The opinion of the court was delivered by: GREENE
The court presently has before it two motions by the Secretary of Health and Human Services. The first, in Civil Action No. 83-1920 (Byrd), is a motion to alter or amend judgment; the second, in Civil Action No. 83-2312 (Yadao), is a motion for voluntary remand. Whatever the terminology, each motion constitutes a request by the Secretary for a remand of a case involving the review of a termination of social security benefits.
The plaintiff in Byrd filed his complaint on July 5, 1983. On September 7, 1983, the day the answer was due, the government filed a motion for an enlargement of time within which to answer the complaint for an additional sixty days, claiming that the administrative record had not yet been compiled and transmitted to counsel. The Court denied the motion, commenting that "there is no reason why the compilation of an administrative record should take many months" and that "court processes are not to be governed by slow-moving administrative procedures." However, the government was given until October 3, 1983, to answer or otherwise move with respect to the complaint.
Waiting again until the eleventh hour, the government on October 3, 1983, sought further delay by moving for voluntary remand for the purpose of locating or reconstructing the administrative record. The government explained that the Secretary
must file the administrative record in order for this Court to review the Secretary's decision. Despite the efforts of the Department of Health and Human Services to compile a complete administrative record, plaintiff's claim file is missing.
The Court denied the motion, and it observed that delay causes prejudice to the plaintiff, for as long as he must wait for an answer to the complaint and for judicial review of the Secretary's actions, the hardship on him and his family is prolonged. Nevertheless, the government was given an additional ten days in which to answer.
Again, the government chose not to answer, but instead it filed a motion to alter or amend the Court's order. That motion claimed that the denial of the remand and other relief "are not in accordance with applicable law."
The history of the Yadao case is similar. The complaint was served on August 18, 1983. On October 14, 1983, the government moved for an enlargement of time to answer until December 13, 1983. The motion was denied; however, the government was allowed until November 11, 1983, to answer or otherwise move with respect to the complaint.
On the substantive merits, it appears that Byrd is former member of the U.S. Navy who was awarded disability under the social security laws in November 1969
on the basis of trigeminal neuralgia, a disorder which causes unpredictable episodes of extreme facial pain. After his release from active duty in the Navy, plaintiff went back to school, earning a B.A. and a Master's degree. Several physicians concluded that plaintiff was incapacitated when the episodes of the disease occurred, but the administrative law judge who heard plaintiff's case determined that, because the pain was not continuous, his eligibility for benefits was to be cut off as of March 1982. As for plaintiff Yadao, he is a resident of the Philippines who states in his complaint only that he was informed that his benefits were terminated although "I was disabled at 6 years old up to this time I am still incapacitated."
In both cases, after the government's applications for extensions of time had been denied, there were no requests for reconsideration but only a curt reminder that, whatever the Court's rulings, it had no option: according to the government, a law enacted by the Congress requires the Court to return the cases to the Department of Health and Human Services for whatever time it might take to reconstruct plaintiff's file (assuming that could ever be done). Leaving to one side the startling assumption that, by use of this statute, HHS and its attorneys could, in effect, delay indefinitely
access to the courts by those whose social security payments have been cut off, the government's papers suffer from another, more obvious flaw: the language in the statute on which they rely was repealed several years ago.
The crux of the argument in support of the government's two motions is that, under 42 U.S.C. § 405(g), the Court lacks discretion whenever the Secretary requests a remand -- it must remand the case to the Secretary. In support of this contention, government counsel quote section 405(g) as providing that
the court shall, on motion of the Secretary before he files his answer, remand the case to the Secretary for further action by the ...