Hill v. Commissioner of Social Security
ORDER DISMISSING Order to show cause, substituting parties, and granting motion for award of attorney fees. Signed by District Judge David M. Lawson. (TTho)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
WENDY S. HILL,
Case Number 21-12162
Honorable David M. Lawson
COMMISSIONER OF SOCIAL SECURITY,
ORDER DISMISSING ORDER TO SHOW CAUSE, SUBSTITUTING PARTIES, AND
GRANTING MOTION FOR AWARD OF ATTORNEY FEES
On April 14, 2022, the Court issued an opinion and judgment remanding the case to the
Commissioner for further administrative proceedings. On May 11, 2022, a notice of suggestion
of death was filed indicated that plaintiff Wendy S. Hill died on April 17, 2022. After Ms. Hill
died, plaintiff’s counsel filed a motion for attorney’s fees under the Equal Access to Justice Act.
The Commissioner does not oppose that motion. Subsequently, a motion for substitution of parties
was filed in which leave was sought to substitute the plaintiff’s spouse, George Thomas Hill, in
place of the deceased claimant. That motion was denied because the Court found that it did not
sufficiently indicate that Mr. Hill possessed the proper legal capacity — e.g., as personal
representative of the deceased’s estate — to be substituted as the real party in interest.
The plaintiff took no further action in the case for some time, and the Court eventually
ordered the plaintiff to show cause why the case should not be dismissed for failure to substitute a
viable party in interest in place of the deceased claimant. When a party to a lawsuit dies, “and the
claim is not extinguished,” the Court may permit the substitution of “the proper party.” Fed. R.
Civ. P. 25(a)(1). Although “any party” may make the substitution motion, when the decedent is
the plaintiff and the moving party seeks to continue the lawsuit, the motion generally must be made
“by the decedent's successor or representative.” Ibid. All lawsuits must be brought or maintained
by the real party in interest, and a decedent’s spouse is not enumerated among the individuals who
properly may be substituted in place of a real party in interest under Federal Rule of Civil
Procedure 17(a)(1). See Fed. R. Civ. P. 17(a)(1) (“An action must be prosecuted in the name of
the real party in interest. The following may sue in their own names without joining the person for
whose benefit the action is brought: (A) an executor; (B) an administrator; (C) a guardian; (D) a
bailee; (E) a trustee of an express trust; (F) a party with whom or in whose name a contract has
been made for another’s benefit; and (G) a party authorized by statute.”). The Court therefore was
unable previously to identify a basis in law for the substitution of the deceased plaintiff’s spouse
on her behalf to continue as the real party in interest in this benefits action.
The plaintiff filed a response to the order to show cause in which she points out that Federal
Rule of Civil Procedure 17(a)(1)(G) permits “a party authorized by statute” to pursue an action in
his or her own name, without joining the person for whose benefit the case is brought.
Furthermore, under 20 C.F.R. § 404.503(b)(1), the Commissioner authorizes the “surviving
spouse” of a benefits claimant to pursue a claim and collect benefits that were due but unpaid when
a deceased claimant died. See ibid. (“If an individual who has been underpaid dies before receiving
payment or negotiating a check or checks representing such payment, [the Commissioner] then
will distribute any remaining underpayment to the living person (or persons) in the highest order
of priority as follows: (1) The deceased individual’s surviving spouse as defined in section 216(c),
(g), or (h) of the Act who was either: (i) Living in the same household (as defined in § 404.347)
with the deceased individual at the time of such individual’s death, or (ii) Entitled to a monthly
benefit on the basis of the same earnings record as was the deceased individual for the month in
which such individual died.”).
The plaintiff’s spouse, George Thomas Hill, has attested that he was married to plaintiff
Wendy S. Hill and lived in the same household with her when she died. He therefore is authorized
by the applicable federal regulations to pursue the claim for benefits and collect any amounts due
on her behalf. In similar circumstances, where a claimant has died intestate and without a formally
administered estate, the Sixth Circuit has permitted the substitution of surviving kin enumerated
in section 404.503(b) as real parties in interest for the purposes of proceedings on appeal and
further administrative action on a benefit claim. Cunningham v. Astrue, 360 F. App’x 606, 612
(6th Cir. 2010) (“Given the statute and regulation defining the manner in which a social security
claim survives death, 42 U.S.C. § 404(d)(7), 20 C.F.R. § 404.503(b)(7), . . . we conclude that John
Cunningham’s brother and sisters are ‘personal representatives’ within the meaning of Federal
Rule of Appellate Procedure 43(a)(1) and are therefore properly substituted parties.”). After
reviewing those authorities, the Court is satisfied that the deceased plaintiff’s spouse, George
Thomas Hill, qualifies as a person who is “authorized by statute” to pursue and recover benefits
due to Wendy Hill that were unpaid before her death. The Court therefore will permit the
substitution of parties. The Court also will grant the plaintiff’s motion for an award of attorney
Accordingly, it is ORDERED that the order to show cause issued on November 7, 2022 is
It is further ORDERED that George Thomas Hill, as surviving spouse of Wendy S. Hill,
hereby is SUBSTITUTED in place of Wendy S. Hill as the real party in interest in this action,
pursuant to Federal Rule of Civil Procedure 17(a)(1)(G) and 20 C.F.R. § 404.503(b)(1). The Clerk
of Court shall amend the docket to so indicate.
It is further ORDERED that the plaintiff’s motion and amended motion for attorney fees
(ECF No. 25, 26) are GRANTED, and the plaintiff is awarded costs and attorney fees in the
amount of $5,114 in full satisfaction of all claims by her in this matter for recovery of attorney
fees and costs under the Equal Access to Justice Act.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: November 17, 2022
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