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DAVENPORT v. BOWEN

March 31, 1989

MARJORIE DAVENPORT
v.
OTIS R. BOWEN, Secretary of Health and Human Services



The opinion of the court was delivered by: POLLAK

 POLLAK, J., United States District Judge.

 Plaintiff Marjorie Davenport has filed a complaint seeking judicial review of the final decision of defendant, the Secretary of Health and Human Services, denying her application for disability benefits under the Supplemental Security Income program. On November 22, 1988, a day after defendant's answer was due, *fn1" defendant filed a motion for a 60-day extension of time to answer. The court granted a 10-day extension, which the defendant timely moved for the court to reconsider and cited, for the first time, inability to locate the plaintiff's file as the reason for the delay. The court granted the unopposed motion and agreed to defendant's proposed deadline of January 22, 1989.

 Defendant failed to file a timely answer. On February 9, 1989, plaintiff moved for the award of interim benefits for the period from November 21, 1988 until such time as the defendant's answer was filed. Defendant opposed this motion, challenging the power of this court to order interim benefits and representing that the administrative record had been located and that its answer was forthcoming. Defendant subsequently filed its answer, complete with the administrative record, on March 6, 1989.

 In response to the "systemwide predicament" of delay in judicial review of disability cases, Judge Miles Lord recognized a presumption that when a claimant is deprived of his right to a timely answer due to the Secretary's inability to locate files under his control, there is a prima facie case for interim benefits. LaBonne v. Heckler, 574 F. Supp. 1016, 1021 (D.Minn. 1983), dism'd without op., 732 F.2d 161 (8th Cir. 1984). This remedy is common in cases in which the Secretary's delay in filing responsive pleadings violates the time limits of the Federal Rules of Civil Procedure or court order. See, e.g., Raushi v. Heckler, Civ. No. 84-0752 slip op. (E.D. Pa. June 7, 1984); Mills v. Heckler, 595 F. Supp. 952 (S.D.N.Y. 1984); Gomaz v. Heckler, 591 F. Supp. 1122 (E.D. Wis. 1984); Lewis v. Heckler, 605 F. Supp. 9 (E.D. Ky. 1984). *fn2"

 The humane purposes of the benefits program and the unfairness of placing the burden of delay on the party least able to control or afford it support interim relief in these circumstances. Plaintiff's claim that the multiple bureaucratic delays in this case have forced her to live on public assistance pending resolution of these proceedings is uncontested. In addition, defendant admits that its handling of plaintiff's file was the sole cause of the delay to the court and claimant.

 I will therefore grant plaintiff's motion for interim benefits commencing from the last court-approved deadline for the filing of defendant's answer on January 22, 1989 to the date that the defendant filed his answer on March 6, 1989. See Gomaz v. Heckler, 591 F. Supp. 1122, 1127 (E.D. Wis. 1984) (granting benefits for the two months before Secretary had filed her tardy answer in order "to effect a retroactive preservation of the status quo for those weeks when the progress of this litigation was stymied.")

 An appropriate order follows.

 ORDER

 It is further ORDERED that this matter is referred to Magistrate William F. Hall, Jr. for preparation of a report and recommendation pursuant to 28 U.S.C. § 636(b). The parties are advised to ...


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