In the Freismuth decision (E.D. Wis) [PDF], , District Judge Stadmueller began his decision with a German Proverb and moved quickly to strong criticsim of the U.S. Attorney's office and SSA's handling of cases in his court.
Judge Stadtmueller discussed the flawed administrative process, in which the U.S. Attorney submitted the briefs of the Social Security Administration to the Court "without any serious independent legal analysis or thoughtful review." The Judge found this to be a ". . . hardly an effective strategy to defend the indefensible." To emphasize his point, Judge Stadtmueller undertook a review of the costs, both fiscal and human, exacerbated by the failures of the Social Security Administration and the U.S. Attorney's office.
In a scheduling hearing held in other cases on March 13, 2013, Judge Stadtmueller upped the force of his warnings to the U.S. Attorney and the Social Security Administration. In particular, he explained to the Assistant U.S. Attorney:
. . . I am hopeful that we can avoid having to put together a 30- or 40-page decision in every one of these cases along with a concluding paragraph of sanctions. And the sanctions will be on a sliding scale, that is, it will probably be 3 to $400 the first time, but then it will get all the way up to disbarment"
Full transcript below, click on the "Read More" bar.
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1 P R O C E E D I N G S (7:36 a.m.)
2 THE CLERK: The court calls Shirley Mae Nash vs.
3 Carolyn W. Colvin, Case No. 13-CV-64, Nicholas Thompson vs.
4 Carolyn W. Colvin, Case No. 13-CV-76, and Willie Mae Curvin vs.
5 Carolyn W. Colvin, Case No. 13-CV-123, all for scheduling
6 conferences.
7 May I have the appearances, beginning with the
8 plaintiffs?
9 MR. TRAVER: Plaintiffs Curvin, Thompson and Nash
10 appear by attorney David Traver, Traver & Traver SC. Eagle,
11 Wisconsin.
12 MR. PAWLAK: The defendant appears by assistant United
13 States attorney Brian Pawlak. Good morning, Your Honor.
14 THE COURT: Thank you. Good morning, Mr. Traver, and
15 good morning to you, Mr. Pawlak. I believe that we have one
16 other appearance this morning from the Office of General
17 Counsel, or not?
18 THE CLERK: We lost that call as well.
19 THE COURT: All right. Well, obviously there are some
20 technical difficulties that preclude their participation this
21 morning, which is unfortunate because my thought today is to
22 begin a dialog in a very direct way since the court's earlier
23 efforts through our chief judge to try to bring some meaningful
24 closure to the very wide chasm that exists between the manner in
25 which these cases are being processed both at the administrative
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1 level and, most regrettably, in terms of what has occurred not
2 only in this branch but other branches of the court, left the
3 court with no alternative other than to address these matters
4 very thoroughly in the Freismuth decision about six weeks ago.
5 And as a prelude to that decision, this branch of the
6 court, and I believe Judge Griesbach in Green Bay as well,
7 reached out to Judge Clevert about a year ago. And I was not
8 part of any meetings between Judge Clevert and the U.S. Attorney
9 and his first assistant, but I am advised that there were
10 several. Nothing of any significance bore fruit as a result of
11 those discussions.
12 And at the end of July of last year I submitted a
13 memorandum to Judge Clevert, along with the makings of many of
14 the statistics that found their way into the appendix in the
15 Freismuth decision. And although the memorandum was addressed
16 to Judge Clevert, my staff personally made a copy of it
17 available to the U.S. Attorney and his first assistant, and yet
18 another six months went by with no meaningful change in the
19 manner in which these cases were being processed.
20 And as a result of where we are today, I'm curious,
21 beginning with you, Mr. Pawlak, where you see these cases going.
22 MR. PAWLAK: Well, Your Honor, basically all I can do
23 is address the three cases which are before the Court this
24 morning. And we've attempted to -- Mr. Traver and I have met
25 and discussed these cases and attempted to I think alleviate
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1 perhaps some of the concerns the Court has. Obviously we have
2 very little power to control what goes on in the administrative
3 process, so I really can't speak to that.
4 Here, Your Honor, in these particular cases, we've
5 come up with a general plan which we think could alleviate some
6 of those concerns in terms of meeting and conferring. And I'll
7 try to do the same in all the other cases that I have authority
8 or any type of role in. But I am not in a position, Your Honor,
9 to talk to this Court about the failings of the administrative
10 process, or the difficulties that plague Social Security at
11 large in their vast bureaucracy. That's just not within my
12 bailiwick.
13 THE COURT: Well, to the extent that you have some
14 thoughts about these specific cases I'll be happy to hear you.
15 But if you did not glean from the Court's January 31st decision
16 in the Freismuth case, the dysfunctionality that we're talking
17 about, Mr. Pawlak and this is by no means meant to disparage
18 you or criticize you on a personal level that dysfunctionality
19 has carried right up to and including filings in this court and
20 the other branches of the court. And that's where the rubber
21 hits the road.
22 Because, to follow up on the Court's last comment in
23 the decision, if we're going to see briefs like we saw in the
24 Freismuth case, which you personally sign off on as an officer
25 of the court, you're going to find yourself in deep, deep, deep
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1 trouble, not only with the Court and your ability to practice
2 law, but there are going to be financial sanctions that are
3 going to follow. And if you and your colleagues in the U.S.
4 Attorney's Office and at the Office of the Regional Counsel
5 haven't picked up on that, you better do so forthwith, because
6 the days of waltzing around in a baby carriage are long, long
7 gone. We've tried that and it didn't work.
8 I appreciate you have no control over what the appeals
9 counsel does or what the Commissioner does and how the
10 administrative law judges are being trained and how they are
11 handling these cases, but when they come into court it's an
12 entirely different situation. And that's what we're here to
13 talk about today.
14 And I am heartened to hear you say "perhaps there
15 ought to be a meet-and-confer," and I appreciate that thought.
16 But on the other hand, if we go back to the administrative
17 process, to be sure it's not an adversarial process. There
18 isn't counsel representing these claimants. And it's only when
19 the David Travers of the world become involved that they begin
20 to focus on what the real issues are in these cases and where
21 the administrative process has so become deeply, deeply flawed.
22 And so with the benefit of the administrative record
23 and a meet-and-confer, I am hopeful that we can avoid having to
24 put together a 30- or 40-page decision in every one of these
25 cases along with a concluding paragraph of sanctions. And the
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1 sanctions will be on a sliding scale, that is, it will probably
2 be 3 to $400 the first time, but then it will get all the way up
3 to disbarment.
4 And so somebody needs to really put the shoulder to
5 the wheel to get to the bottom of why it is these memoranda come
6 in at 4:30 and are filed at 5:00 o'clock with a signature of an
7 assistant U.S. attorney who may never have had the opportunity
8 to really drill down and address both the factual and legal
9 analysis that have been put together by third parties. But
10 you're signing off on these and you're the first person that's
11 going to be held accountable. And to that extent, it better be
12 in your interest to develop a little better protocol in terms of
13 the timeliness of these materials being submitted to you for
14 your review so that when they are filed with the court you can
15 rest assured that they have been meaningfully reviewed and
16 appropriately addressed. That's what this is all about.
17 MR. PAWLAK: Specifically, Your Honor, in regard to
18 that concern, we are trying to adapt our protocols in that
19 regard. We are trying to attempt to have the OGC provide those
20 briefs to us with more of a lead time so that we can provide a
21 more substantive review.
22 We've also, specifically for these cases before the
23 Court today, Mr. Traver and I have discussed a protocol to try
24 and do in-depth review of those cases early which was I think
25 something that has been missing for many of these cases.
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1 THE COURT: Well, that's honestly what Judge Clevert
2 tried a year ago, and here we are a year later and we're still
3 talking about trying. It's going to be done or there -- as I
4 say, there are going to be serious, serious consequences.
5 And just like the responsibility that an Article III
6 judge has in sentencing a defendant, it's something that I take
7 no great pleasure in, and I take no great pleasure in having to
8 sanction a lawyer or preclude him or her from appearing in
9 court.
10 So I guess the message is, again, while the Court is
11 heartened to hear that somebody is trying to get really serious
12 about this, I want you to know today that if it doesn't change
13 in the immediate future there are going to be sanctions. And I
14 could not make the point more directly than telling you face to
15 face.
16 Mr. Traver, do you have anything more you'd like to
17 add on the entirety of this subject?
18 MR. TRAVER: Yes, Your Honor. I thought I would get
19 to some of the specifics about what Attorney Pawlak and I had
20 talked to you about scheduling.
21 THE COURT: Certainly.
22 MR. TRAVER: I have had the honor of practicing in
23 some other districts and, for example, in the Western District
24 of Wisconsin there's no scheduling orders issued. It happens
25 automatically based on the normal course of action of the case.
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1 In a case like this the government because the Rules
2 of Civil Procedure has 60 days to file an answer from the time
3 of service. So our theory would be that even without the Court
4 issuing an order that the government would file an answer within
5 60 days, file the transcript within 60 days, and that would
6 trigger an automatic schedule. The automatic schedule would be
7 that the parties would have 15 days to meet and confer. And we
8 would send a letter to the Court saying simply that we've met
9 and conferred.
10 And then, 60 days after the filing of the transcript
11 plaintiff's brief would be due. That 60 days would give the
12 Commissioner all the time that she would need to consult with
13 the appeals counsel in Arlington, Virginia and do whatever she
14 needed to do to get back to plaintiff to say in a timely fashion
15 you have to write your brief or you don't have to write your
16 brief because we're going to settle this case. And then 60 days
17 after plaintiff files her brief then the government would be
18 required to file the government's brief.
19 One of the problems we've noticed is that there's been
20 a continuous flow of requests for extensions of time. And one
21 of the quid pro quos for this would be that giving that
22 additional 60 days to the government to file their answer -- or
23 file their responsive brief would be -- the rule that would go
24 along with that is that only in extraordinary circumstances
25 would they be given an extension of time.
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1 THE COURT: Well, in this branch of the court there is
2 no such thing as an extraordinary circumstance in these cases.
3 Regrettably, Freismuth is just one anecdotal example of that.
4 This poor applicant applied for benefits, as I recall, all the
5 way back in 2004-2005. It went up, it got reversed, another
6 hearing. I mean, and that's the other real tragedy in these
7 cases is, no matter what the Court does or no matter what
8 Mr. Pawlak and the regional counsel do, it doesn't ensure that
9 the applicant is going to get his or her benefits.
10 This is just another bureaucratic hurdle that has to
11 be overcome. And it comes at great expense not only in terms of
12 anxiety and frustration, but the economics of it. I mean, in
13 this district alone we've paid out over $1,300,000 in attorneys
14 fees. And I'm not suggesting that they're not deserved but,
15 doggone it, at the end of the day when one case after another
16 has failed through the entirety of the process, something is
17 deadly, deadly wrong.
18 MR. TRAVER: Well, Your Honor, you're not going to get
19 any argument against that point of view from me. I have been in
20 that situation and I have had cases that have come through
21 district court three times with the same result and the same
22 result. One recently was Judge Clevert just at the end of the
23 process just awarded benefits to put an end to it.
24 Plaintiffs all over the country feel that. And the
25 most that I could do at this point is be a zealous advocate for
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1 my clients one at a time. And with regard to these three cases
2 our goal is to provide a mechanism for the Court so that it
3 minimizes the Court's involvement with scheduling and those
4 details.
5 And my understanding in talking with Attorney Pawlak
6 is that he's certainly making a good faith effort to resolve
7 these cases. But both he and I are powerless over what happens
8 in Arlington, Virginia where the thumbs up or thumbs down goes
9 on our requests for consideration of the case.
10 So that puts all of us in a bind. And there's places
11 where I have some capacity to make a change and some where I
12 don't. And I think we're -- the proposal to have an automatic
13 briefing letter that's just generated in every case with the
14 answer 60, 60, 30 -- or 60, 60, 15, you know, for the briefing
15 schedule, with a 15-day meet-and-confer after the answer and the
16 transcript are filed, I think would be a good solution from
17 whatever I can offer from it.
18 I've written a book about this stuff. I've lectured
19 about it to attorneys. I've wrote letters to the Commissioner.
20 I've done everything I can on a political side and from the
21 standpoint of educating attorneys. But like I said, both
22 Attorney Pawlak and I are powerless over the Commissioner. And
23 I think that's where the real focus needs to be, but that's a
24 political thing that I can't do.
25 THE COURT: Certainly. Well, again, I appreciate
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1 that. But what Mr. Pawlak is powerful over is what is filed
2 with the Court. And that's what we're here about. I'm not here
3 to play legislator or the Attorney General of the United States
4 who obviously has his head in the sand over this because nothing
5 has occurred. If I were in Eric Holder's office I would be over
6 at the Secretary of Health and Human Services' office in less
7 than a New York minute asking that they get serious about this,
8 or I would go to Congress and asked to be relieved from any
9 further representation of the agency because of its inability to
10 conform its conduct to what is required as an administrative
11 agency.
12 But, of course, none of that has occurred. And I'm
13 not in the legislature and I'm not the Attorney General. But I
14 did spend 16 1/2 years of my career in the United States
15 Attorney's Office, both as an assistant and as the United States
16 Attorney, and we did not have these problems 25 years ago. Yes,
17 there were a lot fewer cases, a lot fewer applicants, but the
18 agency has simply not kept up with the times. And if they
19 cannot make their case before Congress on getting the
20 appropriate talent to serve as administrative law judges, and
21 cannot get appropriate funding to handle the administrative
22 processing of these claims, then obviously they have an awful
23 lot to learn about effective strategy in achieving those goals.
24 Because as I've repeatedly said this morning, they're going to
25 come at very, very, very steep prices to the people who are
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1 representing that agency in the courtroom.
2 So to bring the matter to conclusion, I would welcome
3 you and Mr. Pawlak putting together a scheduling order along the
4 lines that you have outlined, and the Court will be happy to
5 endorse it. But we're not going to be sending out briefing
6 letters anymore. Those days in this branch of the court are
7 gone. What my colleagues do in other branches, I think they,
8 like Mr. Pawlak, are looking at what Judge Stadtmueller does,
9 and we're trying to bring some meaningful change that is
10 effective in adjudicating these cases as appropriate and most
11 assuredly in a timely manner.
12 Mr. Pawlak, anything more you want to add?
13 MR. PAWLAK: Just one point. I believe Mr. Traver
14 misspoke when he said answer. Obviously we're not -- in this
15 court, in the Eastern District, we don't file answers pursuant
16 to the standard operating rules. That may change in the future,
17 but at this point we will still not be filing answers.
18 THE COURT: Well, whatever it is going to take to get
19 the cases in a posture that there is meaningful submissions that
20 will allow the Court to adjudicate the case, that's what this is
21 all about in the end. But when we're furnished materials that
22 are at best described as obfuscatory, the matter just results in
23 unnecessary devotion of resources for my staff and myself to go
24 on these archaeological digs to find things that may or may not
25 be there.
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1 And I also appreciate that in the Seventh Circuit it's
2 a little different than the other circuits. But it's abundantly
3 clear that there are a number of these cases in which the
4 administrative findings, ostensibly by an administrative law
5 judge, are not even being written by the administrative law
6 judge but rather a ghostwriter who may be some third party who
7 wasn't at the hearing, doesn't have all of the facts, and
8 certainly is not in a position to make credibility
9 determinations.
10 Second and equally important, there are far too many
11 administrative law judges who are not conversant in Seventh
12 Circuit law. And they may be pulled in from other areas of the
13 country. And until there is some closure on that simple fact
14 we're going to continue to be inundated with erroneous
15 submissions perhaps not by the U.S. Attorney, but certainly
16 from the administrative law judges' work product.
17 And layered on top of all of this, of course, is a set
18 of regulations that for whatever reason the Social Security
19 Administration as an entity has totally unmitigatedly put its
20 head in the sand to try to come to some meaningful assessment of
21 what ought to be there so that administrative law judges are not
22 left in the lurch about what is the logical bridge, what the
23 components are, et cetera, et cetera. And you don't need to be
24 a rocket scientist to figure all of this out.
25 And why it is that these sorts of approaches continue
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1 to find their way into the submissions from the regional counsel
2 endorsed by the U.S. Attorney is simply unacceptable. And
3 that's Judge Stadtmueller's message. And if the message is
4 heeded to, we will turn an entirely new page, at least in this
5 branch of the court, on how these cases are going to be
6 processed.
7 And so, in spite of my abundance of criticism this
8 morning, I want everyone to understand that together we can
9 accomplish a goal. But if we're going to continue on the
10 separate paths of obfuscation and the likes of that sort of
11 approach, we're going to be in big trouble.
12 The Court stands in recess for three minutes.
13 THE BAILIFF: All rise.
14 (Proceedings concluded at 8:00 a.m.)
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1 UNITED STATES DISTRICT COURT
2 EASTERN DISTRICT OF WISCONSIN
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4 I, JOHN T. SCHINDHELM, RMR, CRR, Official Court
5 Reporter for the United States District Court, Eastern District
6 of Wisconsin, do hereby certify that I reported the foregoing
7 proceedings, and that the same is true and correct in accordance
8 with my original machine shorthand notes taken at said time and
9 place.
10 Dated this 14th day of March, 2013
11 Milwaukee, Wisconsin.
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