UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
March 21, 2013
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY,
The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER WITHDRAWING FINDINGS AND RECOMMENDATIONS (Doc. 22)
ORDER THAT PLAINTIFF FILE AN OPENING BRIEF NO LATER THAN APRIL 3, 2013, OR SHOW CAUSE WHY
THE ACTION SHOULD NOT BE DISMISSED
On April 5, 2012, Plaintiff filed a complaint against the Commissioner of Social Security ("Defendant" or "Commissioner"), appealing a denial of his application for social security benefits. (Doc. 1.) The Court issued a scheduling order (Doc. 5) as well as an amended informational order for pro se litigants (Doc. 9), setting forth the deadlines in the case and explaining what must be included in the opening brief that Plaintiff is to file with the Court.
On October 4, 2012, Plaintiff was served with the administrative record. (Docs. 13, 14, 15.) Plaintiff was required to serve the Commissioner with a confidential letter brief within 30 days of service of the administrative record. Plaintiff sought an extension of time, which was granted, permitting Plaintiff until November 26, 2012, to serve his confidential letter brief on the Commissioner. (Doc. 17.)
On November 21, 2012, Plaintiff filed a statement that appears to be the "confidential" letter brief. (Doc. 18.) The Commissioner filed a certificate of service indicating that a responsive confidential letter brief was served on Plaintiff on December 19, 2012. (Doc. 19.) Thus, Plaintiff was required to file an opening brief no later than January 22, 2013, but Plaintiff failed to do so. On February 22, 2013, the court issued an order requiring Plaintiff no later than March 1, 2013, to either file an opening brief or show cause why the case should not be dismissed for Plaintiff's failure to timely file an opening brief.
It has come to the Court's attention that the February 22, 2013, order was not properly served on Plaintiff. Fairness dictates that Plaintiff be given an opportunity to either (1) file an opening brief on or before April 3, 2013, or (2) show cause in writing by filing a statement why this case should not be dismissed for failure to file an opening brief.
Accordingly, IT IS HEREBY ORDERED that:
1. The March 19, 2013, Findings and Recommendations are WITHDRAWN;
2. No later than April 3, 2013, Plaintiff shall either:
a. File an opening brief in conformity with the requirements set forth in the scheduling order (Doc. 5) and the Amended Informational Order (Doc. 9); or
b. Show cause in writing why this case should not be dismissed for Plaintiff's failure to timely file an opening brief.
IT IS SO ORDERED.
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