Butcher v. Commissioner of Social Security, No. 2:2020cv00875 - Document 13 (D. Nev. 2020)
Court Description: ORDER Granting 12 Motion to Extend Time re 5 Complaint (Second Request). Andrew Saul answer due 12/29/2020. Signed by Magistrate Judge Brenda Weksler on 10/30/2020. (Copies have been distributed pursuant to the NEF - MR)
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Butcher v. Commissioner of Social Security Doc. 13 Case 2:20-cv-00875-BNW Document 13 12 Filed 10/30/20 10/26/20 Page 1 of 6 1 2 3 4 5 NICHOLAS A. TRUTANICH United States Attorney District of Nevada NICHOLAS A. TRUTANICH United States Attorney District of Nevada 8 Chantal Jenkins, PASBN 307531 Special Assistant United States Attorney 160 Spear Street, Suite 800 San Francisco, California 94105 Telephone: (415) 977-8931 Facsimile: (415) 744-0134 E-Mail: Chantal.Jenkins@ssa.gov 9 Attorneys for Defendant 6 7 10 11 12 UNITED STATES DISTRICT COURT 13 DISTRICT OF NEVADA 14 JAMES C. BUTCHER, 15 Plaintiff, 16 17 18 19 vs. ANDREW SAUL, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) Case No.: 2:20-cv-00875-BNW [UNOPPOSED] MOTION FOR EXTENSION OF TIME TO FILE CERTIFIED ADMINISTRATIVE RECORD AND ANSWER; DECLARATIONS OF JEBBY RASPUTNIS AND CHRISTIANNE VOEGELE; [PROPOSED] ORDER (SECOND REQUEST) 20 21 22 23 24 25 26 Dockets.Justia.com Case 2:20-cv-00875-BNW Document 13 12 Filed 10/30/20 10/26/20 Page 2 of 6 1 2 3 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 an Answer to Plaintiff’s Complaint and the electronic Certified Administrative Record (eCAR), changing the date on which the 4 5 6 Answer is due from the current due date of October 30, 2020, to the new due date of December 29, 2020. This is Defendant’s second request for an extension. The Court granted Defendant’s previous request for 7 an extension on August 31, 2020. Counsel for Defendant contacted Counsel for Plaintiff on October 26, 8 2020, who confirmed that Plaintiff does not object to this request. 9 10 Defendant makes this request in good faith and for good cause, because the eCAR, which must be filed with the Answer and is necessary to adjudicate the case, is not yet available. The public health 11 emergency pandemic caused by COVID-19 has significantly impacted operations in the Social Security 12 13 Administration’s Office of Appellate Operations (OAO) in Falls Church, Virginia, which is responsible 14 for producing the eCAR that must be filed with the Answer, per 42 U.S.C. §§ 405(g) and (h). Prior to the 15 COVID-19 pandemic, to safeguard Personally Identifiable Information (PII), all hearing recordings, 16 which are part of the administrative record, were downloaded onto compact discs and encrypted. OAO 17 securely routed the encrypted discs to a private contractor through a daily pickup and delivery service at 18 the Official Duty Station (ODS) in Falls Church, Virginia. The private contractor would transcribe the 19 hearing recording and send the paper copy of the hearing transcript back to OAO. OAO personnel would 20 21 then scan the hearing transcript into the electronic record or place the hearing transcript in the paper case 22 file. Thereafter, OAO personnel would assemble the administrative record in a prescribed order. After 23 the advent of COVID-19, the Agency has taken a number of concrete steps to transition its years-old in 24 person CAR preparation process to a fully virtual one. 25 26 As detailed in the attached declarations from Jebby Rasputnis, Executive Director of the OAO, and Christianne Voegele, Chief of the Court Case Preparation and Review Branch 1, and Acting Chief of Unopposed Mot. for Ext (Second Request); Butcher v. Saul, No. 2:20-cv-00875-BNW 1 Case 2:20-cv-00875-BNW Document 13 12 Filed 10/30/20 10/26/20 Page 3 of 6 1 2 3 the Court Case Preparation and Review Branch 3, of OAO, OAO has been actively pursuing mitigation efforts to allow the remote preparation of administrative records to ensure a continuity of operations. For cases in which the private contractors were already in possession of hearing recordings for transcription, 4 5 6 with the assistance of the Office of Acquisitions and Grants (OAG), OAO received approval to receive these transcripts from the private contractors via secured email, e.g., using password protection and 7 redacted Social Security Numbers. In April 2020, OAO began receiving such hearing transcripts from 8 private contractors via secured email. 9 10 For cases in which OAO had not yet submitted recordings to the private contractors before March 16, 2020, OAO has been pursuing all available options to obtain transcriptions for these cases. In May 11 2020, OAO began encrypting hearing recordings and securely emailing them to the contractors for 12 13 14 15 transcription. Through the month of May, OAO and the contractors worked to resolve technical issues that arose, particularly with large files. As indicated by the Rasputnis declaration, the Commissioner must navigate and overcome five 16 simultaneous challenges as it transitions the preparation of eCARs from an in-person process to a 17 completely virtual one: 18 1. Obtaining the appropriate technology, subject to Federal purchasing rules; 19 2. Retraining staff on the new procedures and new technology, which differ quite dramatically 20 21 from the old ones; 22 3. Adhering to the Federal government protections for personally identifiable information (PII); 23 4. Working with outside vendors for transcription services, including obtaining a new vendor 24 25 26 subject to Federal contracting rules; and 5. Completing security clearance processes for any new employees and any employees of new vendors before allowing access to PII and other sensitive information of the vendors. While the agency Unopposed Mot. for Ext (Second Request); Butcher v. Saul, No. 2:20-cv-00875-BNW 2 Case 2:20-cv-00875-BNW Document 13 12 Filed 10/30/20 10/26/20 Page 4 of 6 1 2 3 has worked hard to overcome challenges related to this transition, the agency estimates that it is producing CARs at approximately one-third of the level of production pre-COVID, with the hopes of increasing that rate over the next several weeks. 4 5 6 In March, April, and May 2020, during the initial stages of the pandemic, Defendant requested a 90-day extension when the CAR was unavailable. Now that OAO has regained some capability of 7 producing transcripts, the Commissioner has reduced the length of extension requested to 60 days. In 8 this case, given the volume of pending cases, Defendant requests a 60-day extension in which to respond 9 to the Complaint. 10 Accordingly, the Commissioner requests that this Court grant his motion for a 60-day extension in 11 which to file an Answer and lodge the eCAR, changing the date on which the Answer is due from the 12 13 current due date of October 30, 2020, to the new due date of December 29, 2020. Counsel for Defendant 14 further states that the Office of General Counsel (OGC) is monitoring receipt of transcripts on a daily 15 basis and is committed to filing Answers promptly upon receipt and review of the administrative records. 16 Counsel for Defendant apologizes to the Court and Counsel for Plaintiff for any inconveniences caused 17 by this delay. 18 19 20 21 Dated: October 26, 2020 22 IT IS SO ORDERED 23 DATED: 4:34 pm, October 30, 2020 24 Respectfully submitted, NICHOLAS A. TRUTANICH United States Attorney /s/ Chantal R. Jenkins Chantal R. Jenkins Special Assistant United States Attorney 25 26 BRENDA WEKSLER UNITED STATES MAGISTRATE JUDGE Unopposed Mot. for Ext (Second Request); Butcher v. Saul, No. 2:20-cv-00875-BNW 3 Case 2:20-cv-00875-BNW Document 13 12 Filed 10/30/20 10/26/20 Page 5 of 6 1 IT IS SO ORDERED: 2 3 UNITED STATES MAGISTRATE JUDGE 4 DATED: ___________________________ 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Unopposed Mot. for Ext (Second Request); Butcher v. Saul, No. 2:20-cv-00875-BNW 4 Case 2:20-cv-00875-BNW Document 13 12 Filed 10/30/20 10/26/20 Page 6 of 6 1 CERTIFICATE OF SERVICE 2 I, the undersigned, am a citizen of the United States and am at least eighteen years of age. My 3 business address is 160 Spear Street, Suite 800, San Francisco, California 94105. I am not a party to the 4 5 6 above-entitled action. On the date set forth below, I caused service of UNOPPOSED MOTION AND PROPOSED ORDER FOR EXTENSION OF TIME TO FILE CERTIFIED ADMINISTRATIVE RECORD AND ANSWER; DECLARATION OF JEBBY RASPUTNIS; on the following parties by 7 electronically filing the foregoing with the Clerk of the District Court using its ECF System, which 8 provides electronic notice of the filing: 9 10 11 12 Hal Taylor 223 Marsh Avenue Reno, NV 89509 775-825-2223 Fax: 775-329-1113 Email: haltaylorlawyer@gbis.com 13 14 I declare under penalty of perjury that the foregoing is true and correct. 15 Dated: October 26, 2020 16 17 18 /s/ Chantal R. Jenkins CHANTAL R. JENKINS Special Assistant United States Attorney 19 20 21 22 23 24 25 26 Unopposed Mot. for Ext.; Butcher v. Saul, No. 2:20-cv-00875-BNW
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