Dowsett v. Commissioner of Social Security
MEMORANDUM AND ORDER. To the extent that Plaintiff's letter postmarked June 6, 2017, can be construed as a motion for reconsideration of this Court's August 2009 memorandum and order granting the Commissioner's motion for judgment on the pleadings or the Court's September 2009 judgment in this case, the motion is denied. Ordered by Judge Sandra L. Townes on 6/23/2017. C/M by chambers. (Barrett, C)
IN CLERK'S OFFICE
U.S. DISTRICT COURT E.00.NX
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
COMMISSIONER OF SOCIAL SECURITY,
TOWNES, United States District Judge:
In May 2007, Queens Legal Services Corporation commenced this action on behalf of
Plaintiff David Dowsett, seeking review of a final decision of the Commissioner of Social
Security ("the Commissioner") which found that Plaintiff voluntarily withdrew his January 1978
application for Supplemental Security Income ("SSI") in March 1978. In a memorandum and
order entered in August 2009, the Court granted the Commissioner's motion for judgment on the
pleadings under Federal Rule of Civil Procedure 12(c). Dowsett v. Astrue, No. 07-CV-2018
(SLT) (SMG), 2009 WL 2777040, at *1 (E.D.N.Y. Aug. 31, 2009). Plaintiff did not appeal.
On June 6, 2017, nearly eight years after the judgment dismissing this action was entered,
Plaintiff, proceeding pro se, mailed the Court a one-page letter (hereafter, "the Letter")
discussing "things that [he] didn't tell to the local Attorneys at the Queens Legal Aid Office ...
back in 2008." These "things" principally relate to Plaintiff's reasons for not pursuing the 1978
application. However, Plaintiff also states that "no application withdrawl [sic] form" was ever
presented in this litigation and that he does not "know what kind of a form that [he] possibly
signed." Plaintiff's letter ends by requesting that this Court "review accordingly."
"It is well established that the submissions of apro se litigant must be construed liberally
and interpreted `to raise the strongest arguments that they suggest." Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir.
2006)). Read liberally, the Letter could be construed as a motion for reconsideration of this
Court's 2009 order and judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure.
That rule provides:
On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for 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.
"The standard for granting such a motion is strict, and reconsideration will generally be
denied unless the moving party can point to controlling decisions or data that the court
overlooked—matters, in other words, that might reasonably be expected to alter the conclusion
reached by the court." Shrader v. CSXTransp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (citing
cases). Morever, "[a] motion under Rule 60(b) must be made within a reasonable time--and for
reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of
the proceeding." Fed. R. Civ. P. 60(c)(1).
The Letter does not cite to any cases or suggest that there is controlling data that was
overlooked. First, while Plaintiff correctly notes that the Administrative Record did not contain a
copy of his March 1978 withdrawal of his application, that fact was expressly acknowledged in a
footnote in the Court's August 2009 memorandum and order. Dowsett, 2009 WL 2777040, at
*1, n. 3 ("Neither ... plaintiff's ... SSI application nor his March 1978 withdrawal are in the
record."). Similarly, the fact that Plaintiff did not recall signing a withdrawal form was expressly
stated in a document cited in that memorandum and order, in which Plaintiff stated that he did
not recall signing the withdrawal form because the side effects of a medication he was taking
during the first 3 or 4 months of 1978 left him in "a psychotic , almost incoherent mental state."
Administrative Transcript, p. 27. To be sure, the Administrative Record did not contain the facts
set forth in the Letter which relate to the reasons Plaintiff did not follow up on his 1978
application. However, there is nothing to suggest that these reasons would alter the conclusion
reached by the Administrative Law Judge and this Court: that Plaintiff knowingly and voluntarily
withdrew his application.
Moreover, the Letter was not postmarked until June 2017—almost eight years after the
Court entered judgment in this case. Plaintiff does not explain why he could not have sought
reconsideration earlier, except to say that he "just recently recalled supporting information that
[he] didn't think of in 2008." Absent a showing of reasonable diligence in pursuing his claims,
the Court finds that Plaintiff's motion was not made within a "reasonable time."
To the extent that Plaintiff's letter postmarked June 6, 2017, can be construed as a motion
for reconsideration of this Court's August 2009 memorandum and order granting the
Commissioner's motion for judgment on the pleadings or the Court's September 2009 judgment
in this case, the motion is denied.
Sandra L. Townes
SANDRA L. TOWNES
United States District Court
Dated: June ...3, 2017
Brooklyn, New York
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