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GRANT v. SULLIVAN

July 27, 1989

LOIS M. GRANT, JAMIE P. DONNELLY and HAROLD WALLACE on behalf of themselves and all other similarly situated persons, Plaintiffs,
v.
LOUIS W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant



The opinion of the court was delivered by: MUIR

 I. Introduction.

 Once again we are presented with a case in which a claimant or claimants for Social Security disability benefits allege that Administrative Law Judge (ALJ) Russell Rowell is biased against disability claimants generally. See, e.g., Tate v. Secretary of Health and Human Services, No. 84-1495 (M.D. Pa. Orders Nos. 1, 2, and 3 of Aug. 3, 1988) (Muir, J.); Wallace v. Sullivan, No. 88-0295 (M.D. Pa. Mar. 20, 1989) (Muir, J.); Schneck v. Bowen, 1989 U.S. Dist. LEXIS 2180, No. 88-0901 (M.D. Pa. Feb. 27, 1989) (Kosik, J.). The plaintiff-claimants assert in this case, as others have in the past, that because of ALJ Rowell's bias, they have been and will be denied fair Social Security disability claim hearings in violation of the Social Security Act and the due process clause of the Fifth Amendment to the United States Constitution. The undersigned has not been required in the past to reach the merits of whether ALJ Rowell is biased against disability claimants generally and, apparently, neither has any other member of this Court. For the reasons set forth in this opinion, this may be the case in which we are required to address the merits of whether ALJ Rowell is biased as alleged.

 II. Procedural and Factual History.

 This action was commenced on June 17, 1988, when Lois M. Grant filed a complaint in which she named then-Secretary of Health and Human Services Otis R. Bowen, M.D., ("Secretary") as the sole Defendant. Grant brought this action pursuant to 42 U.S.C. § 405(g) seeking reversal of a final decision of the Secretary denying her benefits under the Social Security Disability Insurance Program (hereinafter "Title II"), established by Title II of the Social Security Act, 42 U.S.C. § 401 et seq. See Bowen v. City of New York, 476 U.S. 467, 106 S. Ct. 2022, 2024, 90 L. Ed. 2d 462 (1986). (The Federal government also provides disability benefits under the Supplemental Security Income Program (hereinafter "Title XVI"), established by Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq. Id.) Grant predicated her claim for relief upon two theories: (1) the Secretary's decision was not supported by substantial evidence and was contrary to law and (2) ALJ Rowell, who presided over Grant's hearing and rendered a decision denying her application for disability benefits, was biased against her and against disability claimants generally, thus denying her a fair hearing in violation of the Social Security Act and the due process clause of the Fifth Amendment.

 On August 12, 1988, a first amended complaint was filed by Grant, Jamie P. Donnelly, and Harold Wallace (hereinafter "named Plaintiffs") on behalf of themselves and a proposed class of individuals consisting of, generally speaking, each claimant for disability benefits under Title II or Title XVI who (1) had received an adverse decision concerning his or her claim from ALJ Rowell, (2) had his or her claim assigned to ALJ Rowell but had not yet received a decision from him, or (3) would in the future have his or her claim assigned to ALJ Rowell for a decision. (Because no class of Plaintiffs has yet been certified, we will hereinafter refer to all action taken by the named Plaintiffs, both on their own behalf and on behalf of the proposed class, as having been taken by the named Plaintiffs.) Then-Secretary Bowen is the sole Defendant named in the first amended complaint which asserts that we have jurisdiction over the claims pled pursuant to 42 U.S.C. §§ 405(g) and 1383(c). The named Plaintiffs assert, with regard to themselves, that the Secretary's decisions that they are not disabled within the meaning of the Social Security Act are not supported by substantial evidence and are contrary to law. The named Plaintiffs also assert with regard to themselves and the members of the proposed class that ALJ Rowell is biased against disability claimants generally and as a result of his bias the named Plaintiffs and the members of the proposed class have been and will be denied fair hearings in violation of the Social Security Act and the due process clause of the Fifth Amendment. The named Plaintiffs request that we (1) reverse the decisions of the Secretary denying them disability benefits, (2) order that this action be maintained as a class action, (3) enter a declaratory judgment that ALJ Rowell is biased against claimants for Title II and Title XVI disability benefits and that his bias has deprived the named Plaintiffs and members of the proposed class of their right to a fair hearing in violation of the Social Security Act and the due process clause of the Fifth Amendment, and (4) enter a permanent injunction (4.1) requiring the Secretary to remand the cases of the named Plaintiffs and members of the proposed class for new hearings before administrative law judges other than ALJ Rowell and (4.2) forbidding the Secretary to assign ALJ Rowell in the future to any tasks which involve the discretion to determine disability claims made pursuant to either Title II or Title XVI.

 The Clerk of Court assigned the responsibility for this case to us but referred it to United States Magistrate Raymond J. Durkin for preliminary consideration. On September 28, 1988, the Secretary filed an answer to the named Plaintiffs' first amended complaint. On November 10, 1988, the named Plaintiffs filed a motion for class certification in which they requested that we certify the following class:

 
All claimants for Social Security and/or SSI [Title II and/or Title XVI] disability benefits who have received, or will receive, an adverse decision from Administrative Law Judge (ALJ) Russell Rowell on or after January 1, 1985, and all disability claimants whose claims have been or will be assigned to ALJ Rowell for a decision.

 (The proposed class specified in the named Plaintiffs' motion for class certification is similar, but not identical, to the proposed class set forth in the named Plaintiffs' first amended complaint.) The named Plaintiffs filed on November 17, 1988, a motion to compel the Secretary to answer interrogatories and produce documents. The discovery requests which underlie the named Plaintiffs' motion to compel seek information concerning ALJ Rowell's alleged bias. The Secretary filed on December 20, 1988, a motion pursuant to Fed.R.Civ.P. 12(c) for partial judgment on the pleadings requesting that we dismiss the allegation of bias pled by the named Plaintiffs on their own behalf and on behalf of members of the proposed class. On December 23, 1988, the Secretary filed a motion for a protective order seeking an order preventing the named Plaintiffs from conducting further discovery in this case.

 Magistrate Durkin filed a report on March 20, 1989, in which he recommended (1) that the named Plaintiffs' motion for class certification be denied, (2) that the Secretary's "motion for partial summary judgment on the issue of bias" be granted, (3) that the named Plaintiffs' motion to compel discovery be dismissed as moot, and (4) that the Secretary's motion for a protective order be dismissed as moot. Magistrate Durkin first analyzed whether the Secretary was entitled to judgment on the issue of bias. After concluding that the Secretary was entitled to judgment in his favor on the issue of bias, Magistrate Durkin reasoned that there was no justification for certifying the proposed class and there was no reason to permit the named Plaintiffs to conduct any more discovery.

 The named Plaintiffs filed objections to Magistrate Durkin's report and the recommendations contained therein. By order of May 4, 1989, we, among other things, substituted Louis W. Sullivan, M.D., for Otis R. Bowen, M.D., as the Defendant pursuant to Fed.R.Civ.P. 25(d)(1).

 III. Discussion.

 The question before us is whether the Secretary is entitled to judgment in his favor with regard to the allegation of bias pled by the named Plaintiffs on their own behalf and on behalf of the members of the proposed class.

 
A. Should the Secretary's Motion for Partial Judgment on the Pleadings be Treated as one for Summary Judgment.

 The Secretary filed on December 20, 1988, a motion pursuant to Fed.R.Civ.P. 12(c) for partial judgment on the pleadings requesting that we dismiss the allegation of bias pled by the named Plaintiffs on their own behalf and on behalf of the members of the proposed class. Also on December 20, 1988, the Secretary filed a document entitled "Memorandum in Support of Defendant's Motion for Partial Judgment on the Pleadings and in Opposition to Plaintiffs' Motion for Class Certification." Appended to the aforementioned "Memorandum" were (1) an affidavit by Michael Francis Brown, Esq., one of the attorneys of record for the named Plaintiffs in this case which was apparently part of the record in Tate v. Bowen, No. 84-1495 (M.D. Pa.), (2) an October 6, 1988, Magistrate's report in Dehoff v. Bowen, No. 88-0255 (M.D. Pa.) (Smyser, U.S. Magistrate), (3) an order in Wallace v. Bowen, No. 88-0295 (M.D. Pa. Nov. 23, 1988) (Smyser, U.S. Magistrate), and (4) three orders in Tate v. Secretary of Health and Human Services, No. 84-1495 (M.D. Pa. Orders Nos. 1, 2, and 3 of Aug. 3, 1988). The named Plaintiffs filed two affidavits and one declaration under penalty of perjury in support of their brief in opposition to the Secretary's "Memorandum."

 Rule 12(c) of the Federal Rules of Civil Procedure provides as follows:

 
Motion for Judgment on the Pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

 The affidavits, declaration under penalty of perjury, and other documents filed with the Court in support of and in opposition to the Secretary's motion for partial judgment on the pleadings are "matters outside the pleadings." See Fed.R.Civ.P. 7(a), 10(c). Because we intend to rely upon some of these matters outside the pleadings in ruling upon the Secretary's motion for partial judgment on the pleadings, we are obliged to treat this motion as one for summary judgment. Fed.R.Civ.P. 12(c).

 Ordinarily, when a district court converts a motion for judgment on the pleadings into a motion for summary judgment, it should provide notice of its intention to do so and either allow the parties an opportunity to submit materials admissible in a summary judgment proceeding or schedule a hearing. See Rose v. Bartle, 871 F.2d 331, 342 (3d Cir. 1989). However, because we have decided for the reasons expressed below not to grant summary judgment in favor of the Secretary on the issue of bias based upon the record as it currently exists, we do not need to provide notice of our intention to convert the Secretary's motion for partial judgment on the pleadings into a motion for summary judgment and we do not need to permit the parties to submit additional materials or schedule a hearing before ruling upon this motion. See Rose v. Bartle, 871 F.2d at 341, 342. Because the Secretary was the first party to file matters outside the pleadings addressed to his motion for partial judgment on the pleadings, he cannot rightfully complain if we consider matters outside the pleadings in deciding not to grant judgment in his favor on the issue of bias.

 B. The Summary Judgment Standard.

 Rule 56(c) of the Federal Rules of Civil Procedure provides that a motion for summary judgment shall be granted

 
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.

 The United States Supreme Court has stated with regard to motions for summary judgment that a material fact is one which might affect the outcome of the suit under the relevant substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). The Supreme Court also stated in Anderson v. Liberty Lobby, Inc. that a dispute about a material fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id. at 2510.

 
C. Have the Named Plaintiffs or the Members of the Proposed Class Waived Their Bias Claim.

 Magistrate Durkin implied, but did not explicitly state, in his report that in his view the named Plaintiffs and the members of the proposed class have waived their bias claim. See Magistrate's report at 8-11. The named Plaintiffs object to this implication. See the named Plaintiffs' brief in support of their objections to the Magistrate's report at 31-35. In order to analyze whether the named Plaintiffs and the members of the proposed class have waived their bias claim, it is helpful to review briefly the administrative process used ...


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