O'Brien v. Kijakazi

Filing 15

ORDER dismissing Petitioner's opening brief #9 without prejudice to refile within thirty days after service of the administrative record; denying #10 Motion for Preliminary Injunction; denying #14 Motion to Amend/Correct Motion for Preliminary Injunction. Upon receipt of the administrative record, the Court is limited to reviewing the Commissioner's decision to discontinue benefits, and determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. 405(g), and (2) substantial evidence in the record as a whole supports it. The Clerk is directed to mail a copy of this order to Petitioner at his address of record. Signed by Judge Candy W. Dale. (klw)

Case 1:21-cv-00403-CWD Document 15 Filed 11/18/21 Page 1 of 3

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

BENJAMIN LUKE O’BRIEN,
Petitioner,
v.

Case No. 1:21-cv-00403-CWD
ORDER

KILOLO KIJAKAZI, Acting
Commissioner of Social Security,
Respondent.

Before the Court is Petitioner’s opening brief filed in support of his Petition for
Review of the Respondent’s denial of social security benefits, motion for preliminary
Injunction, and motion to amend the motion for preliminary injunction. (Dkt. 9, 10, 14.)
All three documents are procedurally improper. For the reasons explained, the motions
will be denied, while the opening brief will be dismissed without prejudice to refiling the
same once Respondent has filed the Administrative Record for the Court’s review.
Petitioner, who is proceeding without the benefit of legal counsel, filed the
Petition for Review on October 13, 2021. (Dkt. 1.) He seeks review of the
Commissioner’s decision that Petitioner is no longer under a disability as of February 21,
2020, and the resulting termination of benefits. (Dkt. 1.) The matter was assigned to the
ORDER - 1

Case 1:21-cv-00403-CWD Document 15 Filed 11/18/21 Page 2 of 3

undersigned, and all parties consented to proceed before a United States Magistrate
Judge. (Dkt. 4.) 28 U.S.C. § 636. Respondent was served and formally appeared through
counsel on November 2, 2021. (Dkt. 7.)
The Court’s procedural order, entered on October 13, 2021, explains that the
Court’s jurisdiction is limited to reviewing the administrative record to determine
whether the Commissioner’s decision is supported by substantial evidence in the record
and whether the proper legal standard was applied. (Dkt. 2.) It further explains that,
within sixty days of service, Respondent must either serve and file a certified copy of the
administrative record, or a motion to dismiss. If a motion to dismiss is filed and thereafter
denied, or the Respondent proceeds to file the administrative record, the Procedural Order
sets forth the applicable deadlines for filing a brief in support of the petition for review, a
response brief, and a reply brief. (Dkt. 2.)
Petitioner’s opening brief was filed in contravention of the Court’s order, as the
Court has not yet received either the administrative record or a motion from Respondent.
Thus, there is nothing for the Court to review at this time---the administrative record is
not before the Court. Consequently, the Court is unable to adjudicate the legal and factual
issues raised in Petitioner’s opening brief. Petitioner’s opening brief is therefore
premature, and it will be dismissed without prejudice to refile. Petitioner may refile an
opening brief within thirty days after service of the administrative record. (Dkt. 2.)
Petitioner’s motion for preliminary injunction, and motion to amend the same, are
similarly improper. The motions seek a court order to prevent Respondent from
continued efforts to collect “overpayments” while the Petition is awaiting review by the
ORDER - 2

Case 1:21-cv-00403-CWD Document 15 Filed 11/18/21 Page 3 of 3

Court, and an order that Respondent re-instate benefit payments. (Dkt. 10.) While the
Court is not unsympathetic to Petitioner’s predicament, the Court is not bestowed with
the statutory authority to issue such an order. The Court is limited to reviewing the
Commissioner’s decision to discontinue benefits, and determine whether (1) it is based
on proper legal standards pursuant to 42 U.S .C. § 405(g), and (2) substantial evidence in
the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999).
The Court may affirm, modify, or reverse the Commissioner's decision, with or without
remand to the Commissioner for a rehearing. 42 U.S.C. § 409(g). The Court has no
authority to issue the relief Petitioner seeks while his petition for review is pending.
Accordingly, the motion for preliminary injunction, and the motion to amend the same,
(Dkt. 10, 14) will be denied.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1)

Petitioner’s Motion for Preliminary Injunction (Dkt. 10) is DENIED.

2)

Petitioner’s Motion to Amend Preliminary Injunction (Dkt. 14) is
DENIED.

2)

Petitioner’s Opening Brief (Dkt. 9) is DISMISSED without prejudice to
refile within thirty days after service of the administrative record.

November 18, 2021

ORDER - 3