Social Security Administration

Office of the Regional Chief Judge 
*UPDATE-Chief Judge OVERTURNS JUDGE DAN R. HYATT

SSA ODAR Regional Ofc
Suite 2900 M/S 901

701 Fifth Street
Seattle WA 98104-7075

Re: Request for Review of the Fee Agreement Determination

Claimant: Donald G

TERI Case (terminally ill)

SSN:

The attorney for claimant hereby requests review of the Fee Agreement Determination of the above named claimant, such determination made by Administrative Law Judge Dan Hyatt.

The Order of ALJ Dan Hyatt

I do not approve the fee agreement between you and your representative because:

The representative provided false information to claimant and the Social Security Administration regarding his status with the California State Bar. He falsely stated he has never been suspended from the practice of law.

In addition, the claimant failed to follow through on instructions given to him at the hearing and conducted himself in an unprofessional manner.

 

Date: Mar -7 2008

 

 

Discussion

 

The California Bar Association has tested attorney Daniel Bernath with a three day test in 1984 (the “bar exam”) and determined that he can perform at a minimum level as an attorney at law. Bernath over the past near quarter century has always met his continuing education requirements of the California Bar and more. (Exhibit Two, incorporated by reference)

Interestingly ALJ Hyatt has praised attorney Bernath when he revealed that he spends an hour each day reading journals, learned treatises, practice guides, Social Security Disability publications, etc., each day. Bernath also told ALJ Hyatt that he regularly consults with a fellow attorney who was once an attorney-advisor at ODAR and ALJ Hyatt thought that was a splendid process.

Bernath used to be a clerk for ALJ Hyatt and the other judges at Portland ODAR, something ALJ Hyatt inexplicably continues to deny. (Exhibit One, P2, Para 3. Hyatt repeatedly states, “you were never my clerk.”) It would appear that ALJ Hyatt has taken an special interest in Bernath leaving his clerk’s job to become one of the most successful Social Security representatives at the Portland ODAR office.

Because of the extreme tension between ALJ Hyatt and Bernath, one of his former clerks, Bernath sought to reach a peace with ALJ Hyatt by writing a very conciliatory letter to ALJ Hyatt (Exhibit 5) and when the uncomfortable conditions continued at the hearings, also to have a private meeting with ALJ Hyatt. He met with ALJ Hyatt on January 14, 2008. (Exhibit Two) At the meeting Hyatt revealed that he would put attorney Bernath out of business by awarding Bernath only “$100 in attorney fees in each case“, (even in the cases where ALJ Hyatt has yet to hold hearings or even review the file).

With no authority for such an order, ALJ Hyatt also requires that Bernath and other attorneys write a bar review and/or Federal District Court quality brief for each claimant (Exhibit Three) or ALJ Hyatt postpones the hearing “five times” for five or so months for each postponement. He states that Bernath and others should take “hours and hours” to research and write this brief; a brief ALJ Hyatt will not rely upon as he has already done his own analysis of the case.

Again, a conservative analysis of ALJ Hyatt’s statement and actions may reveal that he is unhappy that one of his former clerks has gone from his assistant to becoming one of the most popular Social Security representatives with the claimant’s before Portland ODAR. An analysis may conclude that this ALJ simply wishes to cause additional burden to all representatives who practice before him-a representative who is performing well according to his win rate and his clients’ satisfaction. (Exhibit Four)

Indeed, ALJ Hyatt has called Bernath “a moron”, (Exhibit One) has threatened to have him physically “thrown out” from the Social Security hearing room because he was moving too slowly in packing up his exhibits from a hearing and as he has done with clients of Lowry, repeatedly tells Bernath in front of all his clients that Bernath is a “terrible lawyer” and “all the judges think so” and whatever memo he presents to ALJ Hyatt is inadequate for one reason or the other as he berates attorney Bernath before his shaking client. ALJ Hyatt has already de facto declared that he is too biased against attorney Bernath to hear cases presented by him but now takes these untimely Fully Favorable cases only to state that attorney Bernath can be paid nothing for one unsupported reason or the other.

Bernath has written humble and conciliatory letters to ALJ Hyatt but to no effect. He has also thanked ALJ Hyatt for “your help and guidance” and “thank you Judge, I’ll do it that way. You’re the judge and I’m the lawyer”, (or words to that effect) during hearings but ALJ Hyatt’s obvious anger persists.

ALJ Hyatt has no authority to devise and enforce his own personal criteria for which attorney before permitting an attorney-fee agreement with claimant to be approved. A reading of HALLEX and all other authority in this matter indeed forbids ALJ Hyatt’s ambiguous, devoid of Notice/Due Process order

4. Factors Not to Consider

a. Representative’s Hours and Services

…the representative’s specific services are not conditions for approval of a fee agreement.”

HALLEX I-2-12 C., 4 (Last update l/28/03)

Here, ALJ Claimant is stating that this lawyer of nearly a quarter century with one of the largest and most successful Social Security practices in Oregon has not provided ANY competent “specific services.” It is black letter law at HALLEX I-2-12 C., 4 that ALJ Hyatt cannot make such a determination and therefore he has erred and the fee agreement between claimant and her attorney at law/representative should be approved.

The representative provided accurate and complete information regarding his current status and past status with the California Bar Association

Attorney Bernath became a member of the California Bar in December 1984. Thirteen years ago, in July 1995, at a time when attorney Bernath was not practicing law and was voluntarily inactive and thus “ineligible” to practice and for a period of a few months Bernath was deemed “ineligible” to practice law because he put child support payments into a trust fund for his child rather than pay it to his ex wife because she violated a child visitation order. This is called an “administrative action” by the Bar Association and not a “suspension.” That dispute with Bernath and his ex wife was settled amiably. Bernath has no public record of discipline as an attorney since he was sworn in as a member of the bar in December 1984.

Bernath advertises on the internet at http://www.DisabilityPaycheck.com There he correctly states that he is a “Lawyer for nearly a quarter century click here” (Exhibit Six) The click here is a link to the California State Bar website page with Bernath’s profile information and “Status History.” (Exhibit Seven)

 

There, it clearly states that Bernath “This member is active and may practice law in California.” The Status History states in relevant part:

12/3/1984 Admitted to the State Bar of California

l/1/1995 Inactive (voluntary-not eligible to Practice Law when “inactive”, dues go to $50 a year from $500, CEB obligations are suspended till active again)

7/31/1995 Not eligible to Practice Law

10/16/1996 Inactive

8/6/1996 Active

….

(at a time when he was an officer for US Department of Homeland Security, searching for bombs and contraband at Portland International Airport and later as a clerk for ODAR at US Social Security Administration, Portland, Bernath was “inactive” as he was not practicing law. Bernath changed his status from his voluntary inactive status to “active” on 4.19.2005)

Actions Affecting Eligibility to Practice Law

Disciplinary and Related Actions

This member has no public record of discipline.

Administrative Actions

7/31/1995 Suspended/Child & Fam Supp noncompliance Not eligible to practice law

ALJ Hyatt statement that Bernath did not provide “accurate and complete information” regarding Bernath’s becoming voluntarily inactive, having an administrative action when he was inactive flies in the face of the evidence Over a year ago on February 22, 2007 and then again on April 4, 2007, Bernath wrote to ALJ Hyatt stating all facts regarding this and how he was not suspended by the California Bar.

The representative from the California Bar has stated that Bernath was not suspended by the bar but by operation of law and it is not considered to be a “suspended by the bar.” The Oregon Bar Association has referred the allegation, that Bernath “lied” when he states he was not suspended by the bar to the California Bar Association on at least two occasions. Both times the California Bar has stated that there is no basis for the complaint, most recently December 1, 2006 (Exhibit 8).

A new complaint has been made (the third one) from an anonymous source after a hearing where ALJ Hyatt was the administrative law judge and Bernath was the representative. The “source“ has violated a claimant‘s privacy by sending the claimant‘s confidential information across state lines to an organization that has no jurisdiction over attorney Bernath. This would appear to be an irrational attempt by someone to once again put Bernath out of the business of representing Social Security claimants.

ALJ Hyatt is a poor historian
in his statements

In a conversation on February 11, 2008, claimant stated that has never said that attorney Bernath failed to follow through on instructions given to him at the hearing or that he conducted himself in an unprofessional manner. In any case, a claimant cannot wiggle out of his fee agreement by such thin allegations; otherwise there will be chaos before the Social Security Administration as no attorney will put in $10,000 worth of legal work into a case but end up with nothing if ALJ Hyatt decides to disregard the truth and regulation. The evidence shows that ALJ Hyatt made up the statements in his Order regarding Bernath’s performance and claimant’s statement completely from thin air:

Attorney Bernath “Did that judge call you on the phone?”

Claimant G: “No.”

Bernath: “Did he write you a letter?”

G: “No.”

….

Bernath: “Did you ever tell him (ALJ Hyatt) that I wasn’t following through on instructions given to him (Bernath) at the hearing”?

G: “I never talked to…How could I do that, I never talked to that judge.”

Bernath: “Did you ever say that?”

G: “I never talked to him. How could I say that?”
Bernath: “So the answer is no?”

G: “The answer is…I don’t get it. Everything I did I went through you.”

….


Bernath: “Did you ever say that I was acting unprofessionally?”

G: “I have nothing to do with that. No. I don’t know what you’re talking about. I swear to God I don’t.”

Bernath: “So you never said to him that I acted unprofessionally.”

G: “I never talked to a judge. When could I ever talk to a judge? How could I talk to a judge, I don’t have his address, I don’t have his phone number. How could I talk to a judge. You were standing right there the whole time.”

Interview with Claimant Don G with Daniel Bernath 3.11.2008

At no time did Claimant Don G state the words that ALJ Hyatt put into the Order.

Apparently, ALJ Hyatt is attempting to give claimant all of the money, including the agreed upon attorney fees so that by the time this matter is settled, the claimant will have spent all the money and Bernath will be left without any recourse. Therefore, the Regional Chief Judge should order that $5300 be set aside until after this motion is considered and ruled upon. (as well as the earlier such motion)

Respectfully,

Daniel A. Bernath
Attorney at Law

 

# Even non-attorneys, people who failed bar exams but call themselves “advocates”, even someone’s next door neighbor with no expertise whatsoever may represent claimants throughout the entire process including the hearing where witnesses are examined and cross examined and evidence is presented and questioned.

# Indeed Bernath could hardly be termed incompetent by any measure; Bernath was the representative of 14 Favorable decisions or F.O. approvals for the month of February 2008 and 10 Favorable decisions or F.O. approvals for September 2007. If memory serves, each application that Bernath has tried before ALJ Hyatt in the last two years has resulted in a Favorable decision.

# ALJ Hyatt regularly holds hearings in the federal building in Vancouver Washington. He uses the Courtroom used by the U.S. Bankruptcy Judges and sits under the Seal of the US District Court even though several bankruptcy trustee hearing rooms are available but the ambiance is not as intimidating to claimants. ALJ Hyatt made the statement, “I’ll postpone your hearings five times if I want to.”

# Demanding that attorney Bernath put “hours and hours“ additional into each case for no reason would mean that with 1,000 cases, with ALJ Hyatt hearing approximately 20% that Bernath is burdened with 800 additional hours that serve no purpose and from an order which ALJ Hyatt has no authority to make. There has been (1) no “proposed rule making”, (2) no public comment and (3) no rule that claimants or representatives research and write these extensive scholarly works contrary to the Administrative Procedure Act and Morton v. Ruiz 415 US 199 (1974) et seq. Furthermore, the Order (4) violates attorney work-product privilege, (5) the Federal Reduction in Paperwork Act and (6) has no basis in law as ALJ’s have simply not been given the authority to make such a burdensome requirement to raise the cost to merely present the case for a memo that will not even be read or relied upon by the ALJ or the representative.

# Bernath has gone from 0 clients to approximately 300 clients in two years and expects to have 1,000 clients within two more years.

# Bernath is 60% US Navy service connected disabled from neuropathy from chemical poisoning in Vietnam.

# Hyatt appears to be doing this so claimants will fire Bernath If the message is to just Bernath and not to the claimants, then ALJ Hyatt need only give his unsupported opinion once to Bernath. He has found a need to say this to Bernath in front of each of Bernath’s client at each hearing. Indeed, Hyatt has written to client’s of Lowry apparently with the message that he is a terrible lawyer too and they should find another lawyer.
From the 9th Circuit; “Lowry says Hyatt uses "intimidation and anger as a tactic to shorten [his] hearings," refuses to hear evidence and denies him cross-examination. Hyatt also supposedly told two claimants that Lowry was a "poor attorney who does a poor job." Lowry began filing motions to recuse Hyatt from his cases, and Hyatt responded with letters to Lowry's clients defending his impartiality and encouraging them to ask Hyatt about their "rights to representation." Lowry, Plaintiff-Appellant,v. Barnhart, Dan Hyatt, et al., Defendants-Appellees (2003) 329 F.3d 1019 fn two.

# Barry M-claimant, Exhibit 9 ALJ Hyatt postponed the M hearing to consider whether he was too biased to hear a case presented by attorney Bernath. Thereafter, ALJ Haack decided the case as ALJ Hyatt apparently believed he was thus too biased to render a fair decision with attorney Bernath as the claimant‘s representative and now hears Bernath cases but denies him all attorney fees.

 

# ALJ Hyatt recused himself stating that he could not be unbiased with Bernath as the attorney. The case ended up as a fully favorable with ALJ Haack writing the decision a few days later.

# The private social security number of a Washington State claimant and apparently other private facts about his disability and medical conditions, (having a hearing in SSA Washington State) was given illegally to the Oregon Bar. The evidence and inference is that either ALJ Hyatt violated this claimant’s privacy rights by taking this US Government property and mailing it across state lines or claimant’s rights

were violated when the file was in ALJ Dan Hyatt’s custody or control to for the third time make this repeatedly discredited allegation. (Exhibit 9)

 

Dan R.Hyatt
is a member of the Oregon Bar. 
He must be a member of the bar to be eligible to be an administrative law judge. 
He currently is employed by the Social Security Administration as an administrative law judge out of the Portland Oregon ODAR.

Official Documents--Dan Hyatt takes "government property, has a problem with interracial couples", exposes secret social security numbers to strangers of claimants, calls an attorney "an asshole", calls another attorney "a moron", Dan Hyatt is a "bald faced liar", misrepresents that he is a US District Court judge, uses intimidation, anger and verbal abuse against helpless Social Security disabled claimants, threatens disabled US veteran with assault, say privileged documents.


The following are complaints to the Oregon State Bar
or other privileged documents: