Whitsett v. Commissioner of Social Security

Filing 19

ORDER to SHOW CAUSE why this action should not be dismissed. Show Cause Response due within ten (10) days from the date of this order. Order signed by Magistrate Judge Sheila K. Oberto on 5/16/2011. (Timken, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
GLEN V. WHITSETT,
11
12
13
14
15
16
17

)
)
)
Plaintiff,
)
)
v.
)
)
MICHAEL J. ASTRUE,
)
Commissioner of Social Security,
)
)
)
Defendant.
)
)
_____________________________________ )

Case No.: 1:10-cv-01070-SKO
ORDER TO SHOW CAUSE WHY THE
ACTION SHOULD NOT BE DISMISSED

18
19

On February 4, 2011, the Court approved the parties’ stipulation to remand this case pursuant

20

to the sixth sentence of Section 205(g) of the Social Security Act to allow the Appeals Council to

21

continue to search for the recording of Plaintiff’s hearing, which previously could not be located.

22

(Doc. 17.) According to the stipulation and order, if the Appeals Council could not locate the

23

recording within a reasonable time, the Appeals Council would remand this case to an

24

Administrative Law Judge (“ALJ”) with instructions to hold a de novo hearing and issue a new

25

decision.

26

On April 6, 2011, the Commissioner filed a status report informing the Court that the

27

Appeals Council searched for the hearing tape but could not locate it. Thus, the Appeals Council

28

remanded the case for assignment to an ALJ to hold a de novo hearing and issue a new decision.

1

In light of this development, the Court finds that it is appropriate to dismiss this action

2

without prejudice and administratively close the case. To the extent that either party has objections

3

to dismissal without prejudice, such a statement should be filed within ten (10) days from the date

4

of this order.

5

Accordingly, IT IS HEREBY ORDERED THAT within 10 days from the date of this order

6

either party may file a statement showing cause why this action should not be dismissed. If the

7

parties fail to file a statement showing cause, the action will be dismissed WITHOUT PREJUDICE.

8
9
10

IT IS SO ORDERED.
Dated:
ie14hj

May 16, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

2