Colon v. Colvin

Filing 45

DECISION AND ORDER granting 40 Motion to Dismiss; denying 35 Motion to Alter Judgment. Signed by Hon. Michael A. Telesca on 10/21/2019. (AFB)

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

Magistrate

adopting
Judge

the

Report

Jeremiah

and

J.

Recommendation

McCarthy

which

(“R&R”)

reversed

of
the

Commissioner’s decision and remanded the matter for calculation of

-1-

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

depression,

asthma,

due
and

to

mobility

arthritis.

He

problems,

brain

subsequently

damage,

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.

-2-

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,

applications

on

Plaintiff

February

27,

filed
2009,

renewed
and

SSI

March

and

20,

CDB
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

-3-

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.

-4-

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.

-5-

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

-6-

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.
-8-

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

-10-

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

“[A] 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 “[v]irtually every court

-12-

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

-13-

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.3 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
3
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

-17-

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
Requirements

Time

and

Good

Cause

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
-18-

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-cv10785 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

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Reply

(Docket

No.

41)

at

5

(“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.
Finally,

Subsection (6)
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.

-25-

at

657

(rejecting

as

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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