United States District Court, N.D. Illinois, Eastern Division
TONNETTE P. TRIPLETT, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.
JEFFREY COLE, Magistrate Judge.
On October 1, 2014, the parties filed an "Emergency Joint Motion For An Indicative Ruling On A Motion For Relief That Is Barred By A Pending Appeal Pursuant To Federal Rule Of Civil Procedure 62.1(a)(3)." [Dkt. 47]. The Rule provides that:
if a timely motion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending, the court may:
(1) defer considering the motion;
(2) deny the motion;
(3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises substantial issues.
Fed.R.Civ.P. 62.1(a)(emphasis supplied).
At the outset, it should be noted that the two-and-a-half page motion is skeletal and uninformative. It cites not a single case under the rules on which it relies, and points to no case in which a district judge has granted relief on so skeletal a motion - or indeed, pursuant to any motion like that filed here. Although Rule 60(b) is adverted to, the motion does not specify which section of the Rule it will be relying on. That alone is enough to deny the motion. See Nelson v. Napolitano, 657 F.3d 586, 590 (7th Cir. 2011). Nor does the motion attempt to explain why 11 months after the entry of judgment this court should grant a remand in light of the requirement of Rule 60(c) that the motion be made within a "reasonable time" after entry of judgment. And the terse motion did not pause to refer to any rule of appellate procedure or any Seventh Circuit Rule. Finally, consistent with the Commissioner's overall approach, the motion did not make any attempt to explain why it qualified as an emergency.
It was not until the hearing on the motion and then only in response to questions by the court that the lawyers for the Commissioner identified the section of Rule 60(b) on which they were relying - 60(b)(6)- and they disclosed the emergency as the imminency of the oral argument - which is set for Thursday, October 9, 2014. But the catch-all provision of Rule 60(b)(6) requires a showing of "extraordinary circumstances'" justifying the reopening of a final judgment." Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). The motion points to no such circumstances here. As far as one can tell from the motion, the Commissioner has merely had a change of heart. That's not covered by the Rule. See Edwards-Brown v. Crete-Monee 201-U School Dist., 491 Fed.Appx. 744, 747 (7th Cir. 2012)(relief not available when party made a decision they now regret); Nelson, 657 F.3d at 590 (relief not available for a tactical decision); McCormick v. City of Chicago, 230 F.3d 319, 327-28 (7th Cir.2000) (relief not available for a party's deliberate choice).
The motion states generally that every aspect of the case will be reevaluated, including the ALJ's purported failure to assess the effects of the plaintiff's obesity. That issue, however, was waived by plaintiff's counsel, when in his brief before this court, he referenced obesity offhandedly, only to the extent that counsel noted that the ALJ had mentioned it as a severe impairment in his opinion. [Dkt. 22, at 7-8]. Plaintiff's counsel never brought it up again, and certainly made no claim that obesity affected plaintiff's ability to work. See Mueller v. Colvin, 524 Fed.Appx. 282, 286 (7th Cir. 2013)(ALJ's failure to discuss obesity harmless error where plaintiff did not explain how it affected her condition and rendered her disabled); Prochaska v. Barnhart, 454 F.3d 731, 737 (7th Cir.2006)(same). Indeed, he made no argument regarding obesity whatsoever.
The Seventh Circuit has consistently held that any arguments not presented in the district court are waived. Thompson v. Colvin, 2014 WL 3805470, 6 (7th Cir. 2014); Schomas v. Colvin, 732 F.3d 702, 707 (7th Cir. 2013); Skarbek v. Barnhart, 390 F.3d 500, 505 (7th Cir. 2004). This is perfectly consistent with the general rule of appellate procedure that arguments not raised below are waived on appeal. King v. Kramer, 763 F.3d 635 (7th Cir. 2014).
Finally, as already noted, Rule 62.1 requires that a motion for relief be timely; Rule 60(b) requires that a motion be made within a "reasonable time." What constitutes a "reasonable time" depends on the facts of each case. Ingram v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 371 F.3d 950, 952 (7th Cir. 2004). "Although [t]here is no hard and fast rule as to how much time is reasonable for the filing of a Rule 60(b)(6) motion, ' we look at the interest in finality, the reasons for the delay, the practical ability of the litigant to learn earlier of the grounds relied upon, and the consideration of prejudice, if any, to other parties.'" Ingram, 371 F.3d at 952(quoting Kagan v. Caterpillar Tractor Co., 795 F.2d 601, 610 (7th Cir.1986)). Here, the motion makes no attempt to explain the delay, and the Commissioner had more than ample time to act at any point in the previous five years. Waiting until the week before oral argument would not seem reasonable, absent some explanation. The Commissioner gave no persuasive explanation other than to say recent cases had dictated that a fresh look be taken of the case. See infra at 6.
The Commissioner's unexplained change of position in the motion comes nearly a year after the Commissioner's motion for summary judgment was granted. It will be recalled that the motion comes five years after the plaintiff applied for Supplemental Security Income. During that period, the Commissioner has denied the plaintiff's claim four times. The claim was denied initially and on reconsideration. It was then denied by an administrative law ...