1 CHRISTOPHER CHIOU Acting United States Attorney 2 District of Nevada 3 Nevada Bar No. 14853 4 ALLISON J. CHEUNG, CSBN 244651 Special Assistant United States Attorney 5 160 Spear Street, Suite 800 San Francisco, California 94105 6 Telephone: (415) 977-8911 Facsimile: (415) 744-0134 7 E-Mail: [email protected] 8 Attorneys for Defendant 9 10 11 UNITED STATES DISTRICT COURT 12 DISTRICT OF NEVADA 13 DAVID EQUIHUA, ) ) Case No.: 2:21-cv-01912-EJY 14 Plaintiff, ) ) MOTION TO BE RELIEVED OF PROVIDING 15 vs. ) CD COPY OF THE CERTIFIED ) ADMINISTRATIVE RECORD 16 KILILO KIJAKAZI, ) Acting Commissioner of Social Security, ) 17 ) Defendant. ) 18 ) 19 20 21 22 23 24 25 26 1 MOTION 2 Pursuant to Local Rule IA 1-4, Defendant, the Acting Commissioner of Social Security (Defendant 3 or Commissioner), respectfully moves for an order to change, dispense with, or waive the requirement that 4 the Commissioner provide the Court with a copy of the certified administrative record (CAR) on a compact 5 disc (“CD”). This motion is based on the following memorandum of points and authorities, along with the 6 papers and pleadings on file. 7 MEMORANDUM OF POINTS AND AUTHORITIES 8 I. INRODUCTION 9 In Social Security disability cases, Defendant must file the CAR with Defendant’s answer pursuant 10 to

(g). In pre-COVID practice, Defendant would provide a paper copy of the CAR to the 11 chambers of the presiding judge per Local Rule IC 2-2(g). Pre-COVID scheduling orders in Social Security 12 cases also typically required that Defendant submit a both a paper copy and an electronic copy of the CAR, 13 under seal, to the Court. In addition, Defendant provided the Court with a copy of the CAR on a CD in 14 each case. 15 As will be explained in more detail below, due to the COVID-19 pandemic, the Social Security 16 Administration has been unable to prepare certified paper and CD copies of the CAR for courts of this 17 district. This Court has in the past denied the Commissioner’s motions to be relieved of providing a paper 18 copy of the CAR to the Court.1 As such, Defendant hereby requests that this Court change, dispense with, 19 or waive the requirement that Defendant provide the Court with a CD copy of the CAR. In addition, 20 Defendant will file an electronic copy of the CAR (e-CAR) under seal using an event in CM/ECF that will 21 be accessible to all case participants, including counsel of record.2 22 1 Defendant is concurrently filing a motion for an extension of time to provide the Court with a paper 23 copy of the CAR. 2 While Defendant has previously requested permission from the court to file the e-CAR under seal, Fed. 24 R.Civ. P. 5.2(c) provides that electronic access to the court’s docket is authorized for parties and their 25 attorneys of record. In addition, Local Rule IA 10-5 allows for sealed filings when “permitted by statute, rule, or prior court order.” As such, Defendant is not required to seek permission from the court to file 26 the e-CAR under seal, and the Clerk’s Office has changed the sealing instructions in CM/ECF to now 1 II. ARGUMENT 2 A. Local Rule IA 1-4 3 L.R. IA 1-4 provides that “[t]he court may sua sponte or on motion change, dispense with, or waive 4 any of [the local rules] if the interests of justice so require.” This rule has been applied to, for example, 5 waive the requirements of L.R. IA 10-3(e), which required that the cover page of each exhibit include a 6 description of the exhibit. Gant v. Williams, No. 2:16-cv-00528-JAC-NJK,

, at *1 7 (respondents argued that adding descriptors to the cover page of each exhibit was unduly burdensome given 8 the large number of exhibits in the case). 9 B. This Court Should Find under Local Rule IA 1-4 That the Interests of Justice Are Served By Waiving the Requirement that Defendant Provide a CD Copy of the CAR 10 to the Court. 11 Defendant, the Acting Commissioner of Social Security, by her undersigned attorneys, provides 12 notice to the Court and Plaintiff that an electronic copy of the CAR has been prepared and can now be filed 13 in this matter. However, at this time, employees of the Social Security Administration’s Office of 14 Appellate Operations (OAO)—which is responsible for the preparation of CARs for the agency—remain 15 subject to the agency-wide evacuation order due to the COVID-19 pandemic. See

16 (permitting agencies to order employees to evacuate their worksite and work from home during a pandemic 17 health crisis). As a result, OAO is limited on the number of staff permitted to physically enter the office 18 to perform onsite work; the majority of the work is performed via telework. See

The few employees 19 permitted to occasionally report to OAO’s physical work site in Falls Church, Virginia are currently limited 20 to reporting on a rotational basis to perform a number of OAO’s most vital duties, such as converting paper 21 claim files to electronic format, physically searching for missing paper claims files, processing mail, and 22 completing urgent business that cannot be handled remotely.3 Given the limited staff and overall volume 23 the e-CAR under seal using the “Certified Administrative Record” event in CM/ECF, which the Court and all counsel of record will have access to. 24 3 See generally Social Security Administration’s COVID-19 Workplace Safety Plan, available at 25 https://www.ssa.gov/coronavirus/assets/materials/ssa-covid-19-workplace-safety-plan.pdf, p.1: Telework and Remote Work (“We have maximized telework and are performing all portable work remotely. . . . We 26 have a small number of employees and managers working in offices to handle workloads that must be 1 || of cases, OAO is unable to provide CD copies of the CAR—which this Court typically requires. At thi 2 || time, OAO does not have a timeframe for when staff will be able to return to the office on a more regula 3 || basis. 4 Pursuant to Local Rule IA 1-4 and in the interests of justice, the Commissioner hereby requests tha 5 || she be relieved of the requirement of providing a CD copy of the CAR for the Court. The Commissione 6 || will file the e-CAR under seal such that the Court and counsel of record can access the CAR throug 7 ||CM/ECF. This will allow for the case to move forward without delay. 8 CONCLUSION 9 Despite diligent efforts to ameliorate the impacts of the pandemic, it continues to impact th 10 |} Commissioner’s ability to process SSA disability appeal cases, including the ability to prepare CD copie 11 |}of CARs. The Court should exercise its discretion by waiving the requirement to provide the Court with. 12 copy of the CAR. 13 14 Dated: March 2, 2022 CHRISTOPHER CHIOU 15 Acting United States Attorney 16 /s/ Allison J. Cheung ALLISON J. CHEUNG 17 Special Assistant United States Attorney 18 19 20 ITJS SO ORDERED: 21 . 59 UNITED STATES GISTRATE JUDGE

33 DATED: March 2, 2022

24 25. || appointments for critical issues.”), p.5: Occupancy (“SSA offices remain closed to all individuals except 26 || those approved by management including both employees and a limited number of visitors with scheduled appointments.”).