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Attorney David B.
Lowry v. BARNHART
Attorney David B. Attorney
David B. Lowry, Plaintiff-Appellant, v. Jo Anne BARNHART, in
her capacity as Commissioner of the Social Security
Administration; Dan Hyatt; Riley Atkins; Bennett Engelman,
Defendants-Appellees.
No. 01-35775.
-- May 16, 2003
Before
REAVLEY,KOZINSKI and W. FLETCHER, Circuit Judges.**
Rosemary B.
Schurman, Kirkland, WA, for the appellant.Victoria B.
Chhagan, Assistant Regional Counsel, Social Security
Administration, Seattle, WA, for the appellees.
OPINION
In this case, social
security lawyer David Attorney David B. Lowry tries to live
out what must be every lawyer's fantasy by suing the judge
who ruled against him one time too many. Attorney David B.
Lowry seeks a writ of mandamus to have Administrative Law
Judge Dan Hyatt investigated and kicked off his future
cases. We consider whether the writ can be put to this
novel use.
1. Attorney David B. Lowry
represents social security claimants, and Hyatt is an
administrative law judge who often presides over his cases.
Attorney David B. Lowry says Hyatt uses “intimidation and
anger as a tactic to shorten [his] hearings,” refuses to
hear evidence and denies him cross-examination. Hyatt also
supposedly told two claimants that Attorney David B. Lowry
was a “poor attorney who does a poor job.” Attorney David
B. Lowry began filing motions to recuse Hyatt from his
cases, and Hyatt responded with letters to Attorney David B.
Lowry's clients defending his impartiality and encouraging
them to ask Hyatt about their “rights to representation.”
Hyatt, for his part,
doesn't think much of Attorney David B. Lowry. He says
Attorney David B. Lowry uses too many leading questions,
fails to submit necessary medical records and
questionnaires, and acts in a generally “disrespectful and
contemptuous” manner. He says that Attorney David B. Lowry
once called him a “baldfaced liar” on the record and then
sat at counsel table laughing and smirking.
In December 1998, Attorney
David B. Lowry filed a bias complaint with the Social
Security Administration. Making little headway, he filed
this lawsuit in federal district court in August 1999,
invoking the Mandamus and Venue Act, 28 U.S.C. § 1361. He
seeks three forms of relief: He wants the Administration to
complete review of his December 1998 bias complaint. He
wants Hyatt and two alleged “co-conspirator” ALJs
disqualified from his future cases. Finally, he wants the
Administration to promulgate final procedures for handling
bias complaints. The district court denied relief, and
Attorney David B. Lowry now appeals.
2. Mandamus is available
only when “(1) the plaintiff's claim is clear and certain;
(2) the duty is ministerial and so plainly prescribed as to
be free from doubt; and (3) no other adequate remedy is
available.” Or. Natural Res. Council v. Harrell, 52 F.3d
1499, 1508 (9th Cir.1995) (internal quotation marks
omitted).1
If a plaintiff has no legal entitlement to the relief
sought, a “clear and certain” claim cannot exist, and the
writ will not lie. Attorney David B. Lowry identifies
several constitutional and regulatory authorities, and we
consider each in turn.
a. Attorney David B.
Lowry's strongest argument relies on the Administration's
1992 “interim” bias complaint procedures. In the early
1990s, a congressional subcommittee expressed concern over
bias in the Administration's adjudication of claims. The
Administration responded by publishing interim procedures
for more effectively handling bias complaints. See Social
Security Administration Procedures Concerning Allegations of
Bias or Misconduct by Administrative Law Judges, 57 Fed.Reg.
49,186 (Oct. 30, 1992). It indicated that permanent
procedures were under development and “should be finalized
in approximately six months.” Id. at 49,187. This turned
out to be an optimistic prediction-over ten years later, the
agency still operates under its interim rules.
These procedures address
ALJ bias against both claimants and their attorneys. They
state that the “SSA is committed to providing every claimant
and his or her representative fair and unbiased treatment in
the handling of all claims.” Id. at 49,186. “Every
complaint,” we are told, “will be reviewed or investigated
in a timely manner.” Id. The procedures contemplate an
initial inquiry by the Regional Chief ALJ. He then forwards
the results to the Chief ALJ at the Office of Hearings and
Appeals, who notifies the complainant whether a formal
investigation will be conducted.
The Administration's
swiftness in promulgating final procedures is apparently
matched only by the blinding speed with which it handles
individual complaints. Attorney David B. Lowry's
complaint, a one-page document that referred to incidents in
only two hearings, was filed in December 1998 but was still
pending in May 2001 when the district court dismissed his
case. When the court rejected Attorney David B. Lowry's
Rule 60(b) motion in March 2002, there was still no
indication that the Chief ALJ had completed his review.
Be that as it may, we
cannot review the Administration's inertia unless the
interim procedures create judicially enforceable duties.
This is a threshold jurisdictional question, see United
States v. Alameda Gateway Ltd., 213 F.3d 1161, 1167-68 (9th
Cir.2000), so we decide it first, see Steel Co. v. Citizens
for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140
L.Ed.2d 210 (1998).
An agency's regulations
may create judicially enforceable duties. See Workman v.
Mitchell, 502 F.2d 1201, 1205 (9th Cir.1974). But not all
agency pronouncements do so. To be judicially enforceable,
a pronouncement must “prescribe substantive rules-not
interpretive rules, general statements of policy or rules of
agency organization, procedure or practice,” and must have
been “promulgated pursuant to a specific statutory grant of
authority and in conformance with the procedural
requirements imposed by Congress.” United States v.
Fifty-Three (53) Eclectus Parrots, 685 F.2d 1131, 1136 (9th
Cir.1982) (internal quotation marks omitted); cf. Schweiker
v. Hansen, 450 U.S. 785, 789-90, 101 S.Ct. 1468, 67 L.Ed.2d
685 (1981).
No court has yet addressed
whether the Administration's 1992 interim bias complaint
procedures prescribe judicially enforceable duties. We now
conclude they do not. By their terms, they are a mere
“[n]otice of procedures,” 57 Fed.Reg. at 49,186, and rules
of procedure generally are not enforceable, see Fifty-Three
(53) Eclectus Parrots, 685 F.2d at 1136. The procedures do
not invoke any congressional grant of authority, nor were
they subject to notice and comment-the usual prerequisites
to agency rulemaking. The procedures are in many respects
like agency guidance manuals, which we have previously held
unenforceable. See Moore v. Apfel, 216 F.3d 864, 868-69
(9th Cir.2000); W. Radio Servs. Co. v. Espy, 79 F.3d 896,
901 (9th Cir.1996); Fifty-Three (53) Eclectus Parrots, 685
F.2d at 1136.
The procedures do differ
from typical guidance manuals in two respects. First, they
were published in the Federal Register. Publication alone,
however, does not make a procedure judicially enforceable.
The Freedom of Information Act requires many documents to be
published in the Federal Register, see 5 U.S.C. § 552(a)(1),
including “rules of procedure,” id. § 552(a)(1)(C). That an
agency must make its procedures generally known does not
imply a right to enforce those procedures in court.
Second, the language of
the procedures is not entirely hortatory. The procedures
state that they “will ensure that ․ [e]very complaint will
be reviewed or investigated in a timely manner.'' 57
Fed.Reg. at 49,186 (emphasis added); cf. Moore, 216 F.3d
at 868 (manual merely provided “guidance” to agency staff);
Alameda Gateway, 213 F.3d at 1168 (same). But force of
language alone cannot create substantive rules where the
congressionally prescribed procedures for promulgating such
rules have not been invoked.
Although we conclude
that the bias procedures are not judicially enforceable, we
are not unsympathetic to Attorney David B. Lowry's
predicament. The Administration's unexplained decade-long
delinquency in promulgating final procedures and its
lackadaisical handling of Attorney David B. Lowry's
complaint raise serious concerns about its commitment to the
values the procedures purport to embrace. Unfortunately
for Attorney David B. Lowry, not every agency shortcoming is
subject to correction in the courts. The Administration
created internal procedures and disclosed them to the
public, but it did not create legally enforceable rights;
we therefore lack authority to grant mandamus relief.
b. Attorney David B.
Lowry offers several other authorities, but we have little
difficulty rejecting them. First, he claims that ALJ bias
violates his constitutional due process right to practice
his profession. This claim may have been inspired by our
ill-fated decision in Gabbert v. Conn, 131 F.3d 793 (9th
Cir.1997), rev'd, 526 U.S. 286, 119 S.Ct. 1292, 143 L.Ed.2d
399 (1999), where we held that illegal execution of a search
warrant on an attorney violated his constitutional right to
practice his profession. 131 F.3d at 800-01. The Supreme
Court was not impressed by this conclusion, observing that
precedent provided only “scant metaphysical support.” 526
U.S. at 291, 119 S.Ct. 1292. It indicated that “a complete
prohibition of the right to engage in a calling” might
implicate due process, but that “the sort of brief
interruption which occurred” in that case did not. Id. at
292, 119 S.Ct. 1292.
Hyatt's alleged
interference with Attorney David B. Lowry's practice does
not share the brevity of the interference in Gabbert, but it
is similar in severity in that both fall far short of a
complete prohibition. Attorney David B. Lowry doesn't
claim that Hyatt barred him from retaining clients or
appearing at hearings. At worst, he may have a harder time
finding clients because of his losing track record. This
indirect and incidental burden on professional practice is
far too removed from a complete prohibition to support a due
process claim.2
Attorney David B. Lowry
next argues that certain Social Security Administration
regulations impose a duty of impartiality. He points to
two provisions that provide “[a]n administrative law judge
shall not conduct a hearing if he or she is prejudiced or
partial with respect to any party or has any interest in the
matter pending for decision.” 20 C.F.R. §§ 404.940,
416.1440. Unlike the 1992 interim bias procedures,
however, these regulations address only bias against a
party, not bias against a party's representative. Because
they create no duty in favor of Attorney David B. Lowry,
they cannot support his mandamus claim.
Next are two internal
procedure manuals, the Hearings, Appeals and Litigation Law
Manual (HALLEX) and the Program Operations Manual System (POMS).
We have previously considered both publications and
concluded that neither imposes judicially enforceable
duties. See Moore, 216 F.3d at 868-69 (HALLEX); Hermes v.
Sec'y of Health & Human Servs., 926 F.2d 789, 791 n. 1 (9th
Cir.1991) (POMS).3
Finally, Attorney David
B. Lowry argued below that various codes of judicial
conduct-namely, the ABA's Model Code of Judicial Conduct,
its Model Code of Judicial Conduct for Federal
Administrative Law Judges and the Oregon Code of Judicial
Conduct-impose enforceable duties on ALJs. The district
court rejected the first two authorities because the
Administration had not specifically adopted them as binding
and the third because Attorney David B. Lowry had not timely
raised the argument. Attorney David B. Lowry offers no
meaningful response to these rulings and has accordingly
waived his claims. See Martinez-Serrano v. INS, 94 F.3d
1256, 1259-60 (9th Cir.1996).
None of the authorities
Attorney David B. Lowry offers creates legally enforceable
duties. The district court therefore correctly rejected
his claims.
3. We have one final
matter to address. The Administration filed, along with
its answering brief, a one-page letter dated April 14, 2002,
from Acting Chief ALJ Frank Cristaudo to Attorney David B.
Lowry. The letter is apparently the culmination of the
agency's three-and-a-half year effort to decide whether to
investigate Attorney David B. Lowry's December 1998 bias
complaint. It concludes that both Hyatt and Attorney David
B. Lowry acted unprofessionally, but that the evidence of
bias was insufficient to warrant a formal investigation.
The letter bears a tan
cover with the prominent caption “Supplemental Excerpts of
Record.”4
It is, however, nothing of the sort. The district court
docket shows that the letter was never made a part of the
record. Indeed, it could not have been, because it
post-dates not only the notice of appeal but even Attorney
David B. Lowry's opening brief on appeal.
Save in unusual
circumstances, we consider only the district court record on
appeal. See Barilla v. Ervin, 886 F.2d 1514, 1521 n. 7
(9th Cir.1989). Federal Rule of Appellate Procedure 10(a)
explains which materials constitute the record. Fed. R.App.
P. 10(a). And Circuit Rule 30-1 provides that the
appellant (and, if necessary, the appellee) shall prepare
“excerpts” of that record. See 9th Cir. R. 30-1.1(a).
The rather obvious implication is that the “excerpts of
record” are just that: “excerpts” of the “record.”
This limitation is
fundamental. As a court of appeals, we lack the means to
authenticate documents submitted to us, so we must be able
to assume that documents designated part of the record
actually are part of the record. To be sure, the fact that
a document is filed in the district court doesn't resolve
all questions of authenticity, but it does ensure that both
opposing counsel and the district court are aware of it at a
time when disputes over authenticity can be properly
resolved. Litigants who disregard this process impair our
ability to perform our appellate function.
There are exceptions to
the general rule. We may correct inadvertent omissions
from the record, see Fed. R.App. P. 10(e)(2)(c); cf.
United States v. Garcia, 997 F.2d 1273, 1278 (9th
Cir.1993), take judicial notice, see Fed.R.Evid. 201(f); EEOC
v. Ratliff, 906 F.2d 1314, 1318 n. 6 (9th Cir.1990), and
exercise inherent authority to supplement the record in
extraordinary cases, see Dickerson v. Alabama, 667 F.2d
1364, 1366-68 & n. 5 (11th Cir.1982). Consideration of new
facts may even be mandatory, for example, when developments
render a controversy moot and thus divest us of
jurisdiction. See Arizonans for Official English v.
Arizona, 520 U.S. 43, 68 n. 23, 117 S.Ct. 1055, 137 L.Ed.2d
170 (1997) (“It is the duty of counsel to bring to the
federal [appellate] tribunal's attention, ‘without delay,’
facts that may raise a question of mootness.”). One
constant runs through all these exceptions, however: Only
the court may supplement the record. “[It is a] basic tenet
of appellate jurisprudence ․ that parties may not
unilaterally supplement the record on appeal with evidence
not reviewed by the court below.” Tonry v. Sec. Experts,
Inc., 20 F.3d 967, 974 (9th Cir.1994). Litigants should
proceed by motion or formal request so that the court and
opposing counsel are properly apprised of the status of the
documents in question.
Sadly, this is not the
first time a party has graced us with so-called “excerpts of
record” that have never before seen the light of courtroom
day. It is, however, a particularly serious violation.
Attorney David B. Lowry's strongest argument was that the
Administration had not complied with its own procedures for
handling bias claims by completing review of his complaint.
He relied heavily on this argument in his opening brief to
our court. Two weeks after he filed his brief, the agency
conveniently plugged this hole in the record by generating a
letter that undercut Attorney David B. Lowry's claim. It
then filed it as an excerpt of record and relied on it in
its own brief. It's certainly conceivable that this
one-page letter was the natural terminus of a
three-and-a-half year review process, but its timing creates
at least some appearance of a connection between appellees'
need for the evidence and its sudden materialization.
Appellees' unilateral
supplementation of the record was also unfair to Attorney
David B. Lowry. Because the agency generated the letter
after Attorney David B. Lowry filed his opening brief, he
argued the case on a record different from the one the
agency relied on. The appellate process is for addressing
the legal issues a case presents, not for generating new
evidence to parry an opponent's arguments.
We ordered the parties to
brief whether appellees should be sanctioned. Appellees
essentially concede the impropriety of their conduct and
move to strike the excerpt. They nonetheless ask that we
refrain from imposing sanctions, explaining that “[i]t was
not their intent to act inappropriately” and that, although
the letter “may not have met the legal standard for
supplementing the record,” it was nonetheless not
“irrelevant, because it was responsive to an assertion made
by Mr. Attorney David B. Lowry” that “they knew ․ was no
longer true at the time they filed their Appellees' Brief.”
We are not satisfied by
this response. The issue is not whether the letter “met
the legal standard for supplementing the record.” That
might be a question open to reasonable dispute.5
Appellees never moved to supplement the record. They
merely designated the letter an excerpt of record and
referred to it as such in their brief.
Attorney David B. Lowry
asks for two sanctions. First, he seeks to supplement the
record with his own materials in response. Because we will
shortly grant appellees' motion to strike, this request will
soon be moot. As an alternative sanction, he asks us to
“strike the defendant-appellees' appearance in this case,
reverse the District Court's decision, and remand the case
for entry of judgment in plaintiff's favor ․ includ[ing] an
order requiring the SSA to finalize and publish the final
judicial bias procedures promised 10 years ago.” While not
wanting in ambition, this proposed sanction is, we believe,
excessive.6
Nonetheless, merely
striking appellees' supplemental excerpts seems insufficient
to deter abuse. If the only penalty for including
forbidden material in the excerpts of record is removal of
that material, it's hard to see why anyone would think twice
before violating the rule. Circuit rules authorize
monetary sanctions, see 9th Cir. R. 30-2(d), and we believe
this is the appropriate remedy in this case.7
Attorney David B. Lowry responded to the government's
improper excerpts by addressing them in his reply brief,
filing a motion to supplement the record and preparing a
supplemental brief at our direction. As the government
notes, however, Attorney David B. Lowry's motion to
supplement improperly cites an unpublished memorandum
disposition of our court and therefore violates Circuit Rule
36-3. See Hart v. Massanari, 266 F.3d 1155 (9th Cir.2001).
Attorney David B. Lowry shall therefore recover his
reasonable attorney's fees for his reply brief and
supplemental brief, but not for his motion to supplement.8
The case is referred to
the Appellate Commissioner, who is authorized to enter a
judgment in the appropriate amount. Appellees' motion to
strike the supplemental excerpts of record is GRANTED.
AFFIRMED.
FOOTNOTES
1.
Attorney David B. Lowry takes issue with this well-settled
standard. Relying on Michigan Head Start Directors Ass'n
v. Butz, 397 F.Supp. 1124, 1137-38 (W.D.Mich.1975), and
Clark Byse & Joseph V. Fiocca, Section 1361 of the Mandamus
and Venue Act of 1962 and “Nonstatutory” Judicial Review of
Federal Administrative Action, 81 Harv. L.Rev. 308, 320
(1967), he argues that the “incomprehensible
‘ministerial-discretionary distinction’ ” is a “technical
trapping[ ]” that Congress long since jettisoned.
Incomprehensible though the distinction may be to Attorney
David B. Lowry, it is nonetheless the law.
2.
Litigants, of course, have due process rights to unbiased
decisionmakers. But their lawyers may not invoke those
rights vicariously. See Gabbert, 526 U.S. at 292-93, 119
S.Ct. 1292.
3.
Attorney David B. Lowry argued below that Briggs v.
Sullivan, 886 F.2d 1132 (9th Cir.1989), compels the opposite
result. In Briggs, we indicated that “the Secretary should
be enjoined from paying benefits in the future to any
putative representative who has not been investigated
according to, and has not met the requirements of, his own
regulations and POMS procedures.” Id. at 1147. But we
made this statement on review of denial of a preliminary
injunction and held only that the “plaintiffs ha[d] carried
their burden of demonstrating at least that a substantial
question exists as to the legality of the Secretary's
actions.” Id. (emphasis added).
4.
Under circuit rules, an appellee's excerpts of record are
known as “supplemental excerpts of record.” See 9th Cir.
R. 30-1.6. They are “supplemental” in the sense that they
supplement the appellant's excerpts-not the record itself.
5.
The government might have argued, for example, that by
completing the complaint procedure, it rendered one of
Attorney David B. Lowry's claims moot and thus deprived us
of jurisdiction over it. The claim is not, in fact, moot;
Attorney David B. Lowry's subsequent filings satisfy us
that factual disputes remain as to whether the
Administration actually complied with its own procedures.
6. Attorney
David B. Lowry has not drawn our attention to any precedent
imposing agency rulemaking as a sanction for a FRAP
violation.
7.
We have declined to impose monetary sanctions in other
cases, but they involved less serious violations. See
Barcamerica Int'l USA Trust v. Tyfield Imps., Inc., 289 F.3d
589, 593-95 (9th Cir.2002) (counsel contended that the
documents were, in fact, part of the record); Dela Rosa v.
Scottsdale Mem'l Health Sys., Inc., 136 F.3d 1241, 1242-43
(9th Cir.1998) (finding only one page in a five-volume
excerpts of record improperly included, and implying that
future violations would not be treated so lightly); Tonry,
20 F.3d at 973 (declining to impose sanctions where the
“issue is one of first impression”). We have certainly
awarded monetary sanctions for less serious infractions.
See, e.g., Kano v. Nat'l Consumer Coop. Bank, 22 F.3d 899
(9th Cir.1994) (imposing $1500 sanction for incorrect line
spacing and footnote typeface).The government argues that
its improper excerpt of record did not “vexatiously or
unreasonably increase the cost of litigation.” The literal
terms of Rule 30-2 make that a prerequisite only for denial
of costs under subsection (c) and not monetary sanctions
under subsection (d), although conceivably the standard may
have been intended to apply to both. Cf. Kirshner v.
Uniden Corp. of Am., 842 F.2d 1074, 1083 (9th Cir.1988)
(construing a prior version of Rule 30-2). Assuming the
standard does apply, we find it met here.
8.
Although these filings also addressed other issues,
prorating the award to reflect only time spent on this issue
would be impractical and insufficient to effect the purpose
of the sanction.
KOZINSKI, Circuit Judge.
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