Colon v. Colvin

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

DEEVINE JESSE COLON,

Plaintiff,

-vs- No. 1:15-CV-00834-MAT

DECISION AND ORDER

NANCY A. BERRYHILL, Acting

Commissioner of Social Security,

Defendant.

I. Introduction

Represented by counsel, Deevine Jesse Colon (“Plaintiff”)

commenced this action pursuant to the Social Security Act (“the

Act”), seeking review of the final decision of the Acting

Commissioner of Social Security (“the Commissioner”) denying his

Title XVI applications for Supplemental Security Income (“SSI”) and

disabled adult child benefits.

Presently before the Court are two post-judgment motions.

First, the Commissioner has filed a Motion to Vacate the Judgment

Pursuant to Federal Rule of Civil Procedure 60(b) (“Rule 60(b)”).

See Commissioner’s Motion to Alter Judgment (“Rule 60(b) Motion”)

(Docket No. 35, as amended, Docket No. 38). The Commissioner seeks

to overturn the portion of this Court’s October 11, 2017 Decision

and Order adopting the Report and Recommendation (“R&R”) of

Magistrate Judge Jeremiah J. McCarthy which reversed the

Commissioner’s decision and remanded the matter for calculation of

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benefits as of February 6, 2015.1

Second, Plaintiff has filed a Cross-motion for Payment of

Interim Benefits. See Plaintiff’s Response to Rule 60(b) Motion and

Cross-Motion for Interim Benefits (Docket No. 40).

For the reasons discussed below, the Commissioner’s Rule 60(b)

Motion is denied, and Plaintiff’s Cross-Motion for Payment of

Interim Benefits is granted.

II. Factual Background and Procedural History

On October 27, 2006, Plaintiff filed an application as a

disabled adult child (“DAC”) for child disability benefits (“CDB”),

asserting disability due to mobility problems, brain damage,

depression, asthma, and arthritis. He subsequently filed an

application for SSI on September 26, 2007. In both applications,

Plaintiff initially alleged a disability onset date of his date of

birth, in 1989.2 After the claim was denied on initial review, an

Administrative Law Judge (“ALJ”) conducted a hearing in Buffalo,

New York, and issued an unfavorable decision on February 20, 2009.

The Appeals Council denied Plaintiff’s request for review of the

ALJ’s decision on February 11, 2011. Plaintiff then commenced an

1 The Commissioner does not challenge the portion of the Court’s

judgment which remanded the remainder of Plaintiff’s claim for a new hearing to

determine whether Plaintiff may have been disabled prior to February 6, 2015.

2 Apparently, Plaintiff had been granted benefits on a prior SSI

application dated March 30, 1992, when he was age three, due to disabling

limitations from his Attention Deficit Hyperactivity Disorder. These SSI benefits

were terminated but were later reinstated. In September 2003, Plaintiff also

began to receive child’s insurance benefits based solely on his age. These

benefits ended in August 2007, when Plaintiff stopped attending school full-time

and reached his 18th birthday.

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action in this Court. See Colon v. Astrue, 1:11-cv-00210-RJA-JJM

(W.D.N.Y. Mar. 11, 2011) (“Colon I”).

While waiting for the Appeals Council’s decision on his first

set of applications, Plaintiff filed renewed SSI and CDB

applications on February 27, 2009, and March 20, 2009,

respectively. These were denied on initial review. A new ALJ held

hearings in Buffalo on June 14, 2011, and July 26, 2011, and issued

an unfavorable decision on August 11, 2011. Plaintiff sought review

by the Appeals Council which issued an order on June 15, 2012,

vacating the 2011 unfavorable decision and remanding the case for

further administrative proceedings. In particular, the Appeals

Council directed the ALJ to fully address the opinions of

vocational counselor Davina Moss-King, Ph.D. The ALJ conducted

another hearing on October 23, 2012, in Buffalo, New York, and

issued another unfavorable decision on November 7, 2012.

On April 23, 2013, in Colon I, Magistrate Judge McCarthy

issued an R&R recommending that the first set of claims, which had

been denied in the ALJ’s February 20, 2009 decision, be remanded

for further administrative proceedings. In particular, the ALJ was

directed to consider Dr. Moss-King’s vocational assessment,

evaluate Plaintiff’s adjustment disorder, depression, and anxiety;

perform a function-by-function analysis with respect to Plaintiff’s

residual functional capacity (“RFC”), and articulate a clear basis

for the credibility assessment. The Court (Arcara, D.J.) adopted

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the R&R in full on May 23, 2013. T.403.

Based on the Court’s May 23, 2013 decision and order, the

Appeals Council issued an order on August 1, 2014, vacating the

unfavorable decision dated February 20, 2009. In addition, the

Appeals Council vacated the November 7, 2012 unfavorable decision

and consolidated both sets of CDB and SSI claims for further

proceedings before an ALJ. The Appeals Council instructed the ALJ

to reevaluate Dr. Moss-King’s opinion as well as the opinion of

reviewing psychiatrist M.S. Rahman, M.D., and to reconsider

Plaintiff’s obesity.

The consolidated claims were assigned to another ALJ on

remand. This ALJ held a hearing on March 12, 2015, in Buffalo, New

York, and issued an unfavorable decision on June 4, 2015. The ALJ

determined that Plaintiff suffered from the following severe

impairments: obesity, chronic back pain, asthma, learning disorder

(operating at marginal level overall with a fourth-grade reading

level and fifth-grade math level, with expressive and receptive

delays), borderline to low average intellectual functioning,

depressive disorder, and anxiety disorder. Notwithstanding these

impairments and the resultant limitations, the ALJ found, Plaintiff

had the RFC to perform a range of unskilled medium exertion work.

T.308. Based upon the vocational expert’s testimony, the ALJ found

that Plaintiff could perform the job requirements of a dishwasher,

dining room attendant, and laundry worker. T.316-17.

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Plaintiff declined to seek review of the ALJ’s decision by the

Appeals Council. Pursuant to 20 C.F.R. §§ 404. 984(d) and

416.1484(d), the ALJ’s decision became the final determination of

the Commissioner after a 61-day waiting period. When that period

expired, Plaintiff commenced this action on September 17, 2015.

Colon v. Berryhill, 1:15-cv-00834-MAT-JJM (W.D.N.Y. Sept. 17, 2015)

(“Colon II”).

On September 14, 2017, Magistrate Judge McCarthy issued a

Report and Recommendation in Colon II, finding that Plaintiff had

been disabled since at least February 6, 2015, the date of his

examination by consultative physician Hongbiao Liu, M.D., because

Dr. Liu’s “unrefuted” RFC assessment “preclude[d] [him] from

performing work at any exertional level.” R&R (Docket No. 29) at

16. Magistrate Judge McCarthy noted that it was “possible” that

Plaintiff became disabled at an earlier date. However, because he

could not determine with certainty the exact onset date, Magistrate

Judge McCarthy recommended that, in addition to remanding the case

for the calculation of benefits as of February 6, 2015, the matter

be remanded for further administrative proceedings to determine the

exact disability onset date. Id. (citations omitted). Neither party

objected to the R&R. On October 11, 2017, this Court issued a

Decision and Order adopting the Report and Recommendation in its

entirety. Judgment was entered in Plaintiff’s favor on October 12,

2017.

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On November 8, 2017, the Niagara Falls Field Office (“Field

Office”) of the Social Security Administration (“SSA”) received

Plaintiff’s SSI claim with an interim onset date of February 6,

2015, for Pre-Effectuation Review Contact processing. See

Declaration of Jeffrey Buckner (“Buckner Decl.”) (Docket No. 38),

¶ 5. In the course of reviewing Plaintiff’s earning records, the

Field Office discovered that he had commenced working at

substantial gainful activity (“SGA”) levels in November 2015,

within a year of his interim onset date of February 6, 2015. Id.,

¶ 6 (citing Wage Records, Defendant’s Exhibit (“Def.’s Ex.”) 2

(Docket No. 38-2)). Furthermore, this SGA employment had been

continuous up until the third quarter of 2017. Id. (citing Ex. 2

(Docket No. 38-2)).

On January 24, 2018, the Field Office notified the SSA’s New

York Regional Office’s Center for Disability Program Support about

the issue with Plaintiff’s wage records indicating work at SGA

levels. The Field Office inquired whether, in light of this Court’s

2017 judgment, it had the authority to deny the claim for interim

benefits based on the evidence it found that Plaintiff had been

working at SGA levels.

Meanwhile, on February 18, 2018, the Appeals Council acted on

this Court’s 2017 judgment by issuing an order vacating the

Commissioner’s most recent unfavorable decision. See Def.’s Ex. 1

(Docket No. 38-1). The Appeals Council remanded the claim so that

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an ALJ could offer Plaintiff the opportunity for a hearing, take

any further action necessary to complete the administrative record,

and issue a new decision on the issue of disability prior to

February 6, 2015. With regard to the period beginning February 6,

2015, the Appeals Council found that Plaintiff had been disabled,

as defined in the Act, for purposes of his SSI application only,

subject to the pertinent income and eligibility requirements. The

Appeals Council noted that Plaintiff was not disabled prior to the

date he attained age 22, and therefore he was not disabled based on

his application for CDB.

On August 28, 2018, in connection with the Field Office’s

January 24, 2018 inquiry concerning the evidence of Plaintiff

working at SGA levels, the Center for Disability Program Support

contacted the SSA’s Office of the General Counsel and asked it to

evaluate the situation and advise on the appropriate course of

action. Buckner Decl., ¶ 8.

On February 20, 2019, in furtherance of the Appeals Council’s

remand order of February 2018, the SSA issued a Notice of Hearing

indicating that Plaintiff was scheduled to appear before an ALJ on

July 18, 2019, on the question of whether he was disabled prior to

the interim onset date of February 6, 2015. Buckner Decl., ¶ 9

(citing Def.’s Ex. 3 (Docket No. 38-3)).

On April 2, 2019, the Commissioner filed the pending Rule

60(b) Motion (Docket No. 35, as amended, Docket No. 38). Plaintiff

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has opposed the motion and filed a cross-motion for payment of

interim benefits (Docket No. 40). The Commissioner replied to

Plaintiff’s opposition and opposed the motion for interim benefits

(Docket No. 41). Plaintiff replied to the Commissioner’s opposition

(Docket No. 42).

On September 26, 2019, Plaintiff filed the ALJ’s July 31, 2019

decision (Docket No. 44) which followed the administrative hearing

held on July 18, 2019, regarding whether Plaintiff could establish

disability prior to February 6, 2015. In this latest decision, the

ALJ determined that prior to February 6, 2015, Plaintiff had the

RFC to perform a full range of unskilled, low interpersonal contact

work at all exertional levels, except that he needed to avoid

concentrated exposure to respiratory irritants.

III. Rule 60(b) Standard

Rule 60(b) permits a court, on motion and just terms, to

relieve a party from a final judgment, order, or proceeding for any

of the following reasons:

(1) Mistake, inadvertence, surprise, or excusable

neglect;

(2) Newly discovered evidence that, with reasonable

diligence, could not have been discovered in time to move

for a new trial under Rule 59(b);

(3) Fraud (whether previously called intrinsic or

extrinsic), misrepresentation, or misconduct by an

opposing party;

(4) The judgment is void;

(5) The judgment has been satisfied, released, or

discharged; it is based on an earlier judgment that has

been reversed or vacated; or applying it prospectively is

no longer equitable; or

(6) Any other reason that justifies relief.

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Fed. R. Civ. P. 60(b). A motion under Rule 60(b) must be made

within a “reasonable time[.]” Fed. R. Civ. P. 60(c)(1). And, if the

motion is brought pursuant to subsections (1), (2), and (3) of Rule

60(b), it must be filed “no more than a year after the entry of the

judgment or order[.]” Id.

Rule 60(b)(6) permits relief from judgment for “any other

reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). The Second

Circuit has described subsection (6) as a “grand reservoir of

equitable power to do justice in a particular case.” Stevens v.

Miller, 676 F.3d 62, 67 (2d Cir. 2012) (quoting Matarese v.

LeFevre, 801 F.2d 98, 106 (2d Cir. 1986)). Nonetheless, invocation

of subsection (6) requires a showing of “exceptional circumstances”

by the moving party. United States v. Cirami, 535 F.2d 736, 738 (2d

Cir. 1977) (citations omitted). The Second Circuit has also

instructed that a “court may treat a motion to vacate a prior

judgment as having been made under [Rule] 60(b)(6) only if the

other, more specific grounds for relief encompassed by the rules

are inapplicable.” Maduakolam v. Columbia Univ., 866 F.2d 53, 55

(2d Cir. 1989).

IV. Discussion

A. Determination of Which Subsection of Rule 60(b) Applies

The Commissioner asserts entitlement to relief under

subsection (5) or, in the alternative, subsection (6) of Rule

60(b). Plaintiff contends that the only proper ground for the

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Commissioner’s motion is subsection (2), which covers newly

discovered evidence, and that the motion must be denied because it

is clearly untimely, having been brought more than a year after the

judgment.

Plaintiff also argues that, to the extent the Commissioner’s motion

is properly made pursuant to subsection (5), it was not made within

a reasonable time and “good cause” for the delay is lacking.

The Commissioner responds that Rule 60(b)(2) is inapplicable

because Plaintiff’s earnings records are not newly discovered

evidence and that, even if subsection (2) applies, nothing in Rule

60(b) prevents a party from seeking relief under both subsections

(2) and (5). The Commissioner also argues that “good cause” is only

required if the motion is not made within a “reasonable time,” and

that eighteen months is, as a matter of law, a reasonable time

under Second Circuit precedent.

1. Subsection (2)

Plaintiff argues that the Commissioner’s motion should have

been brought pursuant to Rule 60(b)(2). Under subsection (2), a

party seeking relief “must show that (1) newly discovered evidence

is of facts existing at the time of trial; (2) the moving party is

excusably ignorant of the facts despite using due diligence to

learn about them; (3) the newly discovered evidence is admissible

and probably effective to change the result of the former ruling;

and (4) the newly discovered evidence is not merely cumulative or

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impeaching of evidence already offered.” Weissmann v. Freeman, 120

F.R.D. 474, 476 (S.D.N.Y. 1988) (citing 11 C. Wright & A. Miller,

Federal Practice and Procedure § 2808, at 55–60, § 2859, at 182–85

(1973)). The Court need not decide whether Plaintiff’s wage records

constitute “newly discovered evidence” for purposes of Rule

60(b)(2) because, even if they do, the Commissioner’s motion must

be dismissed as untimely.

Rule 60(b)(2) motions must be filed within one year of “the

entry of the judgment or order or the date of the proceeding.” Fed.

R. Civ. P. 60(c)(1). This “one-year limitation period for Rule

60(b) motions is ‘absolute.’” Martha Graham Sch. & Dance Found.,

Inc. v. Martha Graham Ctr. of Contemporary Dance, Inc., 466 F.3d

97, 100 (2d Cir. 2006) (quoting Warren v. Garvin, 219 F.3d 111, 114

(2d Cir. 2000)). Therefore, even assuming the Commissioner should

have relied on Rule 60(b)(2), the rule nevertheless mandates denial

of the motion because it was brought 17 months and 23 days after

entry of the judgment.

2. Subsection (5)

As noted above, Rule 60(b)(5) allows a court to relieve a

party from a final judgment when the judgment has been satisfied,

reversed, discharged, or is no longer equitable. Fed. R. Civ. P.

60(b)(5). The “no longer equitable” clause of Rule 60(b)(5) “may

not be used to challenge the legal conclusions on which a prior

judgment or order rests,” but it still offers “a means by which a

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party can ask a court to modify or vacate a judgment or order if ‘a

significant change either in factual conditions or in law’ renders

continued enforcement ‘detrimental to the public interest.’” Horne

v. Flores, 557 U.S. 433, 447 (2009) (quoting Rufo v. Inmates of

Suffolk Cty. Jail, 502 U.S. 367, 384 (1992)).

“The party who seeks relief under Rule 60(b) (5) ‘bears the

burden of establishing that changed circumstances warrant relief,’

and must show that applying the judgment prospectively is no longer

equitable by proving a change in factual conditions or the law[.]”

Jordan v. U.S. Dep’t of Labor, 331 F.R.D. 444, 453 (D. D.C. 2019)

(quoting Salazar _v. District of Columbia, 729 F. Supp.2d 257,

263-64 (D. D.C. 2010)).

a. The “Prospective Application” Requirement

“[TA] final judgment or order has ‘prospective application’ for

purposes of Rule 60(b) (5) only where it is ‘executory’ or involves

‘the supervision of changing conduct or conditions.’” Tapper v.

Hearn, 833 F.3d 166, 171 (2d Cir. 2016) (quoting DeWeerth v.

Baldinger, 38 F.3d 1266, 1275 (2d Cir. 1994); further quotation

omitted). “That a judgment or order sought to be modified has

prospective force is an indispensable condition for obtaining

relief from that judgment or order under the third set of

circumstances listed in Rule 60(b)(5).” Id. at 172 (citation

omitted).

The D.C. Circuit has observed that “[vlirtually every court

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order causes at least some reverberations into the future, and has,

in that literal sense, some prospective effect; even a money

judgment has continuing consequences, most obviously until it is

satisfied. . . .” Twelve John Does v. D.C., 841 F.2d 1133, 1138

(D.C. Cir. 1988). Nevertheless, the fact that “a court’s action has

continuing consequences . . . does not necessarily mean that it has

‘prospective application’ for the purposes of Rule 60(b)(5).” Id.

Thus, as a general rule, “[s]imple money judgments may not be set

aside or reopened under Rule 60(b)(5) because simple money judgment

have no prospective application.” 12 James Wm. Moore, Federal

Practice § 60.47[1][b] & n.3 (3d ed. 2019) (“Federal Practice”)

(citing, inter alia, Kock v. Government of V.I., 811 F.2d 240, 244

(3d Cir. 1987) (relief from money judgment under Rule 60(b)(5)

unavailable for defendant, even though its insurer subsequently

went bankrupt; “the judgment initially entered was final at law and

not prospective in equity”)); see also United States v. Melot, 712

F. App’x 719, 721 (10th Cir. 2017) (unpublished opn.) (collecting

cases). “Even if the judgment debtor has not yet paid the

judgment, it remains a final judgment; it is not ‘prospective,’

since it is not executory and involves no judicial supervision of

changing conduct or conditions.” 12 Federal Practice § 60.47[1][b]

& n.3.1 (citing Stokors S.A. v. Morrison, 147 F.3d 759, 762 (8th

Cir. 1998) (Rule 60(b)(5) could not be used to relieve party from

money judgment; although “judgment may be ‘prospective’ to extent

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that [judgment debtor] has failed to pay it in timely manner, it is

nevertheless a final order and is not ‘prospective’ for purposes

of” the rule)).

The Court’s judgment effectively awarded money damages to

Plaintiff, but it did not indicate a sum certain. The Commissioner

contends that the portion of the Court’s judgment remanding the

case for calculation and payment of benefits based on an interim

onset date of February 6, 2015, is executory, and thus has

“prospective application,” because it “left calculation of benefits

in the hands of the Commissioner upon remand.” Defendant’s

Supporting Memorandum of Law (“Def.’s Mem.”) (Docket No. 35-1) at

6 (citing Docket Nos. 31 & 32)).

Looking more closely at the terms “executory” and

“prospective,” they connote something that will take full effect or

be operative at a future time. See BLACK’S LAW DICTIONARY 652, 1342

(9th ed. 2009). “A judgment may be deemed to have ‘prospective

application’ or to be ‘executory’ if it does not fix all of the

rights and liabilities of the parties and leaves some of those

rights and liabilities to be determined on the basis of future

events.” United States v. Kayser-Roth Corp., Inc., 103 F. Supp.2d

74, 79 (D.R.I. 2000), aff’d sub nom. United States v. Kayser-Roth

Corp., 272 F.3d 89 (1st Cir. 2001). In Kayser-Roth, at issue was a

declaratory judgment holding the defendant liable for previously

incurred environmental response costs; it also held the defendant

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liable “for all further response costs incurred by the United

States related to” a certain hazardous waste site. Id. at 78. The

defendant moved pursuant to Rule 60(b) (5) seeking relief from the

portion of the declaratory judgment imposing liability for future

response costs. The district court agreed that the “declaratory

judgment establishing liability but deferring the question of

damages until a later time is prospective within the meaning of

Rule 60(b) (5), at least with respect to the issue of damages.” Id.

at 79. Although the judgment “declared Kayser-Roth liable for

future response costs, it did not identify which costs would

qualify as response costs under CERCLA or what amounts would be

recoverable. Those matters necessarily were left to be determined

on the basis of future events.” Id. (emphasis supplied). In other

words, the amount of damages necessarily was unknown at the time of

the declaratory judgment because the response costs had not yet

been incurred.*® See id.

Here, by contrast, the amount of benefits payable to Plaintiff

was not “left to be determined on the basis of future events[,]”

Kayser-Roth Corp. Inc., 103 F. Supp.2d at 79. Rather, the Court

awarded benefits for a period of disability that commenced on a

date prior to the judgment. See Kapar v. Islamic Republic of Iran,

105 F. Supp.3d 99, 104 (D.D.C. 2015) (plaintiff’s judgment did not

8 Ultimately, the district court denied the defendant’s Rule 60(b) (5)

motion due to other considerations, including that vacating the judgment would

be an empty exercise given the law of the case. Kayser-Roth Corp., Inc., 103 F.

Supp.2d at 82-83.

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have prospective application for purposes of Rule 60(b)(5) where

the judgment was “for damages stemming from past conduct—the

opposite of prospective relief”; “[t]he fact that most of the

judgment remains unsatisfied does not mean the judgment involves

‘the supervision of changing conduct or conditions’”) (quoting

Twelve John Does, 841 F.2d at 1139)).

The Court finds that the instant case is more similar to

Keepseagle v. Vilsack, 118 F. Supp.3d 98, 124–25 (D.D.C. 2015), in

which the defendant brought a Rule 60(b)(5) motion to vacate the cy

pres provision in an agreement settling a class action between

Native American farmers and the USDA. The district court agreed

that the cy pres provision “arguably has some characteristics of a

prospective order . . . insofar as the distribution process

requires Class Counsel to solicit and recommend cy pres recipients

and creates an administrative task for the Court to approve the

recommendations.” Keepseagle, 118 F. Supp.3d at 125. Nonetheless,

the district court found, the cy pres provision did not have

prospective application so as to bring it within the ambit of Rule

60(b)(5) because it lacked the “type of binding effect on a party’s

future behavior that makes a judgment prospective within the

meaning of Rule 60(b)(5).” That is, “[i]t does not . . . ‘compel

[anyone] to perform, or order [anyone] not to perform, any future

act; it d[oes] not require the court to supervise any continuing

interaction between [anyone] and the other parties to the case.’”

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Id. (quoting Twelve John Does, 841 F.2d at 1139; alterations in

original).

Here, the Court’s judgment could be described as “compel[ing]

[the Commissioner] to perform” the “future act” of calculating

benefits and paying them to Plaintiff. But “that is not the same

thing as a party to the case being subject to limitations on future

conduct, and courts have emphasized the need for such limitations

if a judgment is to be considered prospective.” Keepseagle, 118 F.

Supp.3d at 125 (finding that cy pres portions of class action

settlement agreement were “akin to unpaid damages[;] [t]he mere

fact that they have yet to be paid out, leaving some administrative

responsibilities to be executed, does not render them prospective”)

(citing Comfort v. Lynn Sch. Comm., 560 F.3d 22, 28 (1st Cir. 2009)

(“[W]e have limited the provision’s application to injunctions and

consent decrees that involve long-term supervision of changing

conduct or conditions.”) (quotation marks omitted); citing Marshall

v. Board of Ed., Bergenfield, N.J., 575 F.2d 417, 425 n.7 (3d Cir.

1978) (“A ‘prospective’ injunction envisions a restraint of future

conduct, not an order to remedy past wrongs when the compensation

payment is withheld from the beneficiaries until some subsequent

date.”); other citation and footnote omitted). Because every money

judgment could be characterized as ordering the judgment debtor to

pay an amount of money to the prevailing party, it would mean every

money judgment has prospective application. In that case, the

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exception would swallow the rule. The Court therefore finds that

the judgment awarding calculation and payment of disability

benefits from a certain onset date does not have “prospective

application” within the meaning of Rule 60(b)(5), making that rule

inapplicable.

b. The Reasonable Time and Good Cause

Requirements

Even assuming that the judgment is prospective and subsection

(5) of Rule 60(b) is applicable, the Commissioner still must

demonstrate that it was made within a reasonable time under the

circumstances. See Thai-Lao Lignite Co. v. Gov’t of Lao People’s

Democratic Republic, 864 F.3d 172, 186 (2d Cir. 2017) (“In

considering a Rule 60(b)(5) motion, courts should “consider whether

the motion was made within a reasonable time, whether the movant

acted equitably, and whether vacatur would strike an appropriate

balance between serving the ends of justice and preserving the

finality of judgments.”).

The Commissioner’s motion was made on April 2, 2019, 17

months and 23 days after judgment was entered on October 12, 2017.

The Commissioner argues that, in the Second Circuit, 18 months is

a presumptively reasonable time for purposes of Rule 60(b). See

Def.’s Mem. (Docket No. 35-1) at 7 (citing Rowe Entm’t v. Wm.

Morris Agency, Inc., No. 98-8272, 2012 WL 5464611, at *2 (S.D.N.Y.

Nov. 8, 2012) (“In this Circuit, a reasonable time is within

eighteen months of the entry of judgment, unless the movant shows

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good cause for the delay or mitigating circumstances[.]”) (citing

Korelis v. Pennsylvania Hotel, No. 99 CV 7135, 1999 WL 980954, at

*1 (2d Cir. Oct. 8, 1999) (unpublished opn.); internal citation

omitted); Wells v. New York City Transit Auth., No. 13-cv-4965,

2013 WL 6409457, at *3 (S.D.N.Y. Dec. 9, 2013) (same).4 However, as

the Commissioner acknowledges, this alleged 18-month presumption is

not applied consistently by district courts in this Circuit. See

Def.’s Mem. at 7 (citing Peyser v. Searle Blatt & Co., No. 99-cv-

10785 WK, 2001 WL 1602129, at *2 (S.D.N.Y. Dec. 14, 2001) (“It has

been nearly sixteen months since we entered summary judgment in

favor of the Searle Defendants and such a delay in filing the

motion is unreasonable.”) (citing Young v. Coughlin, No.

87CV01122(NPM/GLS), 2001 WL 1230836, at *2 (N.D.N.Y. Sept. 24,

2001) (“This court does not consider plaintiff’s fourteen-month

delay in bringing this motion to be ‘reasonable’ and, thus, the

motion is also untimely under Rule 60(b)(6).”)).

Moreover, the Second Circuit has never articulated that 18

months is a presumptively reasonable time to bring a Rule 60(b)

motion. The Court notes that Korelis, 1999 WL 980954, at *1, cited

by Rowe, is an unpublished Second Circuit decision which did not

hold or suggest that an 18-month delay in bringing a Rule 60(b)

motion is presumptively reasonable; nor did that case indicate that

“good cause” need only be shown if the delay is longer than 18

4 Rowe and Wells were decided by the same district judge.

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months. Instead, Korelis stated that the appellant’s motion was

“time-barred as not ‘within a reasonable time.’ Appellant has

failed to show good cause for his [two and one-half year] delay.”

Id. (citing Kotlicky v. United States Fidelity & Guar. Co., 817

F.2d 6, 9 (2d Cir. 1987)). This phrasing suggests that the lack of

good cause contributed to the panel’s finding regarding the

unreasonableness of the delay.

Kotlicky, in turn, did not hold that there is any particular

duration of a delay in bringing a Rule 60(b) motion that qualifies

as “presumptively reasonable.” Rather, after noting that “[a]ll

Rule 60(b)5 motions must ‘be made within a reasonable time,’” the

Second Circuit stated that “[g]enerally, courts require that the

evidence in support of the motion to vacate a final judgment be

‘highly convincing,’ that a party show good cause for the failure

to act sooner, and that no undue hardship be imposed on other

parties.” Kotlicky, 817 F.2d at 9 (internal quotations and citation

omitted). “Good cause” thus appears to be one factor in determining

what constitutes a reasonable time in light of the particular facts

in each case; it is not an element that need only be demonstrated

after a party’s delay surpasses 18 months. See 11 Wright & Miller

§ 2866 (“What constitutes reasonable time necessarily depends on

5 This is not strictly correct; the “reasonable time” “limitation does

not apply to a motion under clause (4) attacking a judgment as void. There is no

time limit on a motion of that kind.” C. Wright, A. Miller, & M.K. Kane, 11 Fed.

Prac. & Proc. Civ. (“Wright & Miller”) § 2866 (3d ed.) (Aug. 2019

Update)(footnote and citations omitted).

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the facts in each individual case. The courts consider whether the

party opposing the motion has been prejudiced by the delay in

seeking relief and whether the moving party had some good reason

for the failure to take appropriate action sooner.”) (footnotes and

citations omitted); cf. Amoco Overseas Oil Co. v. Compagnie

Nationale Algerienne de Navigation, 605 F.2d 648, 656 (2d Cir.

1979) (“Although the fact that a motion [under Rule 60(b)(1), (2),

or (3)] [i]s made barely within the one-year time limit gives the

court the [p]ower to entertain it, as the delay in making the

motion approaches one year there should be a corresponding increase

in the burden that must be carried to show that the delay was

‘reasonable.’”).

Scott v. Apfel, 194 F.R.D. 655 (N.D. Iowa 2000), is almost

identical factually to the instant case. Although the

Commissioner’s Rule 60(b) motion was not brought pursuant to

subsection (5), the Court finds that its discussion of due

diligence under subsection (2) is instructive on the issue of

unreasonable delay. In Scott, the district court found that the

Commissioner was not entitled to relief from the order requiring

payment of disability benefits on ground of newly discovered

evidence of the claimant’s earnings in 1997 and 1998, or under the

fraud and catchall provisions of Rule 60(b), premised on the

claimant’s alleged concealment of pertinent evidence concerning his

earnings. In finding that the Commissioner could not satisfy the

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due diligence requirement for subsection (2) pertaining to newly

discovered evidence, the district court noted that “the proffered

excuse for failing to discover the information . . . is that, even

though the plaintiff says he reported the information as required

in connection with a subsequent claim for benefits filed March 6,

1998, there was no indication to the defendant that work activity

after January 1997 should be investigated in this case.” Scott, 194

F.R.D. at 658-59 (emphasis in original). That argument did “not

establish any ‘justifiable excuse,’ however, because one of the

critical issues before the administrative law judge and this court

in these proceedings has been whether or not the plaintiff was

disabled on the basis of Dr. Ung’s evaluation in March of 1997 and

other evidence.” Id. at 659. Thus, the district court concluded,

the Commissioner “established no more than that counsel failed to

look for pertinent information already in the defendant’s

possession during the evidentiary phase of these proceedings until

after the judgment was entered in this case.” Id. (quoting Alpern

v. UtiliCorp United, Inc., 84 F.3d 1525, 1537 (8th Cir. 1996);

emphasis in original)). The Court finds Scott’s reasoning equally

applicable in this case in the context of assessing whether the

Commissioner’s delay in bringing the motion was reasonable.

Here, judgment was entered in Plaintiff’s favor on October 12,

2017. The SSA first became aware of the grounds for the Rule 60(b)

Motion on November 8, 2017, when the Field Office discovered

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evidence of Plaintiff’s SGA employment. The Field Office did not

contact the Center for Disability Program Support, the next tier in

the chain of command, until January 24, 2018. This entity did not

act on the Field Office’s inquiry until August 28, 2018, about 8

months later, when it referred the question to Office of General

Counsel for further evaluation. Then, an additional 7 months and 5

days elapsed before the Commissioner brought this motion.

While the Commissioner has taken the position that she need

not show good cause or a justifiable reason for delay because the

Rule 60(b) motion was brought within 18 months of the judgment, she

does cite “administrative processing times” in the SSA as the cause

for the delay. Def.’s Mem. (Docket No. 35-1) at 7. However, the

reasonableness inquiry is fact-specific and tailored to each

particular case. See, e.g., Gouldbourne v. J.F. Jelenko & Co., No.

98 CIV. 7243 (LAK), 2000 WL 546762, at *1 (S.D.N.Y. Jan. 13, 2000)

(“What is reasonable will vary from case to case and depends on,

among other things, whether the adverse party has been prejudiced

and ‘whether the moving party had some good reason for his failure

to take appropriate action sooner.’”) (quoting 11 Wright, Miller &

Kane, Federal Practice and Procedure: Civil 2d § 2866, at 382-83

(1995)).

The Commissioner has not explained why a nearly 18-month

delay is reasonable in this particular case; nor does she believe

she needs to do so. See Def.’s Reply (Docket No. 41) at 5

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(“Plaintiff fails to explain why the Commissioner’s citation to

‘administrative processing times’ would not constitute ‘good cause’

or otherwise be an acceptable excuse for the delay.”). But the

burden of showing reasonableness under Rule 60(b) lies with the

Commissioner–not Plaintiff. See United States v. Int’l Bhd. of

Teamsters, 247 F.3d 370, 391 (2d Cir. 2001) (“The burden of proof

is on the party seeking relief from judgment[.]”) (citation

omitted).

Moreover, lengthy “administrative processing times” for

disability claims does not account for the periods of time that the

Field Office’s discovery about Plaintiff’s earning records idled

with the Center for Disability Program Support6 and Office of

General Counsel7—neither of which appears to have organizational

responsibility for processing disability claims. Thus, the Court

concludes that under the circumstances of this case, the

Commissioner has not established good cause for the failure to act

sooner on the information concerning Plaintiff’s earning records.

Cf. Scott, 194 F.R.D. at 658-59.

3. Subsection (6)

Finally, in light of the Court’s finding that the

Commissioner’s motion was not brought within a reasonable time for

purposes of subsection (5), the Court cannot grant relief under

6 See https://www.ssa.gov/ny/services-regional.htm (last accessed Oct.

20, 2019).

7 See https://www.ssa.gov/org/orgOGC.htm (last accessed Oct. 20, 2019).

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subsection (6), which also requires that a motion brought

thereunder be filed within a reasonable time. See Fed. R. Civ. P.

60(c)(1). Furthermore, the Court finds that the Commissioner has

not even attempted to demonstrate “extraordinary circumstances.”

See Def.’s Mem. (Docket No. 35-1) at 11 (“While the Rule is

generally only applied with a showing of ‘exceptional

circumstances,’ the Commissioner contends that the circumstances

are appropriate here, where the ineligibility is clear, the

ineligibility was present at the time of the Order and Judgment”

and “there is true risk of a violation of the Constitution’s

Appropriations Clause if the relevant portions of the Order and

Judgment are not vacated.”). To the extent that the Commissioner

contends that Rule 60(b)(6) is “appropriate” because Plaintiff’s

“ineligibility” for benefits was “clear” in October 2017, this

reaffirms the Court’s conclusion that the Commissioner unreasonably

delayed in bringing the Rule 60(b) Motion. Cf. Scott, 194 F.R.D. at

659 (“Thus, the defendant has established no more than that counsel

failed to look for pertinent information already in the defendant’s

possession during the evidentiary phase of these proceedings until

after the judgment was entered in this case.”). Moreover, the

Court’s “disposition of [the Commissioner]’s motion must be made on

the basis of the standards applicable to a Rule 60(b) motion, not

on the basis of some reargument of the merits of [Plaintiff]’s

disability claim.” Scott, 194 F.R.D. at 657 (rejecting as

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irrelevant the Commissioner’s discussion of the standards for

disability under Social Security law; finding that the claimant’s

failure to report his ongoing work activity was not a basis for

relief under Rule 60(b)(6)).

V. Conclusion

For the foregoing reasons, the Commissioner’s Motion to Alter

the Judgment is denied, and Plaintiff’s Cross-Motion for Payment of

Benefits is granted.

SO ORDERED.

s/ Michael A. Telesca

___________________________________

HON. MICHAEL A. TELESCA

United States District Judge

Dated: October 21, 2019

Rochester, New York.

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