Mitchell v. Social Security ( 2021 )

1 CHRISTOPHER CHIOU Acting United States Attorney 2 District of Nevada Nevada Bar No. 14853 3 ALLISON J. CHEUNG, CSBN 244651 4 Special Assistant United States Attorney 160 Spear Street, Suite 800 5 San Francisco, California 94105 Telephone: (510) 970-4811 6 Facsimile: (415) 744-0134 E-Mail: allison.cheung@ssa.gov 7 Attorneys for Defendant 8 9 10 UNITED STATES DISTRICT COURT 11 DISTRICT OF NEVADA 12 JAZMIN MITCHELL, ) 13 ) Case No.: 3:21-cv-00177-WGC Plaintiff, ) 14 ) ORDER GRANTING MOTION TO BE vs. ) RELIEVED OF PROVIDING PAPER AND CD 15 ) COPIES OF THE CERTIFIED KILOLO KIJAKAZI, ) 16 Acting Commissioner of Social Security,1 ) ADMINISTRATIVE RECORD AND FOR ) PERMISSION TO FILE E-CAR UNDER SEAL 17 Defendant. ) ) 18 19 20 21 22 23 24 25 1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted, therefore, for 26 Andrew Saul as the defendant in this suit. No further action need be taken to continue this suit by 1 MOTION 2 Pursuant to Local Rule IA 1-4, Defendant, the Acting Commissioner of Social Security (Defendant 3 or Commissioner), respectfully moves for an order to change, dispense with, or waive the requirement per 4 Local Rule IC 2-2(g) that the Commissioner provide the Court with a paper copy of any document over 50 5 pages in length. Specifically, the Commissioner requests that she be relieved of providing a paper copy of 6 the certified administrative record required to be filed with Defendant’s answer pursuant to 42 U.S.C. 7 § 405(g). Defendant further requests that she be relieved of providing a copy of the CAR on a CD, as has 8 been typically required by the Court. Finally, Defendant requests that she be allowed to file an electronic 9 copy of the CAR under seal. This motion is based on the following memorandum of points and authorities, 10 along with the papers and pleadings on file. 11 MEMORANDUM OF POINTS AND AUTHORITIES 12 I. INRODUCTION 13 Local Rule IC 2-2(g) requires that a party “provide to chambers a paper copy of all electronically 14 filed documents that exceed 50 pages in length, including exhibits or attachments.” In Social Security 15 disability cases, the application of this rule means that a paper/hard copy of the certified administrative 16 record (CAR) must be submitted to the presiding judge’s chambers, as CARs will almost always exceed 17 50 pages in length. Pre-COVID scheduling orders in Social Security disability cases also typically required 18 that Defendant submit a both a paper copy and an electronic copy of the CAR, under seal, to the Court. In 19 addition, Defendant provided the Court with a copy of the CAR on a CD in each case. 20 As will be explained in more detail below, due to the COVID-19 pandemic, the Social Security 21 Administration has been unable to prepare certified paper and CD copies of the CAR for courts of this 22 district, as has been required. Defendant hereby requests that this Court change, dispense with, or waive 23 the requirement that Defendant provide the Court with a paper and CD copy of the CAR. In addition, 24 Defendant requests permission to file an electronic copy of the CAR (e-CAR) under seal using a new event 25 in CM/ECF that will be accessible to all case participants, including counsel of record. 26 // 1 II. ARGUMENT 2 A. Local Rule IA 1-4 3 L.R. IA 1-4 provides that “[t]he court may sua sponte or on motion change, dispense with, or waive 4 any of [the local rules] if the interests of justice so require.” This rule has been applied to, for example, 5 waive the requirements of L.R. IA 10-3(e), which required that the cover page of each exhibit include a 6 description of the exhibit. Gant v. Williams, No. 2:16-cv-00528-JAC-NJK, 2017 WL 2974945, at *1 7 (respondents argued that adding descriptors to the cover page of each exhibit was unduly burdensome given 8 the large number of exhibits in the case). 9 B. This Court Should Find under Local Rule IA 1-4 That the Interests of Justice Are Served By Waiving the Requirement that Defendant Provide a Paper and CD Copy of 10 the CAR to the Court. 11 Defendant, the Acting Commissioner of Social Security, by her undersigned attorneys, provides 12 notice to the Court and Plaintiff that an electronic copy of the CAR has been prepared and can now be filed 13 in this matter. However, at this time, employees of the Social Security Administration’s Office of 14 Appellate Operations (OAO)—which is responsible for the preparation of CARs for the agency—remain 15 subject to the agency-wide evacuation order due to the COVID-19 pandemic. See 5 C.F.R. § 550.409 16 (permitting agencies to order employees to evacuate their worksite and work from home during a pandemic 17 health crisis). As a result, OAO is limited on the number of staff permitted to physically enter the office 18 to perform onsite work; the majority of the work is performed via telework. See id. The few employees 19 permitted to occasionally report to OAO’s physical work site in Falls Church, Virginia are currently limited 20 to reporting on a rotational basis to perform a number of OAO’s most vital duties, such as converting paper 21 claim files to electronic format, physically searching for missing paper claims files, processing mail, and 22 completing urgent business that cannot be handled remotely.2 Given the limited staff and overall volume 23 2 See generally Social Security Administration’s COVID-19 Workplace Safety Plan, available at 24 https://www.ssa.gov/coronavirus/assets/materials/ssa-covid-19-workplace-safety-plan.pdf, p.1: Telework 25 and Remote Work (“We have maximized telework and are performing all portable work remotely. . . . We have a small number of employees and managers working in offices to handle workloads that must be 26 done in the offices, such as managing facilities and security, information technology, limited 1 of cases, OAO is unable to provide paper and CD copies of the CAR—which this Court typically requires. 2 At this time, OAO does not have a timeframe for when staff will be able to return to the office on a more 3 regular basis. 4 While the Commissioner typically files the e-CAR under seal, as required by the Court, this filing 5 is only accessible to the Court and not by the parties through CM/ECF. However, a new event has been 6 added to CM/ECF which will allow the Commissioner to file the e-CAR under seal and all case participants 7 will have access to the e-CAR. Accordingly, the Commissioner requests that she be permitted to file the 8 e-CAR under seal using this new event (“Certified Administrative Record under seal”) and—pursuant to 9 Local Rule IA 1-4 and in the interests of justice—be relieved of the requirement of providing a paper and 10 CD copy of the CAR for the Court. This will allow Plaintiff to access the e-CAR through CM/ECF and 11 for the case to move forward without delay. 12 CONCLUSION 13 Despite diligent efforts to ameliorate the impacts of the pandemic, it continues to impact the 14 Commissioner’s ability to process SSA disability appeal cases, including the ability to prepare paper and 15 CD copies of CARs. Rather than staying this case until it can do so, the Court should exercise its discretion 16 by waiving the requirement to provide the Court with a paper and CD copy of the CAR. In addition, the 17 Court should grant Defendant permission to file the e-CAR under seal, as this will allow all case 18 participants to access the e-CAR and for this case to proceed without delay. 19 // 20 // 21 // 22 // 23 // 24 // 25 26 those approved by management including both employees and a limited number of visitors with 1 Dated: August 30, 2021 Respectfully submitted, 2 CHRISTOPHER CHIOU Acting United States Attorney 3 /s/ Allison J. Cheung 4 ALLISON J. CHEUNG Special Assistant United States Attorney 5 6 7 8 IT IS SO ORDERED: 9 10 UNITED STATES MAGISTRATE JUDGE 11 DATED: __A_u_g_u_s_t _3_0_, 2_0_2_1______________ 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26