Reyes v. Kijakazi

• Court: District Court, D. Nevada
• Decided: July 22, 2022
• Docket: 2:22-cv-00826
• Status: Unknown

Opinion

1 JASON M. FRIERSON United States Attorney 2 Nevada Bar No. 7709 3 ALLISON J. CHEUNG, CSBN 244651 Special Assistant United States Attorney 4 160 Spear Street, Suite 800 San Francisco, California 94105 5 Telephone: (510) 970-4811 Facsimile: (415) 744-0134 6 E-Mail: allison.cheung@ssa.gov 7 Attorneys for Defendant 8 9 10 UNITED STATES DISTRICT COURT 11 DISTRICT OF NEVADA 12 GARLAND REYES, ) ) Case No.: 2:22-cv-00826-VCF 13 Plaintiff, ) ) MOTION TO BE RELIEVED OF PROVIDING 14 vs. ) CD COPY OF THE CERTIFIED ) ADMINISTRATIVE RECORD 15 KILOLO KIJAKAZI, ) Acting Commissioner of Social Security, ) 16 ) Defendant. ) 17 ) 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 that 4 the Commissioner provide the Court with a copy of the certified administrative record (CAR) on a compact 5 disc (“CD”). This motion is based on the following memorandum of points and authorities, along with the 6 papers and pleadings on file. 7 MEMORANDUM OF POINTS AND AUTHORITIES 8 I. INRODUCTION 9 In Social Security disability cases, Defendant must file the CAR with Defendant’s answer pursuant 10 to 42 U.S.C. § 405(g). In pre-COVID practice, Defendant would provide a paper copy of the CAR to the 11 chambers of the presiding judge per Local Rule IC 2-2(g). Pre-COVID scheduling orders in Social Security 12 cases also typically required that Defendant submit a both a paper copy and an electronic copy of the CAR, 13 under seal, to the Court. In addition, Defendant provided the Court with a copy of the CAR on a CD in 14 each case. 15 As will be explained in more detail below, due to the COVID-19 pandemic, the Social Security 16 Administration has been unable to prepare certified paper and CD copies of the CAR for courts of this 17 district. Throughout the COVID-19 pandemic, the Commissioner sought to be relieved of providing the 18 paper copy of the CAR in cases before most judges of this district, but provided paper copies to judges that 19 had expressly denied the Commissioner’s requests. At this time, Defendant believes she can have a paper 20 copy of the CAR to the Court by the current upcoming deadline. However, Defendant hereby requests that 21 this Court change, dispense with, or waive the requirement that Defendant provide the Court with a CD 22 copy of the CAR. In addition, Defendant will file an electronic copy of the CAR (e-CAR) under seal using 23 an event in CM/ECF that will be accessible to all case participants, including counsel of record.1 24 1 While Defendant has previously requested permission from the court to file the e-CAR under seal, Fed. 25 R.Civ. P. 5.2(c) provides that electronic access to the court’s docket is authorized for parties and their attorneys of record. In addition, Local Rule IA 10-5 allows for sealed filings when “permitted by statute, 26 rule, or prior court order.” As such, Defendant is not required to seek permission from the court to file 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 CD Copy of the CAR 10 to the Court. 11 Defendant, by her undersigned attorneys, provides notice to the Court and Plaintiff that an 12 electronic copy of the CAR has been prepared and can now be filed in this matter. As of March 30, 2022, 13 some employees of the Social Security Administration, including those working in the Office of Appellate 14 Operations (OAO)—which is responsible for the preparation of CARs for the agency—have returned to 15 the office, with the implementation of telework schedules for many employees that are intended, in part, 16 to ensure the safety of employees upon their return due to COVID-19. As a result, while a certain number 17 of OAO staff may be on-site on any given day, those employees must perform a number of OAO’s most 18 vital duties, such as converting paper claim files to electronic format, physically searching for missing 19 paper claims files, processing mail, and completing urgent business that cannot be handled 20 remotely. Given the limited staff on-site and overall volume of cases, OAO remains, at this time, unable 21 to provide CD copies of the CAR in every case—which this Court typically requires. The Commissioner 22 anticipates that a paper copy of the CAR can be provided to the Court on the date that the answer is currently 23 due. 24 Pursuant to Local Rule IA 1-4 and in the interests of justice, the Commissioner hereby requests that 25 reflect that such filings are permitted consistent with L.R. IA 10-5. Defendant therefore intends to file 26 the e-CAR under seal using the “Certified Administrative Record” event in CM/ECF, which the Court 1 || she be relieved of the requirement of providing a CD copy of the CAR for the Court. The Commissione 2 || will file the e-CAR under seal such that the Court and counsel of record can access the CAR throug! 3 ||CM/ECF. This will allow for the case to move forward without delay. 4 CONCLUSION 5 Despite diligent efforts to ameliorate the impacts of the pandemic, it continues to impact th 6 || Commissioner’s ability to process SSA disability appeal cases, including the ability to prepare CD copie 7 CARs. The Court should exercise its discretion by waiving the requirement to provide the Court with 8 ||CD copy of the CAR. 9 10 Dated: July 22, 2022 Respectfully submitted, JASON M. FRIERSON United States Attorney /s/ Allison J. Cheung ALLISON J. CHEUNG 14 Special Assistant United States Attorney 15 16 IT Low et

19 DATED: 7-22-2022 20 21 22 23 24 25 26

1 CERTIFICATE OF SERVICE 2 I, the undersigned, am a citizen of the United States and am at least eighteen years of age. My 3 business address is 160 Spear Street, Suite 800, San Francisco, California 94105. I am not a party to the 4 above-entitled action. On the date set forth below, I caused service of the foregoing MOTION TO BE 5 RELIEVED OF PROVIDING CD COPY OF THE CERTIFIED ADMINISTRATIVE RECORD 6 on the following parties by electronically filing the foregoing with the Clerk of the District Court using 7 its ECF System, which provides electronic notice of the filing: 8 Marc Kalagian 9 marc.kalagian@rksslaw.com Attorney for Plaintiff 10 Leonard Stone 11 lstone@shookandstone.com 12 Attorney for Plaintiff 13 I declare under penalty of perjury that the foregoing is true and correct. 14 Dated: July 22, 2022 15 16 /s/ Allison J. Cheung ALLISON J. CHEUNG 17 Special Assistant United States Attorney 18 19 20 21 22 23 24 25 26