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Ewen v. Commissioner of Social Security

United States District Court, E.D. California

October 9, 2019

LISA MARIE EWEN, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER DISCHARGING ORDER TO SHOW CAUSE AND MODIFYING SCHEDULING ORDER

         Plaintiff Lisa Marie Ewen proceeds in this Social Security appeal unrepresented by counsel. On August 30, 2019, I issued an order to show cause why the case should not be dismissed for failure to prosecute. Plaintiff had not complied with the scheduling order and missed the deadline to file the proof of service for her letter brief. ECF No. 13. On September 25, 2019, plaintiff filed a statement with the court using the assistance of a non-lawyer, Ms. Underwood. ECF No. 14.

         Local Rule 183(a) prohibits any person appearing without counsel from having another person appear on her behalf. Plaintiff may not delegate her duty to appear on her own behalf “to any other individual.” Local R. 183(a). A plaintiff must either obtain counsel or appear on her own behalf. See Id. Therefore, neither Ms. Underwood nor any other non-lawyer may file documents on behalf of plaintiff.

         Given plaintiff's unrepresented status, and the fact that plaintiff's filing included her own signed statement, I will consider her letter to the court. See ECF No. 14 at 3. I find good cause for plaintiff's failure to prosecute and hereby discharge my order to show cause.

         To help plaintiff further, I provide clarification on the process before this court below. Additionally, I extend the briefing schedule to allow the parties more time to discuss informal resolution before filing formal briefs with the court.

         I. Discussion

         A. Opportunity for Informal Resolution

         Under to the scheduling order, within one hundred twenty (120) days after service of the complaint, defendant is required to serve a copy of the administrative record on plaintiff and file the administrative record with the court, which serves as the answer to the complaint in this proceeding.

         Once the administrative record has been filed, the parties must try to resolve the case informally. In this process, the parties must exchange informal briefs in the form of letters about the case to see if they can agree that the case should be sent back, or “remanded, ” to the Social Security Administration for a further hearing by an administrative law judge.

         In the letter brief, plaintiff must briefly set forth (1) the issues in the case, (2) the reasons why plaintiff thinks that plaintiff is disabled, and (3) why the decision that plaintiff was not disabled should be remanded.

         The letter brief must be marked “Confidential Letter Brief, ” should not be filed with the court, and must be served on defendant within thirty (30) days from the date defendant served plaintiff with the administrative record, by mailing copies to all the attorneys listed on the court docket as representing defendant, Commissioner of Social Security, at the addresses noted on the court docket.

         Defendant's confidential letter brief must be served on plaintiff no later than thirty-five (35) days after defendant is served with plaintiff's confidential letter brief.

         If the parties agree to a remand, then the case will go back to the Social Security Administration before any formal briefs are filed with the court, and without the court ever considering the merits of the case. The parties' agreement to remand the case must be set forth in writing in a document titled “Stipulation and Order, ” which must be signed and filed with the court no later than fifteen (15) days after defendant served its confidential letter brief on plaintiff. See Local Rule 143(a)(1) & (b).

         The informal letter briefs exchanged by the parties are confidential in the sense that they are not filed with the court. If the parties are unable to agree to a remand, the letters are not part of the case file and, thus, are not before the court if the court finally considers the case on the merits.

         It appears from the docket that the parties have not served each other with letter briefs. Therefore, I will give plaintiff thirty days to serve defendant with her letter brief and file a proof of service with the court. The contact ...


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