Yang v. Commissioner of Social Security

Filing 15

ORDER VACATING ORDER TO SHOW CAUSE signed by Magistrate Judge Theresa A. Goldner on 1/30/2009. (Leon-Guerrero, A)

1 2 3 4 5 6 7 8 9 10 11 12 13 Defendant. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. MICHAEL J. ASTRUE, Commissioner of Social Security, SUE YANG, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) Case No. 1:08-cv-00265- AWI-TAG ORDER VACATING ORDER TO SHOW CAUSE (Doc. 10) IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

On February 20, 2008, Plaintiff SueYang, ("Plaintiff"), represented by counsel, filed a complaint seeking judicial review of an administrative decision denying her claim for disability benefits under the Social Security Act. (Doc. 1). On February 22, 2008, the Court issued a scheduling order requiring Defendant Michael Astrue ("Defendant") to "serve a copy of the administrative record on [Plaintiff] and file it with the court" within 120 days after being served with the complaint. (Doc. 7). The docket sheet reflects that Plaintiff filed a "summons returned executed" on May 7, 2008. (Doc. 9.) The morning of January 22, 2009, the Court issued an order to show cause ("OSC") why sanctions should not be imposed for failing to file the administrative record in a timely fashion. (Doc. 10.) The docket sheet reflects that the afternoon of January 22, 2009, Plaintiff filed a second "summons returned executed," consisting of a proof of service stating that on January 22, 2009, Defendant was served with the "Summons, Civil Coversheet, Complaint for Review of the Final Decision of the Commissioner of Social Security Administration, Consent." (Doc. 11). /// 1

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On January 28, 2009, Defendant filed a written response to the OSC, reporting that contrary to the May 7, 2008 docket entry, service was not properly made on Defendant until January 22, 2009, because Plaintiff neglected to serve the United States Attorney's Office until the latter date. (Docs. 1113.) In support of its response, Defendant submitted the declaration of Paulette M. Tremblay, a Paralegal Specialist with the United States Attorney's Office, Eastern District of California, stating, inter alia, that "[p]rior to the close of business on January 22, 2009, this USAO office was personally served with process in this action." (Doc. 13, p. 3). Defendant's response correctly indicates that based on a service date of January 22, 2009, the deadline to file the administrative record is May 26, 2009. (Id.). Good cause appearing, it is HEREBY ORDERED that the Court's January 22, 2009 Order to Show Cause (Doc. 10) is VACATED.

IT IS SO ORDERED. Dated: January 30, 2009 j6eb3d /s/ Theresa A. Goldner UNITED STATES MAGISTRATE JUDGE

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