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MERLI v. HECKLER

June 7, 1984

Bruce MERLI, Plaintiff,
v.
Margaret M. HECKLER, Secretary of Health and Human Services, Defendant



The opinion of the court was delivered by: SAROKIN

 The Department of Health and Human Services has apparently determined to effect economies by systematically denying disability benefits to those persons who are entitled to them. The evidence (of which the court takes judicial notice) in support of this conclusion is so overwhelming that it cannot be refuted.

 In the six months ending in December 1983, of the appeals taken to this United States District Court from such denials, 56 percent were reversed or remanded. In a survey of ninety-one districts in the nation the percentage reversed or remanded during this same period was 49 percent. *fn1" Since the beginning of 1984 the reversal rate in the Third Circuit Court of Appeals of those cases that were affirmed by district courts has been "about fifty percent." Wier v. Heckler, 734 F.2d 955 at 957 (3d Cir.1984). Such a rate of reversal throughout the land is staggering and paints an undeniable picture of a heartless and indifferent bureaucratic monster destroying the lives of disabled citizens and creating years of agony and anxiety by ignoring both facts and legal precedent. *fn2"

 The callousness demonstrated is particularly revealing when one recognizes the high threshold which the courts must reach before they are permitted to disturb the administrative conclusion on appeal. The courts do not determine whether the decision is correct or incorrect, but merely whether there is substantial evidence to support it. One can envision even a much greater reversal rate if the courts were permitted to conduct a de novo review and decide the matter without reference to the administrative finding.

 Furthermore, it should be noted that in addition to adversely affecting the lives of the petitioners, the systematic denial of benefits and the appeals which inevitably follow, have brought or will bring the courts to a standstill in respect to other litigation. These appeals now make up a staggering 14.6 percent of all of this district's civil business. *fn3" If the trend continues, the court will be unable to attend to its other business or to these appeals which merit careful and considered attention.

 All of the foregoing is particularly relevant to the application for counsel fees now before the court in this matter. Routinely counsel fees are paid by the petitioner out of the award eventually received. The fee is usually 25 percent of the past-due benefits received and may not exceed that amount by statute. *fn4" The effect, of course, is obvious. As a result of this insidious policy of denying benefits in many cases in which they should be granted, petitioners receive far less than they should have received, had the benefits not been wrongfully denied in the first instance. Only due to these abuses by the government agency is this multitude of persons compelled to litigate and pay for such litigation.

 The court is satisfied that one way to stem this tide and alter what has been described as the government's policy of "informal nonacquiescence," is to require the government and not the claimants to pay counsel fees in these matters. Under the present system the government has nothing to lose by putting these persons through the agony of the appellate process even if it must ultimately pay the benefits found to be due. Hopefully, by imposing counsel fees on the government, this cruel and inhumane policy and the blatant contempt for judicial decisions will end.

 The court also reminds counsel for the government of their obligation under Rule 11, which provides:

 
Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading, motion, or other paper and state his address. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The rule in equity that the averments of an answer under oath must be overcome by the testimony of two witnesses or of one witness sustained by corroborating circumstances is abolished. The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.

 With few exceptions, counsel for the government defend and support the agency's determinations. It is inconceivable to the court that there are not many instances in which government counsel could and should consent to a reversal or remand. The rubber stamp approval does not comport with their obligation to the court as attorneys or their duty as counsel for the United States.

 In this case plaintiff Bruce Merli applies for an award of counsel fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. ยง 2412. Plaintiff brought this civil action to challenge the decision of the Secretary of Health and Human Services (the Secretary) terminating his disability benefits. The court, in an opinion filed on February 23, 1984, granted summary judgment to the plaintiff and against the Secretary. By order of February 23 the matter was remanded to the Secretary for the continuation of disability benefits. This application was timely filed on March 23, 1984.

 Plaintiff was awarded disability benefits beginning on June 3, 1968, primarily due to residuals of injuries received as a soldier in Viet Nam. On that date plaintiff was shot in the head. Hospitalizations and surgery followed. He was honorably discharged from the Army in 1968 with a permanent service-connected disability of 100 percent. The wound resulted in significant brain damage manifested by inability to understand and use language, difficulty in reading and writing, muscular weakness affecting the left side of the body, memory impairment and defective vision. The Secretary later reviewed the case and determined that plaintiff's condition had improved sufficiently to allow him to engage in employment. This court reversed, finding no substantial evidence to support that conclusion.

 The EAJA provides, in pertinent part:

 
. . . a court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action . . . brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States ...

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