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December 21, 1983

ACIE L. BYRD, Plaintiff,

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. *fn1"

 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. *fn2" 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 November 14, 1983 -- three days after the due date -- without having answered the complaint or requested extension of time, the government moved for "voluntary remand." With one exception, *fn3" the motion is identical to the motion in Byrd -- identical in language, in the assertion that plaintiff's claim file was lost "despite the efforts . . . to compile a complete administrative record," and -- despite the Court's intervening order in Byrd stating that plaintiffs are in fact prejudiced by such delays -- in its assertion that plaintiff would not be prejudiced by a remand.

 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 *fn4" 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." *fn5"


 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 *fn6" 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. ยง 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 Secretary . . . (emphasis added).

 In fact, section 405(g) was amended over three years ago regarding the very point for which the government cites it. As amended in 1980, the statute provides that the


court may, on motion of the Secretary made for good cause shown. . . remand the case to the Secretary . . . (emphasis added).

 Congress thus amended the statute with the specific intention of allowing courts discretion in deciding these motions, *fn7" and untying the courts' hands when presented with motions for remand such as these. *fn8"

 The government's actions in these cases are thus wholly inappropriate on several bases.

 First. The government has twice misrepresented the law to the Court, once in the motion for voluntary remand in Yadao and once in the motion to alter or amend judgment in Byrd.

 Second. The government has caused delay, to the prejudice of the plaintiffs. The plaintiffs in these cases are typically individuals who believe, perhaps justifiably, perhaps not, that their benefits have been improperly terminated. While their cases are delayed in the courts, they are not receiving the much-needed benefits to which they may, in fact, be entitled. These cases should therefore be moved along swiftly, rather than being hopelessly prolonged due to inefficiencies of the filing system at the Department of Health and Human Services. It is the responsibility of that Department to keep proper administrative records and to ensure that they may be located. If it fails to do so, it is the Department which must suffer the consequences, not the plaintiffs seeking review of Department decisions.

 Third. Through use of a repealed law, the government has managed to avoid answering a complaint served on August 18, 1983 in the Yadao case, and a complaint served at the beginning of July in Byrd, despite the fact that the Court has denied various of its motions for extension or enlargement *fn9" of time. If these two cases were isolated instances, that would be harmful enough. But motions are increasingly being filed for repeated extensions and enlargements of time and for the return of the cases to the administrative agencies because the administrative files have been lost or dispersed and cannot be found or reconstructed. The various departments and agencies involved seem to assume that this is an acceptable manner of proceeding with the course of litigation. It is not acceptable to the Court.

 Not only does this practice provide the government with tactical advantages, in terms of scheduling and otherwise, not available to other litigants, and thus tends to undermine the courts' image as a place where both sides are treated equally, but it also delays and frustrates achievement of the rights of individuals, such as those seeking social security, who are most in need of a definitive decision. It is simply not acceptable to import into the courts the refusals to reply, the unintelligible answers, the remands from office to office and bureau to bureau, which are unfortunately typical of some government departments.

 Accordingly, the Court denies the government's motion to alter or amend the judgment in Byrd and the motion for a voluntary remand in Yadao. In Byrd, the Court is satisfied that plaintiff has established his claim (see Fed. R. Civ. P. 55(e)) and a default will accordingly be entered. *fn10" The Court will appoint counsel for Yadao to assist that resident of the Philippines in his effort to secure a decision of his claim in this Court.


 For the reasons stated in a Memorandum filed this date, it is this 21st day of December, 1983,

 ORDERED That defendant's motion to alter or amend judgment in Civil Action No. 83-1920 be and it is hereby denied, and it is further

 ORDERED That defendant's motion for voluntary remand in Civil Action No. 83-2312 be and it is hereby denied, and it is further

 ORDERED That defendant shall forthwith make to plaintiff in Civil Action No. 83-1920 the four monthly payments for the period December 1981 through March 1982, and it is further

 ORDERED That a default judgment be and it is hereby entered in favor of plaintiff in Civil Action No. 83-1920, and that defendant be and she is hereby ordered to rescind forthwith the termination of plaintiff's social security payments.

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