Willis v. Commissioner of Social Security

Opinion

Request for 15-day continuance of stay IN THE UNITED STATES DISTRICT COURT granted. FOR THE SOUTHERN DISTRICT OF OHIO □□□□ / WESTERN DIVISION Kain Litho United States Magistrate Judge Alicia D. Willis, ) Plaintiff, ) ) Civil Action No.: 1:18-cv-00158 V. ) ) Judge Cole Andrew Saul, ) Magistrate Judge Litkovitz Commissioner of Social Security, ) Defendant, ) ) STATUS UPDATE

Defendant Andrew Saul, Commissioner of Social Security (Commissioner), by and through David M. DeVillers, United States Attorney for the Southern District of Ohio, and Special Assistant United States Attorney Rachel Julis, respectfully submits this Status Update: 1. This case is currently stayed pending the outcome of the consolidated Sixth Circuit appeals in Ramsey v. Comm’r of Soc. Sec., No. 19-1579 (6th Cir.), et On September 1, 2020, the Sixth Circuit Court of Appeals issued a decisionin Ramsey, holding that the plaintiffs had not forfeited their Appointments Clause claims by failing to raise them during administrative proceedings. Ramsey v. Comm’r of Soc. Sec., 973 F.3d 537 (6th Cir. 2020). A mandate has not yet issued in Ramsey or any of the other consolidated appeals, and a motion to extend the deadline to file a petition for rehearing is pending. 2. In light of the Sixth Circuit Court of Appeals’ holding, the Social Security Administration requires additional time to consult internally and with the Department of Justice

' The consolidated appeals also include Fortin v. Comm’r of Soc. Sec., No. 19-1581 (6th Cir.); Shoops v. Comm’r of Soc. Sec., No. 19-1586 (6th Cir.); Hutchins v. Comm’r of Soc. Sec., No. 19- 1889 (6th Cir.); Harris vy. Comm’r of Soc. Sec., No. 19-1977 (6th Cir.); and Flack v. Comm’r of Soc. Sec., No. 19-3886 (6th Cir.).

regarding the implications of this opinion, as well as whether the Agency will pursue further review of the panel’s decision. Those consultations will likely require the participation of numerous offices within the Department of Justice, including the Civil Division, particularly the Appellate Staff and the Office of the Solicitor General.

Ultimately, responsibility for determining whether, and to what extent, the Commissioner should seek rehearing in the Sixth Circuit or review by the Supreme Court rests with the Solicitor General, in consultation with all interested components of the federal government. See 28 C.F.R. § 0.20(b). 3. Also currently pending are petitions for certiorari in two cases from other circuits that deal with the very same forfeiture issue decided in Ramsey: Davis v. Saul, 963 F.3d 790 (8th Cir. 2020), petition for cert. filed, (U.S. July 31, 2020) (No. 20-105); and Carr v. Commissioner, SSA, 961 F.3d 1267 (10th Cir. 2020), petition for cert. filed, (U.S. July 1, 2020) (No. 19-1442). The government has acquiesced in both of those petitions, and the Supreme Court is scheduled to consider the petitions at its October 30 conference.

4. As the time to seek rehearing or petition for certiorari in Ramsey has not yet passed, no mandate has issued, and the Supreme Court will determine whether to hear cases raising the very same forfeiture question presented in Ramsey, the Commissioner requests that the stay in this matter be continued until 15 days after expiration of the time to petition for rehearing in Ramsey. No later than that date, the Commissioner will file an update and advise the Court whether the government is pursuing further review of the Ramsey decision. WHEREFORE, Defendant, Commissioner of Social Security, respectfully requests that this Honorable Court continue the stay in this matter. Respectfully submitted,

DAVID M. DEVILLERS UNITED STATES ATTORNEY SOUTHERN DISTRICT OF OHIO

/s/ Rachel Julis Rachel Julis Special Assistant United States Attorney Social Security Administration Office of the General Counsel Harold Washington Social Security Center 600 West Madison Street, 6th Floor (312) 596-1853 Fax: (833) 912-2305 Email: rachel.julis@ssa.gov CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing Defendant’s Motion for Extension of Time to File the Electronic Certified Administrative Record and Answer to Plaintiff’s Complaint with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all parties.

Dated: October 27, 2020

s/ Rachel Julis Rachel Julis Special Assistant United States Attorney Social Security Administration