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DAVILA v. SHALALA

April 11, 1994

HOMERO DAVILA o/b/o, ERICK DAVILA, Plaintiff,
v.
DONNA E. SHALALA, Secretary of Health and Human Services, Defendant.



The opinion of the court was delivered by: VINCENT L. BRODERICK

 I

 This case presents the dilemma created when an administrative agency loses its own records and fails to reconstruct them or conduct a new inquiry on the merits, resulting in penury or at least serious hardship for an impoverished citizen.

 The case, brought under the Social Security Act, 42 U.S.C. 405(g), seeks review of a final determination of the defendant Secretary of Health and Human Services (the "Secretary") which denied plaintiff's application for Supplemental Security Income. This court has jurisdiction under 28 U.S.C. 1331.

 The Secretary has moved to remand the case under sentence six of 42 U.S.C. 405(g). Plaintiff has cross-moved for remand for a limited time period and an award of interim benefits.

 For the reasons stated below,

 (1) This case is remanded to the Secretary for preparation of an adequate record;

 (2) Plaintiff's application is granted for interim relief consisting of the monthly Social Security benefits plaintiff would be entitled to if he were successful on the merits of his claim as set forth in the complaint, with payments to begin within 20 (twenty) days of the date of this memorandum order;

 (3) Such benefits will be paid until a new investigation into plaintiff's eligibility is conducted and its results included in a new record or the file is located or reconstructed, and the Secretary makes a showing upheld by this court based on that record that plaintiff is not entitled to those benefits. If it is determined after final adjudication of his claim on the merits that plaintiff was not entitled to benefits paid, the overpayment and recoupment procedures available with respect to any recipient of benefits from the Social Security Administration will apply.

 (4) The court retains jurisdiction of this case pending determination of the merits of plaintiff's claim.

 II

 On August 8, 1989, plaintiff filed an application for Supplemental Security Income benefits under Title XVI of the Social Security Act on behalf of his son, then eight years old. Plaintiff's claim of entitlement to benefits was denied by an Administrative Law Judge on June 12, 1992 because real estate (the "property") in Florida owned by the plaintiff/father was counted as an "available resource" that exceeded the statutory limit of $ 2,000. On May 14, 1993 the Secretary rendered a final decision by denying plaintiff's request for review of the Administrative Law Judge's decision and upholding that determination (the "Secretary's final decision"). The Secretary also rejected plaintiff's request for conditional payment of benefits while plaintiff attempted to dispose of the property because he had "liquid resources" of $ 2,650. *fn1"

 Plaintiff filed a complaint in this court on July 16, 1993 seeking judicial review under 42 U.S.C. 405(g) of the Secretary's final decision. The agency was granted an extension of time to answer on the grounds that the administrative office responsible for civil actions and hearings on claims was unable to locate plaintiff's administrative file. Because of the absence of agency's official file, a transcript of the record has not been prepared as required for judicial review of the administrative decision, 42 U.S.C. 405(g), sentence three, although a limited file appears to be available, particularly the letter transmitting the Secretary's final decision (see note 1 above).

 The total elapsed time since plaintiff's initial application is nearly five years; the agency became aware of the loss of the file over six months ago. The agency, which has not yet answered the complaint, seeks an order remanding this case pending preparation of a transcript. The administrative officer responsible for the case file asserts in a sworn statement that he is awaiting ...


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