Cottle v. Commissioner of Social Security

Filing 22

STIPULATION and ORDER signed by Magistrate Judge Carolyn K. Delaney on 6/5/13 ORDERING It is therefore appropriate to reopen this case in order to resolve the Court's sentence-six jurisdiction. Upon reopening, Defendant will serve the certified administrative record within 120 days of this Court's order. Case reopened. (Becknal, R)

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BENJAMIN B. WAGNER
United States Attorney
DONNA L. CALVERT
Acting Regional Chief Counsel, Region IX
Social Security Administration
SUNDEEP R. PATEL
Special Assistant United States Attorney
160 Spear Street, Suite 800
San Francisco, CA 94105
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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Attorneys for Defendant

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SACRAMENTO DIVISION

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MICHAEL G. COTTLE,

) CASE NO. 10-1886 CKD
)
Plaintiff,
) STIPULATION AND ORDER
vs.
) TO REOPEN
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security,
)
)
Defendant.1
_____________________________________ )

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The parties hereby stipulate, through their undersigned attorneys, and with the approval
of the Court, that this case shall be reopened.

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On March 10, 2011, pursuant to the stipulation of the parties, this Court remanded the
instant case to the Commissioner for a new hearing. The parties stipulated to remand this case

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Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin should be
substituted for Michael J. Astrue as the defendant in this suit. No further action need be taken to
continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42
U.S.C. § 405(g).

1 - Stipulation & Order to Reopen

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because Defendant was unable to prepare the certified administrative record the hearing file

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being unavailable. The proceedings on remand have culminated in an April 20, 2012 decision

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unfavorable to Plaintiff.

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Now that the administrative proceedings have concluded, reopening is necessary. In a

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sentence-six remand case, the Court retains jurisdiction following the remand. See Melkonyan v.

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Sullivan, 501 U.S. 89, 98 (1991) (district court retains jurisdiction over Social Security cases

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remanded under 42 U.S.C. § 405(g), sentence six, and where the final administrative decision is

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favorable to one party or the other, the Commissioner is to return to the court following

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completion of the administrative proceedings on remand so that the court may enter a final

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judgment or, as in this case, a dismissal); see also Shalala v. Schaefer, 509 U.S. 292, 298-300

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(1993).

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[A] sentence six remand, because of clear language in the social security statute,
implies and necessarily involves a reservation of jurisdiction for the future and
contemplates further proceedings in the district court and a final judgment at the
conclusion thereof. A sentence six remand judgment, the Court said, is therefore
always interlocutory and never a “final” judgment.

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Carrol v. Sullivan, 802 F.Supp. 295, 300 (C. D. Cal. 1992) (paraphrasing and quoting
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Melkonyan).
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It is therefore appropriate to reopen this case in order to resolve the Court’s sentence-six

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jurisdiction. Upon reopening, Defendant will serve the certified administrative record within 120
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days of this Court’s order.

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2 - Stipulation & Order to Reopen

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Respectfully submitted,

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Dated: June 4, 2013

LAW OFFICES OF HAROLD HADLEY

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By: /s/ Sundeep Patel for Jesse Kaplan*
*As authorized by email on June 4, 2013
JOSEPH C. FRAULOB
Attorney for Plaintiff

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Dated: June 4, 2013

BENJAMIN B. WAGNER
United States Attorney
DONNA L. CALVERT
Acting Regional Chief Counsel, Region IX
Social Security Administration

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By: /s/ Sundeep R. Patel
SUNDEEP R. PATEL
Special Assistant U. S. Attorney

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ORDER
Pursuant to stipulation, it is so ordered.

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Dated: June 5, 2013
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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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3 - Stipulation & Order to Reopen