(1939). The strong possibility of additional undue and prejudicial delay after remand where a search is open-ended adds weight to the appropriateness of a remedial action on behalf of a claimant in such circumstances.
It would not be an acceptable outcome to rule that an administrative agency can defeat rights of a claimant to benefits simply by not diligently locating or reconstructing its records. At a certain point failure of a governmental agency, like any other party, to supply information which it can provide or reconstruct supports an inference that those materials if unearthed would contradict the position of the entity. See generally, Gray v. Great American Recreation Ass'n, 970 F.2d 1081, 1082 (2d Cir. 1992); United States v. Torres, 845 F.2d 1165, 1169 (2d Cir. 1988). This would permit a final judgment in favor of the claimant since no material supporting any of the conclusory statements in the May 14, 1993 letter constituting the final decision has been discovered.
A lesser remedy is available in the form of interim benefits to continue until the agency locates or reconstructs the file, at which point a more informed ruling on the ultimate merits can be considered. Interim awards of benefits, available by statute in cases involving challenges to termination of Social Security benefits previously granted, 42 U.S.C. 423(g), have been held within the remedial power of the court in a case contesting denial of an original entitlement to Social Security benefits where special circumstances exist. Such circumstances include a claimant who "is faced with unreasonable delay attributable to the Secretary," Weiser v. Secretary of Dep't of Health, 645 F. Supp. 602, 603 (SDNY 1986) (Conner, J.). See Saltares v. Bowen, 711 F. Supp. 162, 164 (SDNY 1989) (Kram, J.) (circumstances do not warrant interim benefits), citing cases in this court where benefits were granted.
Each instance involving missing government documents must be evaluated separately according to the nature of the items, the options available to the agency, the hardship to the applicant, the strength of the applicant's claim, the period of delay involved, and so forth. See Cohen v. Heckler, 599 F. Supp. 837, 838-39 (SDNY 1984) (Haight, J.). No blanket rule dealing with situations of this type can be formulated. Heckler v. Day, 467 U.S. 104, 119 n 33, 81 L. Ed. 2d 88, 104 S. Ct. 2249 (1984). Interim benefits are warranted where the original claim was filed nearly five years ago, the welfare of a child is at stake, the scant record presently available may support an ultimate finding in favor of the claimant, and the file has not been recovered despite a search now on-going for over a half a year, constituting delay attributable to the Secretary.
Heckler v. Day, 467 U.S. 104, 81 L. Ed. 2d 88, 104 S. Ct. 2249 (1984), did not reach the issue of whether the District Court had the remedial authority to require the payment of interim benefits in original entitlement cases. It would be dangerous to the agency's operations with limited resources if interim benefits were granted because of delay alone which would amount to the equivalent of establishing a deadline or limiting the broad authority of the Secretary to "ensure quality decisions in the face of heavy and escalating workloads and limited agency resources" contrary to Heckler v. Day, 467 U.S. 104, 112, 81 L. Ed. 2d 88, 104 S. Ct. 2249 (1984); Doughty v. Bowen, 839 F.2d 644, 647 (10th Cir. 1988). However, if the information available shows a determination that would appear groundless unless the agency finds, reconstructs the record or conducts a new hearing providing a substitute record, interim benefits constitute a lesser step than deciding the merits on the basis of a skimpy record.
Taylor v. Heckler, 769 F.2d 201 (4th Cir. 1985), denied such relief but there was no contention there of a finding that it would have been possible for the court to rule in favor of the applicant on the merits based on existing materials available because where any party has failed to provide information within its control reasonably promptly, an adverse inference can be drawn.
It is appropriate for a district court to retain jurisdiction in remanding an action under sentence six of 42 U.S.C. 405(g). Melkonyan v. Sullivan, 501 U.S. 89, 111 S. Ct. 2157, 2164, 115 L. Ed. 2d 78 (1991). A precondition of a sentence six remand is that the Secretary must move for such relief before having the opportunity to defend the agency's decision by answering the complaint.
"The Secretary's opportunity to neither admit nor deny error is provided with the understanding that the plaintiff may return to the district court during the remand process to resolve disputes and/or seek interim relief." Seaborn v. Sullivan, 822 F. Supp. 121 (SDNY 1993).
Because neither the merits nor adequate information concerning them has yet been plumbed, interim relief alone is insufficient to achieve the "dual goals of meaningful judicial review of the decision to deny benefits and the expeditious, yet fair, adjudication" of Social Security benefit claims, which are "best served by remanding without relinquishing jurisdiction." Id. See Fernandez v. Sullivan, 809 F. Supp. 226, 227 (SDNY 1992).
Dated: White Plains, New York
April 11, 1994
/s/ Gerard L. Goettel, U.S.D.J., in the absence of
VINCENT L. BRODERICK, U.S.D.J.