[Alexander]

Every lawyer knows that even when he has a perfect case, a case with undisputed facts that lead to only one legal conclusion, there is still a wild card that can mess up everything – the judge. This is the true story of how 4 federal judges screwed up a man’s life just because they could.

I represented people claiming benefits under their employer’s life, health, and disability insurance plans. The benefits are governed by a federal law known as ERISA and disputed claims are usually tried in federal courts without juries. My last case, Alves v. Hewlett-Packard, 2022 U.S. App. LEXIS 6214 (9th Cir. 2022), was a “perfect case.” The law was clear; a person who cannot sit for more than 4 hours in an 8 hour workday is unable to perform a sedentary job, a job requiring the least amount of physical ability.1 The other side’s internist, a Dr. Broomes, found that Mr. Alves could only sit for, at most, 4 hours in an 8 hour workday. Clearly, Mr. Alves was disabled as a matter of law.

The case was assigned to the Hon. Gary Klausner, a district court judge for the Central District of California. In deciding that Alves was not disabled, Klausner came to the idiotic conclusion that “30 minutes per hour” of sitting ability could reasonably mean “that Plaintiff can sit for 30 minutes, get up for 5 minutes, and then sit down for the final 25 minutes.” Alves v. Hewlett Packard 2021 U.S. Dist. LEXIS 85754, at *12 (C.D. Cal. 2021). 30 minutes per hour, according to the judge, really meant 55 minutes per hour.

I appealed to the Ninth Circuit Court of Appeals. There, a three judge panel made up of Justices Forrest, Lee, and Ikuta decided, without oral argument, that Mr. Alves was not entitled to a disability benefit because he was not disabled. The case was decided on the briefs alone. The panel (Forrest, Lee, and Ikuta) issued a memorandum decision, an unsigned decision that does not have to explain its reasoning. The author could have been one of the three judges, a law clerk, a law student, or who knows who. The decision said, “We reject Alves’s argument that [the denial] decision is undercut by Dr. Stephen Broomes’s conclusion that Alves was limited to sitting continuously for 30 minutes per hour” because the diagnoses would not “preclude Alves from performing sedentary work.” Alves v. Hewlett-Packard, 2022 U.S.App. LEXIS 6214, at *2. No legal authority was cited for this statement because it is total bull. The law is clear, “[T]he ‘consistent’ interpretation of ‘ERISA law’ [is] that an individual is unable to perform ‘any occupation’ under a disability policy if that individual ‘cannot sit for more than four hours in an eight-hour workday.'” McCool v. Life Ins. Co. of N. Am., 842 F. App’x 164, 164 (9th Cir. 2021). Sitting up to 30 minutes per hour for 8 hours can never equal more than 4 hours even if a federal judge says otherwise. The decision was flawed on its face.

I filed a motion for rehearing and/or rehearing en banc. The first asks the panel (Forrest, Lee, and Ikuta) to correct its errors. The second asks the whole 9th Circuit Court of Appeals to correct a mistake at odds with prior decisions of the court. The 3 panel judges refused to change their decision even though by this time they must have known that they were wrong. As for the 9th Circuit as a whole, not a single judge voted to review the decision. And so the case ended.

Mr. Alves will not be receiving his disability benefit. The safety net promised to him by Hewlett-Packard for his years of work dissolved to nothing when he needed it. He will live the remainder of his life financially challenged to a degree he never anticipated all because 4 federal judges ignored facts and law and decided to screw him.

How could our judicial system leave a man, covered by all the insurance his employer offered its employees, in such a pitiable state? All 4 of the judges involved knew that Mr. Alves could not sit for more than 4 hours. They also knew that he had swollen legs that he had to keep elevated when sitting, that he had congestive heart failure and sleep apnea, and that he could not walk across a room without losing his breath. All 4, after all of the briefing, must have known the law. Thus, each knew that Mr. Alves was entitled to the disability benefit. Clearly the object of all of the judges was to deny Alves his benefits regardless of the facts and the law. To screw up someone’s life just because you can is pure evil. Judges Klausner, Ikuta, Lee, and Forrest should not be judges.

Why would a judge deny a deserving person disability benefits? Each of the 4 named judges should answer the question. To date, the only explanation from the 3 circuit judges is an unsigned non-explanatory flawed-on-its-face wrong-on-the-law decision. The district court judge, Klausner, has a problem with simple arithmetic or, as more probable from his judicial record, a problem with disabled people.2 As for Judge Lee, he has a history of always denying ERISA benefits for no articulated reason. He has been on a 3 judge panel for 6 ERISA benefit cases. Five affirmed district court decisions to deny ERISA benefits and one reversed a decision to grant benefits.3 All 6 decisions are memorandum decisions (unreasoned and unsigned). While we do not know the reasons each particular judge decided to buck the law, there is one reason, I believe, common to all 4 of these judges.

Mr. Alves did not matter to them. Like you and me, he is a nobody. He is not a celebrity, not wealthy, not politically involved. His case was not a news maker. The 3 circuit judges didn’t even want oral argument. They didn’t want to waste their valuable time on his claim. His legal rights didn’t matter to them. They just didn’t care.

While a memorandum decision cannot be cited as a legal precedent, the Alves case clearly shows that judges can and do ignore precedent and come to decisions contrary to the law via memorandum decisions. They can do whatever they want to do.

Clearly a judge should be totally neutral in a lawsuit. We do not want a judge’s politics, religion, way of life, sexual preference, health, taste in clothes, or grandchildren to compromise his neutrality. We expect a judge to dispense justice equally to all. What happened to Mr. Alves reveals a major problem with American justice. Too many judges are unfit for the job.

If this pisses you off, please feel free to pass this on. If you question the truth, read the decisions and check the references in the endnotes.

Charles J. Fleishman

 

1. More than 4 hours of sitting ability in an 8 hour workday is required for a sedentary job. Vertigan v. Halter 260 F.3d 1044, 1052 (9th Cir.

2001); Aukland v. Massanari, 257 F.3d 1033, 1035-36 (9th Cir. 2001); Armani v.

Northwestern, 840 F.3d 1159 (9thCir. 2016); Cruz-Baca v. Edison Int’l Long Term

Disability Plan, 708 Fed. Appx. 313 (9th Cir. 2017); Wagenstein v. Cigna Life Ins. Co.,

789 Fed. Appx. 591 (9th Cir. 2020); McCool v. Life Ins. Co. of N. Am., 842 Fed. Appx.

164 (9th Cir. 2021); Rios v. Unum Life Ins. Co. of Am., 2021 U.S. App. LEXIS 38138 (9th

Cir., Dec 27. 2021).

2. Mull v. Motion Picture Indus. Health Plan, 2017 U.S. Dist. LEXIS 135347 (C.D. Cal. 2017); McCutcheon v. Hartford, 2009 U.S. Dist. LEXIS 61998 (C.D. Cal. 2009); Stewart v. Cont’l Cas. Co., 2006 U.S. Dist LEXIS 98342 (C.D. Cal. 2006); Randall v. UNUM, 2011 U.S. Dist. LEXIS 111916 (C.D. Cal. 2011); Minassian v. AIG, 2010 U.S.Dist. LEXIS 48462 (C.D. Cal. 2010); McCool v. LINA, 2018 U.S. Dist. LEXIS 224392 (C.D. C

Every lawyer knows that even when he has a perfect case, a case with undisputed facts that lead to only one legal conclusion, there is still a wild card that can mess up everything – the judge. This is the true story of how 4 federal judges screwed up a man’s life just because they could.

I represented people claiming benefits under their employer’s life, health, and disability insurance plans. The benefits are governed by a federal law known as ERISA and disputed claims are usually tried in federal courts without juries. My last case, Alves v. Hewlett-Packard, 2022 U.S. App. LEXIS 6214 (9th Cir. 2022), was a “perfect case.” The law was clear; a person who cannot sit for more than 4 hours in an 8 hour workday is unable to perform a sedentary job, a job requiring the least amount of physical ability.1 The other side’s internist, a Dr. Broomes, found that Mr. Alves could only sit for, at most, 4 hours in an 8 hour workday. Clearly, Mr. Alves was disabled as a matter of law.

The case was assigned to the Hon. Gary Klausner, a district court judge for the Central District of California. In deciding that Alves was not disabled, Klausner came to the idiotic conclusion that “30 minutes per hour” of sitting ability could reasonably mean “that Plaintiff can sit for 30 minutes, get up for 5 minutes, and then sit down for the final 25 minutes.” Alves v. Hewlett Packard 2021 U.S. Dist. LEXIS 85754, at *12 (C.D. Cal. 2021). 30 minutes per hour, according to the judge, really meant 55 minutes per hour.

I appealed to the Ninth Circuit Court of Appeals. There, a three judge panel made up of Justices Forrest, Lee, and Ikuta decided, without oral argument, that Mr. Alves was not entitled to a disability benefit because he was not disabled. The case was decided on the briefs alone. The panel (Forrest, Lee, and Ikuta) issued a memorandum decision, an unsigned decision that does not have to explain its reasoning. The author could have been one of the three judges, a law clerk, a law student, or who knows who. The decision said, “We reject Alves’s argument that [the denial] decision is undercut by Dr. Stephen Broomes’s conclusion that Alves was limited to sitting continuously for 30 minutes per hour” because the diagnoses would not “preclude Alves from performing sedentary work.” Alves v. Hewlett-Packard, 2022 U.S.App. LEXIS 6214, at *2. No legal authority was cited for this statement because it is total bull. The law is clear, “[T]he ‘consistent’ interpretation of ‘ERISA law’ [is] that an individual is unable to perform ‘any occupation’ under a disability policy if that individual ‘cannot sit for more than four hours in an eight-hour workday.'” McCool v. Life Ins. Co. of N. Am., 842 F. App’x 164, 164 (9th Cir. 2021). Sitting up to 30 minutes per hour for 8 hours can never equal more than 4 hours even if a federal judge says otherwise. The decision was flawed on its face.

I filed a motion for rehearing and/or rehearing en banc. The first asks the panel (Forrest, Lee, and Ikuta) to correct its errors. The second asks the whole 9th Circuit Court of Appeals to correct a mistake at odds with prior decisions of the court. The 3 panel judges refused to change their decision even though by this time they must have known that they were wrong. As for the 9th Circuit as a whole, not a single judge voted to review the decision. And so the case ended.

Mr. Alves will not be receiving his disability benefit. The safety net promised to him by Hewlett-Packard for his years of work dissolved to nothing when he needed it. He will live the remainder of his life financially challenged to a degree he never anticipated all because 4 federal judges ignored facts and law and decided to screw him.

How could our judicial system leave a man, covered by all the insurance his employer offered its employees, in such a pitiable state? All 4 of the judges involved knew that Mr. Alves could not sit for more than 4 hours. They also knew that he had swollen legs that he had to keep elevated when sitting, that he had congestive heart failure and sleep apnea, and that he could not walk across a room without losing his breath. All 4, after all of the briefing, must have known the law. Thus, each knew that Mr. Alves was entitled to the disability benefit. Clearly the object of all of the judges was to deny Alves his benefits regardless of the facts and the law. To screw up someone’s life just because you can is pure evil. Judges Klausner, Ikuta, Lee, and Forrest should not be judges.

Why would a judge deny a deserving person disability benefits? Each of the 4 named judges should answer the question. To date, the only explanation from the 3 circuit judges is an unsigned non-explanatory flawed-on-its-face wrong-on-the-law decision. The district court judge, Klausner, has a problem with simple arithmetic or, as more probable from his judicial record, a problem with disabled people.2 As for Judge Lee, he has a history of always denying ERISA benefits for no articulated reason. He has been on a 3 judge panel for 6 ERISA benefit cases. Five affirmed district court decisions to deny ERISA benefits and one reversed a decision to grant benefits.3 All 6 decisions are memorandum decisions (unreasoned and unsigned). While we do not know the reasons each particular judge decided to buck the law, there is one reason, I believe, common to all 4 of these judges.

Mr. Alves did not matter to them. Like you and me, he is a nobody. He is not a celebrity, not wealthy, not politically involved. His case was not a news maker. The 3 circuit judges didn’t even want oral argument. They didn’t want to waste their valuable time on his claim. His legal rights didn’t matter to them. They just didn’t care.

While a memorandum decision cannot be cited as a legal precedent, the Alves case clearly shows that judges can and do ignore precedent and come to decisions contrary to the law via memorandum decisions. They can do whatever they want to do.

Clearly a judge should be totally neutral in a lawsuit. We do not want a judge’s politics, religion, way of life, sexual preference, health, taste in clothes, or grandchildren to compromise his neutrality. We expect a judge to dispense justice equally to all. What happened to Mr. Alves reveals a major problem with American justice. Too many judges are unfit for the job.

If this pisses you off, please feel free to pass this on. If you question the truth, read the decisions and check the references in the endnotes.

Charles J. Fleishman

 

1. More than 4 hours of sitting ability in an 8 hour workday is required for a sedentary job. Vertigan v. Halter 260 F.3d 1044, 1052 (9th Cir.

2001); Aukland v. Massanari, 257 F.3d 1033, 1035-36 (9th Cir. 2001); Armani v.

Northwestern, 840 F.3d 1159 (9thCir. 2016); Cruz-Baca v. Edison Int’l Long Term

Disability Plan, 708 Fed. Appx. 313 (9th Cir. 2017); Wagenstein v. Cigna Life Ins. Co.,

789 Fed. Appx. 591 (9th Cir. 2020); McCool v. Life Ins. Co. of N. Am., 842 Fed. Appx.

164 (9th Cir. 2021); Rios v. Unum Life Ins. Co. of Am., 2021 U.S. App. LEXIS 38138 (9th

Cir., Dec 27. 2021).

2. Mull v. Motion Picture Indus. Health Plan, 2017 U.S. Dist. LEXIS 135347 (C.D. Cal. 2017); McCutcheon v. Hartford, 2009 U.S. Dist. LEXIS 61998 (C.D. Cal. 2009); Stewart v. Cont’l Cas. Co., 2006 U.S. Dist LEXIS 98342 (C.D. Cal. 2006); Randall v. UNUM, 2011 U.S. Dist. LEXIS 111916 (C.D. Cal. 2011); Minassian v. AIG, 2010 U.S.Dist. LEXIS 48462 (C.D. Cal. 2010); McCool v. LINA, 2018 U.S. Dist. LEXIS 224392 (C.D. Cal. 2018); Jarvis v. Seafarers Pension Plan, 2019 U.S.Dist. LEXIS 227559 (C.D. Cal. 2019); Unity Courier Serv. V. Hudson Ins. Co., 2019 U.S.Dist. LEXIS 151566 (C.D. Cal. 2019).

3. Demko v. UNUM, 780 F.App’x 537 (9th Cir. 2019); Sides v. Cisco, 2021 U.S.App LEXIS 35734 (9th Cir. 2021); Alves v. Hewlett-Packard, 2022 U.S. App. LEXIS 6214 (9th Cir. 2022); Goodman v. Motion Picture Indus. Health Plan, 856 F.App’x 136 (9th Cir. 2021); Odd v. Delta Air Lines, 809 F.App’x 402 (9th Cir. 2020); Estate of Maurrice v. LINA, 792 F.App’x 499 (9th Cir. 2020).

al. 2018); Jarvis v. Seafarers Pension Plan, 2019 U.S.Dist. LEXIS 227559 (C.D. Cal. 2019); Unity Courier Serv. V. Hudson Ins. Co., 2019 U.S.Dist. LEXIS 151566 (C.D. Cal. 2019).

3. Demko v. UNUM, 780 F.App’x 537 (9th Cir. 2019); Sides v. Cisco, 2021 U.S.App LEXIS 35734 (9th Cir. 2021); Alves v. Hewlett-Packard, 2022 U.S. App. LEXIS 6214 (9th Cir. 2022); Goodman v. Motion Picture Indus. Health Plan, 856 F.App’x 136 (9th Cir. 2021); Odd v. Delta Air Lines, 809 F.App’x 402 (9th Cir. 2020); Estate of Maurrice v. LINA, 792 F.App’x 499 (9th Cir. 2020).

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