Zamari v. Commissioner of Social Security

Filing 12

INFORMATIONAL ORDER for PRO SE LITIGANTS signed by Magistrate Judge Sheila K. Oberto on 6/7/2012. (Timken, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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

Case No.: 1:12-cv-00763-AWI-SKO
INFORMATIONAL ORDER
FOR PRO SE LITIGANTS

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Plaintiff is proceeding pro se in an action seeking judicial review of an administrative

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decision of the Commissioner of Social Security that denied, in whole or in part, Plaintiff's claim for

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benefits under the Social Security Act.

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This order provides the following helpful information, and basically serves as a step-by-

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step guide, for pro se litigants. It is strongly suggested that Plaintiff read and re-read this

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order and keep it readily available for future reference.

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I.

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As is outlined in the Scheduling Order issued in this case, except when other provisions are

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made pursuant to an application to proceed in forma pauperis, Plaintiff shall serve a copy of the

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(1) summons, (2) complaint, (3) notice of availability of a Magistrate Judge and the form of

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consent/decline to jurisdiction of the United States Magistrate Judge (see Local Rule 305(a)), and

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(4) the Scheduling Order, within twenty (20) days of Plaintiff filing the complaint.

Service of the Complaint

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If Plaintiff is proceeding in forma pauperis, the United States Marshal usually serves the

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complaint. However, if Plaintiff is not proceeding in forma pauperis, then Plaintiff or legal counsel

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is responsible for service and then filing a proof of service without delay. See Local Rule 210.

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Lawsuits for review of administrative decisions made by the Commissioner of Social

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Security are prosecuted against the Commissioner of Social Security. Federal Rule of Civil

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Procedure 4(i)(2) and (3) provide, in substance, that to serve the Commissioner in his official

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capacity, the party must serve (1) the United States, and (2) the Commissioner.

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To serve the United States, a party must:

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(1)

Deliver a copy of the summons and complaint to the United States Attorney for the

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district where the action is brought, or to an Assistant United States Attorney or

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clerical employee whom the United States Attorney designates in a writing filed with

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the Court; or, send a copy of the summons and complaint, by certified mail only, to

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the Civil Process Clerk at the United States Attorney's Office; and

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(2)

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Send a copy of the summons and complaint, by certified mail only, to the Attorney
General of the United States in Washington, D.C.; and,

(3)

Send a copy of the summons and complaint, by certified mail only, to the

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Commissioner (the officer of the United States whose order is challenged by the

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lawsuit) in San Francisco, California. Fed. R. Civ. P. 4(i)(1)-(3).

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Initial service of process is thus sufficient if Plaintiff serves, by certified mail only, copies
of the summons and complaint on:

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Office of the United States Attorney
Civil Process Clerk
2500 Tulare Street, Suite 4401
Fresno, CA 93721

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Office of the Attorney General of the United States
950 Pennsylvania Avenue, N.W.
Washington, DC 20530-0001

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Office of the General Counsel
Social Security Administration
160 Spear Street, Suite 800
San Francisco, CA 94105

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After service upon these entities, a proof of service must be filed with the Court without

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delay pursuant to Local Rule 210. If Plaintiff is proceeding in forma pauperis, the United States

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Marshal generally completes the proof of service and files it with the Court. If Plaintiff is not

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proceeding in forma pauperis, however, it is Plaintiff's duty to promptly file a proof of service with

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the Court.

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II.

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Pursuant to the Scheduling Order, within one hundred twenty (120) days after service of

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the complaint, Defendant is required to serve a copy of the administrative record on Plaintiff and

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file the administrative record with the Court, which serves as the answer to the complaint in this

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proceeding.

Attempt at Informal Resolution of the Case

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Once the administrative record has been filed, the parties must try to resolve the case

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informally. In this process, the parties must exchange informal briefs in the form of letters about the

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case to see if they can agree that the case should be sent back, or "remanded," to the Social Security

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Administration for a further hearing by an administrative law judge.

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In the letter brief, Plaintiff must briefly set forth (1) the issues in the case, (2) the reasons why

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Plaintiff believes that Plaintiff is entitled to Social Security benefits, and (3) why the decision to deny

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benefits should be remanded.

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The letter brief must be marked "Confidential Letter Brief," should not be filed with the

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Court, and must be served on Defendant within thirty (30) days from the date Defendant served

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Plaintiff with the administrative record, by mailing copies to all the attorneys listed on the

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court docket as representing Defendant, Commissioner of Social Security, at the addresses noted

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on the court docket.

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The name of the attorney or attorneys representing Defendant are added to the court docket

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at the time the Court receives Defendant's response to the complaint which, again, usually consists

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of the administrative record. Sometimes the court docket lists not only an attorney at the office of

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the General Counsel of the Social Security Administration in San Francisco, California, but also an

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attorney at the United States Attorney's Office in Fresno, California. In these particular cases, it will

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then be necessary for Plaintiff to mail copies of the Confidential Letter Brief to more than one

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attorney for Defendant.

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Defendant's Confidential Letter Brief must be served on Plaintiff no later than thirty-five
(35) days after Defendant is served with Plaintiff's confidential letter brief.

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If the parties agree to a remand, the case will go back to the Social Security Administration

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before any formal briefs are filed with the Court, and without the Court ever considering the merits

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of the case. The parties' agreement to remand the case must be set forth in writing in the document

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titled "Stipulation and Order," which must be signed and filed with the Court no later than fifteen

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(15) days after Defendant served its Confidential Letter Brief on Plaintiff. See Local Rule 143(a)(1),

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(b).

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The informal letter briefs exchanged by the parties are confidential in the sense that they are

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not filed with the Court. If the parties are unable to agree to a remand, the letters are not part of the

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case file and, thus, are not before the Court if and when the Court finally considers the case on the

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merits.

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III.

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If, after exchanging the Confidential Letter Briefs, the parties are unable to agree to a remand

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of the case, then the parties must file formal briefs with the Court as directed in the Scheduling

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Order. It is only after the formal briefs are filed with the Court that the Court will consider the

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merits of the case and make a decision.

Briefs

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A.

Plaintiff's Opening Brief

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Plaintiff's opening brief must be filed and served no later than thirty (30) days from the

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date Defendant's informal letter brief was served on Plaintiff. Plaintiff must serve a copy of the

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opening brief on all the attorneys listed for Defendant on the court docket of the case at the addresses

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noted on the court docket.

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Plaintiff must also file the original opening brief, together with a copy, with the Court, by
either personal delivery or via U.S. mail to:

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Office of the Clerk
United States District Court
Eastern District of California
2500 Tulare Street, Suite 1501
Fresno, California 93721

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Plaintiff's opening brief must contain the following:

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(1)

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A plain description of Plaintiff's alleged physical or emotional impairments, when
Plaintiff contends they became disabling, and how they disabled Plaintiff from work;

(2)

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A summary of the administrative proceedings before the Social Security
Administration;

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(3)

A summary of the relevant testimony at the administrative hearing;

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(4)

A summary of all relevant medical evidence, including an explanation of the

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significance of clinical and laboratory findings, and the purpose and effect of

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prescribed medication and therapy;

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(5)

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A recitation of the Social Security Administration's findings and conclusions relevant
to Plaintiff's claims;

(6)

A short, separate statement of each of Plaintiff's legal claims stated in terms of the

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insufficiency of the evidence to support a particular finding of fact or reliance on an

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erroneous legal standard; and

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(7)

Any argument separately addressing each claimed error.

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All references to the administrative record and all assertions of fact must be accompanied by

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citations to the administrative record. Any argument in support of each claim of error must be

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supported by citation to legal authority and an explanation of the application of such authority to the
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facts of the particular case. Briefs that do not substantially comply with these requirements will

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be stricken. A document that is stricken becomes null and void and is not considered by the Court

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for any purpose.

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Plaintiff is further advised that failure to timely file an opening brief will result in
dismissal of the action.

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B.

Defendant's Brief

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Pursuant to the Scheduling Order, defendant's responsive brief must be filed and served on

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Plaintiff within thirty (30) days from the date of service of Plaintiff's opening brief on Defendant.

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C.

Plaintiff's Reply Brief

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Plaintiff may, but is not required, to file a reply brief within fifteen (15) days from the date

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defendant served its responsive brief on Plaintiff. Plaintiff must serve a copy of the reply brief on

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Defendant by serving the United States Attorney for the Eastern District of California at the address

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in Fresno, California, as noted above. Plaintiff must also file the original reply brief, together with

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a copy, with the Court at the Court's address in Fresno, California, as noted above.

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Plaintiff's reply brief should respond to the arguments made in Defendant's responsive brief.

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IV.

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In some cases, instead of serving and filing an administrative record, Defendant may file a

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motion to dismiss the case pursuant to Federal Rule of Civil Procedure 12, within one hundred

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twenty (120) days from the date defendant is served with Plaintiff's complaint.

Motion to Dismiss

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Plaintiff may oppose a motion to dismiss by filing and serving an opposition to the motion

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within fourteen (14) days from the date the motion to dismiss was served on Plaintiff, and should

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be titled "Opposition to Defendant's Motion to Dismiss." See Local Rule 230(c).

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The Court will consider a motion to dismiss only after receiving opposition from Plaintiff,

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or after the time for filing opposition has passed. In ruling on a motion to dismiss the case, the Court

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may either (1) deny the motion and proceed with the case, ordering the parties to proceed to file the

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administrative record, attempt informal resolution, and file briefs; or (2) grant the motion to dismiss,

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and dismiss all or part of the case.

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V.

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The Court will consider the merits of the case only after all briefs have been filed, and may

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enter judgment affirming, modifying, or reversing the determination of the Social Security

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Administration. The Court may or may not remand the case to the Social Security Administration

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for a further hearing.

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VI.

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The Court's Decision on the Merits

General Summary of Deadline Calculations
Event

Deadline

Reference

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Service of Complaint

20 days after filing complaint

See Section (I) above

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Administrative Record

120 days after service of
complaint

See Section (II) above

Plaintiff's Opening Brief

95 days after administrative
record is lodged with Court

See Section (III)(A) above

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Defendant's Brief

30 days after Plaintiff's
opening brief is filed

See Section III(B) above

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Plaintiff's Reply Brief
(Optional)

15 days after Defendant's
brief is filed

See Section III(C) above

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VII.

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Plaintiff is informed of the following:

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Rules for Litigating this Action

A.

In litigating this action, the parties must comply with the Federal Rules of

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Civil Procedure and the Local Rules of the United States District Court, Eastern District of

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California ("Local Rules"). A copy of the Local Rules may be obtained in the Clerk's Office at no

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charge.

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Local Rule 206 is a special rule for social security actions. Specifically, sections

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(a)(1) and (2) of Rule 206 generally state that complaints shall contain the last four digits of

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Plaintiff's social security number only, i.e., XXX-XX-1234, and that Plaintiff shall privately disclose

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to Defendant, within five (5) days after a request is made to Plaintiff, the full social security number

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of Plaintiff. Therefore, Plaintiff shall refrain from disclosing the entire social security number on

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any filings.

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FAILURE TO COMPLY WITH THE LOCAL RULES, FEDERAL RULES, OR A

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COURT ORDER, INCLUDING THIS ORDER, WILL BE GROUNDS FOR DISMISSAL OR

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OTHER APPROPRIATE SANCTIONS. See Local Rule 110; Fed. R. Civ. P. 41(b).

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B.

Documents intended to be filed with the Court must be mailed to the Clerk

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of the Court in Fresno, California, at the address noted above. See Local Rule 134(a). All

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documents inappropriately mailed directly to a judge's chambers will be stricken from the record.

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A document requesting a court order must be styled as a motion, not as a letter. See Fed. R. Civ. P.

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C.

Each separate document must be separately stapled. See Local Rule 130. If

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a document is stapled behind another document, it will not be filed and will not enter the court

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docket.

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D.

All documents filed with the Court must be submitted with an additional

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legible copy to be conformed for the Court's use. See Local Rule 133(d)(2). A document submitted

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without an extra copy for the Court's use will be stricken. If the filing party wishes the Court to

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return a file-stamped copy, an additional copy must be provided for that purpose (i.e., an original and

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two copies, one for the Court's use and one to be returned to the filing party), together with a self-

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addressed stamped envelope. The Court cannot provide copy or mailing service for a party, even

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for an indigent plaintiff proceeding in forma pauperis. Copies of documents from the Court's file

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may be obtained in the Clerk's Office at the cost of fifty ($.50) cents per page.

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E.

After any defendant has appeared in an action by filing a pleading responsive

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to the complaint (i.e., an answer or a motion to dismiss), all documents filed with the Court must

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include a proof of service stating that a copy of the document was served on the opposing party. See

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28 U.S.C. § 1746; Fed. R. Civ. P. 5; Local Rule 135. A document submitted without the required

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proof of service will be stricken. Where a party is represented by counsel, service on the party's

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attorney of record constitutes effective service.

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F.

A pro se party has an affirmative duty to keep the Court and opposing parties

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apprised of a current address. If Plaintiff moves and fails to file a notice of change of address,

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service of court orders at Plaintiff's prior address shall constitute effective notice. See Local Rule
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182(f). If mail directed to Plaintiff is returned by the United States Postal Service as undeliverable,

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the Court will not attempt to re-mail it. If Plaintiff's address is not updated, in writing, within

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sixty (60) days of mail being returned, the action will be dismissed for failure to prosecute. See

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Local Rule 183(b).

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IT IS SO ORDERED.

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Dated:
ie14hj

June 7, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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