Brand v. Saul, No. 2:2020cv02219 - Document 13 (D. Nev. 2021)
Court Description: ORDER granting 12 Motion to Extend Time to Answer 5 Complaint. Andrew Saul's Answer and the Certified Administrative Record are due 6/7/2021. Signed by Magistrate Judge Nancy J. Koppe on 4/5/2021. (Copies have been distributed pursuant to the NEF - DRS)
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Brand v. Saul Doc. 13 Case 2:20-cv-02219-NJK Document 12 Filed 04/02/21 Page 1 of 4 1 CHRISTOPHER CHIOU Acting United States Attorney 2 District of Nevada 3 Nevada Bar No. 14853 4 MARCELO ILLARMO, MABN 670079 Special Assistant United States Attorney 5 160 Spear Street, Suite 800 San Francisco, California 94105 6 Telephone: (415) 977-8944 7 Facsimile: (415) 744-0134 E-Mail: marcelo.illarmo@ssa.gov 8 Attorneys for Defendant 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF NEVADA 11 12 LORA BRAND 13 Plaintiff, 14 v. 15 ANDREW SAUL, Commissioner of Social Security, 16 Defendant. ) ) ) ) Case No.: 2:20-cv-02219-NJK ) ) ) UNOPPOSED MOTION FOR EXTENSION ) OF TIME (SECOND REQUEST) ) ) ) 17 18 19 Defendant, Andrew Saul, Commissioner of Social Security (the “Commissioner”), by and 20 through his undersigned attorneys, hereby moves for a 62-day extension of time to file Defendant’s 21 Electronic Certified Administrative Record and Answer to Plaintiff’s Complaint. Defendant’s 22 Electronic Certified Administrative Record and Answer to Plaintiff’s Complaint are due to be filed 23 by April 6, 2021. 24 Defendant makes this request in good faith and for good cause, because the CAR, which 25 must be filed with the Answer and is necessary to adjudicate the case, is not yet available. The 26 public health emergency pandemic caused by COVID-19 has significantly impacted operations in Dockets.Justia.com Case 2:20-cv-02219-NJK Document 12 Filed 04/02/21 Page 2 of 4 1 the Social Security Administration’s Office of Appellate Operations (OAO) in Falls Church, 2 Virginia, which is responsible for producing the CAR that must be filed with the Answer, per 42 3 U.S.C. §§ 405(g) and (h). As detailed in the attached declaration from Jebby Rasputnis, Executive 4 Director of the OAO, beginning mid-March 2020, OAO restricted physical access to the Falls 5 Church building, which impacted the production of CARs because physical access was previously 6 required to produce CARs. OAO has since developed and employed a new business process to 7 produce CARs. Much of the difficulty in producing CARs stemmed from the old process of 8 transmitting hearing recordings to vendors for transcription, how the vendors transcribed the 9 recordings, and how the vendors provided the completed transcripts to OAO. OAO changed this 10 process by reworking how the audio files are submitted, seeking additional vendor capacity, and 11 increasing in-house transcription capacity. With these changes, OAO is now able to produce more 12 than 700 transcripts a week, a significant increase over the pre-COVID-19 average of 300–400 13 hearing transcripts a week. 14 Despite these improvements, OAO still faces a significant backlog of cases due to the 15 combined effects of pandemic-related disruption and a marked increase in district court filings (up 16 almost 800 cases per month, a 54% increase). Overall, the timeframe for delivering a CAR in an 17 individual case has improved, and the current average processing time is 138 days. Because of this, 18 OAO is making progress in its backlog of cases. At the end of January 2021, OAO had 11,111 19 pending cases. At the end of February 2021, OAO had 10,679 pending cases, representing a 20 decrease in our backlog of more than 400 cases. OAO continues to work on increasing productivity 21 by collaborating with our vendors and searching out and utilizing technological enhancements. 22 Defendant asks this Court for its continued patience as OAO works to increase its efficiency and 23 production of CARs, reduce the current backlog, and address rising court case filings. Counsel for 24 Defendant further states that the Office of General Counsel (OGC) is monitoring receipt of 25 transcripts on a daily basis and is committed to filing Answers as soon as practicable upon receipt 26 and review of the administrative records. 2 Case 2:20-cv-02219-NJK Document 12 Filed 04/02/21 Page 3 of 4 1 Given the volume of pending cases, Defendant requests an extension in which to respond to 2 the Complaint until June 7, 2021. If Defendant is unable to produce the certified administrative 3 record necessary to file an Answer in accordance with this Order, Defendant shall request an 4 additional extension prior to the due date. 5 The undersigned affirms that opposing counsel does not object to the requested extension. 6 It is therefore respectfully requested that Defendant be granted an extension of time to file 7 the CAR and answer to Plaintiff’s Complaint, through and including June 7, 2021. 8 9 10 Dated: April 2, 2021 11 Respectfully submitted 12 CHRISTOPHER CHIOU Acting United States Attorney 13 /s/ Marcelo Illarmo MARCELO ILLARMO Special Assistant United States Attorney 14 15 16 IT IS SO ORDERED: 17 _________________________________ UNITED STATES MAGISTRATE JUDGE 18 19 April 5, 2021 DATED:______________________ 20 21 22 23 24 25 26 3 Case 2:20-cv-02219-NJK Document 12-1 Filed 04/02/21 Page 1 of 5 DECLARATION OF JEBBY RASPUTNIS OFFICE OF APPELLATE OPERATIONS SOCIAL SECURITY ADMINISTRATION I, JEBBY RASPUTNIS, Executive Director of the Social Security Administration’s Office of Appellate Operations (OAO), declare and state as follows: 1) My office is responsible for, among other things, preparing certified copies of administrative records (CARs) for Federal court review when claimants appeal the final decisions of the Commissioner of Social Security. 2) Beginning in mid-March of 2020, the Social Security Administration (agency) restricted physical access to our buildings because of the COVID-19 pandemic. Since that time, OAO has been working to overhaul, redo, refine, and streamline our business processes to continue operations and meet our mission to serve the public. Despite many challenges in transitioning to a completely new business process, we have reached and surpassed pre-pandemic levels of electronic CAR production. Much of the delay and uncertainty in the CAR production process has stemmed from how we transmit hearing recordings to our vendors, and how our vendors return completed transcripts to us. We have worked hard to refine this process as well as implementing new processes, updating vendor agreements, and making staffing changes. These included: • reworking how we transmit the audio files to our vendors from a fully in-person exchange of CDs and completed transcripts to a now fully direct access and electronic exchange of completed transcripts; • seeking additional vendor capacity; and • leveraging in-house transcription capacity by establishing a transcription cadre with updated technology and working with agency closed captioners. Page 1 of 5 Case 2:20-cv-02219-NJK Document 12-1 Filed 04/02/21 Page 2 of 5 3) We are now, between our vendors and our in-house efforts, able to produce more than 700 transcripts1 on an average work week. Prior to the COVID-19 pandemic, we averaged 300-400 hearing transcriptions per week. 4) As we worked to transition this workload, and our external vendors, to a fully virtual process, the number of new cases filed in federal court also increased.2 This was a direct result of the agency’s initiative to reduce the number of requests for administrative review pending before the Appeals Council, the final step of the administrative process. While we had planned for this increase, the combined effects of the pandemic-related disruptions and the increase in new court filings lead to a significant backlog in CAR preparation. However, as a result of our process improvements and increased production capacity from our contracted transcription vendors, we now have begun reducing our pending backlog. At the end of January 2021 we had 11,111 pending cases. At the end of February 2021 we had 10,679 pending cases, representing a decrease in our backlog of more than 400 cases. 1 Individual cases often have more than one hearing to transcribe. In the last quarter of fiscal year 2020 and the first quarter of fiscal year 2021, we averaged more than 2,257 new case receipts per month, compared to an average of 1,458 new case receipts in the last quarter of fiscal year 2019 and the first quarter of fiscal year 2020. See also Chief Justice Roberts’ 2020 Year-End Report on the Federal Judiciary, Appendix Workload of the Courts, available at https://www.supremecourt.gov/publicinfo/year-end/2020year-endreport.pdf (“Cases with the United States as defendant grew 16% [in FY20], primarily reflecting increases in social security cases and prisoner petitions.”) 2 Page 2 of 5 Case 2:20-cv-02219-NJK Document 12-1 Filed 04/02/21 Page 3 of 5 The following chart shows OAO’s receipts, dispositions 3 and pending CAR workload for the first five months of FY2021. Time Period New Court Case Receipts Dispositions Pending OCT 2020 3,074 2,115 9,693 NOV 2020 1,999 1,483 10,209 DEC 2020 1,703 1,672 10,240 JAN 2021 2,638 1,767 11,111 FEB 2021 1,880 2,312 10,679 5) OAO continues to address the significant workflow fluctuations the agency has experienced since approximately March 2020. The following line graph tracks three different workflow measures since the beginning of FY2019 and how they intersect: a. Green: requests for review decided by the Appeals Council; b. Blue: new federal court cases filed by plaintiffs; and c. Gold: CARs docketed by the Office of the General Counsel. 4 3 While dispositions primarily include CARs for filing with the court, it also includes requests for remand to the ALJ for further actions, and other actions. https://www.ssa.gov/appeals/DataSets/08_National_New_Court_Cases_and_Remands.html 4 For Appeals Council dispositions (green line) and new federal court case filings (blue line), the graph is based on publicly-available data through December 2020. See https://www.ssa.gov/appeals/publicusefiles.html. The data for more recent months, as well as all of the data for CAR docketing (gold line), are drawn from the agency’s internal case tracking systems. Page 3 of 5 Case 2:20-cv-02219-NJK Document 12-1 Filed 04/02/21 Page 4 of 5 The graph shows the deviation from the average for each of these three workflow measures. 5 Notably, this visual representation illustrates the rapid changes that began in March 2020 and continue to date. 6) Overall, the timeframe for delivering an electronic CAR in any individual case has improved. The current average processing time is 138 days. Although we remain subject to some constraints, we continue to work on increasing productivity by collaborating with our vendors and searching out and utilizing technological enhancements. We ask for continued patience as we work to increase our efficiency and production of CARs, reduce the current backlog, and address rising court case filings. 5 The averages are calculated since October 2018. By way of example, in March 2020, OGC docketed about 80% fewer CARs than average, while the Appeals Council acted on about 60% more requests for review than average. Page 4 of 5 Case 2:20-cv-02219-NJK Document 12-1 Filed 04/02/21 Page 5 of 5 In accordance with 28 U.S.C. §1746, I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Dated: March 17, 2021 Silver Spring, MD Page 5 of 5 /s/ ______________________________ Jebby Rasputnis
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