Olayo v. Saul

1 CHRISTOPHER CHIOU Acting United States Attorney District of Nevada Nevada Bar No. 14853 ALLISON J. CHEUNG, CSBN 244651 Special Assistant United States Attorney 160 Spear Street, Suite 800 San Francisco, California 94105 Telephone: (510) 970-4811 Facsimile: (415) 744-0134 E-Mail: [email protected] Attorneys for Defendant 11 UNITED STATES DISTRICT COURT 12 DISTRICT OF NEVADA GABRIELLE S. OLAYO, ) ) Case No.: 2:21-cv-00205-EJY 14 Plaintiff, ) ) UNOPPOSED MOTION FOR EXTENSION OF 15 vs. ) TIME ) ANDREW SAUL, ) (FIRST REQUEST) Commissioner of Social Security, ) 17 ) Defendant. ) 18 ) 1 Defendant, the Acting Commissioner of Social Security (the “Commissioner”), through the undersigned counsel, hereby requests an extension of time to file her Cross-Motion to Affirm and Response to Plaintiff’s Motion for Reversal and/or Remand, which is currently due on or before September 7, 2021.

4 In addition to arguments addressing the final decision on her individual claim, Plaintiff’s brief contains a sweeping constitutional claim challenging the structure of the Social Security Administration.

6 Plaintiff did not assert a constitutional claim challenging the agency’s structure in her complaint, so the government did not have “fair notice of what the . . . claim is and the grounds upon which it rests.’” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

9 Developing an appropriate response to Plaintiff’s constitutional claim will require extensive consultation and coordination between the Social Security Administration and the Department of Justice.

11 That consultation and coordination will include consideration of Supreme Court decisions issued in late June 2021, including Collins v. Yellen, 141 S. Ct. 1761 (2021) (addressing constitutional challenge to structure of Federal Housing Finance Agency and related remedial and other issues).

14 Should the Court wish to entertain the constitutional claim as part of the current briefing without requiring Plaintiff to seek consent or leave to file an amended complaint, Defendant requests a 30-day extension, up through and including October 7, 2021, within which to file her response.

17 On August 30, 2021, the undersigned conferred with Plaintiff’s counsel, who has no opposition to the requested extension.

19 It is therefore respectfully requested that Defendant be granted a 30-day extension of time to file her Cross-Motion to Affirm and Response to Plaintiff’s Motion for Reversal and/or Remand, through and including October 7, 2021.

22 // // // // // 1 Dated: August 30, 2021 CHRISTOPHER CHIOU 2 Acting United States Attorney 3 /s/ Allison J. Cheung ALLISON J. CHEUNG 4 Special Assistant United States Attorney 8 SO ORDERED: 10 UNITED STA AGISTRATE JUDGE 11 DATED: August 31, 2021