In the United States Court of Appeals
For The Ninth Circuit

 

David B. Lowry,
Plaintiff-Appellant,

v.

Commissioner of Social Security, Dan R. Hyatt, et al.
Defendants-Appellees

Brief of Appellant

Dist Ct No. CV 99 1210 ST

Facts regarding the defendant (ALJ Dan R. Hyatt) bias.

  On or about February 18, 1998, plaintiff wrote to defendant Dan Hyatt on behalf of a claimant requested that a particular case be remanded to Disability Determination Service pursuant to Social Security Ruling 97-2p.  At a March 12, 1998 hearing, defendant Dan Hyatt informed plaintiff that he had received his request but had not read the applicable Social Security Ruling and did not know how to find it. ("OHA (Now called ODAR) may return selected cases to the DDS for a prehearing case review when new medical evidence is received at the hearing level," easily found at http://www.ssa.gov/OP_Home/rulings/di/01/SSR97-02-di-01.html )

   In April 1998, plaintiff Lowry discussed the conduct (and apparent incompetence) of Administrative Law Judge (ALJ) Dan Hyatt in administrative  proceedings with the Regional Chief ALJ.  This conduct included;

  Based on this and other conduct, Mr. Lowry requested that ALJ Dan Hyatt be disqualified for bias or prejudice, Dan Hyatt instigated a campaign to disparage and defame Mr. Lowry and to interfere with his client relations and business expectancy.  In a letter dated April 19, 1998, defendant Dan Hyatt stated in part, "Your fee Agreements which provide for a fee of 25% of back benefits in Title 16 cases will always be disapproved by me, as fees must be petitioned in Title 16 cases and I have no authority to approve any fee at all in those cases."  This statement by Dan Hyatt is false and in fact such fee agreements are routinely approved.  Defendant Dan Hyatt subsequently admitted this falsity.

Defendant Hyatt also began issuing letters to Lowry's clients.  He advised them that he was not biased, contrary to Lowry's motions for recusal.  A copy of a letter which was written by defendant Dan Hyatt to one of Plaintiff's clients appears at ER 127.

  On approximately December 1, 1998, plaintiff sent a letter to the Regional Chief ALJ discussing defendant Dan Hyatt's conduct.  Specifically, the letter reported how, on two occasions, defendant Dan Hyatt instructed Mr. Lowry's clients-claimants appearing before ALJ Dan Hyatt-that Mr. Lowry was a "poor attorney who does a poor job for his clients."  Mr. Lowry sought agency action precluding the defendant ALJ Dan Hyatt (and two others) from hearing his cases.  On December 3, 1998 the Regional Chief Judge responded in writing (stating that by and by a response would be forthcoming.)

  The Regional Chief ALJ subsequently informed Lowry that the remedy he sought-blanket recusal of the defendant ALJs-was unavailable.  (The Commissioner of Social Security has since changed her position and now agrees that she can assign different ALJs to all of plaintiff's cases, but has refused to do so ER 172)  On January 19, 1999, plaintiff sent a letter to the Appeals Council outlining the evidence of ALJ Dan Hyatt's misconduct and bias.

    On February 10, 1999 defendant Dan Hyatt contacted plaintiff and scheduled a meeting over the noon hour to discuss their working relationship and how to resolve a particular case before ALJ Dan Hyatt.  During the February 11, 1999 meeting ALJ Dan Hyatt threatened to have plaintiff disbarred from practice before the Social Security Administration.  ER 120

  On February 19, 1999, Mr. Lowry received an anonymous note from an OHA (now called ODAR) whistleblower disclosing the following information about Defendants Dan Hyatt et al.,  

ALJs....are conspiring against you and the claimants you represent.  They held meetings.  there is a paper trail.  SSA and OHA may be liable for their illegal conduct.  ER 142.

On March 25, 1999 Mr. Lowry received a second anonymous note from an OHA whistleblower disclosing the following information:

On 3/9/99 Reg Chief ALJ Ranney visited the Portland OHA and had an extensive meeting with the ALJs.  He heard their complaints about you.  He encouraged them to collect more "documentation" of your misconduct and incompetence and forward the information to his Reg. Attny Charlie Center for action.  HOCALJ Atkins and Dan Hyatt were the most vocal.  ER 143.

  On or about April 19, 1999, plaintiff caused a demand letter to be sent to defendants Dan Hyatt, et al., and to the Regional Chief ALJ.  Plaintiff requested that defendants Dan Hyatt, et al., voluntarily recuse themselves or, alternatively, that they be disqualified from hearing any cases in which plaintiff represents the claimants.  The Regional Chief ALJ denied the request...stating that plaintiff has no remedy for a blanket disqualification and must present disqualification motions on a case-by-case basis to the respective defendant administrative law judges.  In the same letter the Regional Chief ALJ made the following veiled threat:

I would anticipate that such a decision would be preceded by a full and fair discloser that allows the claimant to make an informed decision as to whether such an objection should be raised.  Suffice it to say that failure to do so advise a claimant and assisting an uninformed or poor informed claimant in the making of such an objection could constitute evidence of inadequate representation on the part of the representative.  ER 125

  Defendant ALJ Dan Hyatt et al., and the others have all refused to recuse themselves from hearing plaintiff's cases when a motion to presented in individual disability cases for recusal due to bias. ALJ Hyatt, et al, assert that they are not biased and deny the motion.  Simultaneously the ALJ's have apparently filed "complaints" with the SSA about Mr. Lowry's conduct.  The same individual who is investigating claims of judicial bias, is also investigating the complaints against plaintiff Lowry ER 201.  (SSA has enacted extensive regulations about attorney conduct before the agency.  62 F.R. 41, 404-41 (8/4/98) reprinted at http://www.ssa.gov )

  On or about April 29, 1999 defendant Dan Hyatt issued a decision in a Social Security disability case finding Mr. Lowry's client disabled, however, the Dan Hyatt also alleged that Lowry had committed the following ethical violations:

At hearing, it became clear that the claimant's representative was aware of records which reflect this finding of medical improvement, but made no effort to produce it for the hearing.  Mr. Lowry, who is a member of the Oregon State Bar, has an ethical obligation under the Code of Professional Responsibility to disclose such evidence where, as here, he is seeking continuing disability.  This representative also may have violated DR 7-106 by refusing to comply with a standing Order of the forum to complete and submit a Claimant's Questionnaire prior to the hearing, and by filing a frivolous motion to disqualify the undersigned, Dan Hyatt.  The latter conduct may also be a violation of DR 8-102.  While Mr. Lowry's violation of the rules of this professional are matters strictly within the purview of the Oregon State Bar, his conduct in this matter is condemned.

  Defendant Dan Hyatt denies that this statement, contained in a written decision about a claimant's disability application was motivated by bias.  Tr. 176  (Mr. Lowry disputes the factual accuracy of Defendant Dan Hyatt's accusations.)

  Defendant Dan Hyatt also has issued an undated and unsigned letter that is disparaging of Mr. Lowry. Beginning on or about July 19, 1999, Defendant Dan Hyatt began producing this letter at hearings in which Mr. Lowry was the claimant's representative and has required one or more claimants to read the letter. ER 120

  On or about March 24, 2000, plaintiff received another anonymous note from an OHA whistleblower disclosing the following information:

  For some some reason ALJ's Atkins and Engleman are bragging about the price you and your disabled clients will pay for bringing the lawsuit against them.  OHA's regional office and the Chief ALJ seem to be in agreement.  ER 166

  Since mid-1998, Mr. Lowry has notified the OHA Appeals Council of the misconduct and prejudice exhibit by Dan Hyatt towards Mr. Lowry and his client.  The Appeals Council conducts a case by case review of claimant's disability claims and does not consider the "totality of the evidence" which demonstrates bias against Mr. Lowry.  The Appeals Council had not response to Mr. Lowry's complaints.  ER 121, 167-9

****

footnote 7

The Magistrate Judge's Findings (in Portland Oregon) of March 2, 2000 even note the seriousness of the interference with Lowry's ability to practice law.  The Court stated, "In this case, the ALJ's allegedly singled out Lowry for harsh criticism in front of his clients, denied all his attorney fee requests in Title 16 cases, threatened to have him disbarred from practicing before SSA and engaged in ex parte conduct with his clients to tell them that Lowry is not a good attorney. These actions, if they occurred without cause, are clearly arbitrary and unreasonable with no substantial relation to the public health, safety, morals or general welfare.  Further, SSA's tacit approval of these actions by not stopping them or implementing regulations to adequately deal with them is just as arbitrary and unreasonable. ER 63-4  At least one other attorney has noted the impropriety of ALJ Dan Hyatt's conduct.  ER 196

 

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: