Marshall v. Social Security Administration, Commissioner of

Filing 7

ORDER granting 6 Motion for Extension of Time and the time in which Plaintiff may file a Social Security Brief is extended to and including January 20, 2011. Signed by District Judge John W. Lungstrum on 11/23/2010. (ses)

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M a r s h a l l v. Social Security Administration, Commissioner of Doc. 7 IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF KANSAS J A M E S ALLEN MARSHALL, P l a i n t i f f, V. M I C H A E L J. ASTRUE, C o m m is s io n e r of Social Security, D efe n d a n t. ) ) ) ) ) ) ) ) ) C IV IL ACTION N O . 10-1250-JWL O R D E R GRANTING PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO FILE SOCIAL SECURITY BRIEF T h is matter comes before the court upon the motion of Plaintiff for an extension of tim e till January 20, 2011 in which to file a "Motion for Judgment." (doc. 6). As a p re lim in a ry matter, the court instructs Plaintiff that a "Motion for Judgment" is not the p ro p e r means to seek the court's review of a decision of the Commissioner of Social S e c u rity, either in accordance with the law of the Tenth Circuit or with the local rules of th e District of Kansas. In 1994, the Tenth Circuit reversed a decision of the District of Kansas in which th e district court granted a "Motion to Affirm" filed by the Agriculture Stabilization and C o n s e rv a tio n Service in an action seeking review of that agency's actions. Olenhouse v. C o m m m o d ity Credit Corp., 42 F.3d 1560 (10th Cir. 1994). The court held that district c o u rts are required to process administrative reviews of agency actions as appeals. Olenhouse, 42 F.3d at 1580. The District of Kansas subsequently renumbered its local Dockets.Justia.com rules and amended Local Rule 503 to conform with the requirements of Olenhouse. D. K an . Rule 83.7.1 (2010) (available online at http://www.ksd.uscourts.gov/ on the left h a n d side of the page toward the bottom. Click on the "Rules" link.). Local Rule 83.7.1 d o e s not provide for motions for judgment, motions for summary judgment, or motions to a f f irm . It provides that plaintiff will file a brief within forty-five days after the a d m in istra tiv e record is filed with the court, the Commissioner will file a brief in re s p o n s e within thirty days, and plaintiff may file a reply brief within fourteen days th e re a fte r. Id. 83.7.1(d). The court will then review the Commissioner's decision: "The c a se shall be submitted when all briefs have been filed." Id. No other procedure is a u th o riz e d to seek the court's review. Therefore, plaintiff may not and shall not file any m o tio n in this case seeking review of the Commissioner's decision (such as a motion for jud g m en t and memorandum in support thereof). In the CM/ECF system for electronic filing, the court has provided a means to file th e requisite briefs. When an attorney is ready to file a Social Security brief on the C M /E C F system, he should sequentially select the "Civil" menu bar, select "Responses a n d Replies" under the "Motions, Supporting Documents, Responses, Replies & Social S e c u rity" heading, and select either "Social Security - Commissioners Response Brief," " S o c ia l Security - Plaintiffs Initial Brief," "Social Security - Plaintiffs Reply Brief," or " S o c ia l Security - Surreply Brief," as appropriate from the options in the "drop-down" b o x that next appears. He should complete filing from that point. Following the correct p roc ed u re will ensure that the brief is properly docketed. No motions or memoranda are n e c e ss a ry or allowed. If Plaintiff needs assistance in properly filing his brief, he should contact the Clerk's office. T h e court construes Plaintiff's motion as a motion to extend the time to file his S o c ia l Security brief in this case, and after review of the motion and file herein, finds that f o u rte e n days have passed since Plaintiff filed his motion, defendant's counsel has filed n o objection to the requested extension, and cause exists to grant the motion. IT IS THEREFORE ORDERED that the time in which Plaintiff may file a Social S e c u rity Brief is extended to and including January 20, 2011. D a te d at Kansas City Kansas, November 23, 2010. s / John W. Lungstrum John W. Lungstrum U n ite d States District Judge

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