Pepmueller v. Saul

Filing 14

ORDER granting 11 Motion to Extend Time to Answer 5 Complaint. Andrew Saul answer and certified administrative record due 1/22/2021. Signed by Magistrate Judge Elayna J. Youchah on 11/17/2020. (Copies have been distributed pursuant to the NEF - DRS)

Case 2:20-cv-01694-EJY Document 14 Filed 11/17/20 Page 1 of 4

1 NICHOLAS A. TRUTANICH
United States Attorney
2 District of Nevada
3 MARCELO ILLARMO, MABN 670079
Special Assistant United States Attorney
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160 Spear Street, Suite 800
5 San Francisco, California 94105
Telephone: [phone]
6 Facsimile: [phone]
E-Mail: [e-mail]
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Attorneys for Defendant
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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JEROME W. PEPMUELLER, JR.,
Plaintiff,
v.
ANDREW SAUL,
Commissioner of Social Security,
Defendant.

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)
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)
) Case No.: 2:20-cv—01694-EJY
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)
) UNOPPOSED MOTION FOR EXTENSION
) OF TIME (FIRST REQUEST)
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Defendant, Andrew Saul, Commissioner of Social Security (the “Commissioner”), by and
through his undersigned attorneys, hereby moves for a 60-day extension of time to file Defendant’s
Electronic Certified Administrative Record and Answer to Plaintiff’s Complaint. Defendant’s
Electronic Certified Administrative Record and Answer to Plaintiff’s Complaint are due to be filed
by November 23, 2020.
Defendant makes this request in good faith and for good cause, because the CAR, which
must be filed with the Answer and is necessary to adjudicate the case, is not yet available. The

24 public health emergency pandemic caused by COVID-19 has significantly impacted operations in
25 the Social Security Administration’s Office of Appellate Operations (OAO) in Falls Church,
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Case 2:20-cv-01694-EJY Document 14 Filed 11/17/20 Page 2 of 4

1 Virginia, which is responsible for producing the CAR that must be filed with the Answer, per 42
2 U.S.C. §§ 405(g) and (h). Prior to the COVID-19 pandemic, to safeguard Personally Identifiable
3 Information (PII), all hearing recordings, which are part of the administrative record, were
downloaded onto compact discs and encrypted. OAO securely routed the encrypted discs to a
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private contractor through a daily pickup and delivery service at the Official Duty Station (ODS) in
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Falls Church, Virginia. The private contractor would transcribe the hearing recording and send the
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paper copy of the hearing transcript back to OAO. OAO personnel would then scan the hearing
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transcript into the electronic record or place the hearing transcript in the paper case file. Thereafter,
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OAO personnel would assemble the administrative record in a prescribed order. After the advent of
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COVID-19, the Agency has taken a number of concrete steps to transition its years-old in person
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CAR preparation process to a fully virtual one.
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OAO has been actively pursuing mitigation efforts to allow the remote preparation of
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administrative records to ensure a continuity of operations. For cases in which the private
13 contractors were already in possession of hearing recordings for transcription, with the assistance of
14 the Office of Acquisitions and Grants (OAG), OAO received approval to receive these transcripts
15 from the private contractors via secured email, e.g., using password protection and redacted Social
16 Security Numbers. In April 2020, OAO began receiving such hearing transcripts from private
17 contractors via secured email.
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For cases in which OAO had not yet submitted recordings to the private contractors before

19 March 16, 2020, OAO has been pursuing all available options to obtain transcriptions for these
20 cases. In May 2020, OAO began encrypting hearing recordings and securely emailing them to the
21 contractors for transcription. Through the month of May, OAO and the contractors worked to
resolve technical issues that arose, particularly with large files.
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As detailed in the attached declaration from Jebby Rasputnis, Executive Director of the
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OAO, the Commissioner has redesigned its business process to allow for virtual CAR production,
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including adopting new technology, retraining staff, modifying blanket purchase agreements with
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transcription services, and adding two more transcription vendors. In addition to the changes made
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Case 2:20-cv-01694-EJY Document 14 Filed 11/17/20 Page 3 of 4

1 by the Commissioner, the agency’s transcription vendors are also modifying their business
2 operations to help provide virtual services. As a result, the agency was able to process 1,372 cases
3 in September. OAO must still navigate and overcome significant challenges: (1) a backlog of nearly
9,000 cases, (2) challenges in prioritizing older cases using the new process, and (3) the capacity of
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the contracted transcription services.
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OAO is trying to prioritize CAR preparation based on objective factors, such as filing date,
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and is working diligently to address the backlog of CARS. Out of fairness to all social security
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claimants, Defendant respectfully requests that the Court defer to OAO’s prioritization of cases for
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CAR preparation and maintain consistency in the length of extensions granted in social security
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cases, absent a showing of exceptional circumstances. Counsel for Defendant further states that the
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Office of General Counsel (OGC) is monitoring receipt of transcripts on a daily basis and is
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committed to filing Answers promptly upon receipt and review of the administrative records. Given
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the volume of pending cases, Defendant requests an extension in which to respond to the Complaint
13 until January 22, 2021. If Defendant is unable to produce the certified administrative record
14 necessary to file an Answer in accordance with this Order, Defendant shall request an additional
15 extension prior to the due date.
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The undersigned affirms that opposing counsel, does not object to the requested extension.

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Case 2:20-cv-01694-EJY Document 14 Filed 11/17/20 Page 4 of 4

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WHEREFORE, the Defendant asks the Court to enlarge the time for filing the Electronic

2 Certified Administrative Record and Answer to Plaintiff’s Complaint until January 22, 2021.
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Dated: November 16, 2020

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Respectfully submitted

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NICHOLAS A. TRUTANICH
United States Attorney

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/s/ Marcelo Illarmo
MARCELO ILLARMO
Special Assistant United States Attorney

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ORDER

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IT IS SO ORDERED that Defendant's Unopposed
Motion for Extension of Time is GRANTED;
provided, however, that no further extensions of
time will be granted.

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_______________________________________
UNITED STATES MAGISTRATE JUDGE

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Dated: November 17, 2020

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