Phovemire v. Commissioner of Social Security

Filing 30

OPINION AND ORDER re 28 Motion for Relief from Judgment Under Rule 60(b) by Defendant Commissioner of Social Security. Court agrees that further administrative proceedings are warranted and the Court will grant the relief sought by Dft Commissioner of Social Security once the case is remanded by the Seventh Circuit for purposes of modifying the judgment. Signed by Magistrate Judge Roger B Cosbey on 11/6/2009. (cc: USCA)(lns)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA FORT WAYNE DIVISION TIMMY PHOVEMIRE, ) ) ) Plaintiff, ) ) ) v. ) ) ) MICHAEL ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) Civil Action No. 1:08-CV-00248-RBC

HONORABLE ROGER B. COSBEY UNITED STATES MAGISTRATE JUDGE

OPINION and ORDER
This matter is before the Court on the Commissioner's Motion for Relief from Judgment Under
Rule 60(b) [Docket # 28] filed by the United States of America on November 5, 2009.

Of course, the record reflects that the matter is currently on appeal to the Seventh Circuit Court of Appeals, so this Court cannot immediately grant the relief requested. Rather, as the Commissioner recognizes, Seventh Circuit Rule 57 applies: A party who during the pendency of an appeal has filed a motion under Fed. R. Civ. P. 60(a) or 60(b) . . . should request the district court to indicate whether it is inclined to grant the motion. If the district court so indicates, this court will remand the case for the purpose of modifying the judgment. . . . In accordance with that Rule, the Commissioner has requested that this Court indicate whether it is inclined to grant his motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. The basis for such action stems from the fact that the Commissioner now agrees with Mr. Phovemire that a remand for further administrative proceedings is warranted pursuant to 42 U.S.C.

§ 405(g), thereby justifying relief from the Court's July 28, 2009, Judgment, under Rule 60(b)(6). See Brown v. United States, 976 F.2d 1104, 1110 (7th Cir. 1992)("[i]n such circumstances we have directed district courts to review such motions promptly, and either deny them or, if the court is inclined to grant relief, to so indicate so that we may order a speedy remand."). Having thus reviewed the record, the Court agrees that further administrative proceedings are warranted and the Court will grant the relief sought by the Commissioner once the case is remanded by the Seventh Circuit for purposes of modifying the judgment. Enter this 6th day of November, 2009.

S/Roger B. Cosbey Roger B. Cosbey United States Magistrate Judge