Connecticut ALJ Burlison - recusal problems

Charles Pirro · Joined: 11 Jun 2004 Posts: 3 Location: Norwalk, CT

Hello:

I am looking for assistance in trying to get an ALJ to recuse herself, or to get SSA to remove her from my future cases.

I am in Connecticut, in the Second Circuit. ALJ Eileen Burlison was transferred a couple of years ago to the New Haven, CT ODAR. I believe that she was previously in Chicago (and many other ODARs). She has been engaging in behaviors that are reprehensible, including locking my former associate, Karen Tobin, out of a hearing and proceeding to question the claimant on the record, refusing to cancel a hearing during a 7 inch snowfall when neither the client nor Ms. Tobin could get to ODAR, and insulting clients, spouses, and Ms. Tobin during hearings. Ms. Tobin filed several administrative complaints against ALJ Burlison. One resulted in a letter from the RCALJ finding that ALJ Burlison had engaged in misconduct. The others are pending. Ms Tobin met with the RCALJ in Boston on unrelated matters, but also discussed ALJ Burlison,after which the RCALJ removed her from the New Haven HOCALJ position, which, I believe, resulted in a loss of extra income. ALJ Burlison has denied the claim of every client represented by this office which was assigned to her and which has gone to a hearing and decision.

After filing the grievances, we asked ALJ Burlison to recuse herself from all cases of clients represented by my office until the complaints are resolved, but she has refused. We claim that she presents the appearance of impropriety and unfairness, and has the opportunity to retaliate against the claimants and their representatives, which deprives the claimants of a fair hearing. Both the clients and the representatives made these requests. We asked the HOCALJ, RCALJ, and various assistants to Astrue to reassign ALJ Burlison's cases to other ALJs, and they have all refused. There are four other ALJs in the New Haven ODAR, so the cases could easily be reassigned.

We filed suit in District Court against ALJ Burlison, and Commissioner Astrue, asking the Court to order ALJ Burlison to recuse herself, or to order the Commissioner to remove her from our cases and reassign our cases to other ALJs. We claimed jurisdiction under the SS Act, and under the Mandamus Act, 28 USC Sec. 1361. We argued that claimants have a right to an initial Hearing before an ALJ who appears unbiased and deprivation of that right is not corrected by a right to appeal, that we are raising issues which are separate from the claim of disability, and that clients will be irreparably harmed if they are forced to wait five to seven years to appeal to the AC, have the case remanded to ALJ Burlison, lose, appeal again, and finally be remanded to a different ALJ who appears to be unbiased. The Commissioner moved to dismiss, for failure to exhaust administrative remedies.

After a lengthy conference today with the Judge (Alvin Thompson), AUSA and OGC, the Judge said that he would grant the Motion to Dismiss, with leave to re-plead. The Judge said that under the case law he has read, there are only two instances in which exhaustion is excused: if the ALJ is biased against all claimants and not just a subset of them, or if the plaintiff is challenging SS procedures which the Commissioner lacks authority to change or which are defective. The Judge said, first, that there is no Mandamus jurisdiction because recusal is discretionary. That is, the ALJ herself has discretion to decide on recusing herself, and the Commissioner also has discretion to decide whether or not to remove a case to the AC, or assign a case to a different ALJ. Second, the Judge said that there is no SS Act jurisdiction because there are procedures for challenging an ALJ through a bias complaint which is a separate proceeding, or through appealing an unfavorable decision to the AC, and we are not challenging those procedures.

Does anyone have experience with trying to remove an ALJ, or have any thoughts or suggestions on how to reformulate the complaint to survive another Motion to Dismiss?

Thank you.

Charles Pirro
Pirro & Church
50 Washington Street - Fourth Floor
P.O.Box 844
South Norwalk, CT 06856-0844
203-853-4999
203-853-9429 (fax)
charles[at]pirrochurch.norwalk.ct.us

Knightly · Joined: 20 Aug 2008 Posts: 3

Depending on the facts, a Rehabilitation Act claim might get you around some of the problems mentioned. My understanding is that the SSA is subject to the anti-discrimination and anti-retaliation portions of the Rehabiliation Act. I would think that locking a disabled person's attorney out of a hearing and not cancelling a hearng in a 7 inch snowstorm may qualify as disability discrimination, particularly in the area of program access for the person with a disability. Retailiating against an attorney who objected to such disability discrimination might be impermissible retailiation under the same law, which (if I recall correctly) prohibits discrimination against those associated with people with disabilites. You could sue the ALJ directly and the SSA under federal law (Rehab Act), making it a federal question and perhaps overcoming some procedural and substantive barriers that exist in your declaratory judgment/mandamus action. Check out what the Rehab Act has to offer here.

Insider (Ret) · Posted: Thu Aug 28, 2008 12:23 am Post subject:

And don't forget that tried and true approach, namely, exhaust administrative remedies. Yes, you think that's fruitless. But some courts--and this seems to be one--take this requirement rather seriously.