Torres v. Astrue

Filing 20

ORDER Granting 19 Defendant's Motion to Stay During Lapse in Appropriations. Signed by Magistrate Judge Peggy A. Leen on 10/08/2013. Nunc Pro Tunc date: 10/01/2013. (Copies have been distributed pursuant to the NEF - AC)

Case 2:13-cv-00082-GMN-PAL Document 19 Filed 10/04/13 Page 1 of 6

1 DANIEL G. BOGDEN

United States Attorney

2 District of Nevada

ROGER W. WENTHE

3 Assistant United States Attorney

Nevada Bar No. 8920

4 U.S. Attorney’s Office

333 Las Vegas Boulevard South, Suite5000

5 Las Vegas, Nevada 89101

Ph: 702-388-6336

6 Fax: [phone]

Email: [e-mail]

7

Attorneys for the United States.
8
9

UNITED STATES DISTRICT COURT

10

DISTRICT OF NEVADA

11

MARIA C. TORRES,
12

Plaintiff,
13

v.
14

CAROLYN COLVIN, Acting

15 Commissioner of Social Security,

Defendant.

16
17
18

)
) Case No.: 2:13-cv-82-GMN-PAL
)
)
)
)
)
)
)
)

DEFENDANT’S APPLICATION FOR STAY DURING LAPSE IN
APPROPRIATIONS

19
20
21
22
23
24
25
26
27

Defendant Carolyn Colvin, Acting Commissioner of Social Security, requests
the Court to stay proceedings in this matter during the period of lapse in
appropriations for the United States Department of Justice and the Federal Defendant.
At midnight on September 30, 2013, the continuing resolution that was funding
the Department of Justice and appropriations to the Department lapsed. The same is
true for most Executive Branch agencies, including the Federal Defendant involved in
this case. The date when funding will be restored by Congress has not been
established.

28
1

Case 2:13-cv-00082-GMN-PAL Document 19 Filed 10/04/13 Page 2 of 6

1

The Anti-deficiency Act, 31 U.S.C. §1341, as construed by the Attorney

2 General, provides that in the absence of appropriated funds no obligation can be
3 incurred except for the protection of life and property, the orderly suspension of
4 operations, or as otherwise authorized by law. This means that absent an
5 appropriation, Department of Justice attorneys and employees of the Federal
6 Defendant’s agencies are prohibited from working, even on a volunteer basis, “except
7 for emergencies involving the safety of human life or the protection of property.” 31
8 U.S.C. §1342. Accordingly, each U.S. Attorney has been instructed to designate those
9 attorneys and support staff whose work is necessary to sustain legal operations
10 essential to the safety of human life and the protection of property. The Department
11 of Justice has issued guidance which gives priority to continuing work on criminal
12 cases. Consequently, only a very few employees in the Civil Division of the United
13 States Attorney’s Office for the District of Nevada will be authorized to work during a
14 lapse in appropriations – the rest will be furloughed.
15

The agency attorneys assigned to handle Social Security appeals, who

16 participate in all aspects of the preparation and filing of pleadings in Social Security
17 appeals cases, have also been furloughed for the duration of the lapse in
18 appropriations. The need for the relief of a stay is urgent because of the following
19 impending deadline(s):
20

Item

Due Date

21

Defendant’s reponse to motion to remand

October 9, 2013

22

Therefore, the undersigned counsel requests a stay of this matter until Congress

23 has restored appropriations and the assigned attorneys are permitted to resume work
24 on this case.
25

Denial of a stay in this matter would be prejudicial to the interests of the United

26 States. Appeals such as this one require familiarity with the administrative record and
27 with the procedures applicable to Social Security disability benefits determinations.
28 The Government does not have civil attorneys available to become conversant with
2

Case 2:13-cv-00082-GMN-PAL Document 19 Filed 10/04/13 Page 3 of 6

1 this entire case in the short time available to complete the filing required next week,
2 nor could an attorney adequately present the position of the United States on that
3 matter due to the lack of familiarity with the case and its issues. Plaintiff will not be
4 prejudiced by the proposed delay because the delay is not anticipated to significantly
5 alter the course of resolution of this matter.
6

If this motion for a stay is granted, undersigned counsel will notify the Court as

7 soon as Congress has appropriated funds. It is requested that, at that time, all current
8 deadlines for the parties be extended commensurate with the duration of the lapse in
9 appropriations. A form of order is attached.
10

Dated this 4th day of October, 2013.
DANIEL G. BOGDEN
United States Attorney

11
12

/s/ Roger W. Wenthe
ROGER W. WENTHE
Assistant United States Attorney

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3

Case 2:13-cv-00082-GMN-PAL Document 19 Filed 10/04/13 Page 4 of 6

PROOF OF SERVICE

1
2

I, Roger W. Wenthe, certify that the following individual was served with a

3 copy of the foregoing document, on the date shown, by the below identified method of
4 service:
5

CM/ECF:

6

Leonard H Stone
Shook & Stone Chtd.
710 S. Fourth St.
Las Vegas , NV 89101

7
8
9
10

Marc V Kalagian
Rohlfing & Kalagian, LLP
211 E. Ocean Blvd. Suite 420
Long Beach , CA 90802

11
12

Dated: October 4, 2013
13
14

/s/ Roger W. Wenthe
ROGER W. WENTHE
Assistant United States Attorney

15
16
17
18
19
20
21
22
23
24
25
26
27
28
4

Case 2:13-cv-00082-GMN-PAL Document 19 Filed 10/04/13 Page 5 of 6

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3 MARIA C. TORRES,

Plaintiff,

4
5

v.

6 CAROLYN COLVIN, Acting

Commissioner of Social Security,

7

Defendant.

)
) Case No.: 2:13-cv-82-GMN-PAL
)
)
)
)
)
)
)
)

8

ORDER FOR STAY OF PROCEEDINGS DURING LAPSE IN
APPROPRIATIONS

9
10
11

1.

The Court has been advised that at midnight on September 30, 2013, the

12 continuing resolution that was funding the Department of Justice expired and the
13 appropriation of funds to the Department lapsed. The same is true for most Executive
14 Branch agencies, including the federal agencies involved in litigation in this District.
15

2.

Absent an appropriation, Department of Justice attorneys and employees

16 of the federal agencies are prohibited from working, even on a volunteer basis,
17 “except for emergencies involving the safety of human life or the protection of
18 property.” 31 U.S.C. § 1342. Civil cases are not deemed to be within this exemption.
19

3.

The Court has been informed that the lapse in appropriations therefore

20

prevents Department of Justice attorneys and their federal agency counterparts from

21

appearing at hearings and depositions and performing work necessary to meet case

22

deadlines, including those imposed by statute, the Federal Rules of Civil Procedure,

23

the Civil Local Rules of this District, and by case management orders issued in

24

individual cases. This situation will cause prejudice to the interests of the United

25

States and the federal agencies, officers, and employees involved in civil litigation in

26

this District.

27
28
5

Case 2:13-cv-00082-GMN-PAL Document 19 Filed 10/04/13 Page 6 of 6

WHEREFORE, the Court finds that good cause exists to stay proceedings in the

1
2

cases identified in the attached list until Congress has restored appropriations.
IT IS THEREFORE ORDERED that all time limits and deadlines in this case

3
4
5
6
7
8
9

are extended for a period of time equal to the duration of the lapse in appropriations to
the Department of Justice and the Federal Defendant and depositions and court
hearings are vacated. Further, this stay does not apply to applications for emergency
relief.
This Order shall apply nunc pro tunc to October 1, 2013.
DATED: October 8, 2013

___________________________
___________________________
_
_
_
_ _
United States Magistrate Judge

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6