Kerr v. Commissioner of Social Security

Filing 29

MEMORANDUM OPINION AND ORDER by Magistrate Judge Colin H. Lindsay on 10/17/2016 - The Court DENIES Kerr's motion to alter or amend the judgment 26 as moot. cc: Counsel(DAK)

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION HOPE KERR FOR HANK W. KERR, DECEASED, v. Plaintiff Case No. 3:15-cv-313-CHL CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant Memorandum Opinion and Order Hope Kerr moves to alter or amend judgment under Rule 59(e). Pl.’s Mot. (DN 26). The Court may grant a Rule 59(e) motion to alter or amend judgment if there is clear legal error. GenCorp, Inc. v. American Intern. Underwriters, 178 F.3d 804, 834 (6th Cir. 1999). Kerr argues that the Court clearly erred in applying the Anti-Assignment Act sua sponte. Pl.’s Mot. 5 – 24. She asks the Court to order her Equal Access to Justice Act award payable to counsel. Id. at 25. The Commissioner responds that Kerr’s motion is moot because the Commissioner instructed the relevant agency to make the award payable to counsel, consistent with this Court’s order. Def.’s Resp. 1 (DN 27). Kerr replies that the motion is not moot because she has a concrete interest in “not being subjected to the erroneous imposition of the Anti-Assignment Act.” Pl.’s Reply 3 (DN 28). “A federal court is without power to decide moot questions or to give advisory opinions which cannot affect the rights of the litigants before it.” St. Pierre v. United States, 319 U.S. 41 (1943). 1 The Court agrees with the Commissioner that the motion to alter or amend is moot. Kerr asked for the award to be made payable to counsel. The Commissioner made the award payable to counsel. The exceptions to mootness Kerr identifies—capable of repetition, yet evading review and voluntary cessation—do not apply. Kerr has not shown that cases presenting this fact pattern have been evading review. Indeed, it is likely that a claimant who receives an award payable to the claimant but subject to the government’s set-off could, and would, challenge the AntiAssignment Act’s application. Similarly, Kerr has not shown that the Commissioner’s compliance with this Court’s order, by making the award payable to the attorney, was a voluntary cessation of a challenged practice. Having found Kerr’s motion moot, the Court need not consider whether it clearly erred in the previous memorandum opinion and order. Accordingly, the Court DENIES Kerr’s motion to alter or amend the judgment as moot (DN 26). cc: Counsel of record October 17, 2016 Colin Lindsay, MagistrateJudge United States District Court 2

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