Walker v. Commissioner of Social Security

Filing 8

INFORMATIONAL ORDER for Pro Se Litigants, signed by Magistrate Judge Gary S. Austin on 6/4/13. (Hellings, J)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JULIAN WALKER,
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Plaintiff,
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v.
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COMMISSIONER OF SOCIAL
SECURITY,

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Defendant.

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1:13-cv-668 GSA

INFORMATIONAL ORDER
FOR PRO SE LITIGANTS

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Plaintiff is proceeding pro se in an action seeking judicial

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review of an administrative decision of the Commissioner of

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Social Security that denied, in whole or in part, plaintiff’s

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claim for benefits under the Social Security Act.

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This order provides the following helpful information, and

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basically serves as a step-by-step guide, for pro se litigants.

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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.

Service of the Complaint
As is outlined in the Scheduling Order issued in this

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case, except when other provisions are made pursuant to an

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application to proceed in forma pauperis, plaintiff shall serve a
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copy of the (1) summons, (2) complaint, (3) notice of

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availability of a Magistrate Judge and the form of consent/

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decline to jurisdiction of United States Magistrate Judge (See

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Local Rule 73-305(a)), and (4) the Scheduling Order, within

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twenty (20) days of plaintiff filing the complaint.

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If plaintiff is proceeding in forma pauperis, the

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United States Marshal usually serves the complaint.

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plaintiff is not proceeding in forma pauperis, then plaintiff or

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legal counsel is responsible for service and then filing a proof

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of service without delay.

However, if

See Local Rule 210.

Lawsuits for review of administrative decisions made by

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the Commissioner of Social Security are prosecuted against the

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Commissioner of Social Security.

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provides, in substance, that to serve the Commissioner in his

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official capacity, the party must serve (1) the United States,

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and (2) the Commissioner.

Fed.R.Civ.P. 4(i)(2) and (3)

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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

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United States Attorney for the district where the action is

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brought, or to an Assistant United States Attorney or clerical

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employee whom the United States Attorney designates in a writing

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filed with the Court; or, send a copy of the summons and

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complaint, by certified mail only, to the Civil Process Clerk at

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the United States Attorney’s Office; and,

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(2)

send a copy of the summons and complaint, by

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certified mail only, to the Attorney General of the United States

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in Washington, D.C.; and,

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(3)

send a copy of the summons and complaint, by
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certified mail only, to the Commissioner (the officer of the

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United States whose order is challenged by the lawsuit) in San

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Francisco, CA.

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Fed.R.Civ.P. 4(i)(1)-(3).

Initial service of process is thus sufficient if

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plaintiff serves, by certified mail only, copies of the summons

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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, NW
Washington, D.C. 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 which a proof of service must be filed with the Court

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without delay pursuant to Local Rule 210.

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proceeding in forma pauperis, the United States Marshal generally

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completes the proof of service and files it with the Court;

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however, if plaintiff is not proceeding in forma pauperis, it is

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plaintiff’s duty to promptly file a proof of service with the

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Court.

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II.

If plaintiff is

Attempt at Informal Resolution of the Case

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Pursuant to the Scheduling Order, within one hundred

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twenty (120) days after service of the complaint, defendant is

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required to serve a copy of the administrative record on

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plaintiff and also file the administrative record with the Court,

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which serves as the answer to the complaint in this proceeding.

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Once the administrative record has been filed, the
parties must try to resolve the case informally.
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In this

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process, the parties must exchange informal briefs in the form of

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letters about the case to see if they can agree that the case

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should be sent back, or “remanded,” to the Social Security

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Administration for a further hearing by an administrative law

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judge.

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In the letter brief, plaintiff must briefly set forth

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(1) the issues in the case, (2) the reasons why plaintiff thinks

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that plaintiff is entitled to Social Security benefits, and (3)

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why the decision to deny benefits should be remanded.

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The letter brief must be marked “Confidential Letter

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Brief”, should not be filed with the Court, and must be served on

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defendant within thirty (30) days from the date defendant served

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plaintiff with the administrative record, by mailing copies to

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all the attorneys listed on the court docket as representing

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defendant, Commissioner of Social Security, at the addresses

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noted on the court docket.

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The name of the attorney or attorneys representing

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defendant are added to the court docket at the time the Court

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receives defendant’s response to the complaint which, again,

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usually consists of the administrative record.

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court docket lists not only an attorney at the office of the

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General Counsel of the Social Security Administration in San

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Francisco, CA, but also an attorney at the United States

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Attorney’s Office in Fresno, CA; in these particular cases, it

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will then be necessary for plaintiff to mail copies of the

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confidential letter brief to more than one attorney for

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defendant.

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Sometimes the

Defendant’s confidential letter brief must be served on
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plaintiff no later than thirty-five (35) days after defendant is

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served with plaintiff’s confidential letter brief.

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If the parties agree to a remand, then the case will go

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back to the Social Security Administration before any formal

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briefs are filed with the Court, and without the Court ever

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considering the merits of the case.

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remand the case must be set forth in writing in a document titled

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“Stipulation and Order,” which must be signed and filed with the

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Court no later than fifteen (15) days after defendant served its

The parties’ agreement to

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confidential letter brief on plaintiff.

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143(a)(1) & (b).

See Local Rule

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The informal letter briefs exchanged by the parties are

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confidential in the sense that they are not filed with the Court.

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If the parties are unable to agree to a remand, the letters are

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not part of the case file and, thus, are not before the Court if

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and when the Court finally considers the case on the merits.

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III. Briefs
If, after exchanging confidential letter briefs, the

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parties are unable to agree to a remand of the case, then the

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parties must file formal briefs with the Court as directed in the

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Scheduling Order.

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with the Court that the Court will consider the merits of the

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case and make a decision.

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A.

It is only after the formal briefs are filed

Plaintiff’s Opening Brief

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Plaintiff’s opening brief must be filed and served

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no later than thirty (30) days from the date defendant’s informal

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letter brief was served on plaintiff.

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copy of the opening brief on all the attorneys listed for
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Plaintiff must serve a

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defendant on the court docket of the case at the addresses noted

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on the court docket.

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Plaintiff must also file the original opening

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brief, together with a copy, with the Court, by either personal

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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, CA 93721

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Plaintiff’s opening brief must contain the following:

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(1)

a plain description of plaintiff’s alleged

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physical or emotional impairments, when plaintiff contends they

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became disabling, and how they disabled plaintiff from work;

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(2)

before the Social Security Administration;

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a summary of the administrative proceedings

(3)

a summary of the relevant testimony at the

administrative hearing;

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(4)

a summary of all relevant medical evidence,

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including an explanation of the significance of clinical and

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laboratory findings, and the purpose and effect of prescribed

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medication and therapy;

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(5)

a recitation of the Social Security

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Administration’s findings and conclusions relevant to plaintiff’s

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claims;

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(6)

a short, separate statement of each of

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plaintiff’s legal claims stated in terms of the insufficiency of

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the evidence to support a particular finding of fact or reliance

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on an erroneous legal standard; and,

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(7)

argument separately addressing each claimed
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error.

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All references to the administrative record and

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all assertions of fact must be accompanied by citations to the

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administrative record.

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error must be supported by citation to legal authority and

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explanation of the application of such authority to the facts of

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the particular case.

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with these requirements will be stricken.

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stricken becomes null and void and is not considered by the Court

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Argument in support of each claim of

Briefs that do not substantially comply
A document that is

for any purpose.

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Plaintiff is further advised that failure to

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timely file an opening brief will result in dismissal of the

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action.

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B.

Defendant’s Brief

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Pursuant to the Scheduling Order, defendant’s

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responsive brief is due filed and served on plaintiff within

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thirty (30) days from the date of service of plaintiff’s opening

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brief on defendant.

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C.

Plaintiff’s Reply Brief
Plaintiff may file a reply brief, but is not

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required to do so, within fifteen (15) days from the date

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defendant served its responsive brief on plaintiff.

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must serve a copy of the reply brief on defendant by serving the

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United States Attorney for the Eastern District of California at

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the address in Fresno, CA, noted above.

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the original reply brief, together with a copy, with the Court at

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the Court’s address in Fresno, CA, noted above.

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Plaintiff

Plaintiff must also file

Plaintiff’s reply brief should respond to the
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arguments made in defendant’s responsive brief.

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IV.

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Motion to Dismiss
In some cases, instead of serving and filing an

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administrative record, defendant may file a motion to dismiss the

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case pursuant to Fed.R.Civ.P. 12., within one hundred twenty

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(120) days from the date defendant is served with plaintiff’s

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complaint.

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Plaintiff may oppose a motion to dismiss by filing and
serving opposition to the motion within fourteen (14) days from

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the date the motion to dismiss was served on plaintiff, and

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should be titled “Opposition to Defendant’s Motion to Dismiss.”

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See Local Rule 230(c).

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The Court will consider a motion to dismiss only after

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receiving opposition from plaintiff, or after the time for filing

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opposition has passed.

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case, the Court may either (1) deny the motion and proceed with

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the case, ordering the parties to proceed to file the

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administrative record, attempt informal resolution, and file

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briefs; or, (2) grant the motion to dismiss, and dismiss all or

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part of the case.

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V.

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In ruling on a motion to dismiss the

The Court’s Decision on the Merits
The Court will consider the merits of the case only

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after all briefs have been filed, and may enter a judgment

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affirming, modifying, or reversing the determination of the

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Social Security Administration.

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the case to the Social Security Administration for a further

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hearing.

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The Court may or may not remand

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VI.

Summary of Deadline Calculations

See Section
I. above

Service

due 20 days after filing complaint

See Section
II. above

Administrative
Record

due 120 days after service

See Section
III. A. above

Plaintiff’s
Opening Brief

due 95 days after administrative
record lodged with court

See Section
III. B. above

Defendant’s Brief

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due 30 days after plaintiff’s
opening brief filed

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See Section
III. C. above

Plaintiff’s Reply
Brief - optional

due 15 days after defendant’s brief
filed

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VII. Rules for Litigating the Action

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Plaintiff is informed of the following:

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A.

In litigating this action, the parties must comply

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with the Federal Rules of Civil Procedure (Fed.R.Civ.P.), and the

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Local Rules of the United States District Court, Eastern District

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of California (“Local Rules”).

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obtained in the Clerk’s Office at no charge.

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A copy of the Local Rules may be

Local Rule 206 is a special rule for social security

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actions.

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complaints shall contain the last four digits of plaintiff’s

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social security number only, i.e., XXX-XX-1234, and that

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plaintiff shall privately disclose to defendant, within five (5)

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days after a request is made to plaintiff, the full social

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security number of plaintiff.

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Specifically (a)(2) and (3) generally states that

Therefore, plaintiff shall refrain from disclosing
the entire social security number on any filings.

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FAILURE TO COMPLY WITH THE LOCAL RULES, FEDERAL

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RULES, OR A COURT ORDER, INCLUDING THIS ORDER, WILL BE GROUNDS

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FOR DISMISSAL OR OTHER APPROPRIATE SANCTIONS.
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See Local Rule

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110; Fed.R.Civ.P. 41(b).

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B.

Documents intended to be filed with the Court must

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be mailed to the Clerk of the Court in Fresno, CA, at the address

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noted above.

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inappropriately mailed directly to a judge's chambers will be

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stricken from the record.

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must be styled as a motion, not a letter.

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See Local Rule 5-134(a).

C.

All documents

A document requesting a court order
See Fed.R.Civ.P. 7.

Each document submitted for filing must include

the original signature of the filing party or parties.

Local

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Rule 131; Fed.R.Civ.P. 11(a).

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the required signature(s) will be stricken.

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document must be separately stapled.

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document is stapled behind another document, it will not be filed

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and will not enter the court docket.

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D.

All documents submitted without
Each separate

See Local Rule 130.

If a

All documents filed with the Court must be

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submitted with an additional legible copy to be conformed for the

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Court's use.

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without an extra copy for the Court's use will be stricken.

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the filing party wishes the Court to return a file-stamped copy,

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an additional copy must be provided for that purpose (i.e., an

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original and two copies, one for the Court's use and one to be

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returned to the filing party), together with a self-addressed,

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stamped envelope.

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service for a party, even for an indigent plaintiff proceeding in

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forma pauperis.

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obtained in the Clerk’s Office at the cost of fifty ($.50) cents

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per page.

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E.

See Local Rule 133(d)(2).

A document submitted
If

The Court cannot provide copy or mailing

Copies of documents from the Court’s file may be

After any defendant has appeared in an action by
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filing a pleading responsive to the complaint (i.e., an answer or

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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

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was served on the opposing party.

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F.R.Civ.P. 5; Local Rule 135.

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required proof of service will be stricken.

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represented by counsel, service on the party's attorney of record

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constitutes effective service.

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F.

See 28 U.S.C. § 1746;

A document submitted without the
Where a party is

A pro se party has an affirmative duty to keep the

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Court and opposing parties apprised of a current address.

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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

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constitute effective notice.

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directed to plaintiff is returned by the United States Postal

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Service as undeliverable, the Court will not attempt to re-mail

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it.

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sixty (60) days of mail being returned, the action will be

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dismissed for failure to prosecute.

See Local Rule 182(f).

If

If mail

If plaintiff’s address is not updated, in writing, within

See Local Rule 183(b).

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IT IS SO ORDERED.

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Dated:
cf0di0

June 4, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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