United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Jeffrey Cole, Magistrate Judge.
counsel has moved for reconsideration under Fed.R.Civ.P. 59
of this court's award of fees under 42 U.S.C.
§406(b). [Dkt. ## 27, 28]. As counsel cites no case law
regarding motions under that rule or motions for
reconsideration generally, a brief revisiting of the
principles governing motions for reconsideration is in order.
are inherent in the human condition. All judges make them.
See United States v. King, 910 F.3d 320, 328
(7th Cir. 2018); Fujisawa Pharmaceutical Co.
., Ltd. v. Kapoor, 115 F.3d 1332 (7th Cir.
1997). Cf. Rodriguez v. Chandler, 492 F.3d 863 (7th
Cir.2007) (Easterbrook, J.). They can serve a valuable
function by helping, under appropriate circumstances, to
ensure judicial accuracy. Seymour v. Hug, 413
F.Supp.2d 910, 934 (N.D.Ill. 2005)(Cole, M.J.). But they
seldom serve their intended purposes and thus are generally
disfavored. Bank of Waunakee v. Rochester Cheese Sales,
Inc., 906 F.2d 1185, 1191 (7th Cir.1990); Roane v.
Gonzales, 832 F.Supp.2d 61, 64 (D.D.C. 2011); Charles
Alan Wright & Arthur R. Miller, Federal Practice &
Procedure § 4478 (2nd ed. 2002). And for good reason.
The power to reconsider a prior decision is to be exercised
only in the rarest of circumstances and only where there is a
compelling reason-for example, a change in, or clarification
of, law that makes clear that the earlier ruling was
erroneous, Solis v. Current Development Corp., 557
F.3d 772, 780 (7th Cir.2009); Santamarina v. Sears,
Roebuck & Co., 466 F.3d 570, 571-72 (7th Cir.2006),
or where the court made a significant mistake. United
States v. Ligas, 549 F.3d 497, 501 (7th Cir.2008). It is
not a mechanism that allows a party to revisit strategic
decisions that prove to be improvident, to make arguments
that could and should have been made in prior briefing, to
express mere disagreement with a decision of the court, or to
reprise or “rehash” arguments that were rejected.
Goplin v. WeCONNECT, Inc., 893 F.3d 488 (7th Cir.
2018); Vesely v. Armslist LLC, 762 F.3d 661, 666
(7th Cir. 2014).
surprisingly, a motion for reconsideration under Rule 59,
like any motion for reconsideration, also serves a limited
function. It must be based on a manifest error of law or fact
or on newly discovered evidence. Lightspeed Media Corp.
v. Smith, 830 F.3d 500, 505-06 (7th Cir. 2016);
Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939,
954 (7th Cir. 2013); Blue v. Hartford Life & Accident
Ins. Co., 698 F.3d 587, 598 (7th Cir.2012). It is not an
opportunity “to advance arguments or theories that
could and should have been made before the district court
rendered its judgment.” Miller v. Safeco Ins. Co.
of America, 683 F.3d 805, 813 (7th Cir. 2012). See
also Cehovic-Dixneuf v. Wong, 895 F.3d 927, 932 (7th
Cir. 2018); Winfield v. Dorethy, 871 F.3d 555, 559
(7th Cir. 2017).
as this case unfortunately shows, motions for reconsideration
continue to be routinely filed, prompting the Seventh Circuit
to remind the Bar that “in a passage quoted by other
courts literally hundreds of times... ‘[a] court's
opinions are not intended as mere first drafts, subject to
revision and reconsideration at a litigant's
pleasure.'” Cehovic-Dixneuf v. Wong, 895
F.3d 927, 932 (7th Cir. 2018). Significantly and tellingly,
nowhere in the instant motion is there a mention of the
phrase “manifest error of law” or any reference
to “newly discovered evidence.” There is merely
the insistence that the court blundered on every count and
that the reduction of the requested award was a singular
mistake. Judge Gettleman's conclusion in response to a
claim that he too had missed the boat fits perfect here:
“Defendant is wrong.”Frigon v. Pac. Indem.
Co., 2007 WL 756384, at *1 (N.D. Ill. 2007). See
also Gettleman, “How to Tell a Judge He
Screwed Up.” 32 Litigation, 49 (Summer
2006). At bottom, the motion for reconsideration is nothing
more than an attempted “do-over.” Hall v.
Village of Flossmoor, Ill., 520 Fed.Appx. 468 (7th Cir.
the facts. Judges are not free to ignore obvious and
indisputable facts in any case. Indeed, “‘[t]he
first step in the resolution of any legal problem is
ascertaining the factual background and sifting through the
facts with an eye to the legally relevant.'”
Kingsley v. Hendrickson, ___ U.S. ___, 135 S.Ct.
2466, 2473 (2015)(Emphasis supplied). See also By Product
Corp. v. Armen-Berry Co., 608 F.2d 956, 960 (7th Cir.
1982). Social Security cases are not exempt from this obvious
rule. Quite the contrary, as the reading of any Social
Security case demonstrates. Thus, the fee award was reduced
from counsel's request of $6, 678.88 to $3, 000 in view
of the striking and undeniable fact that counsel filed a
five-page Complaint in this case and nothing more. The case
was voluntarily remanded by the Commissioner in
response to this court's initial review of the
record and the ALJ's decision. [Dkt. # 13, # 15, #17].
The review was done four days after the administrative record
was filed. The Commissioner agreed to remand the case less
than two weeks later. As such, it struck me that $6, 678.88
was rather a lot for rather little effort. As counsel's
Motion for Reconsideration fails to take any note of this
procedural history, my assessment has not changed. Indeed,
counsel remarkably argues that “courts permit the
Commissioner to defend indefensible cases with
impunity.” [Dkt. # 28, at 2]. Not only is this
assertion untrue, but that is clearly not what
happened in this case. Ignoring (and distorting) the most
important facts underpinning a decision is no way to succeed
on a motion for reconsideration.
originally argued he was ultimately entitled to a contingency
fee amounting to over $1200 per hour, based on his
experience, his skill, and the risk of no reward at all if he
lost. [Dkt. # 23, ¶. 13]. But an overly literal
acceptance of these three factors would mean that a fee
request made under the circumstances that this one was made
could never be reduced. Skill and experience simply do not
guarantee the maximum possible fee award or else in certain
cases the requested fee of an accomplished lawyer could never
be reduced. That we know is not true. Under the circumstances
that existed here, the fee award requested was in an amount
that clearly was not dependent on the experience and skill of
counsel. Quite the contrary.
Motion for Reconsideration seems to focus on the element of
risk. [Dkt. # 28, Pars. 2, 5-9]. But that is not
outcome-dependent in this case. Indeed if risk alone
determined a fee amount, a reduction in fees in cases like
this would be improper, for the outcome of most (if not all)
cases can be said to be uncertain. But, as the court said in
its Order, risk is just one factor to be considered, and just
one of three that counsel relied upon. [Dkt. #27, at 3].
Also, risk may not be as significant as counsel asserts.
See, e.g., Detloff v. Colvin, 2015 WL 3855332, at *1
Judge Posner observed: “we hear a lot of appeals, and
we reverse a lot.” http://
/23/ALJ-benefits-3-23-15.aspx. A Westlaw search indicates
that so far this year, 45% of the Social Security disability
cases the court heard were reversed. Of course there is still
risk, but the degree of risk has to be considered as well.
And the stubborn fact is that the risk in this Circuit is
simply not as great as counsel has intimated. A one out of
two chance is not the same as a one out of five chance.
Counsel suggests the risk in Social Security cases is
“doubled, perhaps squared” [Dkt. # 26, ¶.
5], but without any statistics. That is unvarnished
speculation and, it is fundamental that
“unfortunately... saying so doesn't make it
so....” United States v. 5443 Suffield Terrace,
Skokie, Ill., 607 F.3d 504, 510 (7th Cir.2010).
Accord, Madlock v. WEC Energy Group, Inc., 835 F.3d
465, 473 (7th Cir. 2018). In sum, two of the three
bases for counsel's fee request were irrelevant; the
third, while a factor, was not as significant as counsel
contended. In sum, the main point here was the procedural
history of the case and the little effort counsel had to put
these lines, counsel also pointed to his efficiency
as the reason this case was wrapped up so quickly. [Dkt. #
23, at ¶. 22]. This was a head scratcher, and the Motion
for Reconsideration fails to explain what was meant. The
procedural history of this case clearly shows that
counsel's claimed efficiency played no role at all in
this particular case. We do not deny that in other and
different cases the plaintiff's counsel may well have
played a significant - even pivotal - role. But not here.
the court may have erred was in wondering what Orders counsel
was spending time reviewing early on in this case. It turns
out they were the docket entry assigning the case to Judge
Bucklo and, later, the docket entry reflecting joint consent
to the jurisdiction of a magistrate judge. The court did not
consider those to be Orders, but now understands the entries
in counsel's record. But that played little or no role in
the result. Aside from that, counsel complains that the court
cited some non-Social Security cases in its Order. [Dkt. #
3]. It's somewhat unclear what the point of the
contention is. Those cases merely underscored the importance
of the facts in every case, and how they cannot be
ignored. [Dkt. # 27, at 4]. Social Security cases are not an
exception to this overarching principle. In fact, the reading
of any Social Security case demonstrates that those cases
inevitably turn on the facts. General principles are not
outcome-determinative in Social Security cases than in any
other kind of case. Indeed, Holmes was fond of saying that
“general propositions do not decide concrete
cases.” Lochner v. New York, 198 U.S. 45, 76
(1905)(Holmes, J., dissenting). See also Daubert v.
Merrell Dow, 509 U.S. 579, 598 (1993)(Rehnquist, C.J.,
concurring in part and dissenting in
part)(“‘general observations'” suffer
from the common flaw that they are not applied to the
specific matter and “therefore they tend to be not only
general, but vague and abstract.”); Roberts v.
Sears, Roebuck & Co., 723 F.2d 1324, 1347 (7th Cir.
1983)(“These propositions are quite unexceptionable but
as is so often true the general principles that no one
disagrees with do not decide the concrete case.”).
facts here - a stipulated remand following on the heels of an
initial review by the court, without any briefing at all from
plaintiff's counsel - are what drove the court's
decision on counsel's fee petition. A careful review of
the Motion for Reconsideration does not lead to a different
decision than the one initially made on the fee petition.
Accordingly, the Motion for Reconsideration [Dkt. 28] is