Franciullo v. Colvin

Filing 16

ORDER Directing the Parties to Provide Supplemental Briefing Re: Joint Motion to Remand 15 . By August 3, 2016, the Parties must provide supplemental briefing in support of their Joint Motion to Remand. Signed by Magistrate Judge Nita L. Stormes on 7/20/16.(dlg)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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JOHN FRANCIULLO, III,

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Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.

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Case No. 3:15-cv-02294-WQH-NLS
ORDER DIRECTING THE
PARTIES TO PROVIDE
SUPPLEMENTAL BRIEFING RE:
JOINT MOTION TO REMAND
(Dkt. No. 15)

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Before the Court is Plaintiff John Franciullo, III’s and Defendant Carolyn

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Colvin’s (collectively, the “Parties”) Joint Motion for Voluntary Remand Pursuant

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to Sentence Four of 42 U.S.C. section 405(g). (Dkt. No. 15.) They seek to remand

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the action to offer Plaintiff a new hearing and decision.

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Sentence four provides that “[t]he court shall have power to enter, upon the

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pleadings and transcript of the record, a judgment affirming, modifying, or

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reversing the decision of the Commissioner of Social Security, with or without

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remanding the cause for a rehearing.” 42 U.S.C. § 405(g).

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It is not clear whether the Parties’ request for a voluntary remand of the case

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is proper under sentence four because the Parties do not appear to request the Court

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to enter judgment. See id.; see also 2 Soc. Sec. Disab. Claims Prac. & Proc. §

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19:67 (2nd ed.) (explaining that sentence four remand “involves a substantive

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ruling by the court as to the correctness of the Commissioner’s decision,” and a

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“judgment is immediately entered upon remand in a sentence four remand”). It is

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also not clear whether the Parties intend for the currently pending motion for

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summary judgment to remain pending on the docket or denied as moot while the

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matter is remanded for further hearing and decision (see Dkt. No. 12); whether the

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Parties request this case to remain open or be dismissed upon remand; and whether

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they perhaps intended to move based on some other ground, such as under

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sentence six of section 405(g) or a voluntary dismissal under Federal Rule of Civil

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Procedure 41. In short, the Parties must provide an adequate explanation and

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support for their request.

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Accordingly, IT IS ORDERED that by August 3, 2016, the Parties must

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provide supplemental briefing in support of their Joint Motion to Remand. The

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Parties must address the deficiencies noted above, as well as provide citations to

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authorities that demonstrate support for their request.

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IT IS SO ORDERED.
Dated: July 20, 2016

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