Wednesday, April 9, 2008

Office of Disability Adjudication and Review

17^th Floor ODS Tower

601 SW Second Avenue

Portland OR 97204-9701

Disqualify as administrative law judge
in my matter

I hereby make a motion to disqualify Dan R. Hyatt R. Hyatt and to recuse him from hearing my case because of Dan Hyatt's extra-judicial bias against me.

As is my Constitutional Right, I am represented by legal counsel and after review of many attorney qualifications in the Oregon and Washington State area I determined that my interests are best served by using the legal services of attorney Daniel Alan Bernath. I thereafter retained the services of attorney Daniel Alan Bernath.

Dan R. Hyatt R. Hyatt is a racist. “Dan R. Hyatt R. Hyatt stated to my spouse and I that he had a problem with interracial marriage and he made no attempt to hide his contempt for us…he spoke to us as if we were common trash” I do not share his extra-judicial racist views. My lawyer of choice, Daniel Alan Bernath has a Chinese wife and their daughter is half European and Chinese ancestry. I am entitled to an administrative law judge who is not a racist.


I am a handicapped and impaired person. Dan R. Hyatt R. Hyatt is biased against handicapped and impaired persons as he has stated that he will have my attorney Daniel Alan Bernath, a handicapped Vietnam War Veteran rating at 90% service connected disability, “thrown out” of a hearing because he was not moving fast enough and mocked impaired attorney Bernath by stating, “Yeah, yeah, you’ve got lots of impairments…” (or words to that effect). has done these outrageous things to discourage my attorney of choice, Daniel Bernath, from appearing before him thereby denying me my Constitutional right to counsel of my choice.


Dan R. Hyatt R. Hyatt has already stated that he is too biased against my attorney of choice, Daniel Bernath to hear a case that he prosecutes because of ’s personal relationship with my attorney, because of Bernath’s former work with and for Dan R. Hyatt R. Hyatt , because of Bernath’s advertising and for false rumors that has heard about my attorney. Dan R. Hyatt R. Hyatt recused himself from the Barry Moody matter after questioning Bernath about these matters stating he had to determine “if I can hear this case with you as the attorney” or words to that effect. then closed the hearing and thereafter within hours determined that HE COULD NOT hear the case because he was extra-judicially biased against claimant because he had chosen Daniel Bernath as his attorney. The matter was quickly decided by another administrative law judge. Nothing has changed since declared himself too biased because of extra judicial factors to hear a case where the claimant chooses Daniel Bernath as his attorney so therefore he should be recused from this case as well.



I am entitled to a judge who will not decide against me because he is jealous or wants to hurt my attorney of choice.
Dan R. Hyatt R. Hyatt has vowed to;
(a) put my attorney Daniel A. Bernath out of business, to block him from conducting any hearings before him by “continuing the hearings five times if I want to“, (or words to that effect). This of course is to force me to fire my attorney of choice or simply to dismiss my application for disability as Dan R. Hyatt R. Hyatt vows to increase my wait for benefits by an additional 3 years at 6 months per continuance
(b) to increase the cost of attorney time by demanding that Bernath write a bar review quality brief and put “hours and hours” into research,
(c) and if Bernath does get a Favorable decision to order he paid only “$100 per case” in attorney fees and/or to order Bernath be paid nothing in attorney fees ( has done this two times so far) thus encouraging my attorney to withdraw from my case ( want my attorney to be paid 25% of my past due benefits as per my agreement with him),
(d) consistently telling claimants that Bernath is “the worst attorney” or “a bad attorney” to encourage myself and other claimants to fire Bernath to either go unrepresented and/or to hire a less effective attorney at law thus depriving me of my Constitutional right to the counsel of my choice.

(e) Dan Hyatt stated on the record that he could not conduct a hearing when Dan Bernath is the attorney and that "it would be fair to you I (the claimant)" and therefore was recusing himself.  A year earlier he said, "I have to determine if I have to recuse myself from a hearing where Dan Bernath is the attorney", thereafter he recused himself from that hearing.

Dan R. Hyatt R. Hyatt is attempting to have me appear before the Agency without my chosen legal counsel, Daniel Alan Bernath or to terminate the services of effective counsel Bernath and replace him with legal counsel who will fail to do his duty to vigorously prosecute my application.

Dan R. Hyatt R. Hyatt exhibits such bias against my attorney of choice by constantly berating him and questioning his competence in front of me and other clients that it is a degree of bias that does not permit me to have a full and fair hearing



I am entitled to have a judge who will permit me my Constitutional Right to Due Process of Law, to have an attorney present and objecting to improper questions by the judge. Dan R. Hyatt R. Hyatt seeks to prevent my attorney Daniel A. Bernath from protecting me before the Social Security Administration by stopping a hearing if attorney Bernath protects my Constitutional right to Due Process, if my attorney makes any objection (or speaks at all) to even the most egregious question by ( has demanded information relayed in a confidential attorney-client communication, asks leading questions and questions that assume facts not in evidence.),



Dan R. Hyatt R. Hyatt seeks to prevent my attorney Daniel A. Bernath from asking any questions on my behalf by stating “don’t ask any questions, you’ll just screw things up” when my attorney attempts to question me to clear up ambiguous questions asked by and to ask crucial questions of the Vocational Expert regarding whether I can do my previous work or other work in significant numbers in the local and/or national economy,


Dan R. Hyatt R. Hyatt violates Social Security regulations and Constitutional Due Process of Law by setting an “anti-claimant” standard to deciding a disability case if the attorney is not “docile counsel”. The US Constitution requires that Dan R. Hyatt R. Hyatt follow the law and not have a second unlawful standard because claimant retains the services of an attorney that Dan R. Hyatt R. Hyatt “doesn’t like.” Dan R. Hyatt R. Hyatt has stated that my attorney Daniel Bernath is an attorney he “doesn’t like” and thus he Dan R. Hyatt R. Hyatt will disregard Social Security regulation when deciding my case.



Dan R. Hyatt R. Hyatt has revealed and compromised the secret Social Security number of a claimant by mailing the Social Security number and private medical information of claimant Barry Moody across state lines, according to the complaint to the Oregon Bar of 3.16.2008. I do not wish for my private medical information and secret Social Security number to be handled in such a cavalier or malicious fashion because I have exercised my Constitutional right to be represented by the attorney of my choice,



Dan R. Hyatt R. Hyatt was ALJ in a case where my attorney Daniel Alan Bernath was the representative. The other claimant had mental issues. Dan R. Hyatt R. Hyatt wrote an unfavorable decision denying benefits to this claimant and that Notice was served on the mentally disabled claimant. It was not served on his attorney at law who needed the Notice to appeal the erroneous decision to the Appeal Council. I am entitled to Notice of any Favorable, Unfavorable or Partially Favorable decision be sent to my legal representation so that he may take appropriate action on my behalf. Historically, when Dan R. Hyatt R. Hyatt is the ALJ in a case there is no guarantee that will happen.



Federal Magistrate Judge Janice M. Steward has stated in CV 02-254-ST that Dan R. Hyatt R. Hyatt has lied regarding evidence and that Dan R. Hyatt R. Hyatt has taken evidence out of context and thus misrepresented the evidence (Findings and Recommendations, pgs 12 -14). The federal judge also stated that Dan R. Hyatt R. Hyatt improperly rejected claimant’s testimony, and improperly ignored opinions from treating medical doctors.
In another federal case, CN 01-1687-JE, the federal Magistrate Judge ruled that Dan R. Hyatt R. Hyatt had engaged in misrepresentation (lied). The Court held, "a careful review of the record fully supports plaintiff's assertion that Dan R. Hyatt R. Hyatt misrepresented (lied about) plaintiff's description of her daily activities and mischaracterized (lied about) evidence in the record..." (Findings and Recommendation dated 8.4.04 at page 23.)
Social Security agreed to fine itself nearly $1,500 because of the misrepresentations and other bad acts of Dan R. Hyatt R. Hyatt . Dan R. Hyatt R. Hyatt has been termed a “bald faced liar” in an appellate brief before the US Ninth Circuit. Lowry v. et al. 329 F.3d 1019 (9^th Cir. 2003) I am entitled to a unbiased decision maker for my social security application and not someone who will lie about the evidence, ignore controlling evidence and improperly reject my testimony when rendering a decision.


Dan R. Hyatt R. Hyatt , according to the appellant brief in Lowry v. et al. 329 F.3d 1019 (9^th Cir. 2003), uses intimidation, anger, and verbal abuse against claimants and will make my hearing adversarial. I am entitled to a non-adversarial hearing.


I am entitled to an ALJ who knows Social Security regulations. Dan R. Hyatt R. Hyatt does not know the law or regulation and/or refuses to apply them. Dan R. Hyatt R. Hyatt admitted that he does not know Social Security regulation, won’t look it up and doesn’t know where to find them. (appellant brief in Lowry v. et al. 329 F.3d 1019 (9^th Cir. 2003) page 9, paragraph 3, page 10 para. 2 )

Respectfully,

Claimant

I was a legal assistant/clerk for Administrative Law Judge Dan R. Hyatt R. Hyatt and the other ALJs at the Office of Hearings and Appeals in Portland Oregon.


I am also an attorney at law but had voluntarily gone on inactive status as I wanted to fulfill my desire to become a full time professional photographer http://www.ASpecialDayGuide.com after reaching a degree of success as an attorney at law in Southern California from 1984 to 1994.


Thereafter, with the collapse of the photography business with the advent of digital cameras and after the attack on our nation on September 11, 2001, I joined the US Department of Homeland Security and for about 2 years acted as a Transportation Security Administration Officer searching for improvised explosive devises (bombs) at Portland International Airport.


I saw that Social Security was in need of judge’ assistants and felt that I had served my country enough in the dangerous job of searching for bombs so I applied and was hired by OHA.


Some coworkers and supervisors and ALJs thought that I was over-qualified to be a clerk/legal assistant because of my education, experience and energy so they urged me to look into becoming an Administrative Law Judge. ALJ Schloss gave me the “ALJ Handbook” that outlined the process, the veterans preference, etc. Judge Dan R. Hyatt R. Hyatt told me he would counsel me as well to become an administrative law judge.


Shortly after that Dan R. Hyatt R. Hyatt stated that he would help me become an administrative law judge, Dan R. Hyatt R. Hyatt ’s original application for the job of administrative law judge was on my desk, apparently placed there by Dan R. Hyatt R. Hyatt for me to review and gain some tips on how to write my own application using his successful application as a guide. I was quite pleased that Dan R. Hyatt R. Hyatt was assisting me as I looked up to him, admired him and saw him as a father figure and a great U.S. Navy hero with his being awarded the Bronze Star for her service during the Vietnam War.


I was already a clerk/legal assistant to Dan R. Hyatt R. Hyatt but continues to maintain that I was not. I recall specifically meeting with Dan R. Hyatt R. Hyatt about adding exhibits to the files in his office, drafting notices on his behalf and drafting correspondence on his behalf. I vividly remember his office. As I am a professional photographer I noticed the professional grade 11x14 color photograph of ’s wife on the hallway-side wall. I told him that I knew the location as I photographed many weddings there; it was photographed at the Washington County Park at the Jenkins Estate and told him that as a professional photographer in my opinion it was a good picture but I would have had his wife/model tilt her head as that is called the “feminine head tilt” and a common technique used by professional photographers. I worked in his office adding exhibits as a senior attorney came in for a conference regarding a case that was either already decided or was a potential OTR. Dan R. Hyatt R. Hyatt ’s office is unusual because he has his computer screen facing the wall whereby all other ALJs have their desks and computer screens facing the door and not toward the wall. also has many files piled on the floor of his office and requires much care to not knock over the stacks of files while walking there or searching for files to add exhibits, etc.


also has a couch in his office next to the photo of his wife against the hallway side wall. This is also unusual as I don’t recall any other ALJ having a couch in their office. Indeed, his furniture appears to be from his former law office and he merely brought it to OHA once he was hired as an ALJ.


Dan R. Hyatt R. Hyatt had one to two long personal conversations with me about my becoming an administrative law judge. He told me that the list was frozen by litigation and that they were “scrapping the bottom of the barrel” for ALJs at this point. was awarded the Bronze Star for his service in the US Navy during the Vietnam War. I commented that I also had served in-country Vietnam at the same time and perhaps the same place as he in the combat zone and he stated that “Yeah, but you probably had a movie and ice cream every night.” I laughed and agreed that I did as I spent most nights on an aircraft carrier.


I joked that my service gave me a five point preference for ALJ and it didn’t seem fair that he got only a five point preference even though he was awarded the Bronze Start. (He displays the citation for the Bronze Star on the same wall as the picture of his wife. As I am 90% service connected disabled I now receive a ten point preference should I decide to become an administrative law judge). We were both Petty Officers in the US Navy but I was a E5 Second Class Petty Officer and Dan R. Hyatt did not reach that level. We reminisced and joked about the US Navy and our service. (When the Blue Angels came to perform at Hillsboro Oregon, I sent Dan R. Hyatt an email telling him that there was a special area set up for veterans who could view the Blue Angels for free and get a free lunch too.)


Dan R. Hyatt gave me the phone number of the person in charge of the selections of administrative law judges and wrote it on a small piece of paper that had his name printed on it. urged me to call.


schooled me in the process to successfully apply for the job as administrative law judge and told me that it involved taking a test regarding civil procedure and that there was “no way to study for it” but it was like a small bar exam. He said that the people charged with investigation will call all of the people that I list as references and opposition counsel so he counseled me to be very accurate in my application.


I told that I had been a judge pro tem and arbitrator in the Los Angeles Superior Court, Municipal Court and Culver City Judicial District and he said, “Oh boy, they’ll eat that up!”


Dan R. Hyatt always said encouraging things to me to have me become an administrative law judge and it appeared that he wanted to be my mentor in this regard.


Dan R. Hyatt always had a cup of tea at 2 pm approximately. The lunch room is at nearly the opposite end of the OHA (now ODAR) and many times he would be walking rapidly toward his office with his hot cup of tea in front of him with the tea bag tab laying out over the side. Many times I’d be working in the aisle and we would do a little dodge of each other and we would laugh as he would scurry back to his office for his daily afternoon cup of tea as he held his hot brewing tea in front of him as he rapidly returned to his office.


My wife had a Chinese New Year party. I invited many of my co-workers from OHA to that party including my friend and mentor Dan R. Hyatt . Many co-workers from OHA including from the Social Security judiciary came to that Chinese New Year party at my home although I don‘t recall that Dan R. Hyatt made it. I remember going into his office and placing the invitation in front of his computer monitor.

Dan R. Hyatt did not come to my wives and my Chinese New Year party because Dan R. Hyatt is a racist. I have a Chinese wife and our daughter is half European and Chinese ancestry. Dan R. Hyatt feels racially superior to people not of European ancestry and “has a problem with interracial couples“, such as myself and my wife.


My wife was raised in Thailand and we went there for a month or so to visit with her friends and relatives. While there I purchased a souvenir from Thailand in the form of a broach with rhinestones that I saw the local women wear. When I came back I have Dan R. Hyatt that gift with the hopes that he would give it to his lovely wife.


I outline all these things to detail the familial extra-judicial relationship between Dan R. Hyatt and myself.


I then decided than rather than become an administrative law judge that I could be of more service by become an active attorney at law again and representing people before the US Department of Homeland Security and claimants before the Social Security Administration. I am a 90% disabled US Navy service connected veteran. As such I have a 10 point preference. If I applied it is very likely I would be appointed to the position of administrative law judge. I instead decided I can be of more use as an active attorney at law again. As such, it might appear that I rejected the advise and mentoring that Dan R. Hyatt kindly provided to me and it might appear mistakenly to him that I insulted him because I wish to be an attorney rather than an ALJ as he is.


I represented clients for about a year and then had my first hearing with ALJ Dan R. Hyatt . I looked forward to seeing him again and was attempting to make small talk with him about the weather, the Navy or some other matter but his face was very red and angry. He stared and sneared at me with a very hateful look over the top of his reading glass. Even though I have attained the age of 59 I have rarely or never seen anyone with a look of such anger and hatred in their face as I witnessed on Dan R. Hyatt .



I was shocked when he said in front of my client Barry Moody that “you were suspended by the bar and that’s why you were working at OHA…that’s what I heard.” He attacked my advertising as being lies, stating inexplicably that I was “never” his clerk. Although Dan R. Hyatt constantly interrupted me, I told him that my competitor lawyers had filed a complaint with the Social Security Office of General Counsel about my advertising and after many letters back and forth my advertising was proven true and correct and the General Counsel had no complaint. (the only modification was that I was “entitled” to practice before Social Security rather than “admitted”, and that the award handed to me by the Regional Chief Judge was not an award by the Regional Chief Judge but had merely been presented to me by him-all other statements in my advertising were non-objectionably by the SSA General Counsel).

Dan R. Hyatt then said that he was “not sure” that he could fairly hear the Barry Moody case because of the extra judicial issues and he stated that he would “continue” (postpone) the hearing to mull over whether these extra judicial issues made it impossible for him to hear a case where I am the attorney without extra judicial bias.


Within a few days I received a Fully Favorable for Barry Moody written by ALJ Linda Haack. Dan R. Hyatt thus has determined that he cannot hear a case where I have been chosen as attorney by claimant because of his extra-judicial bias.


Nothing has changed since he recused himself in the Barry Moody case-my advertising has not changed, my 25 years since I was sworn in as a California attorney has not changed, our close personal relationship has soured obviously because I became an attorney instead of stay his and the other ALJ’s assistant and did not follow in his footsteps to become an administrates law judge after he acted like a father to me and counseled me.


It would appear to an unbiased reviewer of these facts that whenever Dan R. Hyatt is involved in a case where I am the representative, something unconstitutional or extra-judicial conduct will take place. For example, in the case of Roland Ramsey, Notice of an unfavorable decision by was served on the claimant but not upon me, his attorney. Claimant is mentally disabled and sending the Notice to him but not to me could be viewed as an attempt to have Ramsey’s legal representative not file for review by the Appeals Council in time to meet the deadline to overturn ’s decision.


As his extra-judicial bias formed by our close personal relationship and other factors of Dan R. Hyatt make it impossible for him to honestly hear a case where I am the attorney he must be removed from this case as claimant deserves a adjudicator who is not persuaded by extra-judicial factors when making a decision.



In the hearings that I have had with Dan R. Hyatt subsequent to the initial hearing he has repeatedly stated that I am “incompetent,” that if I ask any questions of a witness Dan R. Hyatt says “don’t do it…you’ll mess it all up”, when asking questions of claimant he stops me and says, “where do these questions come from?” etc. When I objected to his leading question regarding critical question “so you have no problem lifting 20 pounds” (Objection) leading, assumes facts not in evidence, Dan R. Hyatt swift said “that’s it, you’re FINISHED” and closed the hearing with no future hearing date set. He says that I am “the worst lawyer to practice law” and “all the judges think so.“ He says this at EVERY hearing with me so the client is his audience and not me. He constantly is looking at me with a look like a pit-bull dog who would love to bite off my throat.


I represent many people who suffer from inferiority complexes and are mentally ill. I treat the same way, (appearing to always agree with him, moving very slowly as I handle my papers and not making eye contact). My client does not have the same skills and experience in dealing with someone who appears mentally ill and someone who acts out of control and also has life or death power over them. Dan R. Hyatt acted as my mentor and a father figure when I was his clerk. Now, Dan R. Hyatt ’s unsuccessful attempts to intimidate me with his “enraged man” antics only amuse me.


Not so for my desperate, frightened, shaky and helpless clients. They walk out of the hearing room believing that there is true tyranny present in the United States and they are powerless against the unfair way they were treated by Dan R. Hyatt at the most vulnerable time in their lives.

Respectfully,

Daniel Alan Bernath
Attorney at Law

20 CFR Sec. 404.940

“Extra-judicial factors warrant recusal when ‘a reasonable person, knowing all the circumstances, would harbor doubts about a judge’s impartiality.” United States v. Grinnell 384 U.S. 563, 583 (1966); United States v. MMR Corp., 954 F.2d 1040, 1045 (5th Cir. 1992). Chitimacha Tribe of La. v. Harry L. Laws Co., 690 F.2d 1157, 1167 (5th Cir. 1982).

Here, claimant is in a life or death struggle. Claimant is clearly disabled but has been denied disability benefits for years as all savings and assets have been depleted to just survive and purchase food and shelter. Claimant is now before an Adminstrative Law Judge who has made it known that he will deny him the right to counsel of his choice, or deny his counsel the opportunity to object to improper questions and to question claimant and all witnesses and who ignores the HALLEX direction to permit claimant and his representative “Broad Latitude” when presenting the facts of his case and in cross examining witnesses. Again, claimant is fighting for his life and if denied his benefits would likely be homeless, without food and shelter.

United States v. Lillie, 989 F2d 1054, 1056 (9^th Cir. 1993). Any attempts by the Social Security Administration, by and through ALJ Dan R. Hyatt to deny claimant his choice of counsel through any means, devise or subterfuge “necessarily implicates Constitutional concerns.” cert. denied. 493 US 1082 (1990)

Mr. Justice Black has written for a unanimous Supreme Court: “…those guarantees of the Bill of Rights which are fundamental safeguards of liberty immune from federal abridgement are equally protected against state invasion by the Due Process Clause…”

“Mr. Justice Cardozo, was careful to emphasize that “immunities that are valid against the federal government by force of the specific pledges of particular amendments (such as right to counsel) have been found to be implicit in the concept of ordered liberty…” “The right to the aid of counsel is of this fundamental character.” (quoting Powell v. Alabama, 287 US 45, 68 (1932).” “The assistance of counsel is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty…The Sixth Amendment stands as a constant admonition that if constitutional safeguards it provides be lost, justice will not ‘still be done.’” Johnson v. Zerbest, 304 US 485, 462 (1938)

“…the moving words of Mr. Justice Sutherland in Powell v. Alabama:
“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law.

….

He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial…upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his own defense, even though he may have a perform one. He requires the guiding hand of counsel at every step in the proceedings against him.” (emphasis added) 287 US at 68, 69 Gideon v. Wainwright 372 US 335 (1963)

In Bronson v. Barnhard 56 Fed.Appx. 793 (2003) an appeal was taken where, like here, the ALJ is out of control of his behavior. According to the Bronson court, “throughout the course of the hearing the ALJ repeatedly insulted and belittled plaintiff’s (claimant’s) counsel with sarcastic and degrading remarks,” including several accusations of “being from outer space’ or having just returned from her ‘spaceship.’” The Court noted that expressions of impatience, dissatisfaction, annoyance an even anger do not establish bias.

However there, (as with Dan R. Hyatt as ALJ), the manner in which the ALJ conducted himself with counsel--constantly berating (counsel) and questioning her competence in front of her client--constituted bias such that in this context that (claimant) had no chance for a full and fair hearing.”

Here administrative law judge Dan R. Hyatt seeks to deny claimant effective counsel, deny claimant a chance for a full and fair hearing and to either forgo any attorney as he struggles to get benefits from the Social Security Administration or to only retain docile counsel of Dan R. Hyatt ’s choice. Dan R. Hyatt has already announced that he would decide if he was too biased by extra-judicial matters to hear any Social Security matter where attorney Dan R. Hyatt Bernath is the representative. His decision was to recuse himself from the Barry Moody case. No extra-judicial facts have changed since Dan R. Hyatt recused himself. He is too biased to hear the instant case. As such, Dan R. Hyatt should be disqualified from hearing this matter.

FOOTNOTES:

doctors. In another federal case, CN 01-1687-JE, the federal Magistrate Judge ruled that Dan R. Hyatt had engaged in misrepresentation (lied). The Court held, "a careful review of the record fully supports plaintiff's assertion that Dan R. Hyatt misrepresented (lied about) plaintiff's description of her daily activities and mischaracterized (lied about) evidence in the record..." (Findings and Recommendation dated 8.4.04 at page 23.) Social Security agreed to fine itself nearly $1,500 because of the misrepresentations and other bad acts of Dan R. Hyatt .

Judge then called attorney Tim Wilborn “an asshole.” Investigation of October 30, 2002 by Office of General Counsel. Although has yet to call Bernath “an asshole” he has stated in front of claimant that Bernath is a “moron.”