the Fifth Amendment, the Privacy Act of 1974, 5 U.S.C. § 552(a) (g) (1), et. seq. and the Administrative Procedure Act, 5 U.S.C. § 101 et seq. Jurisdiction is properly asserted under 28 U.S.C. §§ 1331 and 1343 (1976).

 Each defendant has moved either to dismiss the complaint 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 Administration, Department of Health, Education and Welfare ("DHEW"). In this capacity, she heard claimants' appeals from initial adverse determinations of social security insurance benefit eligibility, and rendered decisions. Her ALJ decisions were reviewable on the merits by the Appeals 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 office, arising largely from the incidents underlying the complaint in this court, Chocallo was subsequently removed 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 District of Columbia in Chocallo v. Prokof, 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 plaintiff's refusal to cooperate in the reassignment to another ALJ 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 proceeding Taylor was represented by defendant Community Legal 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, supported 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), (Complaint paras. 13, 14, 15). Chocallo terminated the hearing 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, para. 15, Brown Affidavit, para. 8). Defendant, Philip T. Brown, Chief Administrative Law Judge, received Stein's letter complaint dated February 15, 1977. He addressed an internal communication to Chocallo on March 10, 1977 advising her of his concern over the possibility that claimants were becoming victims of an obviously poor relationship between CLS and plaintiff. (Brown Affidavit para. 8). Speaking on behalf of the Appeals Council, Brown stated that no action would be taken until it had reviewed the transcript and tape recording of the February 1977 hearing. (Complaint, para. 17). On March 15, 1977, Chocallo wrote to claimant Taylor, ex parte, informing her that on February 17, 1977 an attempt had been made by "the Administrative Officer of this Office" to secure Taylor's files. (Complaint para. 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 proceedings on behalf of Taylor. (Complaint, para. 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. *fn1" Chocallo's opinion incorporated a newspaper article 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. Id. Prior to rendering her decision, she had mailed a copy of the same newspaper article, ex parte, to Taylor. (Brown Affidavit, para. 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 dismissed from practicing before the Social Security Administration. 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 determined that it was contrary to law. (Brown Affidavit, para. 11). On his motion, the Appeals Council issued an order dated June 9, 1977 removing the Taylor case to the Council 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, Assistant Regional Chief Judge. Defendant James C. Lightfoot, Administrative Law Judge in charge of the Philadelphia 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 office and even if she did, she would not surrender it to him (Gitman Affidavit, para. 15). Later, a written demand was made on the same day, to which plaintiff made no response. (Gitman Affidavit, para. 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, paras. 26, 27, 28). Following receipt of the Appeals Council Order, plaintiff contacted Taylor by telephone. 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. Plaintiff 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 being 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 hearing. (Complaint paras. 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 keeping with the routine practice of relinquishing files in decided 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 para. 7).

 B. The Coleman Case

 Plaintiff's second group of allegations arise out of the December, 1975 social security disability hearing of defendant 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 counsel, defendant Linda Bernstein, Esquire, wrote to Chocallo expressing her concern at Chocallo's non-appearance, particularly in light of the resulting inconvenience to Coleman. At the next scheduled hearing, Chocallo accused Coleman of dishonesty and Bernstein of unethical and unprofessional conduct. On December 31, 1975, Bernstein 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 Lightfoot, 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. Plaintiff refused to withdraw. The Coleman case was not reassigned, despite the complaints from Bernstein, on the stated presumption that plaintiff could conduct a fair, impartial hearing and render a just decision. (Complaint, paras. 33 A-Q, X-2).

 In late January, May, and July, of 1976, Chocallo attempted to schedule supplementary hearings in the Coleman matter. Neither Bernstein nor Coleman appeared, believing that the matter had been concluded on the merits at the December, 1976 hearing. *fn2"

 In September, 1976 nearly nine months after the hearing on the merits, Coleman's attorney Bernstein complained in writing to Chief ALJ Brown about what she considered an inordinate delay in the issuance of a decision. (Brown Affidavit, para. 5). Brown gave plaintiff a copy of the Bernstein letter and asked her when the decision 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 because of the delay. On November 2, 1976, the Appeals Council informed Brown that a decision adverse to Coleman had been rendered on October 29, 1976. On June 15, 1977, the Appeals Council reversed and remanded because of demonstrated hostility against the claimant and attorney through the hearing process and the decision itself. The case was then reassigned to another ALJ for decision.

 In September, 1977, ostensibly acting as a self-appointed 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 claimant 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 adverse action against her, and that he felt it improper to reply to her letter which had been referred to him by Matthews. 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, para. 4). On May 25, 1976, Chocallo reported Trachtenberg's actions to the Civil Service Commission which ultimately directed Trachtenberg to initiate retroactive corrective action. The action was taken and Chocallo received a retroactive promotion and backpay. Subsequently, on April 29, 1977, Chocallo was informed by Brown that her production was unacceptably low, and was instructed to increase her output within sixty days. Apparently, the "productivity" issue had been raised previously in January, 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. (Gitman Affidavit, para. 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 dispositions. (Complaint para. 37). Chocallo asserts that if her productivity was low, it was because she was denied an adequate support staff. (Complaint, para. 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 defendants 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, plaintiff sues the following group of defendants.

 II. 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 constitutional and statutory rights. The CLS defendants include Linda Bernstein, Esquire, Marjorie Janoski, Esquire, Bartholomew Poindexter, Esquire, Richard Weishaupt, Esquire, and Deborah Kooperman, Eileen Wood and Marilyn Davis Weiler, CLS paralegals. *fn3" It is unclear what constitutional rights were allegedly violated by the CLS defendants. Chocallo appears to claim that she had a constitutional right to be an "independent judge," to continue to hold office (Complaint para. 40, 48), and not to be "unlawfully deprived of her liberty to use the powers of her mind, judgment and experience . . ." (Complaint para. 48). In addition, Chocallo claims that the public's rights and the rights of claimants in Social Security appeals were violated. (Complaint, para. 41, 43). Based on these allegations, the CLS defendants have moved to dismiss the complaint for failure to state a claim upon which relief can be granted under Fed. R. ...


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