Opinion
79 Civ. 5831 (RLC), 79 Civ. 5899 (RLC).
January 25, 2007
RAFF BECKER, LLP, Attorneys for Plaintiffs, New York, New York, ROBERT L. BECKER, Of Counsel.
ANDREW CUOMO, Attorney General of the State of New York, Attorneys for Defendants, New York, NY, JUNE DUFFY, Assistant Attorney General Of Counsel.
OPINION
BACKGROUND
This protracted litigation began in 1979. It consists of several class actions, later consolidated against the New York State Unemployment Insurance Appeal Board, the New York State Department of Labor and various individual defendants sued in their official capacities (together, the "Board" or "defendants"), challenging the Board's procedures and practices for determining eligibility for unemployment benefits. The history of this case has been discussed in several other opinions with which familiarity is assumed. Presently before the court are defendants' February 3, 2006 Motion for Reconsideration and for an Order Modifying the Consent Decree and plaintiffs' April 25, 2006 Cross-Motion to Dismiss and for Contempt, Enforcement and Further Relief; plaintiffs' February 16, 2006 Motion for Enforcement of Checklist Item 24 and defendants' April 25, 2006 Cross-Motion for Enforcement of the Same Item; and plaintiffs' April 10, 2006 Motion to Compel Compliance with the Consent Judgment.
See Barcia v. Sitkin, Nos. 79 Civ. 5831 79 Civ. 5899, 1983 WL 44294 (S.D.N.Y. Aug. 1, 1983) (Carter, J.); Barcia v. Sitkin, Nos. 79 Civ. 5831 79 Civ. 5899, 683 F. Supp. 353 (S.D.N.Y. Mar 11, 1988) (Carter, J.); Barcia v. Sitkin, 865 F. Supp. 1015 (S.D.N.Y. 1994) (Carter, J.); Barcia v. Sitkin, Nos. 79 Civ. 5831 79 Civ. 5899, 1995 WL 527696 (S.D.N.Y. Sep. 07, 1995) (Carter, J.); Barcia v. Sitkin, Nos. 79 Civ. 5831 79 Civ. 5899, 1996 WL 251848 (S.D.N.Y. May 10, 1996) (Carter, J.); Barcia v. Sitkin, 945 F. Supp. 539 (S.D.N.Y. 1996) (Carter, J.); Barcia v. Sitkin, Nos. 79 Civ. 5831 79 Civ. 5899, 1997 WL 66785 (S.D.N.Y. as amended Feb. 19, 1997) (Carter, J.) Barcia v. Sitkin, Nos. 79 Civ. 5831 79 Civ. 5899, 2003 WL 21345555 (S.D.N.Y. June 10, 2003) (Carter, J.) [hereinafter Barcia I] aff'd in part, rev'd in part, 367 F.3d 87 (2d Cir. 2004) [hereinafter Barcia II]; andBarcia v. Sitkin, Nos. 79 Civ. 5831 79 Civ. 5899, 2005 WL 1606038 (S.D.N.Y. July 07, 2005) (Carter, J.) [hereinafter Barcia III].
The consent judgment, as modified and supplemented (the "Consent Judgment," "Consent Decree" or "Decree") permanently enjoined defendants, requiring that all Administrative Law Judges ("ALJs") and members of the Unemployment Insurance Appeal Board provide the specific due process and fair hearing procedures enumerated in the Consent Judgment. To date, the Consent Decree remains in effect and the three-year period, during which time plaintiffs are entitled to monitor defendants' compliance with the Decree has been extended and continues on an open-ended basis by consent of the parties.
Technically, ALJs who conduct hearings on claims and issue initial determinations are "hearing Administrative Law Judges" or "hearing ALJs" and those who hear appeals are "appeal Administrative Law Judges" or "appeal ALJs." However, for simplicity, "hearing ALJs" will be referred to as "ALJs" and "appeal ALJs" will be referred to as "the Board."
The Consent Judgment requires that a checklist be "included in the file of every Appeal Board case" and specifies that "[a]n Appeal Board member shall have this checklist form completed for every case" in order to determine whether any procedural irregularities had occurred in the proceedings before the ALJ. (Consent Judgment ¶ 39). If the Board finds that one or more of the thirty-nine possible checklist violations occurred, he or she marks the checklist with the checklist item that was violated, how the violation occurred and a recommendation for a remedy or an explanation as to why one is not necessary. (Consent Judgment ¶ 40). The Board uses the information recorded on the checklists to compile statistics that show the total and serious violation rate and the remedy rate for specific periods of time.
To determine whether any procedural irregularities had occurred in a case's proceedings before the ALJ, the Consent Judgment technically requires the Board to use one of two checklists, set forth in appendices to the Consent Judgment. (See Consent Judgment ¶¶ 39-43). The checklist attached to the Consent Judgment as Appendix E ("E Checklist") is for the review of all cases decided by the Board subsequent to July 11, 1983, the effective date of the Consent Judgment; the checklist attached as Appendix F ("F Checklist") was for the retroactive review of all cases in which claimants had been denied unemployment insurance benefits by the Board between March 1, 1978 and July 11, 1983. (Id. ¶¶ 39, 43). Since past cases are no longer at issue, all discussion of "a checklist" or "the checklist" refer to Checklist E.
The E Checklist contains a list of thirty-two numbered procedural errors along with seven lettered subparts for a total of thirty-nine possible checklist violations. Id.
The "violation rate" is the percentage of cases reviewed by the Board in which one or more procedural violations occurred. The "serious violation rate" is the percentage of cases reviewed by the Board in which one or more serious procedural violations occurred, warranting a merits review of the case. Certain items on the checklist have been categorically defined as "serious violations." The "remedy rate" is the percentage of cases reviewed by the Board in which a violation, regardless of its designation as serious or not, required a remedy.
Most recently, in an October 11, 2005 order, the court rejected the Board's proposed 2004 amelioration plan (the "2004 Plan"), the fifth of its kind. Barcia v. Sitkin, Nos. 79 Civ. 5831 79 Civ. 5899, 2005 WL 1606038, at *3 (S.D.N.Y. July 07, 2005) (Carter, J.) [hereinafter Barcia III]. Specifically, the court stated that the Board had failed to comply with its June 10, 2003 Order, which had been affirmed in relevant part by the Second Circuit. See, e.g., Barcia v. Sitkin, Nos. 79 Civ. 5831 79 Civ. 5899, 2003 WL 21345555, at *7 (S.D.N.Y. June 10, 2003) (Carter, J.) [hereinafter Barcia I] aff'd in part, rev'd in part, 367 F.3d 87, 110 (2d Cir. 2004) [hereinafter Barcia II]. Additionally, the court recognized several errors in the Board's data collection system, which artificially depressed the violation and remedy rates and directed the Board "to correct these errors, or to demonstrate why correction is not needed."Id. at *4. Finally, with regard to defendants' 2004 Plan, the court expressly rejected Defendants' proposal to focus on what they claimed were the five checklist items that accounted for "approximately 70% of checklist violations" as well as their proposed standard for ALJ performance, the median performance of the middle one-third of ALJ's. Id. at *2-3 (citing 2004 Plan at 4).
Defendants had failed to include in the 2004 Plan, three out of the four elements that the court, in its 2003 order, had directed them to include. Barcia III, 2005 WL 2649050, at *1. The new report and plan did not include: 1) an analysis of compliance with all provisions of its own former plans; 2) a comprehensive system for tracking compliance with the provisions of the new plan; or 3) a system of tracking the level of compliance with the Decree. Id. at *2. The court again directed the Board to provide the information it had been ordered to provide in 2003 along with supporting documentation. Id. at *7.
Although not relevant here, the Second Circuit also reversed the district court in part, holding that pursuant to the consent decree defendants were not required to: "(1) provide in reopening notices the specific reason(s) for reopening cases pursuant to the 1997 stipulations, and resend notices in cases where the specific reason(s) had not been provided; (2) maintain all handwritten draft checklists and changes to computerized checklists, and provide plaintiffs' counsel with access to those drafts and changes; [or] (3) provide plaintiffs' counsel with a random sample of re-review cases to replace the sample of cases that the Board had selected in 1998." Barcia II, 367 F.3d at 110.
DISCUSSION
There are five motions presently before the court.
I. Defendants' Motion for Reconsideration and for an Order Modifying the Consent Decree
Defendants purportedly filed this motion pursuant to Rule 60(b), F.R.Civ.P. seeking reconsideration of the court's 2005 opinion and order and for an order declaring the Board in substantial compliance with the 1983 Consent Judgment and terminating the monitoring structure. (Def.'s Reconsid. Br. 2).
A. Reconsideration
Defendants argue that reconsideration under Rule 60(b), F.R.Civ.P of the court's October 11, 2005 opinion and order is appropriate where the Court rejected the Board's 2004 Plan without an opportunity to consider the Board's success in achieving the goals of the Consent Judgment under that Plan. (Def.'s Reconsid. Br. 2). Defendants failed to specify the specific subdivision of Rule 60(b), F.R.Civ.P., under which they are seeking reconsideration by the court. However, regardless under which subsection defendants seek reconsideration, Rule 60(b), F.R.Civ.P. is not applicable because the court's 2005 opinion and order was not a final judgment. See Glendora v. Malone, 165 F.R.D. 42 (S.D.N.Y. 1996) (Conner, J.) ("The crucial word, for our purposes, is `final.'"). Indeed, defendants do not even argue that the court's 2005 order is a final judgment. (See Def's Reconsid. Br. 13 n. 4; Def's Reconsid. Reply Br. 3, 11-13).
Rule 60(b), F.R.Civ.P. provides: "On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. . . ."
In their reply, defendants argue that "the Court may nonetheless modify its interlocutory order at any time by exercise of its equitable discretion." (See Def's Reconsid. Reply Br. 3). Local Rule 6.3, U.S.Dist.Ct. provides: "A notice of motion for reconsideration or reargument of a court order determining a motion shall be served within ten (10) days after the entry of the court's determination of the original motion, . . . ." The instant motion was filed in February 2006, well over the ten day time limit and as such it is untimely. Therefore, the court declines to consider defendants' motion.
Defendants are again directed to provide to plaintiffs and the court: (A) an analysis of compliance with all provisions of its own former plans; (B) a comprehensive system for tracking compliance with the provisions of the new plan; and (C) a system of tracking the level of compliance with the Decree. Defendants must also produce to plaintiffs the supporting documentation as directed in Barcia III, 2005 WL 2649050, at *2.
The court again cautions defendants that even once they have provided the court with the other categories of information required by Barcia I, 2003 WL 21345555, at *7, it will not approve an amelioration unless it addresses all checklist items and "improve[s] the performance of the middle third of hearing ALJs, not merely redefine[s] the standard so that their performance is deemed acceptable." Barcia III, 2005 WL 2649050, at *3.
B. Modification
Defendants also argue that the court should modify the Consent Judgment to end monitoring of current cases by plaintiffs' counsel because, according to defendants' statistics, under the 2004 Plan, which was rejected by the court on October 17, 2005 inBarcia III, 2005 WL 2649050, at *2-7, but which had been immediately implemented by the Board in August 2004, the violation rate has dropped from 33% to 19.07% and the serious violation rate has dropped from 25% to 15.59% for the six months ending December 31, 2005. (Def.'s Reconsid. Br. 28-33).
When moving the court to modify a Consent Decree pursuant to Rule 60(b), the "party seeking an alteration bears the initial burden of establishing that a significant change in circumstances warrants the modification." United States v. Sec'y of Hous. Urban Dev., 239 F.3d 211, 217 (2d Cir. 2001) (citing Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 383 (1992)). The party seeking modification must show "a significant change either in factual conditions or in law" in order to meet this burden.Sec'y of Hous. Urban Dev., 239 F.3d at 217 (quoting Rufo, 502 U.S. at 384).
However, the court cannot modify the decree and release defendants from the, admittedly costly monitoring structure, until the state has adequately established that it is in compliance with, and has attained the objects of the Consent Judgment. See Frew, 540 U.S. at 442 ("If the State establishes reason to modify the decree, the court should make the necessary changes; where it has not done so, however, the decree should be enforced according to its terms.") Courts have an affirmative duty to protect the integrity of a court decree where the performance of one party threatens to frustrate the purpose of the decree. Berger v. Heckler, 771 F.2d 1556, 1568 (2d Cir. 1985).
From July 1995 until 2003, defendants have paid plaintiffs' counsel "approximately $5.3 million in attorneys' fees . . . primarily as compensation for their monitoring activities."Barcia II, 367 F.3d at 94 n. 8.
As discussed above, in Section I.A., defendants failed to submit with the 2004 Plan a system for monitoring compliance with the Decree in cases that are not appealed. Since 1996, the court has expressed concern over violations that occur in the high percentage of cases that are never appealed. See Barcia I, 2003 WL 21345555, at *6. The court has also repeatedly explained that in order for defendants to prove substantial compliance with the Consent Decree with regard to cases that are not appealed, they must do more than speculate, they must point to actual documentation. See Barcia I, 2003 WL 21345555, at *7. SinceBarcia I, 2003 WL 21345555, at 7 was affirmed in relevant part by the Second Circuit in Barcia II, 367 F.3d at 102-104, the court cannot reconsider its ruling that in order for defendants to prove that they are in substantial compliance with the Consent Decree with regard to cases that are not appealed, they must point to actual documentation. See U.S. v. Minicone, 994 F.2d 86, 89 (2d Cir. 1993) (holding that district courts are "barred from reconsidering or modifying any of its prior decisions that have been ruled on by the court of appeals") (quoting United States v. Uccio, 940 F.2d 753, 757 (2d Cir. 1991) (internal quotation omitted). Because defendants still have not provided plaintiffs or the court with a system for evaluating compliance with the Decree in cases that are not appealed, the court cannot find defendants in substantial compliance with the Decree warranting termination of plaintiffs' monitoring.
Plaintiffs claim there was a 12% appeal rate in 2005. (Pl.'s Recons. Opp. Br. 10 n. 6). Defendants claim the appeal rate is actually 25%. (Meyers 6/6/06 Aff. ¶ 10). Regardless at least 75% of appealable cases are never appealed.
Moreover, defendants have yet to provide the court with sufficient information to evaluate the 2004 Plan on its effectiveness in reducing the violation rate in appealed cases. The Board now claims that, under the 2004 Plan, the total violation rate fell to 19.1% for the second half of 2005. (Myers 6/26/06 Aff. ¶ 31). However, the court cannot express an opinion as to the acceptability of a 19.1% violation rate in a vacuum, which is why the court has repeatedly directed the Board to provide plaintiffs and the court with an assessment of its efforts to comply with past amelioration plans. Barcia I, 2003 WL 21345555, at *7; Barcia III, 2005 WL 2649050, at *2. The court cannot determine what violation rate would indicate substantial compliance with the Consent Decree until it knows what rate is feasible. Moreover, as discussed in point II below, the court is not convinced of the reliability of the Board's statistics.
II. Plaintiffs' Cross-Motion to Dismiss and for Contempt, Enforcement and Further Relief
Plaintiffs also filed a cross-motion in response to Defendants' motion for reconsideration and modification seeking an order: (1) dismissing that portion of defendants February 3, 2006 motion for reconsideration, purportedly filed pursuant to Federal Rules of Civil Procedure 60(b); (2) finding the Board in contempt of the Court's October 11, 2005 Opinion and Order; (3) dismissing that portion of the Board's February 3, 2006 motion to modify the Consent Decree as relating to monitoring as premature and based upon invalid statistical data; and (4) awarding plaintiffs' reasonable attorneys' fees, costs and out-of-pocket expenses in connection with the cross-motion. (Pl.'s Notice of Cross-Motion at 1-2). The court has already resolved defendants' motion for reconsideration and modification in Section I.A and I.B above and the court addresses plaintiffs motion for attorneys fees in Section V below. Thus the court will only address plaintiffs' cross-motion for contempt here.
Plaintiffs argue that a finding of contempt is warranted based on the Board's failure to comply with Barcia III by: (A) failing to submit any analysis of the Board's compliance with all provisions of its former amelioration plans; (B) failing to submit the supporting documentation underlying all of its contentions relating to its former amelioration plans; (C) refusing to include checklist item 27(b) in its amelioration plan; (D) impermissibly using the middle third of ALJs as the benchmark for measuring performance; (E) failing to propose a system to monitor cases that have not been appealed to the Board; (F) refusing to create a system for tracking compliance of appeal ALJs with the decree. (Pl.'s Reconsid. Opp. at 23-28).
A party may be held in civil contempt for failure to comply with an order of the court, if: (1) the order being enforced is clear and unambiguous; (2) proof of non-compliance is clear and convincing; and (3) the party was not reasonably diligent and energetic in attempting to accomplish what was ordered. EEOC v. Local 638 . . . Local 28 of the Sheet Metal Workers' Int'l Assn., 753 F.2d 1172, 1178 (2d Cir. 1985), aff'd 478 U.S. 421 (1986).
The court's 2005 order in Barcia III was clear and unambiguous.See Barcia III, 2005 WL 2649050, at *7 ("The Board is hereby ordered to submit a revised amelioration plan consistent with this ruling within 90 days from the date of the issuance of this Opinion.") Defendants, however, have yet to submit a revised plan, and certainly not within 90 days of October 17, 2005. Nor did defendants seek a stay of the court's 2005 order or, as discussed more fully under Section I.A. above, did they timely file a motion for reconsideration. Therefore, the court finds defendants in contempt of its October 17, 2005 Opinion and Order.
III. Plaintiffs' Motion for Enforcement of Consent Judgment Checklist Item 24 and Defendants' Cross-Motion for Enforcement of the Same Item
Plaintiffs argue that checklist item 24, as revised and clarified by the item's Violation and Remedial Guidelines, requires the ALJs to specify the reasons for credibility determinations in their decisions. Plaintiffs also seek reasonable attorneys' fees, costs and out-of-pocket expenses.
Courts must abide by the express terms of a consent decree and may not impose supplementary obligations on the parties even to fulfill the purposes of the decree more effectively. Barcia II, 367 F.3d at 106.
Checklist item 24 states:
The contents of the decision do not conform to the guidelines as contained in the Manual for Hearing Officers.
(Consent Judgment App. E ¶ 24).
By Stipulation and Order dated December 19, 1997, the parties revised the original Consent Judgment "E" Checklist, and added guidelines to assist in the implementation of the revised checklist (the "Guidelines"). The Guidelines are derived from theManual for Hearing Officers in Administrative Adjudications in the State of New York, Revised Manual No. 16, New York State Department of Civil Service, 1972 [hereinafter, the "Manual"], and list the elements necessary for ALJ and Board decisions.
The Guidelines for checklist item 24, like the guidelines for the other checklist items, are divided into "Violation Guidelines" and "Remedial Guidelines." The introduction to the Violation Guidelines for checklist item 24 states that "[t]he recitation is not inclusive of all of the required factors." (Checklist Stip. App. 3 at 20). Subsection d is headed "opinion (reasoning)" and states, inter alia, that "when credibility is involved [in a case], the basis of a conclusion that a person is unworthy of belief should be given in the opinion. . . ." (Id. at 21). Ten of the twelve points listed under the Violation Guidelines to Checklist item 24 subsection d use the word "should." The remaining two points under "opinion (reasoning)" state, perhaps unartfully, merely "based on the facts and the record," and "use the language of the statute or regulation where possible."
One of the five points under subsection c, "findings of fact," of the Checklist item 24 Violation Guidelines uses the word "must" and states "must show the actual and true grounds for the ultimate decision. . . ." The only other use of the word "must" in the guidelines to checklist item 24 is found in subsection e, which states that the "conclusion must be explicit. . . ."
Given the use of both the verbs "should" and "must" in the Violation Guidelines to Checklist item 24, it is clear that it is not always a violation of checklist item 24 for an opinion not to include an explanation of a credibility determination. This interpretation of the Guidelines is consistent with the introduction, which states "[t]he absence of a Manual criterion in either the ALJ or the Appeal Board decision could constitute a violation of this checklist question. . . ." (Id. (emphasis added)).
However, that does not mean that the absence of an explanation of a credibility call never constitutes a checklist violation. If an explanation of a credibility call is necessary "depending on the analysis of the entire case record" then its absence constitutes a violation. The court again reminds defendants that in making such determinations, it must liberally apply the checklist. See Barcia v. Sitkin, 865 F. Supp. 1015, 1032 (S.D.N.Y. 1994).
Plaintiffs' make much of defendants' past practice of marking checklist violations where an opinion where credibility was at issue did not include an explanation as to why a particular witness or party was not to be believed. The court is not convinced that, in the past, defendants always marked checklist item 24 violations in such situations or that if they did, such past practice could result in an obligation not unambiguously mandated by the language of the Decree becoming obligatory. See Barcia II, 367 F.3d at 109 (finding "doubtful" the proposition that "an obligation not unambiguously mandated by a consent decree can be imposed on a state entity on the basis of the parties' conduct"). Defendants' past practices are not inconsistent with the court's opinion and order that the absence of an explanation of a credibility determination is not always a checklist item 24 violation but neither is it never a violation.
Defendants are ordered to mark a checklist item 24 violation if a credibility determination was not explained in an opinion and analysis of the entire case record indicates that such an explanation should have been included.
IV. Plaintiffs' Motion to Compel Compliance with the Consent Judgment
Plaintiffs purportedly filed this motion "for an order directing defendant . . . to properly implement and record checklist violations in unemployment insurance cases" pursuant to the terms of the Decree. (Pl.'s Compliance Br. 1). Plaintiffs argue that certain of the Board's practices, "individually and collectively, seriously compromise the accuracy of the statistics it uses for its amelioration plan and for gauging its substantial compliance with the Decree." (Id.) Specifically, plaintiffs move this court to compel defendants to: (1) record decree violations when it issues a remand order to remedy a Decree checklist violation; (2) record all Decree violations in cases when it issues remand decisions; (3) cease and desist from applying an unduly narrow and restrictive application of the Decree's fair hearing procedures; (4) reconsider, consistent with the Court's ruling, all disputed cases arising from plaintiffs' monitoring and, if the parties are unable to resolve such cases, to refer them to a Magistrate Judge for resolution; (5) pay plaintiff's reasonable attorneys' fees, costs and out-of-pocket expenses in connection with this motion. (Pl.'s Compliance Br. 1-2).
A. Remand Orders
A remand is an appropriate remedy to cure a hearing violation. Checklist Stip. at 2. The Board uses two types of remands: (1) remand decisions or hear and determine remands; and (2) remand orders or letter remands. Remand orders or letter remands occur when the Board retains jurisdiction over an appealed case but determines to have an appellate ALJ, serving as the Board's agent, hold an additional hearing. (Def.'s Compliance Opp. Br. 5). The Board states that it does not complete a checklist until it has conducted a final review and made a final decision. ( Id.) Defendants admit that, with regard to remand orders, only violations that exist at the time the final decision is prepared are marked and that "[t]his does not include violations that were cured by the further hearing." (Stroup 6/22/06 Aff. ¶ 9).
In Barcia III, the court directed the Board to "correct these errors, or to demonstrate why correction is not needed." 2005 WL 2649050, at *4. Thus, it is the law of the case that the Board must substantively address this issue. See In re Rezulin Prods. Liab. Litig., 224 F.R.D. 346, 349-350 (S.D.N.Y. 2004) (Kaplan, J.).
The court has always understood the Consent Judgment to require that checklists be completed at the time a case is initially appealed to the Board. See Barcia v. Sitkin, 865 F.Supp. at 1017-1018 ("When a timely appeal is made, the case is randomly assigned to a staff attorney, . . . . To conduct his or her review, the staff attorney completes a checklist . . . in an effort to ensure that the claimant received a fair and impartial hearing. . . ."). The Board may make revisions to the checklist to the extent that it changes its determination of whether a violation occurred, but once a checklist item has been violated, it has been violated. Thus, violations at the hearing level must continue to be reflected on the checklist regardless of whether the Board can or has remedied that violation with its own hearing.
As such, despite the Board's contention to the contrary (Mammen Aff. ¶ 5) preparation of a review checklist at the time the Board issues a remand letter will not necessitate the completion of multiple review checklists in the Board's disposition of each such case.
Even if the Board were not required to complete the checklist at the time of appeal, the language of the checklist indicates that many of the items should be marked in the affirmative if "[t]he judge or the Board" committed a violation (See, e.g., E Review Checklist ¶ 4), and that others should be marked in the affirmative if "the judge" committed a violation in " the hearing" regardless of Board's actions. (See, e.g., E Review Checklist ¶ 18 (emphasis added)).
The Board attempts to justify its practice in letter remand cases as having a limited effect because, according to defendants, letter remands are only a small fraction of total number of decisions per year. (Stroup 6/22/06 Aff. ¶ 12; Mannen Aff. ¶ 7). Similarly, the Board argues that because the Board also "remands cases for reasons unrelated to the checklists, such as when it seeks more information to satisfy itself and give it confidence that it is correctly resolving the dispute on the merits," (Stroup 6/22/06 Aff. ¶ 13), its practice of not identifying all checklist violations when letter remands are issued does not have a large impact on its violation rate.
According to the Board, between 2003 and 2005, the Board issued an average of over 6,300 decisions per year and in 2003, the Board held 221 letter remands, in 2004, there were 159 letter remands and in 2005 there were 152. (Stroup 6/22/06 Aff. ¶ 12).
However, defendants' comparison of the amount of letter remands to the total number of decisions per year is misleading. In order to determine the impact of letter remands, the relevant comparison is the percentage of checklist violations in the all the cases considered by the Board compared to the percentage of unmarked checklist violations in the cases where a letter remand was issued. With respect to defendants' argument that some number of remand orders are issued for reasons other than checklist violations, defendants admit that at least "some of [the remand orders] relate to the procedural violations set forth in the checklists (Def.'s Compliance Opp. 19), and plaintiffs are only challenging the Board's practice of never recording a checklist violation even when a remand order had been issued to cure a checklist item violation. (Pl.'s Compliance Br. 7).
If 100% of the letter remand cases have checklist violations but only 20% of the total amount of cases in which the board issues a decision have checklist violations, not marking violations in the letter remand cases would have a significant impact on the Board's violation rate.
Although plaintiffs are not entitled to any "versions of checklists other than the one that finally records any identified violations," Barcia II, 367 F.3d at 108, that checklist must reflect violations committed at the hearing level even if they were subsequently remedied by the Board.
B. Remand Decisions
Remand decisions or hear and determine remands are final decisions which rescind the ALJ decision and remit the matter for a further hearing and decision at the ALJ level. The Board completes a checklist at the time it issues a remand decision. However, plaintiffs argue that some of these remand decision checklists improperly fail to record some or all the violations that actually occurred. Defendants must properly record all violations that occur.
C. The Board's Interpretation of the Decree's Fair Hearing Procedures
Plaintiffs contend that Defendants' interpretation of certain of the checklist items is impermissibly narrow. The checklist items at issue are items 4, 12, 17b and 27b.
Checklist item 4 states: "The Judge or the Board admitted evidence with would change the basis of the determination, without a showing of good cause, or failed to state his reason on the record, or did not inform the parties that he would accept the evidence, or did not inform the parties of their rights, or did not offer an adjournment." (Consent Judgment App. E ¶ 4). Checklist item 12 states: "Where a party had difficulty in or was unable to question or cross-examine witnesses, the ALJ or the Board did not offer assistance." (Consent Judgment App. E ¶ 12). Checklist item 17(b) states: "The ALJ or the Board did not offer to grant an adjournment or to issue subpoenas to obtain evidence where necessary." (Consent Judgment App. E ¶ 17(b)). Checklist item 27(b) states: "The transcript is not adequate because the testimonial evidence has not been sufficiently developed to render an informed decision on all issues that must be rendered upon." (Checklist Stip. App. 3 p 23). A footnote to item 27(b) reads as follows: "this item is an error in proceeding, requiring remedial action, but is not a violation of the MLC consent decree." Id. at 23 n. 3; see also Barcia I, 2003 WL 21345555, at *5 ("By agreement of the parties, this item can only be considered an error in proceeding and not a violation of the Decree. . . . As such, in determining the Board's substantial compliance with the Decree, the court will not consider this checklist item.").
Plaintiffs present a handful of cases as examples to illustrate the disputes with regard to the interpretation of these checklist items. The court agrees that these cases seem to illustrate a narrow interpretation of the checklist items. However, since here the court is simply concerned with ensuring that on a going-forward basis, all parties are working with an accurate picture of where the violation rate stands and because, as discussed more fully in Section IV.D below, the proper avenue for challenging the substantive results in past cases is in the state appellate courts, the court will not individually address the cases plaintiffs put forth as examples of the disputes.
Pursuant to the terms of the Consent Judgment and the Checklist and Guidelines Stipulation, defendants have the "exclusive right" to apply the checklists. (Checklist Stip. App. 3 at 1). However, that authority is not unlimited. Paragraph 69 of the Consent Judgment and Paragraph 11 of the Checklist Stipulation Order both provide that the court retains jurisdiction to rule on disputes relating to the implementation and/or interpretation of their provisions. (Consent Judgment ¶ 69 Checklist Stip. ¶ 11). Thus, it is clear that plaintiffs must necessarily, under the Consent Judgment, have the right to challenge the Board's application of the checklists and that the Court has the authority to resolve any such disputes.
In its argument that it is not reading checklist items 4, 12, 17(b) and 27(b) impermissibly narrowly, the Board conflates the issue of whether there was a violation of a particular claimant's due process rights with whether, pursuant to the Consent Judgment and the Checklist Guidelines and Stipulation, there was a violation of the checklist. Parties to a consent judgment may undertake obligations that the law does not require. Frew v. Hawkins, 401 F. Supp. 2d 619, 627 (E.D. Tex. 2005); Natural Resources Defense Counsel v. Whitman, 2001 WL 1221774, at *10 (N.D. Cal. Sept. 24, 2001). Moreover, the Board's position regarding the interpretation of checklist item 27(b) and 17(b) improperly transforms the hearing ALJ's task from developing the record sufficiently enough to be able to make a fair and informed decision to developing the record just sufficiently enough "to permit a decision to be rendered which is supported by substantial evidence." (Mammen Aff. ¶ 27). However, the substantial evidence standard for evaluating individual cases under state law is separate and independent from checklist item 27(b). Despite defendants arguments to the contrary, violations of the checklist and its guidelines permit plaintiffs to seek relief in federal court independent of any judicial review process for individual cases under state law. (Consent Judgment ¶ 69; Checklist Stip. ¶ 11).
Defendants are ordered to reconsider their interpretation of checklist items 4, 12, 17(b) and 27(b) in conformity with the court's opinion and are cautioned again that particularly because most claimants are unrepresented, they must interpret the Consent Judgment and the checklist liberally. See Barcia v. Sitkin, 865 F. Supp. at 1032. Defendants are again reminded that the court must have reliable and accurate figures in order to find defendants in substantial compliance in order to terminate the monitoring structure and that to the extent defendants continue to interpret the checklist narrowly, its statistics will not be reliable.
D. Disputed Cases
As discussed above in points IV.A, IV.B and IV.C, the Court agrees with certain of the Plaintiffs' arguments regarding the proper interpretation of the checklist items and procedure for their identification and notation. However, the proper avenue for any reconsideration of the substantive result in individual cases about which there has been a dispute in the past is in the state appellate court. For purposes of cross-year violation rate comparisons, the court will assume that prior years' violation rates would have been somewhat higher had the Board been interpreting the checklist and marking violations in accordance with this Opinion and Order during those years. However, the fact that prior years' statistics are somewhat unreliable does not justify the burden that ordering defendants to go back and reevaluate past cases.
V. Attorneys' Fees
Plaintiffs' also seek attorneys' fees in connection with their Cross-Motion to Dismiss and for Contempt, Enforcement and Further Relief, their Motion for Enforcement of Consent Judgment Checklist Item 24 and their Motion to Compel Compliance with the Consent Judgment. However, neither plaintiffs nor defendants make any legal or factual arguments as to whether and for what reason attorneys' fees should be awarded. Nor do plaintiffs specify the amount or manner for calculating such fees. Thus the court declines to award attorneys' fees at this time. Plaintiffs may, however, if they chose, file a supported motion with details as to exactly what is sought within 20 days of the date of this opinion and the court will consider their application at that time.
CONCLUSION
Defendants' motion for reconsideration and modification is denied. Plaintiffs' cross-motion to dismiss and for contempt, enforcement and further relief is granted to the extent that the court finds defendants in contempt of its October 17, 2005 Opinion and Order. The Board is hereby ordered to submit a revised amelioration plan consistent with the court's 2005 Opinion and Order in Barcia III as well as with this Opinion and Order.
Plaintiffs' motion for enforcement of checklist item 24 is denied to the extent that it sought a court order that the absence of an explanation of a credibility call is always a checklist item 24 violation and granted to the extent that defendants have not been marking violations of checklist item 24 even when an analysis of the entire record indicates that such an explanation was necessary. Defendants' cross-motion for enforcement of checklist item 24 is denied to the extent that it seeks a declaration that there is never a violation of checklist item 24 when an opinion fails to state the basis for a credibility determination. It is granted to the extent that defendants are marking a checklist violation of item 24 when an opinion does not contain an explanation of a credibility determination and analysis of the record as a whole indicates that it should have.
Plaintiffs' motion for enforcement is granted in part and denied in part. Defendants are hereby ordered to ensure that all violations at the hearing level are reflected on the checklists even when those violations may have been cured by an appellate-level hearing. Defendants are also hereby ordered to reconsider their interpretation of checklist items 4, 12, 17(b) and 27(b) consistent with the court's mandate that the checklists are to be liberally applied. Defendants' motion for a court order directing defendants to reconsider all past disputed cases is, however, denied.
Plaintiffs are entitled to submit within twenty (20) days of the date of this opinion a supported application for attorneys' fees in accordance with this Opinion and Order.