United States District Court, W.D. Washington
ORDER TO SHOW CAUSE
Richard Creatura United States Magistrate Judge
This matter has been referred to United States Magistrate
Judge J. Richard Creatura pursuant to 28 U.S.C. §
636(b)(1) and Local Magistrate Judge Rule MJR 4(a)(4), and as
authorized by Mathews, Secretary of H.E.W. v. Weber,
423 U.S. 261, 271-72 (1976).
case is before the Court on plaintiff's failure to comply
with the Court's Scheduling Order and failure to
prosecute this case.
Court's initial Scheduling Order, (Dkt. 12), was dated
and mailed to plaintiff on November 9, 2016. This Order
directed plaintiff to file an opening brief on or before
December 12, 2016. See id. Plaintiff filed a motion
for continuance of the scheduling order on December 8, 2016
(Dkt. 13) and the Court granted plaintiff's motion. Dkt.
14. Plaintiff's opening brief then was due on or before
January 20, 2017. See id. Plaintiff has failed to
file an Opening Brief.
initial Scheduling Order provides in pertinent part:
(1) Plaintiff's Opening Brief
(a) Beginning on page one, plaintiff shall list the errors
alleged (for example, “Issue No. 1 - The ALJ failed to
properly evaluate plaintiff's subjective complaints of
pain.”), followed by a clear statement of the relief
requested. A general statement of an issue, such as
“the ALJ's decision to deny benefits is not
supported by substantial evidence, ” is unacceptable.
Assignments of error that are not listed in this section of
the opening brief will not be considered or ruled upon.
(b) Plaintiff shall provide a brief summary of the relevant
procedural history of the case. Plaintiff shall not include a
lengthy recitation of background facts or medical evidence in
this section. Discussion of the relevant facts must be
presented in the argument section in the context of the
specific errors alleged.
(c) Subsequent sections of the opening brief must fully
explain each issue raised in the assignments of error and
must include citations to the specific pages of the
administrative record and the relevant legal authority that
support each argument and request for relief.
Dkt. 12, p. 2.
appealed the denial of her Social Security applications by
filing this lawsuit and thus has the responsibility to
explain to the Court (1) specifically what the ALJ did wrong,
(2) what evidence supports this position, and (3) why the
ALJ's error was harmful, i.e., why it affected
the outcome of the case. This responsibility is met by filing
an opening brief. The opening brief is important because it
informs everyone of the specific claims plaintiff wishes the
Court to address, and gives the Acting Commissioner an
opportunity to respond. Without an opening brief, the Court
would have to guess at what claims plaintiff intends to
present. Additionally, the Court cannot act as the lawyer for
either side, that is, the Court cannot make arguments on
behalf of a party and cannot decide the case based on issues
that the parties have not raised.
Acting Commissioner filed a responsive brief “[o]ut of
abundance of caution.” Dkt. 15. But only after both
plaintiff and the Acting Commissioner file their briefs, will
the Court be in a position to review the arguments made by
both sides and issue a decision. In this case,
plaintiff's failure to file an opening brief not only
deprives the Court of knowing what claims she wishes the
Court to review, it also violates the Court's Scheduling
Order. If plaintiff does not demonstrate that she failed to
file her brief with just cause, the Court could dismiss the
case. Local Civil Rule 11(c); see, also Fed. R. Civ.
P. 41(b). Given the circumstances in this case, however, the
Court would prefer to decide the case on the merits and does
not deem the drastic measure of dismissal appropriate at this
Court therefore ORDERS:
Mandy Rae Foulks, plaintiff, must submit to the Court by
April 21, 2017 a brief explaining what the ALJ did wrong,
with citations to the Administrative Record; what evidence
supports plaintiff's position; and why the ALJ's
error was harmful, and ...