Linsky v. Astrue

Filing 15

ORDER DISMISSING CASE. Signed by Judge Illston on 3/9/11. (tf, COURT STAFF) (Filed on 3/9/2011)

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Linsky v. Astrue Doc. 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IAN M. SAMMIS Attorney at Law Cal. State Bar #45883 1108 Tamalpais Avenue, #1 San Rafael, CA 94901 (415) 457-4200 (415) 454-5294 fax Attorney for Plaintiff DENISE E. LINSKY UNITED STATE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) Civil No. 10-05071 SI DENISE E. LINSKY, ) Plaintiff, ) NOTICE OF DISMISSAL AND REQUEST v. ) FOR DISMISSAL WITHOUT PREJUDICE ) PURSUANT TO FED.R.CIV.P 41(a) MICHAEL J. ASTRUE, ) Commissioner of Social Security, Defendant. ) On November 9, 2010, Plaintiff Denise Linsky filed this mandamus petition to compel the Social Security Administration's Appeals Council to act on a request for review that had been pending for 18 months. At the time of seeking this Court's intervention, Plaintiff had asked the Appeals Council to reconcile an October 6, 2010 grant of benefits (onset date April 24, 2010) with an April 29, 2009 denial of benefits decision--entered after this Court remanded a partially favorable June 29, 2006 decision because of the ALJ's "improperly rejecting the opinion of a treating physician," [May 20, 2008 Order, Case N0. 07-cv-3482 SI, Dkt #8]. Plaintiff had filed her request for review of the April 2009 denial of benefits decision with the Appeals Council on May 13, 2009, which sat without response. Mandamus was warranted because: (1) the Appeals Council had failed to act on plaintiff's request for a year and a half and (2) on September 6, 2010, the Social Security Administration demanded $37,789 from plaintiff to reimburse benefits originally provided under the June 29, 2006 partially favorable decision reviewed and remanded by this Court. On February 14, 2011, the Appeals Council finally acted on Plaintiff's request for review and remanded the April 29, 2009 denial of benefits decision for rehearing before a new Administrative Law Judge and for compliance with this Court's prior remand order. [Dkt 13-1]. Request for Voluntary Dismissal w/o Prejudice Linsky v. Astrue, 10-05071 SI 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Accordingly, Plaintiff requests dismissal of the writ petition without prejudice, as the Appeals Council has acted and such issues as remain may be addressed to the Appeals Council in the first instance. (HALLEX I-3-7-1 and II-5-1-2 requires vacateur of the April 29, 2009 decision in addition to remand to a new ALJ for consideration). Pursuant to Rule 41 (a) of the Federal Rules of Civil Procedure, a plaintiff may voluntarily dismiss an action without prejudice anytime prior to answer or motion for summary judgment, as follows: Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of the United States, an action may be dismissed by the plaintiff without order of court (i) by filing notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, ... the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim. Fed.R.Civ.P., Rule 41(a)(1). Defendant has neither answered nor moved for summary judgment. As the Appeals Council's February 14, 2011 remand order provides the principle relief sought by plaintiff from this Court, plaintiff dismisses and requests dismissal of the present proceeding without prejudice. Dated: March 8, 2011 Respectfully submitted, S/Ian M. Sammis/ Attorney for Denise E. Linsky UNIT ED S S DISTRICT TE C TA ER N D IS T IC T R OF Request for Voluntary Dismissal w/o Prejudice Linsky v. Astrue, 10-05071 SI A C LI FO Judge S usan Ill ston R NIA O OR IT IS S DERED RT U O NO RT H

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