Outlaw v. Colvin

Filing 17

ORDER granting 13 Motion to Dismiss - Signed by District Judge Louise Wood Flanagan on 12/23/2014. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:14-CV-523-FL

GORDON OUTLAW,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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ORDER

This matter comes before the court on defendant’s motion to dismiss (DE 13) the present
action as duplicative of a prior action by the same plaintiff, 5:11-CV-647-FL, which this court
remanded to the Commissioner for further proceedings pursuant to sentence six of 42 U.S.C. §
405(g). Plaintiff responds that he seeks to preserve appeal rights over the Commissioner’s decision
upon remand, and plaintiff does not oppose defendant’s answer and transcript being filed in the prior
action, which plaintiff seeks also to consolidate with this one.
In the court’s remand order in case No. 5:11-CV-647-FL, the court stated that “[f]ollowing
remand, the Commissioner must return to this Court to file any additional or modified findings and
any transcript of additional record upon which the modification or affirmance of the prior decision
is based, pursuant to sentence six of 42 U.S.C. § 405(g).” (Order, March 28, 2013). Plaintiff’s
recourse upon any additional or modified findings by the Commissioner, thus, is to file a motion for
judgment on the pleadings, or such further motion as warranted, in case No. 5:11-CV-647-FL, after

the Commissioner has filed any additional or modified findings and any transcript of additional
record upon which the modification or affirmance of the prior decision is based. See Melkonyan v.
Sullivan, 501 U.S. 89, 98 (1991) (“following a sentence six remand, the Secretary must return to the
district court to ‘file with the court any such additional or modified findings of fact and decision, and
a transcript of the additional record and testimony upon which his action in modifying or affirming
was based.’”) (quoting 42 U.S.C. § 405(g)); Sullivan v. Finkelstein, 496 U.S. 617, 626-27 (1990)
(acknowledging the judicial review performed by the district court after the completion of the
sentence six remand proceedings). The present action, which seeks to accomplish the same judicial
review, is unnecessary and duplicative. Therefore, the present action is DISMISSED WITHOUT
PREJUDICE, to enable continuation of proceedings in case No. 5:11-CV-647-FL.
SO ORDERED this the 23rd day of December, 2014.

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LOUISE W. FLANAGAN
United States District Judge

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