DePalma, Richard v. Colvin, Carolyn

Filing 39

ORDER granting 28 Unopposed Motion for Indicative Ruling. The court indicates that it is inclined to grant relief from the judgment entered on 11/25/2015 should the Court of Appeals remand for that purpose. The Commissioner is directed to circulate this order to every attorney and staff member who represents the Commissioner in this court, writes or contributes to briefs that the Commissioner files in this court, appears at oral argument on behalf of the Commissioner in this court, or reviews Social Security cases filed in this court to determine whether they should be remanded. Signed by District Judge James D. Peterson on 5/31/2016. (arw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

RICHARD DEPALMA,
Plaintiff,
v.

ORDER

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,

14-cv-817-jdp

Defendant.
In an order to show cause, Dkt. 29, I expressed concern over the apparently routine
practice of stipulating to remand Social Security cases after the Commissioner defends the
ALJ’s decision and I affirm the ALJ. The Commissioner’s response, Dkt. 38, is not satisfying
because it fails to address the main point that I raised. The Commissioner provides a catalog
of reasons for why remand after appeal might be appropriate, but she does not address what
appears to me to be a systemic problem. I track the resolution of Social Security cases
assigned to me, and of the six cases in which I have affirmed the Commissioner’s decision,
four of them (including this case) have ended with a stipulated remand at the court of
appeals.1 Stipulations to remand are simply too common for me to believe that they represent
“rare cases” in which the Commissioner determines that agreement to remand after appeal is
warranted by such considerations as recently issued or immanent decisions in similar cases.
See id. at 18.
I am persuaded that it would be impractical to require in future cases that the
Commissioner certify that appellate counsel has reviewed the case and will commit to
1

The Seventh Circuit affirmed one of the remaining two cases, and briefing is currently in
progress for the other case.

defending it on appeal. However, I am still convinced that in cases assigned to me, it is
appropriate to require the Commissioner to justify her change in position before I grant a
joint request for an indicative ruling under Federal Rule of Civil Procedure 62.1.2 In my
previous order, I proposed to evaluate such requests under the framework for motions for
relief from judgment pursuant to Rule 60: the Commissioner would have to explain why an
extraordinary remedy was appropriate and why the case presented exceptional circumstances.
The Commissioner proposes a different framework. She argues that I should apply “a
balancing of the equities” analysis, which would include considering the public interest in
precedent, preclusion, and judicial economy and the circumstances, hardships, and interests
of the private parties. Id. at 7; see also Marseilles Hydro Power LLC v. Marseilles Land & Water
Co., 481 F.3d 1002, 1003 (7th Cir. 2007). But as the Commissioner interprets these factors,
there would essentially never be a case that fails to qualify for relief. Thus, the
Commissioner’s proposed standard is no standard at all, just a rubber stamp. See Dkt. 38, at
8 (“The equitable considerations . . . demonstrate that the Commissioner’s requests for
remand of cases already affirmed by the district courts should ordinarily be granted.”).
I will adopt the Commissioner’s proposed framework, but not necessarily her view of
the relevant public and private interests. My decisions in Social Security cases do not have
precedential value, yet they are a prerequisite to getting a case into a court that can issue
precedential decisions. The public has an interest in developing the principles of law that
govern Social Security cases, particularly if district courts are misapplying existing principles
and erroneously affirming the Commissioner’s decisions (which is what the Commissioner
2

This is not the first time that the Commissioner has faced resistance when she agreed to
remand a case after successfully defending an appeal in a district court. Cf. Triplett v. Colvin,
No. 12-cv-4382, 2014 WL 4978658 (N.D. Ill. Oct. 6, 2014).

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now contends occurred in this case). The Commissioner’s apparent desire to avoid hostile
precedent does not serve the public interest. See, e.g., id. at 19 (“Because many court of
appeals decisions are precedential, litigation before the Seventh Circuit also implicates more
than just one particular plaintiff’s entitlement to benefits. This reality informs the
defensibility analysis of Seventh Circuit matters by the Commissioner’s attorneys.”). As for
the other considerations, I have already explained how the Commissioner’s strategy of
seeking remand after this court has affirmed her decisions is an inefficient use of judicial
resources. Dkt. 34. And in the long run, the strategy is detrimental to claimants’ interests
because they must pursue a case all the way to a court of appeals before the Commissioner
relents and awards benefits.
This is all to say that in future cases where the Commissioner pursues a remand after I
affirm her decision, she will have to justify her request for an indicative ruling. She may
frame her justification in terms of a balance of equities, but she must ultimately demonstrate
why, on the merits, remand is warranted. I will not ask the Commissioner to disclose
privileged communications. But the Commissioner must offer some explanation for why a
claimant that she has determined to be unentitled to benefits, after multiple levels of review,
should be allowed to try again.
I reiterate that I am encouraging early decision making in Social Security cases. From
time to time, settlement might be reached at the appellate level, when it is too late to save
the judicial and party resources expended at the district court. If there are good reasons for
the Commissioner’s change in position, then I am willing to remand a case to allow the
agency to correct its own mistakes. But the pattern that I have observed suggests that the
Commissioner and her attorneys are not adequately considering the possibility of settlement

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at the district court level, and the Commissioner’s response to my order to show cause has
not persuaded me otherwise. For purposes of clarity, I will confirm that the parties’ joint
motion for an indicative ruling in this case is granted. I will again direct that this opinion be
circulated to attorneys who represent the Commissioner in this court.

ORDER
IT IS ORDERED that:

1. The parties’ unopposed motion for an indicative ruling, Dkt. 28, is GRANTED.
The court indicates that it is inclined to grant relief from the judgment entered on
November 25, 2015, should the court of appeals remand for that purpose.

2. The Commissioner is directed to circulate a copy of this order to every attorney
and staff member who represents the Commissioner in this court, writes or
contributes to briefs that the Commissioner files in this court, appears at oral
argument on behalf of the Commissioner in this court, or reviews Social Security
cases filed in this court to determine whether they should be remanded.
Entered May 31, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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