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May 8, 2003


The opinion of the court was delivered by: Michael T. Mason, United States Magistrate Judge:

Plaintiff, Bob J. Mirza, was denied benefits under the Social Security Act by Jo Anne Barnhart, the Commissioner of Social Security. On April 25, 2002, this Court vacated that judgment and remanded the case back to the Social Security Administration ("SSA") for further proceedings. Plaintiff subsequently filed a motion for an award of attorneys' fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412 (d). Under the EAJA, a court shall award to a prevailing party, other than the government, attorneys' fees and expenses unless the court finds that the position of the Commissioner was "substantially justified or that special circumstances make an award unjust." 28 U.S.C. § 2412 (d)(1)(A). Plaintiff is a prevailing party because his case was disposed of pursuant to the fourth sentence of 42 U.S.C. § 405 (g). See Shalala v. Schaefer, 509 U.S. 292, 296-7 (1993).

Plaintiff's motion for attorneys' fees was denied by this Court in a Minute Order dated February 14, 2003 and entered on February 18, 2003. On March 7, 2003, Plaintiff filed a "Motion To Alter or Amend Judgment" pursuant to Rule 59(e). In response to that motion, Defendant argued that Plaintiff's motion should be denied as untimely. Defendant further argued that, in the event this Court should decide to treat Plaintiff's Rule 59(e) motion as a motion for reconsideration pursuant to Rule 60(b), the motion should still be denied. For the following reasons, this Court denies Plaintiff's motion.

RULE 59(e)

Under Rule 59(e), a motion to alter or amend the judgment must be filed "within ten days of the entry of judgment." Russell v. Delco Remy Div. of General Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995). The 10-day period begins on the date following the entry of judgment. Fed.R.Civ.P. 6(a). Weekend days and holidays are not counted in the 10-day period. See Fed.R.Civ.P. 6(a) ("[w]hen the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation"). Notably, "[a] district court may not extend the time within which a party may move to alter or amend a judgment under Rule 59(e)." Hope v. United States, 43 F.3d 1140, 1143 (7th Cir. 1994).

Plaintiff initially asserted that the judgment was entered on February 18, 2003; but, in his reply brief, asserted that the judgment was entered on February 20, 2003. Defendant, in her response, asserted that the judgment was entered on February 19, 2003. We find the dispute to be of no bearing here because, under either date, Plaintiff's motion to alter or amend the judgment is untimely under Rule 59(e). Specifically, even if the judgment were entered on February 20, 2003 — the latest date contended by either party — the 10-day period (excluding weekend days and holidays) would have expired on March 6, 2003 — one day prior to the date on which Plaintiff filed his motion.

In an effort to save his Rule 59(e) motion, Plaintiff relies on Rule 6(e), which allows a party three additional days to file a pleading "whenever the party has the right or is required to do some act or take some proceedings within a prescribed time period after the service of a notice or other paper upon the party and the notice is served upon the party under Rule 5(b)(2)(B), (C), or (D)." Fed.R.Civ.P. 6(e). Our research did not uncover, and the parties did not cite, any case law decided by the Seventh Circuit addressing whether Rule 6(e) applies to Rule 59(e) motions. However, as Defendant pointed out in her response, many other Circuits have addressed this issue, and have found the answer to be in the negative. See, e.g., FHC Equities, L.L.C. v. MBL Life Assurance Corp., 188 F.3d 678, 682 (6th Cir. 1999) (stating that "every court that has considered this precise issue . . . has rejected the Plaintiff's argument" and citing Halicki v. Louisiana Casino Cruises, Inc., 151 F.3d 465, 467-68 (5th Cir. 1998); Parker v. Board of Public Utilities of Kansas City, Kan., 77 F.3d 1289, 1290-91 (10th Cir. 1996); Derrington-Bey v. District of Columbia Dep't of Corrections, 39 F.3d 1224, 1225 (D.C. Cir. 1994); Adams v. Trustees of N.J. Brewery Employees' Pension Trust Fund, 29 F.3d 863, 870-71 (3d Cir. 1994); Flint v. Howard, 464 F.2d 1084, 1087 (1st Cir. 1972); JAMES W. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 6.05[3] at 6-35 (3d ed. 1998)); see also Arnold v. Wood, 238 F.3d 992, 995 n. 2 (8th Cir. 2001), cert. denied, 534 U.S. 975 (2001) (reaching same decision). The reason given in support of these decisions is that the 10-day time period for filing a Rule 59(e) motion is triggered by the date of the "entry of the judgment" rather than the date of the "service of the notice or other paper." See Fed.R.Civ.P. 59(e) ("[a]ny motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment") (emphasis added). As the D.C. Circuit explained in Derrington-Bey:

Mere quotation of Rule 6(e) shows why it is inapplicable to Rule 59(e) motions. The period for filing a Rule 59(e) motion does not-in the words of Rule 6(e) — begin with "service of a notice." True, the clerk of the district court must "immediately" serve by mail a notice of the entry of a judgment . . . But the critical point for measuring the timeliness of a Rule 59(e) motion is not the date of service, nor is it the date of the court's order. The 10 days allowed by Rule 59(e) begin with the clerk's ministerial act of entering the court's judgment in a "book" — today, often in the form of an automated system — "known as the `civil docket'".
39 F.3d at 1225. We agree with the reasoning of these courts and find that Rule 6(e) does not apply to Rule 59(e) motions. As such, Plaintiff cannot rely on Rule 6(e) to make his Rule 59(e) motion timely.*fn2

RULE 60(b)

Perhaps recognizing the futility of his Rule 59(e) argument, Plaintiff argues, in his Reply Brief, that his motion to alter or amend the judgment should be treated by the Court as a motion to reconsider pursuant to Rule 60(b). A motion to alter or amend a judgment will be evaluated under Rule 60(b) when it is filed more than 10 days after the judgment. Helm v. Resolution Trust Corp., 43 F.3d 1163, 1166-67 (7th Cir. 1995); United States v. Deutsch, 981 F.2d 299, 301 (7th Cir. 1992). Because Plaintiff's motion to alter or amend the judgment was filed more than 10 days after the judgment, we will treat it as a Rule 60(b) motion to reconsider.

Rule 60(b) authorizes a court to grant relief from final judgment or order for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.
Fed.R.Civ.P. 60(b). It is settled law that Rule 60(b) relief is "an extraordinary remedy and is granted only in exceptional circumstances." Mares v. Busby, 34 F.3d 533, 535 (7th Cir. 1994) (quoting Dickerson v. Board of Educ., 32 F.3d 1114 (7th Cir. 1994)); see also Cash v. Illinois Div. of Mental Health, 209 F.3d 695, 698 (7th Cir. 2000) (stating that a Rule 60(b) motion "is not an alternate route for correcting simple legal errors"); Zakutansky v. Bionetics Corp., No. 92 C 2002, 1992 WL 390898, at *1 (N.D. Ill. 1992) (stating that motions to reconsider are appropriate in rare situations, such as where a court has patently misunderstood a party, made a decision outside the adversarial issues presented, made an error not of reasoning but of apprehension, or where there has been a controlling change in the law or facts since the submission of the issue to the court); Russell, 51 F.3d at 749 ("[t]he rule was designed to address mistakes attributable to special circumstances and not merely to erroneous applications of the law"). In addition, Rule 60(b) motions "must be shaped to the specific grounds for modification or reversal listed in Rule 60(b) — they cannot be general pleas for relief." Deutsch, 981 F.2d at 301. In this regard, district court judges should not be burdened with "agonizing" over whether a motion for reconsideration asserts grounds for relief included in Rule 60(b), because it is the movant's task to make its Rule 60(b) contentions clear. Deutsch, 981 F.2d at 302.

With these standards in mind, we turn to the motion for reconsideration before us now. Defendant argues that Plaintiff's motion for reconsideration should be denied because Plaintiff has not made any arguments nor cited to any authorities in support of a finding that he is entitled to relief from the Court's judgment under the more stringent requirements of Rule 60(b). We agree with Defendant. Plaintiff failed to state any Rule 60(b) contentions with specificity or in a clear and straightforward manner, as required by law, and instead seemed to argue only that the circumstances of the case justified relief generally. While the Court is under no duty to manufacture a Rule 60(b) argument for Plaintiff, we will examine the briefs to see if any 60(b) contentions were made. We note, first, that Plaintiff did not sufficiently argue in his brief that there was any "mistake, inadvertence, surprise, or excusable neglect" by the Court in denying Plaintiff's motion for attorneys' fees. Fed.R.Civ.P. 60(b)(1). Nor did Plaintiff argue that there was any "newly discovered evidence" that might have shown that the judgment was erroneous. Fed.R.Civ.P. 60(b)(2). Likewise, Plaintiff did not argue that the judgment may have been obtained by fraud, misrepresentation, or other misconduct of the adverse party, or that the judgment was void. Fed.R.Civ.P. 60(b)(3), (4). And, finally, Plaintiff did not argue that the judgment had been satisfied, released, or discharged, or that a prior judgment upon which the decision was based was reversed or vacated, or was no longer equitable. Fed.R.Civ.P. 60(b)(5). Accordingly, Plaintiff does not appear to claim the right to reconsideration under Rule 60(b)(1), (2), (3), (4), or (5).

Thus, the only subsection remaining as a means for Plaintiff to obtain relief under Rule 60(b) (and, we note, the only subsection actually cited by Plaintiff in support of his claim for relief) is Rule 60(b)(6)'s "catchall" provision. The "catchall" provision allows the Court to reconsider the judgment "for any reason justifying relief." Fed.R.Civ.P. 60(b)(6). Rule 60(b)(6) relief is appropriate only if "the grounds asserted for relief do not fit under any other subsections of Rule 60(b)." Margoles v. Johns, 798 F.2d 1069, 1073 n. 6 (7th Cir. 1986). Moreover, relief under the "catchall" provision is warranted only upon a showing of "extraordinary circumstances that create a substantial danger that the underlying judgment was unjust." Id. at 1073.

Plaintiff argues that he is entitled to relief from the Court's judgment denying his application for attorneys' fees due to the Court's alleged error in finding the Commissioner to be substantially justified. In asserting such argument, Plaintiff contends that the Court failed to consider SSR 96-6p or the decision of Scott v. Barnhart, No. 99 C 4651, 2003 WL 1524624 (N.D. Ill. Mar. 21, 2003) (slip copy). With respect to his first argument — that the Court failed to consider SSR 96-6p — Plaintiff points out that SSR 96-6p states that an ALJ "must" explain the weight given to opinions of state agency physicians, yet the Court stated, in its opinion denying attorneys' fees, that the ALJ "should have" discussed the state agency physician's opinion. Plaintiff's second argument — that the Court failed to follow Scott v. Bamhart, supra — is based on Plaintiff's assertion that, as in Scott, there was an unbridgeable gap in the instant case between ...

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