Beach et al v. Commissioner of Social Security

Filing 4

ORDER denying 1 The Petitioners' Jeff Beach, Joseph Danforth, Chrystal Eirhart, Michelle Welch for R.J., Gerald Ward, Elizabeth Zepeda, Brian Christensen, Steven Dexter, Christopher Murphy, Joseph Hudson, and Kushner & Kushner, Attorneys, Motion for a Temporary Restraining Order (TRO). Signed by Judge Sheri Polster Chappell on 4/19/2016. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JEFF BEACH et. al.
Petitioners,
v.

Case No: 2:15-cv-755-FtM-38CM

CAROLYN W. COLVIN,
Respondent.
/
ORDER1
This matter comes before the Court on the Petitioners, Jeff Beach, Joseph
Danforth, Chrystal Eirhart, Michelle Welch for R.J., Gerald Ward, Elizabeth Zepeda, Brian
Christensen, Steven Dexter, Christopher Murphy, Joseph Hudson, and Kushner &
Kushner, Attorneys, Motion for a Temporary Restraining Order (TRO) (Doc. #1) filed on
April 15, 2016.
Respondent,

The Petitioners move the Court to issue a TRO to prevent the

Commissioner

of

Social Security

(Commissioner)

from

allowing

Administrative Law Judge Larry Butler (ALJ Butler) from holding hearings on their Social
Security Disability (SSD) and/or Supplemental Security Income (SSI) benefits claims.
BACKGROUND
The Petitioners are represented by the law firm of Kushner & Kushner. Kushner
& Kushner filed complaints against ALJ Butler whereby ALJ Butler was subjected to

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disciplinary proceedings brought by the Commissioner. As a result, ALJ Butler has filed
a civil action against the Commissioner. Recently, ALJ Butler issued notices regarding
upcoming hearings including those for claims submitted by Kushner & Kushner on behalf
of Petitioners. Petitioners have requested that ALJ Butler recuse himself from their
hearings as they involve counsel Kushner & Kushner. To date ALJ Butler has not
responded to the request to recuse.
DISCUSSION
Petitioners aver they will be denied their Constitutional right to due process of a
full and fair hearing if ALJ Butler is allowed to preside over the proceedings currently
scheduled to take place within fourteen (14) days. Petitioners move the Court to enjoin
ALJ Butler from hearing their claims and to direct the Commissioner of Social Security to
assign another ALJ to the upcoming hearings due to ALJ Butler’s bias.
Petitioners present no legal precedent that affords this Court the authority to direct
the Commissioner to appoint another ALJ to hear a claim prior to the final decision of the
Commissioner being issued. While Petitioners cite to case law from this district in which
the Court directed the Commissioner to appoint another ALJ to review the claim on
remand, Petitioners’ case law misses the mark. Petitioners’ case law involves claims
which had been denied by the Commissioner, the administrative appeals process had
been exhausted, and a final decision of the Commissioner had been issued prior to the
district court hearing the appeal. In this case, Petitioners’ claims have not been heard,
ALJ Butler has not rendered a decision on the merits, and therefore, there has been no
review by the Commissioner.

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The district court's jurisdiction is limited by the Social Security Act, and judicial
review exists only over the “final decision of the Commissioner of Social Security.” Cash
v. Barnhart, 327 F.3d 1252, 1255 (11th Cir. 2003) (citing 42 U.S.C. § 405(g)). This Court
may review final decisions of the Commissioner but may not interfere with the
Commissioner’s operations of the Social Security Administration. Therefore, this Court
may not enjoin ALJ Butler from presiding over Petitioners’ hearings.
Secondly, although Petitioners argue they will be denied their due process rights
to a fair hearing if ALJ Butler presides, their assertions are based upon mere speculation
that ALJ Butler will be biased and rule against them. The Eleventh Circuit Court of
Appeals has made it clear that the mere appearance of bias is not sufficient to violate the
Due Process Clause or any other constitutional provision. United States v. Rodriguez,
627 F.3d 1372, 1381 (11th Cir. 2010). (citing Hendrix v. Secretary, Florida Department
of Corrections, 527 F.3d 1149 (11th Cir.2008) (holding that “there is no Supreme Court
decision clearly establishing that an appearance of bias or partiality, where there is no
actual bias, violates the Due Process Clause or any other constitutional provision.”).
Petitioners’ mere speculation of bias is insufficient to establish a constitutional violation.
Based upon the Eleventh Circuit’s holding in Rodriguez, this Court need not
analyze whether or not plaintiff can demonstrate (1) the likelihood of success on the merits
of the claim; (2) the irreparable nature of the threatened injury and the reason that notice
cannot be given; (3) the potential harm that might be caused to the opposing parties or
others if the order is issued; and (4) the public interest at stake, if any. Fed. R. Civ. P. 65.
A.G. Edwards & Sons, Inc. v. McCreanor, No. 2:07-CV-570-FTM29DNF, 2007 WL

3

2696570, at *1 (M.D. Fla. Sept. 11, 2007) (citing M.D. Fla. Local Rules, 4.05(b)(4)). Thus,
the Petitioners’ Motion for TRO is due to be denied.
Accordingly, it is now
ORDERED:
The Petitioners’ Jeff Beach, Joseph Danforth, Chrystal Eirhart, Michelle Welch for
R.J., Gerald Ward, Elizabeth Zepeda, Brian Christensen, Steven Dexter, Christopher
Murphy, Joseph Hudson, and Kushner & Kushner, Attorneys, Motion for a Temporary
Restraining Order (TRO) (Doc. #1) is DENIED.
DONE and ORDERED in Fort Myers, Florida this 19th day of April, 2016.

Copies to All Parties of Record

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