United States District Court, C.D. Illinois, Springfield Division
MYERSCOUGH UNITED STATES DISTRICT JUDGE
cause is before the Court on Plaintiff Yvonkia Stewart's
Motion to Supplement the Record on Appeal (d/e 40). Whether
the Motion is construed as a motion under Federal Rule of
Appellate Procedure 10(e) or Federal Rule of Civil Procedure
60(b)(2), the Motion is DENIED.
April 23, 2010, Plaintiff filed with the Social Security
Administration a Title II application for a period of
disability and disability benefits and a Title XVI
application for supplemental security income. The
Administrative Law Judge (ALJ) held a hearing on March 22,
2012 and a supplemental hearing on December 4, 2012. On
February 18, 2013, the ALJ denied Plaintiff's
applications, concluding that Plaintiff was not disabled
under the Social Security Act. After the Appeals Council
declined to review the ALJ's decision, Plaintiff filed a
complaint in this Court requesting judicial review. See
Schmidt v. Barnhart, 395 F.3d 737, 741 (7th Cir. 2005)
(noting that “[t]he denial of review [by the Appeals
Council] converted the ALJ's decision into the decision
of the Social Security Commissioner for purposes of judicial
motion for summary judgment before this Court, Plaintiff
argued that the Commissioner's decision was not supported
by substantial evidence. Plaintiff also submitted new
evidence that she claimed would lead to a different
conclusion about the extent of her functional limitations.
Plaintiff asked for a remand under sentence six of 42 U.S.C.
§ 405(g) so that the new evidence could be considered by
March 31, 2016, this Court entered an Opinion affirming the
Commissioner's decision. See Opinion (d/e 30).
Specifically, this Court found that the decision was
supported by substantial evidence and the new evidence did
not create a reasonable probability that the ALJ would have
reached a different conclusion.
25, 2016, Plaintiff filed her Notice of Appeal (d/e 32). On
October 3, 2016, Plaintiff filed the Motion to Supplement the
Record on Appeal at issue herein.
PLAINTIFF'S MOTION TO SUPPLEMENT THE RECORD ON
Motion, Plaintiff claims that the documents she seeks to
include in the record on appeal were entered into evidence in
the district court and/or are relevant to the subject of the
appeal. Plaintiff describes the new evidence as including:
(1) a Functional Capacity Evaluation dated March 8, 2016; (2)
a Functional Capacity Evaluation dated March 8, 2016,
reprinted May 5, 2016; (3) an Obstetrics and Gynecology
consultation medical record dated March 10, 2016; (4) an HSHS
St. John's Hospital Medical Report dated April 5, 2016;
(5) a Functional Capacity Evaluation Amendment dated
September 1, 2016; (6) a Vocational Rehabilitation Functional
Limitation Report dated September 16, 2016, correlating with
the Functional Capacity Evaluations of March and September
2016; (7) an article entitled Reflex Seizures and Reflex
Epilepsy from the American Journal of Electroneurodiagnostic
Technology; and (8) a copy of Plaintiff's Medical Billing
and Coding diploma from the Ultimate Medical Academy dated
August 2016. Pl. Mot. at 5. Contrary to Plaintiff's
assertion, none of this evidence was previously presented to
timely notice of appeal divests the district court of
jurisdiction over those aspects of the case involved in the
appeal. Griggs v. Provident Consumer Discount Co.,
459 U.S. 56, 58 (1982). Where, as here, the appeal is taken
from a judgment that determines the entire action, the filing
of the notice of appeal divests the district court of the
power to take any further action in the proceeding
“except in aid of the appeal, to correct clerical
mistakes under Fed.R.Civ.P. 60(a), or in aid of execution of
a judgment that has not been stayed or superseded.”
Henry v. Farmer City State Bank, 808 F.2d 1228, 1240
(7th Cir. 1986).
Rule 10(e) of the Rules of Appellate Procedure, a party can
move to correct or modify the record on appeal. Fed.R.App.P.
10(e). Such motions should first be presented to the district
court. See Fed.R.App.P. 10(e); Seventh Circuit Rule
10(b) (providing that motions to correct or modify the record
pursuant to Rule 10(e) of the Rules of Appellate Procedure or
a motion to strike matter from the record on appeal should be
presented first to the district court); see also,
e.g., Zimmerman v. Chi. Bd. of Trade, 360
F.3d 612, 622 (7th Cir. 2004) (a motion to strike matters
from the record on appeal must first be presented to the
district court). The purpose of Rule 10(e) is to ensure that
the Court of Appeals has a complete record of the proceedings
before the district court. United States v.
Elizalde-Adame, 262 F.3d 637, 641 (7th Cir. 2001). The
Rule does not, however, permit a party to add materials to
the record on appeal that were not before the district court.
Id. at 640.
while this Court has jurisdiction to entertain a Rule 10(e)
motion, Plaintiff's motion is not properly brought
pursuant to Rule 10(e) because Plaintiff seeks to add new
material to the record on appeal that was not before this
suggests that Federal Rule of Civil Procedure 60(b)(2)
provides the proper procedure for Plaintiff to seek relief,
although Defendant denies that Plaintiff is entitled to the
relief she seeks. Under Rule 60(b)(2), a court may relieve a
party from a final judgment on account of newly discovered
evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b).
Fed.R.Civ.P. 60(b)(2). When a timely Rule 60(b) motion is
filed but the court lacks the authority to grant it because
of a pending appeal, the court may defer ruling on the
motion, deny the motion, or state either that it would grant
the motion if the Court of Appeals remands for that purpose
or that the motion raises a substantial issue. Fed.R.Civ.P.
62.1(a); see also Seventh Circuit Rule 57 (providing
that, when a party files a motion to modify a final judgment
while the case is pending on appeal, the district court can
indicate whether it is inclined to grant the motion, in which
case the Court of Appeals will remand the case ...