Procedural Hurdles in District Court


How to Survive the Briar Patch

Prepared for the National Organization of Social Security Claimants’ Representatives
2003 Spring Conference, in Washington, D.C.
April 9, 2003
Charles L. Martin and Carolyn Kubitschek

Table of Contents

I. Introduction

B. A sample of the Roose succinct style

  • The beginner should approach style warily, realizing that it is himself he is approaching, no other; and he should begin by turning resolutely from all devices that are popularly believed to indicate style—all mannerisms, tricks, adornments. The approach to style is by way of plainness, simplicity, orderliness, simplicity.
  • Strunk and White, The Elements of Style
  • Remember to throw the corn where the short legged hogs can get to it.
  • The Honorable Stanley Birch, Judge, Eleventh Circuit Court of Appeals

I. Introduction

  • Title: Procedural Hurdles in District Court; or How to Survive the Briar Patch
  • Description: This workshop will be a participatory exploration of all the hot water you can get into in federal court, with recipes, good and bad, for tasty soup you can cook with yourself as the principal ingredient. Bring your own conundrums, and your favorite recipes, and be ready to step up to the mike whether called on or not.

II. Initiation

A. What can I do when hired the day before the deadline?

  1. File, then investigate.
  2. Request extension of time from AC, then investigate.
  3. Send client to file pro se complaint

B. When can I use a mandamus?

C. How do I return to court after court remand?

  1. Sentence four remand
  2. Sentence six remand

D. Dealing with subsequent appeals in court

III. Pre-judgment motions

A. Procedural motions

  1. Responding to requests for extension of time to answer or motions to remand to search for the file
  2. Voluntary dismissals
  3. Responding to a motion to dismiss
  4. Requesting permission to file surreply
  5. Responding to request for permission to file surreply
  6. Motions to supplement the record
  7. Motions to exceed the page limit
  8. Motions for discovery

B. Substantive motions

  1. Requesting RVRs
  2. Responding to RVRs; negotiating over remand language
  3. Objecting to RVRs (e.g. Herman Manual)
    The government filed a motion to remand for a new hearing to reconsider the claimant’s treating physician’s opinion. I objected, asking that the court enter judgment for plaintiff with remand which applied the Eleventh Circuit’s rule that failure to properly reject the treating physician’s opinion and the claimant’s credibility requires that they be considered true as a matter of law.
  4. Dealing with subsequent applications in remand orders

IV. Post-judgment motions

A. Filing motions to remand for new evidence after judgment

B. Rule 59 motions

C. Responding to Rule 59 motions

D. Rule 60 motions

E. Motions for contempt (re: delay in effectuating order, unwillingness to do so, etc.)

V. Fees

A. Fees under 406(b) and EAJA



VII. Conclusion

VIII. Resources

IX. Appendix