King v. Social Security Administration, Commissioner of
MEMORANDUM AND ORDER denying 30 Plaintiff's Motion to Alter or Amend Judgment. Signed by District Judge John W. Lungstrum on 02/08/2017. (ses)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LISA M. KING,
NANCY A BERRYHILL,1
Acting Commissioner of Social Security,
MEMORANDUM AND ORDER
This matter comes before the court on Plaintiff’s “Motion to Alter or Amend
Judgment” made pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. (Doc.
30). The motion was filed on January 12, 2017, twenty-eight days after the court filed the
judgment which the motion seeks to set aside or amend. Compare (Doc. 30) (filed
January 12, 2017) with (Doc. 29) (filed December 15, 2016). The Acting Commissioner
(hereinafter Commissioner) has responded in opposition to the motion, and argues that the
motion should be denied. (Doc. 32) (hereinafter Comm’r Response). Plaintiff filed her
reply on February 3, 2017 (Doc. 33) (hereinafter Reply), and the motion is ripe for
On Jan. 20, 2017, Nancy A. Berryhill, became Acting Commissioner of Social
Security. In accordance with Rule 25(d)(1) of the Federal Rules of Civil Procedure,
Nancy A. Berryhill is substituted for Acting Commissioner Carolyn W. Colvin as the
defendant. In accordance with the last sentence of 42 U.S.C. § 405(g), no further action
decision. The court has reviewed the parties’ arguments, the pleadings, the administrative
record, the court’s order upon which judgment was entered, and the applicable law, and
determines that Plaintiff’s motion shall be denied. Neither parties’ briefing addresses the
proper bases to alter or amend judgment pursuant to Fed. R. Civ. P. 59(e), nor the legal
standard to be applied when considering such a motion. That is where the court will
“Rule 59 provides the mechanism by which a court can (1) set aside a verdict and
order a new trial; or (2) reconsider a prior entry of judgment.” Fed. R. Civ. P. 59
(practice commentary - overview). Sections (a) through (d) concern procedures to set
aside a verdict and order a new trial, and section (e) provides for a motion to alter or
amend a judgment. Because there was no trial, and hence no verdict in this case, Rule 59,
sections (a) through (d) are not applicable here. Judgment, however, was entered in this
case on December 15, 2016 on the court’s Memorandum and Order affirming the
Commissioner’s decision below. (Docs. 28, 29).
Because Plaintiff is subject to an adverse judgment of this court, she may file a
motion to alter or amend that judgment pursuant to Fed. R. Civ. P. 59(e). VanSkiver v.
United States, 952 F.2d 1241, 1243 (10th Cir. 1991). The motion must be filed within
twenty-eight days after the judgment is entered. See Fed. R. Civ. P. 59(e).
The three grounds that justify reconsideration under Rule 59(e) are: (1) an
intervening change in controlling law; (2) the availability of new evidence; and (3) the
need to correct clear error or prevent manifest injustice. See Servants of the Paraclete v.
Does, 204 F.3d 1005, 1012 (10th Cir. 2000); Phelps v. Hamilton, 122 F.3d 1309, 1324
(10th Cir. 1997).
Plaintiff does not argue a change in controlling law and does not attempt to present
new evidence, so the court considers his motion as an attempt to argue clear error or
manifest injustice. A motion for reconsideration is inappropriate to re-argue an issue
previously addressed by the court when the motion merely advances new arguments or
supporting facts that were available at the time of the original application. Paraclete, 204
F.3d at 1012 (motion to reconsider is not a proper vehicle through which to “revisit issues
already addressed or advance arguments that could have been raised in prior briefing”).
However, a motion to alter or amend that reiterates issues originally raised in the
application and that seeks to challenge the legal correctness of the court’s judgment by
arguing that the court misapplied the law or misunderstood the litigant’s position is
correctly asserted pursuant to Fed. R. Civ. P. 59(e). See Van Skiver, 952 F.2d at 1244.
In this case, Plaintiff met the time limitation under Rule 59 by filing her motion
twenty-eight days after the entry of judgment. However, Plaintiff provides no newly
promulgated authority, no new evidence, and no clear error or manifest injustice that
warrants reconsideration of the court’s Judgment, or Memorandum and Order. In the
memorandum supporting her motion, Plaintiff argues that the court (and the
Administrative Law Judge (ALJ)) misunderstood the evidence, weighed the evidence
wrongly, and reached an erroneous conclusion with regard to the evidence. (Doc. 31).
But, Plaintiff does not argue that the court misapplied the law applicable to judicial
review of the Social Security Administration’s decision, and she does not argue that the
court misunderstood the arguments made in her Social Security briefing. But, as the
Commissioner argued, her “motion constitutes merely a reiteration of her previous
contentions and as such [is] merely an invitation to the court to impermissibly reweigh the
evidence in these regards.” (Comm’r Response 1). A motion to reconsider is not the
proper vehicle through which to “revisit issues already addressed or advance arguments
that could have been raised in prior briefing.” Paraclete, 204 F.3d at 1012. It is clear that
Plaintiff disagrees with the final decision of the Commissioner below, and with the
court’s determination that the Commissioner’s decision is supported by the record
evidence. The place to advance those arguments is with the Tenth Circuit Court of
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Alter or Amend
Judgment (Doc. 30) is Denied.
Dated this 8th day of February 2017, at Kansas City, Kansas.
s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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