Rules Matter -- Cuevas v. Hartley and Kozinski's Dissent

Run of the mill ... ho hum.  Cuevas v. Hartley is just another habeas case.  But it represents much more -- a practice that Judge Alex Kozinski labels a game of "dare."  From the former Chief Judge's perspective, attorneys file oversized briefs at the last minute with a motion to permit the filing of a brief that violates the court rules that just dare the court to reject the brief and say "no." 

The passive-aggressive posture adopted by counsel that disrespects the court's case load.  A judicial officer has to manage his/er docket.  That is job number one.  Attorneys for a party must act ethically first, as the fiduciary to the client second, and to facilitate the court as a third priority.  I saw this in an order from the Eastern District of California last month, Salinas v. Colvin. 

The government attorney asked for a third extension of time to file a brief in opposition.  The court did not find good cause and took the matter under submission.  Judge Grossjean previously warned: "extensions based on demands of other cases are disfavored" and that "no further extensions will be permitted absent extraordinary circumstances." The court noted that the extension would put the matter 90 days behind schedule, did not articulate good cause, and got filed after the due date for the brief. 

Cuevas and Salinas may mark a turning point where the courts correct the relationship -- attorneys facilitate the courts' management of their docket; courts do not facilitate attorneys' management of time.  Some balance is in order but filing for a fat brief the day it is due or filing for a late brief after it was due are just disrespectful.  Rules matter, try to comply. 

Production Workers, all other SOC 51-9199

During the last couple of years, I have struggled with the administrative notice provisions of the Social Security regulations.  20 CFR 404.1566(d).  The Occupational Outlook Handbook did not have a detailed entry for this massive aggregation of DOT codes.  Nor did it have this group of occupations on the list of occupational groups not covered in detail. 

For the 2014 publication of job numbers, the OOH does now.  Listing 51-9199 on the occupations not covered in detail fills in a large hole in the OOH.  The group contains either 1525 or 1590 different DOT codes.  The 1525 estimate contains 52 sedentary and 395 light unskilled occupations.  Remember -- the sedentary unskilled occupations in the DOT total 137 codes; the light unskilled occupations total about 1400.  This group is HUGE because there are not enough of any one group of occupations in 51-9199 to warrant a separate listing.  The last digit -- the "9" -- means not elsewhere classified.  The "9" says, we don't have a place for these occupations so BLS puts them here,. 

Now that the OOH lists 51-9199 in the not covered in detail page, we now get the full linkage.  The limited discussion addresses educational requirements for most of the occupations -- surprise it is high school or more.  It links to the O*NET listing for the group.  The detail tab of the listing allows the users of the OOH to see that the O*NET lists the group as containing 1590 different DOT codes.  It also links to the employment projections that list the industries in which the occupational group exists. 

BLS publishes the employment projections for all SOC groups.  That list includes the specific spreadsheet for production workers, all other -- group 51-9199. 

PRACTICE POINTER:  when the vocational expert states that there are 200,000 or even 20,000, even if the vocational expert says 2000 jobs exist within an occupation that is included in 51-9199, ask for the industries in which the occupation exists and cross-index that result on the BLS employment projections.  Don't forget to ask if the witness uses the OOH as well as the linked O*NET and employment projections as well as the County Business Patterns.