Nahouraii v. Kijakazi, Acting Commissioner of SSA

• Court: District Court, D. Nevada
• Decided: January 28, 2022
• Docket: 3:21-cv-00456
• Status: Unknown

Opinion

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 DANIEL NAHOURAII, ) 13 ) Case No.: 3:21-cv-00456-CSD Plaintiff, ) 14 ) ORDER GRANTING MOTION TO BE vs. ) RELIEVED OF PROVIDING PAPER AND CD 15 ) COPIES OF THE CERTIFIED KILOLO KIJAKAZI, ) ADMINISTRATIVE RECORD 16 Acting Commissioner of Social Security, ) ) 17 Defendant. ) ) 18 19 20 21 22 23 24 25 26 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 (CAR) required to be filed with Defendant’s answer pursuant to 42 7 U.S.C. § 405(g). Defendant further requests that she be relieved of providing a copy of the CAR on a 8 compact disc (“CD”). This motion is based on the following memorandum of points and authorities, along 9 with the papers and pleadings on file. 10 MEMORANDUM OF POINTS AND AUTHORITIES 11 I. INRODUCTION 12 Local Rule IC 2-2(g) requires that a party “provide to chambers a paper copy of all electronically 13 filed documents that exceed 50 pages in length, including exhibits or attachments.” In Social Security 14 disability cases, the application of this rule means that a paper/hard copy of CAR must be submitted to the 15 presiding judge’s chambers, as CARs will almost always exceed 50 pages in length. Pre-COVID 16 scheduling orders in Social Security disability cases also typically required that Defendant submit a both a 17 paper copy and an electronic copy of the CAR, under seal, to the Court. In addition, Defendant provided 18 the Court with a copy of the CAR on a CD in each case. 19 As will be explained in more detail below, due to the COVID-19 pandemic, the Social Security 20 Administration has been unable to prepare certified paper and CD copies of the CAR for courts of this 21 district. Defendant hereby requests that this Court change, dispense with, or waive the requirement that 22 Defendant provide the Court with a paper and CD copy of the CAR. In addition, Defendant will file an 23 electronic copy of the CAR (e-CAR) under seal using an event in CM/ECF that will be accessible to all 24 case participants, including counsel of record.1 25 1 While Defendant has previously requested permission from the court to file the e-CAR under seal, Fed. 26 R.Civ. P. 5.2(c) provides that electronic access to the court’s docket is authorized for parties and their 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 rule, or prior court order.” As such, Defendant is not required to seek permission from the court to file the e-CAR under seal, and the Clerk’s Office has changed the sealing instructions in CM/ECF to now 24 reflect that such filings are permitted consistent with L.R. IA 10-5. Defendant therefore intends to file 25 the e-CAR under sealed using the “Certified Administrative Record” event in CM/ECF, which the Court and all counsel of record will have access to. 26 2 See generally Social Security Administration’s COVID-19 Workplace Safety Plan, available at 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 mor 3 || regular basis. 4 Pursuant to Local Rule JA 1-4 and in the interests of justice, the Commissioner hereby requests tha 5 be relieved of the requirement of providing a paper and CD copy of the CAR for the Court. Th 6 || Commissioner will file the e-CAR under seal such that the Court and counsel of record can access the CAI 7 through CM/ECF. This will allow for the case to move forward without delay. 8 CONCLUSION 9 Despite diligent efforts to ameliorate the impacts of the pandemic, it continues to impact th 10 |} Commissioner’s ability to process SSA disability appeal cases, including the ability to prepare paper an 11 copies of CARs. The Court should exercise its discretion by waiving the requirement to provide th 12 || Court with a paper and CD copy of the CAR. 13 Dated: January 27, 2022 Respectfully submitted, 14 CHRISTOPHER CHIOU 5 Acting United States Attorney /s/ Allison J. Cheung 16 ALLISON J. CHEUNG 7 Special Assistant United States Attorney 18 19 ‘Cl ORDERED:

5 UNITED STATES M TRATE JUDGE

9 DATED: January 28,2022 0 23 4 and Remote Work (“We have maximized telework and are performing all portable work remotely. □ □ . W: have a small number of employees and managers working in offices to handle workloads that must be 25 || done in the offices, such as managing facilities and security, information technology, limited appointments for critical issues.”), p.5: Occupancy (“SSA offices remain closed to all individuals except 26 || those approved by management including both employees and a limited number of visitors with scheduled appointments.”).