Burrell v. Colvin

Filing 16

ORDER, Plaintiff's Motion for a Stay of Proceedings 15 is denied; Plaintiff must file an opening brief by 9/12/14 or this appeal will be dismissed; if Plaintiff does not file an opening brief by 9/12/14, the Clerk is kindly directed to dismiss this appeal without prejudice. Signed by Magistrate Judge Lawrence O Anderson on 8/8/14. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Adrian Burrell,

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Plaintiff,
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vs.
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Carolyn W. Colvin, Commissioner of the)
Social Security Administration,
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Defendant.
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No. CV-14-0050-PHX-LOA
ORDER

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This Social Security appeal is before the Court on Plaintiff’s Motion for a Stay of

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Proceedings. (Doc. 15) Plaintiff requests an indefinite stay of this appeal (the “second

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appeal”) to this District Court because Plaintiff’s initial application for social security

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disability benefits, which was denied at the administrative level and affirmed by a district

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judge in this District Court (No. CV-11-0749-PHX-SRB), is pending before the Ninth

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Circuit Court of Appeals (Case No. 12-16673) (the “first appeal”). (Id.) Plaintiff indicates

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that oral argument in the first appeal was held on June 11, 2014, and counsel await a decision

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from the Circuit Court. (Id. at 1) Plaintiff represents “[t]he request for the stay is based on

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judicial efficiency[]” and the Commissioner’s counsel has “no opposition to this request.”|

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(Id. at 1-2) According to Plaintiff, “[a] decision on the disability claim pending at the Ninth

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Circuit will likely resolve the current claim, even though a different period of disability is

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involved.” (Id. at 2)

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I. Background

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Plaintiff’s Complaint was filed in this District Court on January 10, 2014,

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“challeng[ing] the findings of the Appeals Council and the Commissioner of Social Security,

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the Social Security Administration, in that the findings err in law and fact in that Plaintiff

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continues to be physically and mentally disabled . . . .” (Doc. 1 at 2) The Commissioner

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appeared in this action on April 9, 2014, and filed her answer and the administrative record

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on June 6, 2014. (Docs. 6, 13-14) The Rule 16 scheduling order mandates that, inter alia,

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Plaintiff’s opening brief be filed “[w]ithin sixty (60) days after the answer is filed[,]” or, as

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Plaintiff’s counsel correctly points out, by August 6, 2014. (Doc. 10 at 1) The April 29,

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2014 scheduling order forewarns the parties that “if either party fails to timely file a brief in

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full compliance with this Order, the Court may strike the non-complying brief, dismiss the

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case, or remand to the agency, as appropriate.” (Id.) (citing generally Fed.R.Civ.P. 41(b)).

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The parties have consented in writing to magistrate-judge jurisdiction pursuant to 28 U.S.C.

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§ 636(c). (Docs. 5, 8)

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II. Stays

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The Supreme Court has recognized that a court’s “power to stay proceedings is

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incidental to the power inherent in every court to control the disposition of the causes on its

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docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v.

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N. Am. Co., 299 U.S. 248, 254 (1936). The issuance of a stay order is “an exercise of judicial

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discretion, and the propriety of its issue is dependent upon the circumstances of the particular

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case. The party requesting a stay bears the burden of showing that the circumstances justify

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an exercise of that discretion.” Nken v. Holder, 556 U.S. 418, 433-34 (2009) (internal

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quotation marks and citations omitted).

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The Ninth Circuit has established the following factors district courts should consider

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when requested to issue a stay: 1) “stays should not be indefinite in nature” and “should not

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be granted unless it appears likely the other proceeding will be concluded within a

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reasonable time[,]” Dependable Highway Express, Inc. v. Navigators Ins. Co., 498 F.3d

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1059, 1066 (9th Cir. 2007) (citing Leyva v. Certified Grocers of California, Ltd., 593 F.2d
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857, 864 (9th Cir. 1979)); 2) courts more appropriately enter stay orders where a party seeks

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only damages, does not allege continuing harm, and does not seek injunctive or declaratory

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relief as a stay would result only in delay in monetary recovery, Lockyer v. Mirant Corp.,

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398 F.3d 1098, 1110 (9th Cir. 2005) (citing CMAX, Inc. v. Hall, 300 F.2d 265, 268-69 (9th

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Cir. 1962)); 3) stays may be appropriate if resolution of issues in the other proceeding would

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assist in resolving the proceeding sought to be stayed, id. at 1110-11 (citing CMAX, 300 F.2d

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at 269 (“In the interests of uniform treatment of like suits there is much to be said for

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delaying the front runner.”)); and 4) stays may be appropriate for courts’ docket efficiency

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and fairness to the parties pending resolution of independent proceedings that bear upon the

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case, “whether the separate proceedings are judicial, administrative, or arbitral in character,

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and [such stays] do[ ] not require that the issues in such proceedings are necessarily

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controlling of the action before the court[,]” id. at 1111 (citing Leyva, 593 F.2d at 863-64).

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III. Discussion

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This is the second Social Security case assigned to this Magistrate Judge wherein

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Plaintiff’s attorney seeks a stay of proceedings in, or an extension to file an opening brief on,

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an appeal to the District Court of Arizona for the denial of a second application pending

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before the Ninth Circuit Court of Appeals for the same client. See Mendoza v. Colvin, No.

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CV-13-1642-PHX-LOA. It is apparently the practice or pattern for this Social Security

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practitioner to request stays or extensions to file opening briefs at the district-court level on

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second applications while the denial of the first application is prosecuted in the circuit court.

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Contrary to Plaintiff’s claim, this practice or pattern does not result in “judicial

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efficiency,” but rather, creates more work for very busy trial judges, addressing numerous

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extension motions or writing orders like this that result in unreasonable delay and expense

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in the second appeal. For example, the three opening-brief extensions this Court now-

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regrettably granted in Mendoza v. Colvin, No. CV-13-1642-PHX-LOA, has resulted in over

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a four-month delay from March 19, 2014 to July 23, 2014, before Plaintiff was directed to

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file her opening brief. Additionally, granting Plaintiff’s request for a stay would be

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inconsistent with Rule 1, Fed.R.Civ.P. (“These rules . . . should be construed and
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administered to secure the just, speedy, and inexpensive determination of every action and

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proceeding.”) (emphasis added). Finally, implicit in granting such a stay request or opening

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brief extension is that the district or magistrate judge committed reversible error in affirming

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the Commissioner’s denial of Plaintiff’s first application for disability benefits.

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IV. Conclusion

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After considering all the factors in Dependable Highway Express, the Court will deny

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Plaintiff’s request for an indefinite stay. Plaintiff has not shown that the appeal in No.

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12-16673 will be concluded and final within a reasonable time, the District Judge erred in

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No. CV-11-0749-PHX-SRB, or that reversal by the Ninth Circuit is likely. Though Plaintiff

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has not filed an opening brief as directed in the scheduling order, the Court will not dismiss

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this action at this time. Plaintiff must file an opening brief on or before Friday, September

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12, 2014, or this appeal will be dismissed.

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Accordingly,

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IT IS ORDERED that Plaintiff’s Motion for a Stay of Proceedings, doc. 15, is

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DENIED. Plaintiff must file an opening brief on or before Friday, September 12, 2014, or

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this appeal will be dismissed.

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IT IS FURTHER ORDERED that if Plaintiff does not file an opening brief on or

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before Friday, September 12, 2014, the Clerk of Court is kindly directed to dismiss this

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appeal without prejudice.

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Dated this 8th day of August, 2014.

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