author: MATSCH, District Judge.

text:
    Kent Patrick EWING, Petitioner, v. George RODGERS, Warden, Federal Correctional Institution, Englewood, Colorado; Norman Carlson, Director, U.S. Bureau of Prisons; Victor M.S. Reyes, Commissioner, United States Parole Commission; William French Smith, Attorney General of the United States, Respondents.
    Civ. A. No. 83-M-2311.
    United States District Court, D. Colorado.
    Feb. 5, 1986.
    Daniel J. Sears, Denver, Colo., for petitioner.
    Douglas Curless, Asst. U.S. Atty., Denver, Colo., Rockne Chickinell, U.S. Parole Com’n, Chevy Chase, Md., for respondents.
   MEMORANDUM OPINION AND ORDER

MATSCH, District Judge.

This petition for a writ of habeas corpus was filed on December 2, 1983. Judgment granting the writ was entered on April 12, 1984, 582 F.Supp. 1513, and affirmed on appeal on November 13,1984, 748 F.2d 543. The matter is now before the court on petitioner’s motion to alter the judgment to include attorney fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 (EAJA).

The portion of the EAJA in effect during this litigation allowing for an award of attorney fees provided:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and rther expenses, in addition to any cost' awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort) brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A). The petitioner contends that a petition for habeas corpus is a civil action, and that the position of the United States was not substantially justified. The government disputes both contentions.

One circuit has squarely held that a ha-beas proceeding is not a “civil action” within the meaning of section 2412. Boudin v. Thomas, 732 F.2d 1107 (2d Cir.1984). The Boudin opinion reasoned that a waiver of sovereign immunity must be unequivocal and explicit, and that habeas proceedings are “unique” and are not “civil actions for all purposes.” Finding that “civil action” was ambiguous, the Second Circuit proceeded to examine the legislative history and found no evidence that Congress intended to allow recovery of attorney’s fees in habeas proceedings.

The ordinary meaning of the language expresses the legislative purpose. See Immigration & Naturalization Service v. Phinpathya, 464 U.S. 183, 104 S.Ct. 584, 78 L.Ed.2d 401 (1984). The conclusion of the Second Circuit is contrary to statements of the Supreme Court. In Bowder v. Illinois Department of Corrections, 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978), the Court wrote:

Respondent has maintained throughout that the Federal Rules of Civil Procedure are wholly inapplicable on habeas. We think this is a mistaken assumption. It is well settled that habeas corpus is a civil proceeding. Fisher v. Baker, 203 U.S. 174, 181 [27 S.Ct. 135, 136, 51 L.Ed. 142] (1906); Ex parte Tom Tong, 108 U.S. 556 [2 S.Ct. 871, 27 L.Ed. 826] (1883); see Heflin v. United States, 358 U.S. 415, 418 n. 7 [79 S.Ct. 451, 453 n. 7, 3 L.Ed.2d 407] (1959). Perhaps in recognition of the differences between general civil litigation and habeas corpus proceedings, see Harris v. Nelson, 394 U.S. 286, 293-294, and n. 4 [89 S.Ct. 1082, 1087-88, 22 L.Ed.2d 281] (1969), the Federal Rules of Civil Procedure apply in habeas proceedings only “to the extent that the practice in such proceedings is not set forth in statutes of the United States and has heretofore conformed to the practice in civil actions.” Fed.Rule Civ.Proc. 81(a)(2); see Fed.Rule Civ.Proc. 1.

Id. at 269, 98 S.Ct. at 563.

There is no ambiguity now, and there was none when the EAJA was enacted in 1980; a petition for a writ of habeas corpus commences a civil action. The Boudin decision’s attempt to rely on cases prior to Bowder (including Harris) for the proposition that habeas corpus is “unique” and not a “civil action” is unsuccessful. The Congress was presumably aware of the Bow-der decision. There are differences between habeas corpus and other civil litigation, but habeas was and remains emphatically a “civil action.” It is not strange that the Second Circuit could find no “affirmative intention to include habeas petitions within section 2412.” Boudin, 732 F.2d at 1115. It would seem self-evident that such proceedipgs would be within the meaning of the general phrase “civil action.”

In its discussion of the legislative history of the EAJA, the Boudin court also appears to take an overly restrictive view of the nature of habeas proceedings. “[H]abeas petitions are dedicated to vindicating individual rights based on the Constitution rather than refining rules and policy.” Id. at 1114. This very case was brought to vindicate rights denied because of an erroneous interpretation of a statute by a federal agency. As a result, the Parole Commission’s “rules and policies]” were “refined.” Moreover, many non-ha-beas civil actions have been brought against federal agencies, including suits for injunctions and declaratory judgments, to vindicate individual rights protected by the Constitution. Who could argue that section 2412(d)(1)(A) was not intended to apply to those actions?

The suggestion that EAJA can apply only where plaintiffs seek money damages is equally footless. It is true that part of the purpose of the EAJA was to ensure that potential litigants would not be deterred from contesting government action simply because it would not be cost effective. There is no basis for the negative implication that no fees can be awarded when the government has denied fundamental freedoms. The statute makes no such distinction. Indeed, when an agency of government deprives a person of his liberty on a basis that is not “substantially justified,” the government should attenuate the effects of that deprivation by paying reasonable fees for the lawyer who has been effective in representing his client. To suggest that Congress elevated property interests over liberty interests is astonishing.

The unambiguous language of the EAJA and unequivocal Supreme Court pronouncements compel the conclusion that habeas corpus is a civil proceeding within the meaning of 28 U.S.C. § 2412(d)(1)(A).

Because the petitioners prevailed in these actions, the government carries the burden of demonstrating that its position was substantially justified. Spencer v. N.L.R.B., 712 F.2d 539, 557 (D.C.Cir.1983). “Substantially justified” is a slightly more stringent test than “one of reasonableness.” Id. at 558. The “position of the United States” refers to the position of the government agency in the litigation. United States v. 2,116 Boxes of Boned Beef, 726 F.2d 1481, 1487 (10th Cir.), cert. denied, — U.S.-, 105 S.Ct. 105, 83 L.Ed.2d 49 (1984).

The government advances the following reasons in support of its contentions that its position was substantially justified. First, the government suggests that the Parole Commission adopted a remedial parole plan after Watts v. Hadden, 651 F.2d 1354 (10th Cir.1981) which it reasonably believed had been approved for implementation by this court. This contention is specious. In the Joint Response of the Parole Commission and Bureau of Prisons on Release Policies and Procedures, 78-M-495, et al., 5-6 the Commission stated:

The unit team will supply the Parole Commission with a progress report as soon as it has determined that the youth offender has satisfactorily completed his program plan. In conjunction with this report, the Warden shall make a recommendation to the Commission on whether the youth offender should be released. ... Upon notification that the youth offender has completed (or is about to complete) his program plan, the Commission will review the youth offender’s case on the record, or schedule him for early interim hearing. The Commission will consider the youth offender’s program participation and conduct record, (and how this information affects his parole prognosis), his release plans, and other pertinent factors.

Despite this assurance, the Parole Commission in this case “made a record review and ... reached the conclusion that the petitioner must remain in confinement for supervision at the FCI even though the Warden has said, unequivocally, that Mr. Ewing can derive no further benefit from the YCA facility.” Ewing v. Rodgers, 582 F.Supp. 1513, 1515 (D.Colo.), aff'd, 748 F.2d 543 (10th Cir.1984). Of course, the Parole Commission could “reasonably believe” the plan was approved for implementation on July 30, 1982, (it was) but it was this court’s expectation that the Parole Commission would abide by its assurances. In any event, this argument is irrelevant because it is not the action of the Parole Commission that must be substantially justified, it is the government’s position in this litigation.

Second, the government argues that in Fairchild v. U.S. Parole Commission, Civil Action No. 83-F-1231 (January 16, 1984) “almost 3 months prior to this Court’s order granting the writ for petitioner, Chief Judge Finesilver found no violation of the YCA in the use of the special remedial plan for Mr. Fairchild.” Thus, it is said that the “government’s defense and appeal in this case can hardly be characterized as unreasonable, when there were conflicting opinions on the same YCA issues from two district judges in the same court.” Answer to Motion to Alter Judgment at 5-6. This contention is nearly frivolous. The government’s position in this action was fully and finally set out in its Answer and Return to Order to Show Cause, filed December 27, 1983, three weeks before Chief Judge Fine-silver ruled. Counseh for the government would have had to have been clairvoyant to have used Fairchild as authority for its position here. Fairchild dealt with different facts and, in any event, was immediately appealed and vacated by the Tenth Circuit on the authority of Benedict v. Rodgers, 748 F.2d 543 (10th Cir.1984).

This court has no difficulty concluding that the position of the United States was unreasonable and not substantially justified. The government was instructed in unequivocal terms by this court and the Tenth Circuit in Watts v. Hadden, 489 F.Supp. 987 (D.Colo.1980), aff'd, 651 F.2d 1354 (10th Cir.1981) that the YCA inmates’ response to treatment is to be a determinative factor when considering conditional release. Providing the youth offender with a personal hearing upon the Parole Commission’s receipt of a Warden’s report was an explicit requirement of the remedial plan in Watts. The Parole Commission’s use of a record review in this matter and refusal to adjust the petitioner’s release date after the recommendation of the Warden that no further benefit could be derived from incarceration was unjustified.

The position of the government in this litigation was in part that the Parole Commission was justified in adhering to its original parole dates arrived at through the application of regulatory guidelines, because of the risk the petitioner posed to society. This position bore little relation to the reason given by the Parole Commission for its action, which was that the petitioner would be released when the guidelines said he would be released. In any event, the government failed entirely to contest or refute the petitioner’s central contention— that the Parole Commission’s rigid adherence to guidelines and refusal to consider factors required by the YCA, specifically the Warden’s report, in determining petitioner’s release date constituted an abuse of discretion.

One need only to read the language of the court of appeals in Benedict v. Rodgers, 748 F.2d 543 (10th Cir.1984) to understand that the affirmance was based on the clear language of the prior opinion in Watts v. Hadden, 651 F.2d 1354 (10th Cir.1981).

Finally, the government contends that the petitioner’s application for fees is untimely so far as the district court litigation is concerned because while it was filed within thirty days of the court of appeals’ judgment, the motion was made more than thirty days after the judgment entered here. While the circuits are split on the issue, the majority and better-reasoned decisions have concluded that a fee application may be made “within thirty days after the judgment in the district court has become final and unappealable, or after the court of appeals or the Supreme Court has entered a final judgment.” McDonald v. Schweiker, 726 F.2d 311, 315 (7th Cir.1983) (Posner, J.).

Accordingly, it is

ORDERED that the petitioner’s motion to amend judgment is granted, and the judgment is amended to award attorney’s fees in the amount of $7,308.04.


source: Caselaw Access Project

author: STERN, District Judge.

license: Public Domain

text:
    Charles CANNON, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    Civ. A. No. 83-4142.
    United States District Court, D. New Jersey.
    Feb. 5, 1986.
    As Amended Feb. 28, 1986.
    Gerald M. Zashin, Cedar Grove, N.J., for plaintiff.
    Thomas W. Greelish, U.S. Atty., Newark, N.J., by Laurie J. Gentile, Asst. U.S. Atty., for defendant.
   STERN, District Judge.

This case comes before the Court on a motion by claimant Charles Cannon to vacate this Court’s order of June 13, 1984, which remanded this case to the Secretary of Health and Human Services for proceedings consistent with Kuzmin v. Schweiker, 714 F.2d 1233 (3d Cir.1983). In moving to have that order vacated, claimant seeks to have this Court reverse the Secretary’s termination of claimant’s entitlement to a period of disability and disability insurance benefits. In addition, claimant moves for an award of attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 (1985). For reasons explained below, claimant’s motion will be granted in its entirety.

FACTS

Charles Cannon’s odyssey through the Social Security Administration (SSA) began three years ago on January 11, 1983, when he received notice of the SSA’s determination that he had regained the ability to engage in substantial gainful activity. Effective in March 1983, the SSA terminated the disability insurance benefits Cannon had been receiving for four years, since 1979, when the SSA found he suffered from arteriosclerotic heart disease. Cannon applied for reconsideration of his termination without success. A hearing was held before an Administrative Law Judge (ALJ) on July 15, 1983. In an opinion of August 26, 1983, the AU held that Cannon’s disability had ceased. This determination became the final decision of the Secretary when it was affirmed by the Appeals Council on October 5, 1983.

At the time of the AU’s hearing, Cannon was forty-nine years old. He has an eighth-grade education and was employed as an assembly line worker at a Ford Motor Co. plant from 1970 to 1979. Prior to that job, Cannon worked as a hairdresser. The record is inconsistent on the number of years Cannon spent as a hairdresser. The AU classified the hairdresser job as light work. The assembly line job, on the other hand, required heavy lifting, pushing and pulling.

At the AU’s hearing, Cannon testified that he suffered severe chest pains on January 30, 1979 while at work. He was subsequently admitted to John F. Kennedy Hospital in Menlo Park, New Jersey for two weeks and shortly thereafter to St. Joseph’s Hospital for an angiogram. Cannon testified that he has not been rehospi-talized, except for an appendectomy in 1981, and that he has seen Dr. Arthur L. Roth approximately once per month. He continues to experience regular chest pains which he relieves by doses of nitroglycerin. He also takes Inderal and Isordil. He said the medication makes him sleepy.

Claimant also testified that he has trouble sitting for any length of time because his feet, right thigh and buttock become numb. He reported that he could not walk more than two blocks without getting tired, that he becomes short of breath when climbing stairs, and that he has trouble bending, pushing, pulling and reaching because he quickly becomes short of breath. He does almost no household chores and watches television most of the time. After the 1979 attack, he once took a two-week vacation in California.

In written statements that were part of his application for continuation of benefits and part of the record before the AU, Cannon claimed his condition had worsened since 1979.

The medical evidence before the AU consisted of the following. First, Dr. Burton M. Cohen, M.D., a state consultative physician, submitted his findings after conducting a treadmill test using the Bruce protocol. The report, dated December 13, 1982, notes that after plaintiff had walked six minutes and ten seconds, he became very short of breath, began coughing, and rales appeared. The test was stopped at this point, although Cannon experienced no pain. ST segment depressions appeared in lead I, and accentuated in lead II and in lead III. After ten minutes, the depressions had returned almost to baseline. Dr. Cohen concluded:

I would regard this as a positive test with the notation that although the patient did not experience pain, the development of signs of left ventricular failure suggested poor ventricular function.

Dr. Arthur L. Roth, M.D., plaintiffs treating physician since the attack in 1979, submitted a brief .report dated March 31, 1982, which included plaintiffs history and Dr. Roth’s comment that plaintiff “continues on very limited activities.” Dr, Roth also noted that plaintiff continues to have chest pain unrelated to exertion. His diagnosis was coronary artery disease.

A subsequent letter from Dr. Roth, dated January 28, 1983, was submitted noting that, since plaintiff stopped working, a considerable amount of emotional stress was relieved, which to some extent helped plaintiffs angina. Dr. Roth reported that plaintiff has “documented coronary disease” and still sees him regularly, that plaintiff still has chest pain unrelated to exertion, that plaintiff still takes Isordil and Inderal, as well as nitroglycerine for anginal pain. Dr. Roth concluded, “I believe that Mr. Cannon is disabled due to his coronary disease.”

The AU, applying the standards for an initial disability determination, rather than the Kuzmin standard applicable to cessation of benefits situations, found that plaintiff is capable of performing past relevant work as a hairdresser. The AU relied primarily on a “Residual Functional Capacity Assessment” of a staff physician at the Office of Disability Determination. This report was made by a non-examining physician who extrapolated from the treadmill test performed by Dr. Cohen, and concluded that plaintiff retains the residual functional capacity for medium work, being able to sit for six hours, lift and carry up to 25 pounds (occasionally up to 50 pounds), with no impairment in using his arms and hands for pushing, pulling or manipulations. The signature of this physician is illegible so his qualifications are unknown. The AU discounted Cannon’s complaints of pain on the ground that they were inconsistent with his description of his daily activities. Beginning in January 1983, the AU concluded, Cannon has the residual functional capacity to perform work, except work involving prolonged walking, heavy lifting or carrying and constant bending or climbing. Cannon can perform past relevant work as a hairdresser and is not disabled.

On June 13, 1984, this Court vacated the decision of the Secretary and remanded for proceedings consistent with Kuzmin v. Schweiker, 714 F.2d 1233 (3d Cir.1983). In Kuzmin, the court held that in a termination proceeding, once a disability claimant has introduced evidence that his or her condition remains essentially the same as it was at the time of the earlier determination, claimant is entitled to the benefit of the presumption that his or her condition remains disabling. Id. at 1237. The court noted that a claimant’s burden is often eased by the fact that he or she remain under medical care, so obtaining medical evidence of continuing disability is not difficult. Id. In addition, the court noted that, in some cases, the medical evidence previously submitted would suffice to meet the burden if supplemented by the claimant's own testimony as to the continuing conditions. Id. Once the burden of going forward has shifted to the Secretary, the Secretary must produce evidence that claimant’s condition has improved sufficiently to allow him or her to work. Id.

Since the AU did not give Cannon the benefit of the presumption that his condition remains disabling, this Court remanded for proceedings consistent with the standards set forth in Kuzmin.

On remand, nothing happened. Claimant made numerous fruitless efforts to elicit action from the SSA. On October 17,1984, Cannon moved for an order from this Court to require the Secretary to hold a hearing. This Court denied Cannon’s motion at a hearing on December 17, 1984, but the Court undertook to get the Assistant United States Attorney to stipulate to a date after which the Secretary would agree to award benefits if no hearing had been held. The Assistant United States Attorney on the record selected the date of February 15, 1985. Although this date was some eight months after this Court’s remand order, this Court agreed to it but cautioned the Secretary not to create a “Kafkaesque labyrinth” for claimant.

According to an affidavit submitted by Cannon’s attorney, the hearing was scheduled for February 7, 1985, but when Cannon and his attorney arrived, the AU informed them that he did not have the administrative file, that he had no information on the Kuzmin decision, and that a physician scheduled to come to the hearing was unable to make it. Therefore, the AU adjourned the hearing.

When the hearing was finally held on March 6, 1985, the AU had before him the medical evidence submitted for the earlier hearing on July 15, 1983, including Dr. Roth’s reports that Cannon is disabled. This time, however, the AU had new medical reports. At the request of the Division of Disability Determinations, another consultative examination was performed by Dr. Cohen on November 16, 1984. He reported that despite Cannon’s compliance with a comprehensive program of medical therapy, his response was not impressive. Dr. Cohen further noted that Cannon’s disease may have progressed to the point where medical therapy was inadequate, and bypass surgery might be necessary. Dr. Cohen could foresee no improvement that would allow Cannon to return to work and concluded that he is totally disabled.

At the request of his counsel, Cannon was examined by Dr. Sidney Friedman on April 6, 1984. Dr. Friedman reported on the results of an ECG, X-rays, pulmonary function testing and other tests. He concluded that Cannon is 100% disabled due to arteriosclerotic heart disease and unstable angina.

On September 29, 1984, Dr. Aaron Fein-gold reported that claimant had been under his care since January 1979 for coronary artery disease, documented by an angiogra-phy in March 1979. In December 1982, claimant had a positive stress test, and he developed signs of heart failure during the test. During a November 15, 1984 examination, claimant complained of chest pain on exertion and at rest. Even minimal exercise provoked chest discomfort. Due to increased angina, Dr. Feingold recommended another cardiac catheterization. He believed claimant may have had an increase in his coronary artery disease and possible triple vessel disease. If this were the case, Cannon would be a candidate for coronary bypass surgery.

At th,e March 6, 1985 AU’s hearing, Dr. Donald Peyser, a board-certified internist, appeared as a medical advisor. Having reviewed the evidence and listened to Cannon’s testimony, Dr. Peyser testified that Cannon has arteriosclerotic heart disease documented by cardiac catheterization in 1979. His testimony that his condition had not improved, Dr. Peyser continued, was corroborated by the reports of Dr. Roth and Dr. Feingold. On the basis of test data in the records, Dr. Peyser concluded that Cannon’s impairment is of sufficient severity to meet the criteria of the Listing of Impairments under the category of cardiovascular system. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 4.04(B)(7)(a).

This is a case of unanimity among the medical reports. In his opinion of March 13, 1985, the ALJ held that there had been no improvement to Cannon’s condition since 1979. “To the contrary, both treating and consultative examiners have indicated that his disease may have grown worse over time.” The ALJ found that Cannon has severe arteriosclerotic heart disease, meeting the requirements of the Listing of Impairments, and that he is disabled.

The AU’s decision was forwarded to the Appeals Council whereupon, once again, the months went by with no action. Cannon’s attorney made repeated attempts to stimulate some action but was told that none was possible until new regulations were promulgated by the Secretary. Cannon’s counsel therefore filed the present motion in this Court on November 21, 1985. Subsequently, counsel informed this Court that the Appeals Council had remanded the case without affirming or reversing the AU. The government takes the position that § 2(a) of the Social Security Disability Benefits Reform Act of 1984, Pub.L. No. 98-460, 98 Stat. 1794,1794-99 (1984), established a statutory medical improvement standard that supersedes the standard in Kuzmin. The Act required the Secretary to make regulations implementing the new standard. These have not yet appeared, although the Reform Act became effective on October 9, 1984, and the Reform Act prescribed that the regulations would be completed “not later than 180 days after the date of the enactment of this Act.” Pub.L. No. 98-460, 98 Stat. 1794, 1799, § 2(g). When regulations are promulgated, the government contends, Cannon must refile for consideration by the SSA and begin administrative proceedings anew.

It is not clear the government is correct in its position that the Reform Act applies to this case. By their own terms, the amendments apply to “determinations with respect to which a timely request for judicial review is or has been made by an individual litigant of a final decision of the Secretary made within 60 days prior to the date of the enactment of this Act [Oct. 9, 1984].” Pub.L. No. 98-460, 98 Stat. 1794, 1797, § 2(d)(2)(D). In the present case, the litigant was on remand after a request for judicial review made nearly a year before the enactment of the Act.

Even if the Reform Act applies to this case, it is unclear why the Appeals Council needed to await regulations on the medical improvement standard given the ALJ’s finding that Cannon’s disability was of a severity sufficient to meet the standards of the Listing of Impairments. No matter what regulations the Secretary ultimately implements, the outcome of this case will be the same.

The net effect of the Secretary’s handling of this case is that Mr. Cannon is somewhere behind where he was three years ago. Cannon will not even be able to reapply for benefits until the Secretary promulgates new regulations on medical improvement. In its brief, the government undertakes to reassure this Court of the normalcy of the treatment Cannon has received by representing that “hundreds” of other claimants are in the same circumstances Cannon is in.

DISCUSSION

The events of this case subsequent to this Court’s order of June 13, 1984 have been recited merely to illustrate the callousness to which the Secretary occasionally descends in treating disability claimants. Those events are not before this Court because there has been no “final decision of the Secretary” which is a prerequisite to the subject matter jurisdiction of this court. 42 U.S.C. § 405(g) (1985). This Court nevertheless has inherent power over its own orders and may modify or set them aside pursuant to Fed.R.Civ.P. 60.

Upon reviewing the record, this Court is convinced that Cannon’s case should have been reversed rather than remanded on June 13, 1984. Nothing in Kuz-min precluded a reversal and award of benefits so long as there was no substantial evidence supporting the Secretary’s decision under the correct legal standard. In Kuzmin itself, the Third Circuit Court of Appeals reversed and awarded benefits. 714 F.2d at 1240.

The AU’s August 26, 1983 decision conflicted with the opinion of Cannon’s treating physician, Dr. Roth, who considered Cannon disabled. The AU’s decision also took no account either of Cannon’s testimony or Dr. Cohen’s report of a positive response on the treadmill test with signs of left ventricular failure and poor ventricular function. Supporting the AU’s finding, there was only the “Residual Functional Capacity Assessment” form filled out by a non-examining physician employed by the state agency. It is clear now, as it was in 1983, that such evidence is not substantial evidence. Green v. Schweiker, 749 F.2d 1066, 1071 n. 3 (3d Cir.1984) (“[standing alone ... a physical capacities evaluation form is not substantial evidence”); O’Leary v. Schweiker, 710 F.2d 1334, 1341 (8th Cir.1983); McCoy v. Schweiker, 683 F.2d 1138, 1147 n. 8 (8th Cir.1982) (en banc). Since the signature is illegible and the name and qualifications of the physician unknown, the form should have been given no weight. Bryant v. Schweiker, 537 F.Supp. 1, (E.D.Pa.1982).

Thus, if the AU had applied the correct standard, his conclusion would still have been unsupported by substantial evidence, indeed by any evidence at all.

A decision to direct the award of benefits should be made only when the administrative record “of the case has been fully developed and when substantial evidence on the record as a whole indicates that the claimant is disabled and entitled to benefits.” Podedworny v. Harris, 745 F.2d 210, 221-22 (3d Cir.1984); Tennant v. Schweiker, 682 F.2d 707, 710 (8th Cir.1982). We believe the administrative record was fully developed and set forth substantial evidence that Cannon was disabled. Therefore, this Court should have reversed. Claimant’s motion will be treated as a motion for relief from judgment or order pursuant to Fed.R.Civ.P. 60(b)(5). This Court’s order of June 13, 1984 is vacated. We reverse and remand to the Secretary for reinstatement of benefits pursuant to this Court’s order of December 20, 1985 filed separately. As claimant is now a prevailing party, and as this Court finds no substantial justification for the government’s position in this case, claimant is entitled to an award of attorney’s fees, under 28 U.S.C. § 2412 (1985), as provided in the order filed separately.

      . Kuzmin v. Schweiker, 714 F.2d 1233 (3d Cir.1983).

      . In Day v. Heckler, 467 U.S. 104, 104 S.Ct. 2249, 81 L.Ed.2d 88 (1984), the Court rejected the imposition by the district court of a deadline for agency adjudication of a disputed disability claim. Id. 104 S.Ct. at 2258. The Court reasoned that in the absence of any deadline imposed by Congress, such a deadline amounted to an unwarranted judicial intrusion into a pervasively regulated area. Id. However, nothing in Day precludes the government from consenting to a deadline.

      . The purpose of the Listing of Impairments is defined as follows:
      The Listing of Impairments describes, for each of the major body systems, impairments which are considered severe enough to prevent a person from doing any gainful activity. Most of the listed impairments are permanent or expected to result in death, or a specific statement of duration is made. For all others, the evidence must show that the impairment has lasted or is expected to last for a continuous period of at least 12 months.

        20 C.F.R. § 404.1525(a) (1985).

      . Pub.L. No. 98-460, 98 Stat. 1794, 1794 § 2(a), 42 U.S.C. § 423(f)(1) (1985).

      . SSA data shows that in 1983, 29.4% of final district court decisions on disability claims were reversals without remand of the Secretary's determinations. Podedworny, 745 F.2d at 222 n. 11 (citing Tustin v. Heckler, 591 F.Supp. 1049, 1059 (D.N.J.1984), vacated in part and remanded, 749 F.2d 1055 (3d Cir.1984)).


author: DUHE, District Judge.

text:
    AMOCO PRODUCTION COMPANY v. Donald P. HODEL, et al.
    Civ. A. No. 84-0916 “L”.
    United States District Court, W.D. Louisiana, Lafayette-Opelousas Division.
    Feb. 5, 1986.

      Liskow & Lewis by Gene W. Lafitte, George J. Domas, Deborah B. Price and Anne E. Tate, New Orleans, La., for plaintiff.
    U.S. Dept, of Justice, Leslie K. Dellon, Federal Programs Branch, Civil Div., Dennis G. Linder, Stephen E. Hart, Washington, D.C., Joseph S. Cage, Jr. by Lawrence W. Moon, Jr., Lafayette, La., for defendants.
    Milling, Benson, Woodward, Hillyer, Pi-erson & Miller by Charles D. Marshall, Jr. and David N. Schell, Jr., New Orleans, La., amicus curiae.
   MEMORANDUM RULING

DUHE, District Judge.

I. FACTUAL BACKGROUND

This matter arises out of a dispute between Amoco Production Company and the federal government over the amount of additional royalties, interest and penalties Amoco owes, if any, for its lease of government-owned natural gas tracts on the Outer Continental Shelf (OCS) offshore Louisiana. Amoco brought this action requesting a declaratory judgment and injunctive relief. Both parties now move for summary judgment.

Amoco is the co-lessee of federal lease OCS-G 2866, granted in 1974 under the Outer Continental Shelf Lands Act. Amoco, as lessee, is required to pay the government a “royalty of 16% percent in amount or value of production saved, removed, or sold” from the leased area. For all times pertinent to this suit, Amoco’s share of production from Lease OCS-G 2866 has been sold pursuant to two warranty contracts: one with Florida Gas Transmission Company and a second with Florida Power and Light Co. (FPL). The gas sold under the former contract is immaterial to this action.

The FPL contract was executed in 1965, almost a decade before Amoco acquired Lease OCS-G 2866 from the government. As a warranty contract, Amoco’s agreement with FPL did not specify the source or origins of the quantity of gas that Amoco was obligated to deliver. At some point after it acquired Lease OCS-G 2866 from the government, Amoco began to use production from it to satisfy its obligations under the FPL contract.

On February 1, 1977, the U.S. Geological Service issued a value determination letter which established the royalty valuation from Amoco’s production of gas from Lease OCS-G 2866. This value determination was made pursuant to 30 C.F.R. 650.-64, and Amoco concedes that since it did not appeal that ruling, it was bound by it until it was superseded.

In July 1982, following an audit, the Royalty Compliance Office of the Minerals Management Service (MMS) ordered Amoco to pay additional royalties owed from Lease OCS-G 2866 in the amount of $10,-424,298.62, for the period of January 1977 through December 1979. In September 1982 the Royalty Compliance Office assessed $3,920,015.52 in interest against Amoco.

Amoco paid both the additional royalties and the late payment assessment of interest, and appealed those rulings of the Royalty Compliance Office to the Director of the MMS. In an order dated April 4, 1983, the Director upheld both rulings.

Amoco then appealed to the Department of Interior Board of Land Appeals (“IBLA”). This body, on December 19, 1983, affirmed the Director’s decision.

Amoco has since brought this action seeking declaratory and injunctive relief, requesting among other things:

(1) a declaratory judgment that the decision of the IBLA is null and void,
(2) a permanent injunction against the government barring it from enforcing the IBLA decision,
(3) an order requiring the government to recalculate the royalties owed by Amoco on the basis of the price Amoco received from FPL for the gas.

II. THE LEGAL ISSUES

As noted earlier Amoco concedes that since it failed to appeal the MMS February 1977 valuation it is barred from challenging that ruling while it was effective. Amoco argues, though, that this ruling was later superseded by another valuation ruling by the MMS, and later by the Natural Gas Policy Act of 1978 (NPGA).

A. The Notice to Lessee

Amoco argues that it does not owe the additional royalties and interest for the period of July 1, 1978, through December 31, 1979, on the grounds that the February 1, 1977, valuation was superseded by a second in June 1978. This later valuation, Amoco contends, was consistent with the royalties it paid under the FPL contract price.

On June 1, 1978, Amoco was issued Notice to Lessee 78-2 (“NTL 78-2”) by the same office which had issued the February 1977 valuation. It is uncontested that Lease OCS-G 2866 is within the scope of the notice. However, after a challenge by Amoco and by others, NTL 78-2 was declared invalid on procedural grounds on January 15, 1979. Since NTL 78-2 was invalid, there is no need for this Court to examine the question of what the effect of NTL 78-2 might have been had it been valid. Since it was invalid it could not have superseded the February 1977 valuation determination.

B. The Natural Gas Policy Act of 1978

The NGPA was enacted into law on December 1,1978. Amoco argues that § 3315 of the NGPA established price ceilings on its sale of gas from Lease OCS-G 2866 to FPL, and that as a consequence the government is precluded from recovering royalties based upon a value that exceeds the government-imposed price.

1. Do the Price Ceilings of § 3315 Apply?

15 U.S.C. § 3315, provides in pertinent part:

(a) Application. — The maximum lawful price computed under subsection (b) of this section shall apply to any first sale of natural gas delivered during any month in the case of natural gas, sold under any existing contract or any successor to an existing contract, which was not committed or dedicated to interstate commerce on November 8, 1978.
(b) General rule. — Subject to paragraphs (2) and (3), the maximum lawful price under this section shall be the lower of—
(A) the price under the terms of the existing contract, to which such natural gas was subject on November 9, 1978, as such contract was in effect on such date; or ...

The government argues that since Amoco’s contract with FPL was a warranty contract, that is, Amoco was not obligated to provide its required quantity of gas to FPL from any particular source, that the gas in Lease OCS-G 2866 was not “subject to” an existing contract as contemplated by § 3315(b)(1)(A). Amoco responds by arguing that the gas was “sold under” the existing contract within the meaning of § 3315(a).

On the date in question — November 9, 1978 — the gas from Lease OCS-G 2866 was sold to FPL under an existing contract. That contract governed the terms and conditions of the sale of the gas. That such contract was a warrant contract, this court thinks, is immaterial. Furthermore, the OCS-G 2866 gas was subject to the FPL contract on the date in question— again, November 9, 1978. Contra, LL & E v. Texaco, 478 So.2d 926 (4th Cir.1985). That Amoco was not obligated to subject the OCS-G 2866 gas to the FPL contract on that date is immaterial since Amoco did subject that gas to the FPL contract by selling it under those terms. Amoco having so opted, the gas in Lease OCS-G was bought within. the scope of § 3315, and remains so under any successor contract. Accordingly, this court holds that the price ceilings of § 3315 applied to the gas produced from Lease OCS-G 2866.

This conclusion is supported by the Fifth Circuit’s admonition that statutory meaning is to be derived not from reading of a single sentence or section, but from the provisions of the whole law, its object and policy. ZeMurray Foundation v. United States, 687 F.2d 97, 102 (5th Cir.1982). The government has not suggested any reason — nor do I think it could — why Congress would have intended to distinguish between warrant contracts and other contracts for purposes of the price ceilings of § 3315. Congress’s intent seems clear— the price ceilings of § 3315 apply to gas sold under existing contracts — or successor contracts — not dedicated to interstate commerce. I believe I adhere to that intent in this holding.

2. The Effect of § 3315’s Price Ceilings. Amoco now argues that since after December 1, 1978 (the effective date of the NGPA) it could not exceed the price ceilings of § 3315 for the gas it sold to FPL, the government is precluded from exacting royalty based on a value greater than those price ceilings. The government responds by arguing that the NGPA is simply immaterial to the government’s royalty valuations.

Under the Outer Continental Shelf Lands Act of 1953, 43 U.S.C. §§ 1331, et seq., the Secretary of the Interior is authorized to grant leases for the recovery of minerals from the subsoil and seabed of the OCS. Id. at § 1337. The Secretary is required to conduct leasing activities “to assure receipt of fair market value for the lands leased and the rights conveyed” by the government. Id. at § 1344(a)(4). Under the lease, Amoco agreed that the Secretary could establish minimum values for purposes of computing royalties, and that the Secretary could make such a determination only after due notice had been given to Amoco.

Amoco made such a request in January 1977, and the Department made a determination within a month on the basis of 30 C.F.R. 250.64 (1977; since amended and redesignated as 30 C.F.R. 206.150). The regulation then provided:

The value of production, for the purpose of computing royalty, shall be the estimated reasonable value of the product as determined by the supervisor, due consideration being given to the highest price paid for a part or for a majority of production of like quality in the same field or area, to the price received by the lessee, to posted prices [applies only to oil], and to other relevant matters. Under no circumstances shall the value or production of any of said substances for the purposes of computing royalty be deemed to be less than the gross proceeds accruing to the lessee from the sale thereof or less than the value computed on such reasonable unit value as shall have been determined by the Secretary. In the absence of good reason to the contrary, value computed on the basis of the highest price paid or offered at the time of production in a fair and open market for the major portion of like-quality products produced and sold from the field or area where the leased lands are situated will be considered to be a reasonable value.

Applying the factors from the foregoing regulation, the Department established the royalty value for the gas sold to FPL as “well spud dates pursuant to FPC opinion No. 770-A”. This valuation was higher than the contract price received by Amoco from FPL — and thus higher than the price controls which went into effect on December 1, 1978. As noted Amoco did not contest this value. Of course, during the entire period in question, Amoco failed to make royalty payments consistent with this determination.

Since it did not contest this February 1977 valuation, Amoco concedes that it is liable for the underpaid royalties from February 1, 1977, until this valuation was superseded. Since this court has rejected Amoco’s contention that NTC 78-2 had any effect, Amoco is liable for underpayments from February 1977 to at least December 1, 1978, the effective date of the NGPA. Of course, if the NGPA price controls do not supersede the February 1977 valuation Amoco is liable for underpayments from the entire period.

Citing Flowers v. Diamond Shamrock Corp., 693 F.2d 1146 (5th Cir.1982) and Bowers v. Phillips Petroleum Co., 692 F.2d 1015 (5th Cir.1982), Amoco argues that a royalty valuation cannot exceed the maximum lawful price imposed by a government regulation. In both cases, which involved gas dedicated for sale in the contracts, the Fifth Circuit held that under Texas law market value for royalty purposes cannot exceed the maximum price at which the gas produced from the lessor’s wells may be sold under its particular price categorization in the Act. Flowers, 693 F.2d at 1154. These cases, then, are simply inapposite to the present question of whether a royalty valuation by the government made pursuant to 30 C.F.R. 250.64 (1977) can subsequently become invalidated by the imposition of government price controls which are lower than that valuation.

On the surface it may appear inequitable to hold that gas has a value for royalty purposes greater than the price for which it can be sold in the market place. However, it must be remembered that the gas could have been sold at a higher price had Amoco elected to do so on the effective date of the NGPA price controls. Instead it elected to fulfill its obligation to FPL under a contract negotiated many years before at a price which no longer reflected true market value. The royalty owner should not, because of this, suffer a reduction in the value of its royalty on gas which was probably not even discovered when the FPL contract was made. The valuation determination was made in 1977 well in advance of the NGPA price ceilings. The controls imposed were not some arbitrary price but rather kept in place the price Amoco happened to be charging for the gas on November 8, 1978.

Flowers and Bowers are distinguishable in two senses. First, they govern market value for royalty purposes under Texas law. In the present case, the validity of the royalty valuation made in 1977 is not impeached. The issue is the significance of the later imposition of price controls.

Second, in Flowers and Bowers neither producer chose the price ceiling which was beneath the royalty valuation. In the present case, Amoco, in effect, did choose the price ceilings imposed upon it.

Amoco, citing Boutte v. Chevron, 316 F.Supp. 524 (E.D.La.1970), aff'd, 442 F.2d 1337 (5th Cir.1971), also argues that the government’s adherence to this royalty valuation after the imposition of price ceilings is “confiscatory and violative of the Fifth Amendment.” This case, too, is inapposite. Boutte simply stands for the proposition that a court may not order a lessee to pay royalties to its lessors based on a valuation which has not been finally determined by the appropriate administrative authority. (Chevron given right to deny higher royalties when the valuation was subject to being overturned by Federal Power Commission).

Finally Amoco argues that the government is bound to an implied covenant of good faith in its performance under the lease, and that that duty has been breached when the government makes a valuation determination exceeding the regulated ceiling price. Essentially, Amoco contends that the subsequent imposition of price ceilings made the February 1977 valuation arbitrary and capricious.

5 U.S.C. § 706 empowers this court to hear appeals from the Department of Interior’s Board of Land Appeals. It provides:

To the extent necessary to decision and when presented the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—
(1) compel agency action unlawfully withheld or unreasonably delayed; and
(2) hold unlawful, and set aside agency action, findings, and conclusions found to be—
A. arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law;
B. contrary to constitutional right, power, privilege, or immunity;
C. in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
D. without observance of procedure required by law;
E. unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
F.unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.
In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.

In hearing an appeal under § 706, this Court must “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1970).

It is uncontested that the 1977 valuation determination was made pursuant to the pertinent statutory and regulatory criteria. Thus, the Secretary’s valuation was not an abuse of discretion. Amoco’s misfortune is that it did not find a purchaser that would have paid what the Secretary in 1977 determined to be the “reasonable value” of the gas, given all the relevant factors. Amoco chose to undersell its gas, simply ignored the February 1977 valuation determination and continued to pay royalties based on a lower rate.

Accordingly, this Court holds that even though the price ceilings of the NGPA apply to the gas in question, the initial royalty valuation was proper and was not invalidated by the later imposition of NGPA price ceilings.

III. THE ASSESSMENT OF INTEREST

Amoco finally argues that the government’s assessment of interest was excessive and premature. The former argument is based on the claim that Amoco had no liability for royalties for the July 1978-De-cember 1979 period. This Court’s disposition of that claim similarly disposes of Amoco’s contention that it owed no interest from that period.

Amoco's prematurity argument is that the government assessment of interest constituted a taking of property without due process, since the “legal right of the MMS to the additional royalties upon which the interest and penalties were assessed was not yet established by final order or judgment.” (Amoco’s memorandum in support of MSJ at 33).

The government pursuant to 30 C.F.R. 250.49 (since redesignated as 30 C.F.R. 218.50), assessed interest upon Amoco in 1982 for its late payment of past-due royalties. Due process was satisfied by the government. Had Amoco paid the then-due royalties in a timely manner, even under protest, it could have avoided the interest assessment. Accordingly, the interest assessment was not a taking violative of the Fifth Amendment’s due process clause.

IV. CONCLUSION

To recapitulate, this Court finds:

(1) the February 1977 royalty valuation was proper both procedurally and substantively;
(2) the NTL 78-2 of June 1978 did not supersede the February 1977 valuation;
(3) the NGPA of 1978, which took effect December 1, 1978, did not invalidate the 1977 royalty valuation made by the government, even though it did apply to the lease in question; and
(4) the government’s assessment of interest was proper and did not deprive Amoco of its property without due process.

Accordingly, summary judgment will be entered in favor of the government and against Amoco for the latter’s liability for underpaid royalties and interest from February 1977 through December 1979.