Velez v. US Attorney General et al
Filing
37
MEMORANDUM AND ORDER. The Clerk shall refer this opinion to Chief Judge Delgado for disciplinary proceedings. Signed by US Magistrate Judge Silvia Carreno-Coll on 11/3/2015. (NBB)
IN THE UNITED STATES COURT
FOR THE DISTRICT OF PUERTO RICO
ENRIQUE VÉLEZ,
Plaintiff,
v.
CIV. NO.: 14-1203(SCC)
COMMN’R OF SOC. SEC.,
Defendant.
MEMORANDUM AND ORDER
In this Social Security appeal, which is before me on the
parties’ consent, I rendered judgment affirming the Commissioner’s decision. In the course of the opinion doing so, an
order to show cause was entered as to Atty. Fabio RomanGarcía. When he failed to respond to that Order, he was fined
and another order to show cause issued. When he failed to
comply with that order too, he was fined again and a third
order to show cause was entered, and Atty. Roman was
ordered to appear at a hearing. That hearing was held on
VELEZ v. COMMISSIONER
Page 2
October 26, 2015. I now recommend more serious sanctions
against Atty. Roman.
1. Factual Background
In the course of this case, Atty. Roman wrote a memorandum of law in which he claimed that the Dictionary of Occupational Titles’s definitions of several specific jobs stated that the
positions “entail[ed] understanding and carrying out ‘detailed’
written or oral instructions.” Docket No. 28, at 13. But when I
looked up the definitions of the same jobs in the version of the
DOT available on the Department of Labor’s Website, I found
no such language. Docket No. 31, at 6. Concerned about the
possibility that Atty. Roman had misrepresented the DOT, I
ordered him to show cause for this apparent discrepancy. Id. at
6 & n.2. This First Order to Show Cause (“OSC”) was entered
on September 29, 2015, and a response was due by October 9,
2015.
Atty. Roman did not respond to the First OSC, and so on
October 13, 2015, I fined him $250 and ordered him to show
cause for this failure. Docket No. 33. A response to this Second
OSC was due by October 15, 2015. This was not answered
either, and so on October 19, 2015, a Third OSC was entered.
Docket No. 34. This Order fined Atty. Roman an additional
VELEZ v. COMMISSIONER
Page 3
$500, payable on October 20, 2015, and set a show cause
hearing for October 26, 2015. Id. Atty. Roman paid the assessed
fines, but he did so two days late (and thus paid an additional
$100, pursuant to the Third OSC).
He also appeared at the October 26, 2015, hearing. Acknowledging that his conduct was inappropriate, Atty. Roman
nevertheless tried to explain it by reference to a medical
condition that began in February 2015; he said that as a side
effect of some of the medications prescribed, he has suffered
from depression that has made it difficult to take an interest in
his practice. As a result, he said, two or three of his cases had
been dismissed by judges in this District.
I told Atty. Roman that I was sympathetic to his medical
condition but said that my own research had suggested that his
problem complying with Court orders had not begun in
February 2015; rather, as I explain in more detail below, it had
begun a decade ago if not earlier. Atty. Roman responded that
some of his cases don’t have much merit, and if he learns that
after they are filed, he has, essentially, abandoned those cases.
Though he claimed to have discussed those decisions with his
clients, he acknowledged that in retrospect he had not handled
those cases properly insofar as he had disobeyed orders or
VELEZ v. COMMISSIONER
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failed to prosecute his cases.
With regard to this case in particular, Atty. Roman claimed
that while he had wanted to file a written response to the
Court’s orders, his depression had not allowed it; he could not
find the energy. As to the matter that had initially caused me
concern, Atty. Roman claimed that on his CD-based, WestLawpublished version of the DOT, the “detailed instruction”
language was in fact used. He did not, however, think to bring
a print-out from his DOT showing this to be true. In closing,
Atty. Roman said that he had lost interest in his law practice
and suggested that he might look for someone else to take it
over.
2. Analysis
Regrettably, had Atty. Roman timely responded to the First
OSC, he would undoubtedly have escaped sanctions. As it
turns out, the discrepancy that I noticed was caused not by a
misrepresentation, but by a difference in how WestLaw and
the Department of Labor publish the DOT. For example, one of
the positions at issue in this case was labeler, which the DOT
classifies at 920.687-126. In the version of the DOT I used, the
entry for this position does not speak to instructions, much less
detailed ones. However, it contains what the DOT refers to as
VELEZ v. COMMISSIONER
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a “trailer,” which reads like this: “GOE: 06.04.37 STRENGTH:
L GED: R2 M1 L1 SVP: 2 DLU: 84.” To understand this
inscrutable code, one must refer to Appendix C, which,
relevantly, explains that “GED: R2" means that the job has
“Reasoning Development” level of 2, which requires an ability
to “[a]pply commonsense understanding to carry out detailed
but uninvolved written or oral instructions.” So there is the
“detailed instructions” requirement to which Atty. Roman had
referred. Granted, it is technically part of the “trailer” rather
than the job description, but, as Atty. Roman intimated at the
hearing, this distinction is elided by WestLaw: it does not
include the trailer, but rather incorporates Appendix C’s longer
definitions directly into the position definition.1 Thus Atty.
Roman’s claim in his memorandum of law was substantially
correct, and it certainly deserved no sanctions.
The problem is that Atty. Roman did not make this straightforward explanation in response to the First OSC; indeed, he
did not respond at all. He did not timely comply with two
further OSCs either. And when he finally appeared for a
1.
Thus, the entry for Labeler says: “Reasoning: Level 2—Apply
commonsense understanding to carry out detailed but uninvolved
written or oral instructions.”
VELEZ v. COMMISSIONER
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hearing, he admitted to mishandling his recent cases and
professed a lack of interest in his caseload. This alone would be
a cause for real concern, as it could raise doubts about whether
Atty. Roman were, at the moment, competent to handle cases
before this Court. But it turns out there is further cause for
concern. Atty. Roman’s repeated failures to comply with my
orders caused me to look into his record before this court.
What I found gives context to his most recent failures, and
causes me great concern.
I began by making a list of all of Atty. Roman’s cases
initiated in this district since January 1, 2000.2 Not including
this one, I counted 55 cases filed since that date, all of which
were Social Security appeals. I then divided the cases into two
periods—2000 to 2003, and 2004 to the present—because an
initial look showed that around 2004, what had been a poor
record before this Court turned into an appalling one. I
summarize below.
In the years 2000 through 2003, Atty. Roman filed 28 cases
in this Court. In at least seven of these—25% of the total—the
2.
Atty. Roman has been practicing in this district since at least the 1980s.
However, I only looked at cases since 2000 because our CM/ECF system
lacks many relevant documents in cases filed before that date.
VELEZ v. COMMISSIONER
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presiding judge dismissed the action because of Atty. Roman’s
failure to prosecute or comply with Court orders. See Civ. Nos.
01-1721(PG), 01-2526(HL), 02-2341(PG), 02-2752(PG), 022753(JAG), 03-1327(JP), 03-2372(DRD). In most of the remaining cases from this period—twelve, by my count—Atty.
Roman failed to comply with Court orders, but the Court
nonetheless decided the matter on its merits, see Civ. Nos. 001636(CCC), 00-2361(CCC), 00-2634(JAF), 01-1451(JAF), 011720(SEC), 01-2527(DRD), 01-2611(JAF), 02-1814(JAF), 021958(JAF), 02-2258(SEC), 02-2388(JAF), 02-2853(JAF); in many
of these cases, Roman failed to even file a memorandum of
law,3 despite Court orders to do so, see Civ. Nos. 00-1636(CCC),
00-2634(JAF), 01-1451(JAF), 01-2611(JAF), 02-1814(JAF), 021958(JAF), 02-2258(SEC), 02-2853(JAF). In an additional five
cases, the action was decided on its merits without any
substantive filings by Atty. Roman, though no orders to show
cause were filed. See Civ. Nos. 01-2521(SEC), 02-2852(JAG), 031034(DRD), 03-1662(JAG), 03-1910(HL). It is thus in only four
cases during these years that Atty. Roman fully complied with
3.
I note that during the hearing, Atty. Roman referred to the
memorandum of law as the most important part of a Social Security
appeal.
VELEZ v. COMMISSIONER
Page 8
his duties without prodding by the presiding judge; a quarter
of his cases were dismissed, and in most of the rest he showed
a tendency to do less than was reasonably expected.
After 2003, this poor record got worse. Since the beginning
of 2004, Roman has filed 27 cases not including this one.
Incredibly 21 of those—about 78%—have been involuntarily
dismissed because of Atty. Roman’s failure to either prosecute
or comply with Court orders. See Civ. Nos. 04-1007(JAG), 041502(PG), 04-1714(CCC), 04-1796(SEC), 04-2048(JAG), 042049(JAG), 05-1913(JP), 05-2088(JAF), 05-2217(CCC), 061667(DRD), 06-1668(JP), 07-1412(DRD), 07-1413(JAG), 071463(CCC), 07-1772(JAG), 07-2206(JAG), 08-1142(JAG), 081705(DRD), 14-1387(MEL), 14-1390(BJM), 14-1696(MEL). In five
of the remaining cases, the Court issued judgment on the
merits only after issuing at least one—and often several—orders to show cause to Atty. Roman. See Civ. Nos. 041781(HL), 06-2233(JAF), 10-1924(MEL), 11-1167(MEL), 121388(MEL). And in his only case currently pending, the Court
has twice ordered Atty. Roman to show cause for failures to
comply; the second of those Orders, which was issued in May
2015, has yet to be complied with. See Civ. No. 14-1698(BJM).
What this means is that in every case that Atty. Roman has filed
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since 2004, the judge has found it necessary to rely on orders to
show cause or other coercive means to force Atty. Roman to
comply with his obligations; more than three-quarters of the
time, the end result has been involuntary dismissal.
3. Conclusion
During the hearing, Atty. Roman told the Court that he had
lost interest in his legal practice. His conduct in this case, taken
in the context of his record over the last decade, shows just
how true this is. I understand that Atty. Roman is suffering
from depression and other ailments, and I am sympathetic to
his plight. But while it explains some of his history, it does not
justify it and, more importantly, cannot mitigate the great
potential harm that might be caused by an attorney who has
nearly all of his cases involuntarily dismissed for non-compliance. Because I do not believe that Atty. Roman is capable of
providing legally sufficient representation to his clients before
this Court, I reluctantly refer this matter to the Chief Judge
with the recommendation that he be stricken from the role of
attorneys admitted to practice before this Court.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 30th day of October 30, 2015.
S/ SILVIA CARREÑO-COLL
VELEZ v. COMMISSIONER
UNITED STATES MAGISTRATE JUDGE
Page 10
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