1. law, govt and politics

Case: 7:15-cv-00046-ART-HAI Doc #: 4-1 Filed: 06/02/15 Page: 1 of 24 - Page ID#: 39
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
PIKEVILLE DIVISION
CIVIL CASE 7:15-46-ART-EBA
CHERYL MARTIN & ROBERT MARTIN, Individually,
and on behalf of all others similarly situated
VS.
PLAINTIFFS
MOTION FOR TEMPORARY RESTRAINING ORDER
or, in the alternative
MOTION FOR PRELIMINARY INJUNCTION
(MEMORANDUM IN SUPPORT)
CAROLYN W. COLVIN, in her official capacity as
Acting Commissioner of the Social Security Administration
DEFENDANT
***********
INTRODUCTION
“Disability is something most people do not like to think about. But the chances that you
will become disabled probably are greater than you realize. Studies show that a 20-year-old
worker has a 1-in-4 chance of becoming disabled before reaching full retirement age.”
Social Security Administration, Disability Benefits, SSA Publication No. 0510029, p.4 (May, 2014) available online at www.ssa.gov/disabilityssi (last visited
June 1, 2015)
Social Security Disability (SSD) is designed for workers who become unable to support
themselves through gainful employment. Plaintiff Cheryl Martin worked for nearly forty (40)
years before she became disabled; Plaintiff Robert Martin worked for twenty-two (22) years as a
truck driver before being severely injured in a trucking accident. These stories are, no doubt,
common among the approximately 900 members of the Class before this Honorable Court.
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These individuals are all before this Court seeking emergency relief due to the unlawful and
unconstitutional actions of the Defendant Social Security Administration, who has deprived them
of the income that is necessary for their survival. In May 2015, the Defendant sent letters to
approximately 900 disabled workers, stating that their benefits were being suspended due to the
allegedly fraudulent actions of attorney Eric C. Conn, who had represented the workers in their
original disability hearings.
The Plaintiffs seek the emergency intervention of this Court to protect them from the
immediate and irreparable injury, loss or damage that would occur if the Social Security
Administration’s actions are allowed to go unchallenged.
FACTS
The relevant facts are set forth in the Complaint and Exhibits filed therewith, as well as
the Affidavits of Plaintiffs Cheryl Martin and Robert Martin, which are filed with the Complaint
and also attached hereto as Exhibits A and B, respectively.
Attorney Eric C. Conn of Stanville, Kentucky, highly publicizes himself as “Mr. Social
Security” and has represented a large number of clients in Eastern Kentucky, including the
Plaintiffs in this case. According to public reports, between 2001 and 2013, he obtained
approximately $22 million in fees from the Social Security Administration for his representation
of clients in Social Security Disability and SSI cases. The Social Security Administration has
conducted an internal review of Mr. Conn’s practices, which has shown that he conspired with
several medical witnesses to provide false or fraudulent reports in connection with his disability
cases. There is further evidence that Conn has destroyed large amount of data and documents in
an attempt to avoid detection of his activities. See, Affidavits of Jaime Slone and Miranda
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Martin, attached hereto as Exhibits C & D, respectively. Due to the activities of Mr. Conn, the
Social Security Administration has targeted certain recipients for benefit suspension, though it is
unclear why or how these particular beneficiaries were singled out for suspension. The Plaintiffs
in this action have had their benefits unilaterally and summarily suspended, with no prior notice
or opportunity to address any alleged deficiencies in their files.
The Plaintiffs stand in stark contrast to the parade of evidence and accusations besetting
Mr. Conn, as well as the exorbitant $22 million in fees paid to him by the Defendant in recent
years. The Defendant has not alleged that the Plaintiffs were involved in any wrongdoing, yet the
Defendant has seen fit to unilaterally suspend the Plaintiffs benefits, while Mr. Conn has not
been charged with any criminal wrongdoing for his actions. The Plaintiffs are not getting rich
from their benefits, but are using them to provide for the essentials of life.
Plaintiff Cheryl Martin is 65 years old, and received her disability benefits beginning in
2009, after she was severely injured in an automobile accident. Plaintiff Cheryl Martin suffers
from stage four cancer; she is taking approximately 22 medications which cost her over $600.00
per month. She receives approximately $1,100.00 a month in Social Security Disability; without
this source of income, she cannot afford the medical care that she needs to treat her cancer.
Plaintiff Robert Martin is 51 years old, and began receiving his disability benefits in
2009. He became eligible for Social Security Disability benefits after he was severely injured in
a trucking accident. In May 2011, Plaintiff Robert Martin was diagnosed with colon cancer and
had a portion of his colon removed. He has also been diagnosed with a tumor in his right lung.
He receives approximately $1,400 a month in Social Security Disability. He has no other
income, and without this source of income, he will be unable to afford his house payments and
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his medical expenses. Plaintiff Robert Martin also received at least one continuing disability
review since his original award. During this review process the Defendant itself reviewed
Plaintiff Robert Martin’s records, and made a determination that he was still disabled. 1
ARGUMENT
(A)
A TEMPORARY RESTRAINING ORDER IS NECESSARY, AS THE PLAINTIFFS WILL
CLEARLY SUFFER IMMEDIATE AND IRREPARABLE INJURY, LOSS OR DAMAGE
BEFORE THE DEFENDANT CAN BE HEARD IN OPPOSITION
A temporary restraining order is required in this case to prevent immediate and
irreparable harm to the Plaintiffs.
Such an order would prevent the Plaintiffs from losing
immediate access to food, medical care and shelter which are necessarily attendant with the
Defendant’s sudden decision to take benefits from the Plaintiffs.
A temporary restraining order may be issued where
(a)
specific facts in an affidavit or verified complaint clearly show that
immediate and irreparable injury, loss or damage will result to the movant before
the adverse party can be heard in opposition; and
(b)
the movant’s attorney certifies in writing any efforts made to give notice
and the reasons why it should not be required.
Fed. R. Civ. P. 65(b).
The Sixth Circuit has held that a court must consider four factors in deciding whether to
issue a temporary restraining order (TRO) or preliminary injunction: (1) whether the movant has
shown a strong or substantial likelihood of success on the merits; (2) whether the movant has
demonstrated irreparable injury; (3) whether the issuance of a preliminary injunction would
cause substantial harm to others; and, (4) whether the public interest is served by the issuance of
1
Due to the time frame of this case, Mr. Martin was unable to sign an affidavit prior to the filing of this Motion. The
Plaintiffs plan to timely supplement this filing with his affidavit.
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an injunction. Teamsters Local Union 299 v. U.S. Truck Holdings, Inc., 87 F. Supp. 2d 726, 733
n. 2 (E.D. Mich. 1990) citing Rock & Roll Hall of Fame v. Gentile Prods., 134 F.3d 749, 753
(6th Cir. 1998). These considerations are “factors to be balanced, not prerequisites that must be
met.” Mascio v. Public Employees Retirement Sys. of Ohio, 160 F.3d 310 (6th Cir. 1998).
While all of these considerations are often difficult determinations at such an early stage
of litigation, it is can be particularly difficult to show a “strong or substantial likelihood of
success on the merits,” where the case involves either complex or novel questions of law, or
presents a matter of first impression. The balance of the factors can still make issuance of an
injunction appropriate even if the movant does not show a strong or substantial likelihood of
success on the merits, when the moving party can “at least show[] serious questions going to the
merits and irreparable harm which decidedly outweighs any potential harm to the defendant if an
injunction is issued.” Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 105 (6th
Cir. 1982).
An examination of the factors herein weighs decidedly in favor of issuance of a
temporary restraining order:
(1)
The movant has shown a strong or substantial likelihood of success on the merits
The movants can show a strong or substantial likelihood of success on the merits. The
movants need not show that all of their claims will succeed, as any of the claims asserted in the
Complaint [R. 1], are sufficient to warrant the declaratory relief sought. Each of the claims must,
therefore, be examined in turn to determine their likelihood of success.
(a)
Social Security Act & Regulations
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The Defendant did not notify the Plaintiffs that their benefits were being investigated; nor
did the Defendant provide the Plaintiffs with any opportunity to provide evidence prior to
suspension of the Plaintiffs’ benefits. 2 In addition to the constitutional concerns raised by this
course of conduct, the Defendant’s actions violate the Social Security Act and related
regulations.
For example, 20 C.F.R. § 404.992 states as follows:
If an administrative law judge or the Appeals Council proposes to revise a
decision, and the revision would be based on evidence not included in the record
on which the prior decision was based, you and any other parties to the decision
will be notified, in writing, of the proposed action and of your right to request that
a hearing be held before any further action is taken. If a revised decision is issued
by an administrative law judge, you and any other party may request that it be
reviewed by the Appeals Council, or the Appeals Council may review the
decision on its own initiative.
20 C.F.R. § 404.992 (emphasis added). The Defendant’s actions in the present case are allegedly
based on an internal review and information obtained by the Defendant regarding attorney Eric
C. Conn’s actions. The findings of this report are, necessarily, evidence that was not included in
the record on which the initial disability determinations were made. This new evidence was not
provided to the Plaintiffs, and the Plaintiffs were not provided with an opportunity for a hearing
prior to the adverse action of having their benefits suspended. The Defendant’s actions appear to
violate the plain language of this regulation.
This reading of § 404.992 comports with the general practice of providing notice and
opportunity prior to actions as drastic as the suspension of benefits provided by the Act. Indeed,
42 U.S.C. § 423(g) provides that beneficiaries may elect to continue receiving benefits while a
termination hearing is pending. This recognizes the simple truth that these benefits provide
2
The Plaintiffs reserve the right to raise arguments under additional provisions of the Social Security Act and
related regulations as this matter progresses.
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people such as the Plaintiffs with the necessities of life, and that the cessation of benefits is
extremely destructive to the lives of those affected thereby.
(b)
Due Process Clause
The primary and most pressing question presented herein is whether due process requires
the Defendant to provide the Plaintiffs with a hearing, at which they could either challenge the
reasonableness of the belief that fraud was involved in the individual case and that evidence in
their record should be disregarded, or at which they could submit new evidence to support their
disability determination, or both, before suspending or terminating Social Security Disability
benefits.
A second question is whether the Defendant’s planned action of terminating benefits and
requiring recipients to re-litigate their original disability claims within ten days, by submitting
evidence from different doctors, offers these recipients a meaningful opportunity to be heard,
prior to the loss of their essential benefits.
The termination or suspension of Social Security Disability (SSD) benefits involves
deprivation of a property interest protected by the Fifth Amendment and recipients faced with
the loss of such benefits must be afforded due process of law. Mathews v. Eldridge, 424 U.S.
319, 96 S.Ct. 893 (1976); Ferriell v. Commissioner of Social Security, 614 F.3d 611 (6th Cir.
2010); Flatford v. Chater, 93 F.3d 1296, 1304-05 (6th Cir.1996). In Mathews v. Eldridge, supra,
the U.S. Supreme Court considered whether the Due Process Clause of the Fifth Amendment
required an evidentiary hearing prior to the termination of Social Security Disability benefits.
The Court found that the procedures used by the Social Security Administration in that particular
case passed constitutional muster. It is vital to recognize that the Eldridge decision was based on
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a vastly different situation from the one presented herein, and does not mandate a similar result
in this case.
In fact, the Court took pains to note that due process is a flexible concept - what process
is “due” will vary with the facts and circumstances of each individual case. One thing was made
very clear in Eldridge: “The right to be heard before being condemned to suffer grievous loss of
any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a
principle basic to our society.” Eldridge, at 333, citing Joint Anti-Fascist Comm. v. McGrath,
341 U.S. 123, 168 (1951). Indeed, the concept of a meaningful opportunity for a hearing, to
contradict the evidence used by the government against you, is at the heart of the individual
liberties afforded in the Constitution, and it separates us from the tyrannical and oppressive
governments that deny their citizens such rights.
Like the Plaintiff in Eldridge, the Plaintiffs herein have raised at least a colorable claim
that, “because of [their] physical condition and dependency upon the disability benefits, an
erroneous termination would damage [them] in a way not recompensable through retroactive
payments.” Eldridge, 319 U.S. at 331. For that reason, the Court must determine whether the
process utilized by the Defendant in this case, which amounted to a summary notification of
suspension, accompanied by the impossible “opportunity” to prevent termination by submitting
new evidence within ten days, constituted due process as to these Plaintiffs.
While Eldridge did not lay down a bright-line rule on whether a pre-deprivation hearing
is or is not required for all terminations of SSD benefits, the decision did provide guidance that
clearly mandates a result for the Plaintiffs in the case at bar. The Court undertook a survey of
preceding decisions relating to various public benefits that had been found to be property
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interests, noting that many had found process to be adequate that was certainly less than the full
evidentiary hearing required by Goldberg v. Kelly, 397 U.S. 254 (1970) . See Eldridge, supra, at
333-335:
Sniadach v. Family Finance Corp., 395 U.S. 337 (1969), involving garnishment of
wages, was entirely silent on the matter. In Fuentes v. Shevin, 407 U.S. at 96-97,
the Court said only that, in a replevin suit between two private parties, the initial
determination required something more than an ex parte proceeding before a court
clerk. Similarly, Bell v. Burson, supra at 540, held, in the context of the
revocation of a state-granted driver's license, that due process required only that
the pre-revocation hearing involve a probable cause determination as to the fault
of the licensee, noting that the hearing "need not take the form of a full
adjudication of the question of liability." See also North Georgia Finishing, Inc. v.
Di-Chem, Inc., 419 U.S. 601, 607 (1975). More recently, in Arnett v. Kennedy,
supra, we sustained the validity of procedures by which a federal employee could
be dismissed for cause. They included notice of the action sought, a copy of the
charge, reasonable time for filing a written response, and an opportunity for an
oral appearance. Following dismissal, an evidentiary hearing was provided. 416
U.S. at 142-146.
These decisions underscore the truism that "‘[d]ue process,' unlike some legal
rules, is not a technical conception with a fixed content unrelated to time, place
and circumstances." Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961).
"[D]ue process is flexible, and calls for such procedural protections as the
particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481 (1972).
Mathews v. Eldridge, supra, 319 U.S. at 333-334 (citations in original).
The Eldridge Court “turn[ed] first to a description of the procedures for the termination of
Social Security disability benefits, and thereafter consider[ed] the factors bearing upon the
constitutional adequacy of these procedures,” (Eldridge, at 335), which the Court describes as
follows:
[O]ur prior decisions indicate that identification of the specific dictates of due
process generally requires consideration of three distinct factors: first, the private
interest that will be affected by the official action; second, the risk of an erroneous
deprivation of such interest through the procedures used, and the probable value,
if any, of additional or substitute procedural safeguards; and, finally, the
Government's interest, including the function involved and the fiscal and
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administrative burdens that the additional or substitute procedural requirement
would entail.
Eldridge at 334-335.
The Sixth Circuit has embraced the Eldridge mandate that each case must be examined
individually for due process concerns, and has specifically done so in the context of SSD
termination that resulted from a recertification process, in Ferriell v. Commissioner of Social
Security, 614 F.3d 611 (6th Cir. 2010), which stated plainly that “To determine whether such a
hearing passes constitutional muster, a court must look to the three factors identified by the
Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 335 (1976).”
Here, Defendants have summarily terminated SSD benefits for an entire class of people,
without any individual determination of wrongdoing in their SSD applications, based only on the
fact that they utilized the region’s most successful SSD attorney, an attorney heavily marketed as
a nationwide authority on disability law, who referred each of them to one of several physicians,
named in SSA’s termination notices, who specialized in examination for disability applications.
However, Defendant has allowed the Plaintiffs one potential route to survival: If they
can re-litigate their original disability applications within ten days, by submitting new evidence
sufficient to support a finding of legal disability, they may be able to keep paying their rent,
utility bills, car payments, insurance bills, uninsured medical expenses, and buying groceries.
This supposed post-deprivation due process is grossly inadequate under the particular
circumstances of this case. One would be hard-pressed to collect medical records from any prior
medical provider within ten days, particularly records from several years in the past, much less to
arrange for new disability evaluations, which can take months to complete. It is also worth
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noting that the Plaintiffs are unlikely to be able to obtain any documents from Mr. Conn’s office,
as he has destroyed large numbers of documents. See Exhibits C & D.
All of this, of course, was based on an initial finding, by the SSA, that “there is reason to
believe fraud may have been involved” in the application process. Plaintiffs were given no
notice and no individual opportunity to dispute this allegation before the deprivation of this
property interest.
The process utilized by the Defendants in coming to this conclusion is
analogous to the ex parte proceeding condemned in Fuentes v. Shevin, 407 U.S. at 96-97; it rises
nowhere near the level of the probable-cause determination found to be adequate in Bell v.
Burson, supra, which noted that the hearing "need not take the form of a full adjudication of the
question of liability." Bell v. Burson, at 540
As to the first Eldridge factor, the Sixth Circuit in has said: “We recognize that, under
the first Eldridge factor, the private interest at stake here is potentially great. We also note that,
if the reopening procedures did not afford Ferriell the opportunity to have his argument
considered by some component of the SSA, this would raise serious due process concerns.”
Ferriel, supra.
Plaintiffs have discussed, above, the serious nature of the private interest
involved here. In the case of the representative Plaintiffs at bar, the notion that they are not
disabled is patently indefensible. These Plaintiffs are grievously ill, clearly disabled, and rely on
their duly-earned SSD benefits as their only income.
To the extent that Eldridge found the deprivation of SSD benefits to be less than a
grievous one, it seemed to rely on the notion that many SSD recipients also had “other sources of
income.” Such a conclusion was the product of a much more prosperous time for our nation, and
certainly not applicable to economically-depressed, eastern Kentuckians still caught in the grip
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of a recession, waiting for alleged “recovery” to arrive in their area. These people have no other
resources. The loss of their benefits could not be more grievous. To make matters worse, under
the current statutory framework, Plaintiffs will also lose health insurance as the result of the
Defendant’s arbitrary action. After drawing SSD for two years, SSD recipients are entitled to
participate in Medicare. If the SSDI determination “never happened,” then the entitlement to
Medicare never arose.
The SSA has not claimed that any of the disabled individuals in the Plaintiff class knew
of any fraud on the part of their attorney or the physicians with whom they consulted at his
direction. In fact, the SSA has not afforded any of the Plaintiffs with even a cursory description
of what that fraud might be, in order to allow them to respond, before being deprived of their
benefits. Neither the attorney involved nor any of the physicians involved have been charged
with or convicted of defrauding the government. It is unclear why entire evidentiary files were
“disregarded” by the SSA, based on the idea that they contained fraudulent reports from a
physician. Surely, in the case of Plaintiff cancer patients, empirical testing and their own
testimony regarding limitations would support the notion that at least in some cases, the reports
of the named doctors were legitimate and involved no fraud.
The matter is further complicated by the fact that the Defendant has conducted
“continuing disability reviews” of Class members, and found them to be disabled through
examination of the post-award medical treatment obtained by the Class members. See, Affidavit
of Class Member Chris Gates, attached hereto as Exhibit E. Therefore, the Defendant has, itself,
since the award, verified the disability through information obtained from the Plaintiffs. Yet, the
Defendant now seeks to summarily suspend benefits of persons whom the Defendant itself has
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found to be disabled, without a meaningful opportunity for the Plaintiffs to contest the
Defendant’s evidence.
For none of the class are there any individual findings, in advance of the loss of their
benefits, that irregularities actually affected their applications. No member of the class was
afforded a pre-termination opportunity to examine the government’s claimed “reason to believe
fraud may have been involved” or to respond to it in any way, before a complete loss of benefits.
If the SSA has evidence that fraud was involved, evidence that rises to a level of certainty, where
is the logic in letting the perpetrators go free and punishing their hapless clients, without at least
some reason to believe that the clients knew that fraud was involved?
Ten days’ notice before an obviously dying or disabled person loses all of his or her
income is not a constitutionally-acceptable notification period. This is particularly true where
the Defendant is relying upon evidence from outside the record, which has never been provided
to the Plaintiffs. There is an unacceptably high risk of erroneous deprivation in this case.
Regarding the third Eldridge factor, the administrative burden of providing a meaningful
opportunity to be heard, Plaintiffs submit that such would be minor, as Defendant already will be
reviewing the Plaintiffs cases.
Any possible additional administrative burden pales in
comparison to the weight of the important personal interest these claimants have in continuing to
receive life-sustaining benefits. Moreover, the Defendant appears
Normally, when the Appeals Council initiates a review of a recipient’s case and
determines that a disability never existed, the recipient may opt to keep receiving benefits during
the pendency of the administrative appeal process. This practice is provided for by statute and is
commonly referred to as “statutory benefit continuation.”
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designed to provide for pre-termination due process of law, protecting the property interests of
SSDI recipients in their benefits. However, statutory benefit continuation is denied, according to
POMS DI 12027.015, “Cases Excluded from Statutory Benefit Continuation (SBC),” where “a
prior favorable determination was obtained by fraud or similar fault.”
The Plaintiffs allege that the actions of the SSA in summarily suspending their SSDI
benefits, unless they are able to re-litigate their original disability claims with a mere ten days’
notice, works a deprivation of their constitutional right to due process. Due process requires that
a hearing must be held at a meaningful time and in a meaningful manner. Arnett v. Kennedy,
416 U.S. 134, 212 (1974) (Marshall, J., dissenting) (quoting Armstrong v. Manzo, 380 U.S. 545,
552 (1965)).
Neither the complete lack of pre-deprivation process, nor the grossly inadequate
10 days allowed by the SSA’s planned post-deprivation process here, pass muster under the due
process clause, and Plaintiffs have a good chance of prevailing on the merits of one or all of
these claims.
In addition, the Defendants treat SSI beneficiaries differently, providing continuation of
their benefits pending a hearing date. The only basis that Plaintiffs can discern for the difference
in treatment is that Defendants cannot get away with denying SSI beneficiaries a pre-deprivation
hearing, because their loss is already considered a grievous one under the Eldridge factors. This
is not a rational basis for providing different treatment to similarly-situated individuals in a
suspect class. Plaintiffs are just as likely to prevail on their equal protection claims.
(c)
Equal Protection Clause
Defendant has acted arbitrarily and without justification towards the named Plaintiff and
approximately 900 Social Security Disability recipients. SSA has suspended benefits for these
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individuals, who had previously been determined eligible, without any evidence of wrongdoing
on their part. SSA has failed to explain how it selected these particular individuals for
suspension, except that it has decided to no longer accept certain medical opinions without
providing any proof that these opinions were fraudulent
These individuals have been singled
out for certain additional evidentiary requirements not applicable to millions of other SSD
recipients when they have done nothing wrong.
While the Fourteenth Amendment Equal Protection clause does not apply directly to the
federal government, the Fifth Amendment has been held to provide similar equal protection and
due process rights requirements on the federal government. Bolling v. Sharpe, 347 U.S. 497
(1954). Equal Protection requires that all Social Security disability applicants and recipients be
treated fairly and that their cases be handled appropriately and in the same manner as other
applicants and recipients. Here, Defendant SSA has failed to provide equal protection of the law
to the named Plaintiffs and other similarly situated persons by suspending their benefits without
cause, actions to which other SSD recipients have not been subjected.
(2)
The hundreds of beneficiaries affected by the Defendant’s actions, as well as the
beneficiaries’ families, would suffer irreparable injury if a temporary restraining
order/preliminary injunction is not issued
Irreparable injury will occur to the named Plaintiffs unless this Court enjoins the
Defendant from suspending their disability benefits. The medical emergencies that will soon be
faced by the named Plaintiffs are, no doubt, repeated with unfortunate regularity throughout the
Class. The Defendant gave no warning to the Plaintiffs prior to suspension of benefits, and
without opportunity to save what money they could, or plan in any fashion for the sudden loss of
income, the Plaintiffs face a bleak and uncertain future.
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Plaintiff Cheryl Martin receives only $1,100 per month in disability benefits, although
she worked for over 40 years. Her disability income is essential to meet her household expenses.
She also is paying over $600 per month for 22 prescription medications that are necessary to
treat her stage four lung cancer. If her disability benefits are suspended, Plaintiff Cheryl Martin
will not only be unable to pay for her normal expenses, but her inability to afford her medication
will lead to irreparable damage to her health, and possibly death. Plaintiff Robert Martin receives
$1,400 per month in disability benefits, which is his only source of income. He has no other
retirement benefits from his 22 years working as a truck driver. Without his disability income,
Plaintiff Martin will be unable to make his house payments and will likely become homeless. He
may also lose Medicare, and will be unable to pay his out of pocket medical expenses to treat his
cancer, which will severely compromise his health.
The Supreme Court has where constitutional rights are being threatened or, in fact,
violated, “for even minimal periods of time [such violations] unquestionably constitute
irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) citing New York Times Co. v.
United States, 403 U.S. 713 (1971); see also, Miller v. City of Cincinnati, 709 F. Supp. 2d 605
(S.D. Ohio, 2008) aff’d 622 F.3d 524 (6th Cir. 2010) (enjoining city ordinance on First
Amendment grounds); ATF – W. Va. v. Kanawha County Bd. of Educ., 592 F. Supp. 2d 883
(S.D.W.V. 2008) (granting preliminary injunction to enjoin random drug testing of school
employees, based on potential violation of Fourth Amendment rights). As set forth supra, the
Plaintiffs’ constitutional rights are being violated which, itself, is irreparable injury.
The
Defendant’s unlawfully deprived the Plaintiffs of a meaningful opportunity to provide
documentation in support of their case, and have failed to provide a pre-suspension hearing.
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Such drastic actions not only violate the law, but threaten the health, welfare and stability of the
Plaintiffs.
SSA gave the named Plaintiffs and approximately 900 other Social Security Disability
recipients only 10 days to obtain and submit new medical evidence to avoid the suspensions,
which is an impossible task, especially considering the age of the records requested. Having not
been able to produce this evidence so quickly, Plaintiffs Cheryl Martin and Robert Martin have
now been suspended and will have their cases remanded to an Administrative Law Judge for
another hearing. While waiting for these hearings, which could take more than a year, Plaintiffs
will receive no benefits and will be unable to meet the necessities of life.
The other similarly
situated Social Security Disability recipients will all have their benefits suspended without a presuspension hearing, and will have to make do with little or no income during this time. Where
the necessities of life are threatened, injunctive relief is especially appropriate, as mere monetary
compensation at an undetermined time in the future will not suffice. See, V.L. v. Wagner, 669 F.
Supp. 2d 1106 (N.D. Cal. 2009) (enjoining the State of California from terminating in-home
assistance, finding that financial burden on State of continuing program during litigation did not
outweigh harm to plaintiffs); Sanders v. Sellers-Earnest, 768 F. Supp. 2d 1180 (M.D. Fla. 2010)
(enjoining housing authority from evicting plaintiffs, finding that any burden on authority was
outweighed by harm caused to plaintiff by evictions).
The severity of the situation is tragically apparent from reports which, at this time remain
under investigation, that as many as three recipients of the Defendant’s letters have committed
suicide since having their benefits taken away. The loss of these lives underscores the stakes of
this litigation, and bureaucratic intransigence cannot be elevated above the lives of hundreds of
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Americans. The violation of constitutional rights, combined with the disastrous impact on the
lives and health of the Plaintiffs clearly constitute irreparable injury, which calls for the
immediate issuance of a temporary restraining order.
(3)
Issuance of a temporary restraining order/preliminary injunction would not cause
substantial harm to others
Compared to the life-threatening harm that Defendant’s actions will cause to over 900
Social Security Disability recipients and their families, the Social Security Administration will
suffer little or any harm if this Court reverses these suspensions. The letters sent to the Plaintiffs
indicate that the Defendant is planning to send the cases back to Administrative Law Judges “for
a new decision.” See, Exhibits C and F to Complaint [R. 1].
The fact that the Defendant is already planning a review of these files indicates that
changing the timing of the payment suspension until after a hearing is held will not create a
substantial administrative burden for the Defendant. In addition, providing a constitutionally
reasonable opportunity for the Plaintiffs to gather information and submit evidence to the
Defendant at this stage of the review could obviate the need for many hearings. Further, if the
Defendant ultimately finds that the Plaintiffs are not entitled to benefits, statutory remedies exist
for the Defendant to recover overpayments, where appropriate.
The Plaintiffs are asking that they be allowed to maintain the benefits they have been
receiving from the Defendant, and relying upon to survive, as well as a reasonable amount of
time to produce and present evidence at the hearings which the Defendant is already planning to
hold in the future. The Defendant will not be harmed by granting the relief requested.
(4)
The public interest is served by the issuance of an injunction
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The loss of Social Security income to 900 families in Eastern Kentucky poses an
immediate hardship to the local community. Businesses will immediately lose revenue from
food and other necessary purchases normally made by SSD recipients. Churches and social
service organizations, already strained by the devastation that has befallen the coal industry in
recent years, will now be tasked with providing food, shelter and other financial assistance to
SSD recipients and their families who suddenly have reduced or no income, possibly for more
than a year.
The public interest is not served by the sudden and unnoticed purging of the Social
Security rolls. Not only will the Defendant’s actions burden the local economies, but it is not
immediately apparent that the Defendant’s actions will save the taxpayers large sums of money.
Rather than giving the Plaintiffs a constitutionally-reasonable timeframe to provide documents in
support of their case, the Defendant is planning to send hundreds of cases back to Administrative
Law Judges for hearings. This creates additional administrative costs, and it is likely that, after
consideration, the ALJs will ultimately award benefits to many of the Plaintiffs, thus rendering
the suffering of the Plaintiffs wholly unnecessary If any of the Plaintiffs are ultimately
determined ineligible, the Defendant has the opportunity to recover overpayments where deemed
appropriate.
(5)
Conclusion: A temporary restraining order is appropriate
Plaintiffs have a strong likelihood of success on the merits: Defendant has failed to
comply with its own procedural rules; it has violated the due process and equal protection rights
of hundreds of individuals; it has acted arbitrarily by suspending benefits from the Class of SSD
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recipients without any evidence of wrongdoing or fraud on their part; and, it has failed to provide
any reasonable opportunity for these individuals to re-establish their right to benefits.
Plaintiffs and their families will suffer irreparable injury. Many will lose their sole
income or, at best, be unable to meet their household expenses and other necessities. They are in
jeopardy of losing their health coverage, and the funds needed to pay their out-of-pocket medical
expenses, putting their health and lives in serious risk. The public will lose needed revenue for
their community, and local communities will have to provide for families who lose benefits.
Conversely, the Defendant will suffer only the minor administrative inconvenience of reinstating
benefits while allowing this litigation, and the hearing process for the Plaintiffs, to play out. The
balance of equities weighs strongly in favor of the Plaintiffs, and the issuance of a temporary
restraining order.
Even if this Court believes that the movant has not shown a strong or substantial
likelihood of success on the merits, the movant has, at the very least, shown “serious questions
going to the merits” and the irreparable harm that the Plaintiffs will suffer by virtue of the
issuance of an injunction is still appropriate where the moving party can “at least show[] serious
questions going to the merits and irreparable harm which decidedly outweighs any potential
harm to the defendant if an injunction is issued.” Friendship Materials, Inc. v. Michigan Brick,
Inc., 679 F.2d 100, 105 (6th Cir. 1982). A review of the foregoing shows irreparable harm will
be caused to approximately 900 SSD recipients and their families. Conversely, any potential
harm or inconvenience Defendant SSA will suffer pales in comparison.
While discovery and
other investigation may be needed to fully decide this case, Plaintiffs have certainly raised very
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serious questions which strongly indicate that Defendants has acted arbitrarily and contrary to
law. Therefore, a temporary restraining order is appropriate.
(B)
IN THE ALTERNATIVE, SHOULD THIS HONORABLE COURT FIND THAT A TEMPORARY
RESTRAINING ORDER IS NOT APPROPRIATE, A PRELIMINARY INJUNCTION SHOULD
ISSUE AFTER THE DEFENDANT RECEIVES NOTICE
Should this Honorable Court find that a temporary restraining order is not appropriate,
the same concerns discussed supra, and incorporated herein by reference, warrant the issuance of
a preliminary injunction pursuant to Fed. R. Civ. P. 65(a). A preliminary injunction is easier to
obtain under the rules than a temporary restraining order, namely because the issuance of a TRO
is on an ex parte basis. A preliminary injunction, on the other hand, is only issued after the nonmoving party has opportunity to address the motion.
For the reasons stated above, the factors weighing in favor of a TRO weigh just as
strongly in favor of a preliminary injunction. In particular, it is worth noting that failure to issue
a preliminary injunction would be extremely likely to cause irreparable harm to the Plaintiffs, as
their life-sustaining benefits would be cut off for a yet-to-be-determined period of time.
(C)
THE COURT SHOULD WAIVE THE BOND REQUIREMENT OF FED. R. CIV. P. 65(C)
According to Fed. R. Civ. P. 65(c), the Court normally requires the moving party to post
a security bond in an amount the Court deems proper. The purpose of the bond is to pay the
costs and damages that the enjoined or restrained party might suffer, if the order is later found to
be unjustified. However, the Court has wide discretion to waive bond or to set the amount it
deems appropriate, even though the language of the rule appears mandatory.
The Sixth Circuit has been very clear that the Court has discretion to deny a request for
bond. See, Static Control Components, Inc. v. Lexmark Int'l, Inc., 697 F.3d 387, 400 (6th Cir.
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2012); Moltan Co. v. Eagle–Picher Indus., Inc., 55 F.3d 1171, 1176 (6th Cir.1995) citing Roth v.
Bank of the Commonwealth, 583 F.2d 527, 539 (6th Cir.1978). Indigency of the parties is an
accepted reason to waive bond. Denny v. Health & Social Servs Bd, 285 F.Supp. 526, 527 (E.D.
Wis. 1968); Bass v. Richardson, 338 F.Supp. 478, 490 (S.D.N.Y.1971).
In this case, Defendant SSA suspended Plaintiffs’ SSD payments altogether. Even with
the SSD income, Plaintiffs are barely able to pay their regular expenses. Without it, some
members of the intended Plaintiff class will have no income. Plaintiffs have no ability to post a
bond, and to require them to do so would effectively deny them the right to seek a restraining
order or injunction for an unlawful act.
It is entirely appropriate for a court to waive the bond requirement when little harm is
likely to result to the opposing party from the entry of the injunction. Appalachian Regional
Healthcare, Inc. v. Coventry Health and Life Insurance Co., F.3d 424 (6th Cir. 2013). In this
case, little harm is likely to result to Defendant SSA from the entry of the restraining order or
injunction. The order would simply allow Plaintiffs to continue receiving SSD benefits pending
final resolution of the merits of this case. This should not result in any unrecoverable cost to
SSA, as any payments later determined to be wrongful will be collectable as overpayments.
Plaintiffs request that the Court waive the bond requirement in full.
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FOR THE FOREGOING REASONS, the Plaintiffs respectfully request as follows:
(1)
That the Court GRANT the Motion for Temporary Restraining Order or, in the
alternative, Motion for Preliminary Injunction;
(2)
That the benefits for the named Plaintiffs, as well as all other Social Security
Disability recipients in the listed Class, have their benefits immediately REINSTATED pending
further orders of this Honorable Court;
(3)
Any other relief to which the Plaintiffs may be entitled.
Respectfully submitted this 2nd day of June, 2015
/s/Noah R. Friend
Noah R. Friend Law Firm, PLLC
P.O. Box 610
Pikeville, KY 41502
Office: 606.437.2217
[email protected]
/s/ Ned Pillersdorf (w/permission)
Pillersdorf, DeRossett & Lane
124 West Court St.
Prestonsburg, KY 41653
Office: 606.886.6090
[email protected]
/s/ Anne Marie Regan (w/permission)
Kentucky Equal Justice Center
455 South Fourth St, Suite 1071
Louisville, KY 40202
Office: 502.333.6012
[email protected]
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CERTIFICATE OF SERVICE
I hereby certify that on this 2nd day of June 2015, a true and correct copy of the
foregoing was electronically filed with the Court using the CM/ECF system, which sent
notification to all counsel of record herein.
/s/ Noah R. Friend
Noah R. Friend
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