Rodriguez v. Commissioner of Social Security

Filing 33

Memorandum Opinion and Order denying the Commissioner's motion for reconsideration and denying Plaintiff's additional request for an award of attorney's fees, re 30 Motion for reconsideration filed by Commissioner of Social Security, 32 Objection filed by Miguel J. Rodriguez. Magistrate Judge Nancy A. Vecchiarelli on 8/1/2012. (M,M)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

MIGUEL J. RODRIGUEZ,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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CASE NO. 3:11-cv-398
MAGISTRATE JUDGE
VECCHIARELLI

MEMORANDUM OPINION AND
ORDER

Before the Court is the motion of Defendant, the Commissioner of Social
Security (“the Commissioner”) for reconsideration of this Court’s July 16, 2012,
Memorandum Opinion and Order granting in part Plaintiff’s application for an award of
attorney’s fees, expenses, and costs under the Equal Access to Justice Act (“EAJA”),
28 U.S.C. § 2412. (Doc. No. 30.) Plaintiff, Miguel J. Rodriguez (“Plaintiff”), opposes
and seeks an additional award of attorney’s fees under EAJA for 6.25 hours of services
rendered by counsel preparing the opposition. (Doc. No. 32.) For the following
reasons, the Commissioner’s motion for reconsideration is DENIED and Plaintiff’s
additional request for an award of attorney’s fees is DENIED.

I.
The procedural history of this case is fully set forth in this Court’s Memorandum
Opinion and Order dated July 16, 2012. (Doc. No. 29.) On June 28, 2012, the Court
ordered Plaintiff to file a supplemental EAJA application with additional evidentiary
support for his initial EAJA application and directed the Commissioner to file any
response within seven days. (Doc. No. 27.) Plaintiff filed his supplement on July 5,
2012 (Doc. No. 28); accordingly, the Commissioner was required to file any response to
the supplement by July 12, 2012. The Commissioner failed to do so. Four days later,
on July 16, 2012, the Court granted in part and denied in part Plaintiff’s EAJA
application and awarded Plaintiff a total of $7,610.69 to fully satisfy all reasonable
attorney’s fees, expenses, and costs incurred under EAJA. Rodriguez v. Comm’r of
Soc. Sec., No. 3:11-cv-398, slip op. at 13 (N.D. Ohio July 16, 2012) (Doc. No. 29). The
Court found the total award reasonable and appropriate under the circumstances of the
case. Id. at 12.
On Wednesday, July 18, 2012, the Commissioner filed his motion for
reconsideration. (Doc. No. 30.) The Commissioner explains that “counsel erroneously
calendared the due date for [the] response to Plaintiff’s Supplement . . . based upon
[the] 14-day standard response time under the Local Rules, instead of the 7-day
deadline set forth in [the] Court’s order.” (Def.’s Mot. Recons. 1.) The Commissioner
continues that counsel “misread [the] Court’s . . . Order[] and inadvertently calendared
the due date as July 19, 2012,” and that “counsel was unaware of this mistake until the
Court issued its Order on July 16, as . . . counsel was out of the office on vacation from

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July 9, 2012 until July 16, 2012.” (Def.’s Mot. Recons. 1.)
The Commissioner attached to his motion the affidavit of Ms. Marsha A.
Treacey, a “Paralegal Assistant” in the Office of the United States Attorney for the
Northern District of Ohio, who avers that she “misread the Court’s order[] and did not
record the 7 day deadline,” and “inadvertently recorded the due date as July 20, 2012.”
(Marsha A. Treacey Aff. ¶ 2-3, Doc. No. 30-1.) Ms. Treacey further avers that her
“increasing caseload, in which more than 450 cases are currently pending, contributed
to her mistake,” as she “receive[s] between 75-100 emails per day, which include ECF
notifications and correspondence relating to routine responsibilities.” (Treacey Aff. ¶ 4.)
The Commissioner also attached to his motion his response to Plaintiff’s
supplemental EAJA application; and he requests that the Court “reconsider its
Memorandum Opinion and Order and consider the arguments set forth in the attached
. . . brief.” (Def.’s Mot. Recons. 2.)
On July 23, 2012, Plaintiff filed an objection to the Commissioner’s motion for
reconsideration and requested an additional award of attorney’s fees under EAJA for
6.25 hours of services rendered by counsel preparing the opposition. (Doc. No. 32.)
II.
Motions for reconsideration are extraordinary in nature and, because they run
contrary to notions of finality and repose, should be discouraged. McConocha v. Blue
Cross & Blue Shield Mut. of Ohio, 930 F. Supp. 1182, 1184 (N.D. Ohio 1996). Although
a court can always take a second look at a prior decision, it need not and should not do
so in the vast majority of instances—especially when such motions merely restyle or

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re-hash the initial issues. Id.
Here, the Commissioner cites no legal authority and provides no legal argument
in support of his motion for reconsideration; however, although motions for
reconsideration are not mentioned in the Federal Rules of Civil Procedure, they are
often treated as motions to alter or amend judgment under Rule 59(e).1 Sherwood v.
Royal Ins. Co. of Am., 290 F. Supp. 2d 856, 858 (N.D. Ohio 2003). Motions to alter or
amend judgment may be granted if there is a clear error of law, newly discovered
evidence, an intervening change in controlling law, or to prevent manifest injustice.
GenCorp., Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999). Courts
have discretion in ruling upon motions under Rule 59(e). Huff v. Metro. Life Ins. Co.,
675 F.2d 119, 122 (6th Cir. 1982).
Here, the Commissioner does not explain how any of the bases for relief under
Rule 59(e) warrant reconsideration of the Court’s July 16, 2012, Memorandum Opinion
and Order. Absent such an explanation from the Commissioner, and in the interests of
finality and repose, to the extent the Commissioner seeks relief under Rule 59(e), the
Commissioner’s motion for reconsideration is not well taken.
The Commissioner’s motion also may be construed as a motion for relief under
Rule 60(b)(1), as his explanation for his failure to respond to Plaintiff’s supplemental
EAJA application in a timely manner—the erroneous, inadvertent, and mistaken
calendaring of the due date—invokes the specific language of that Rule. See
Harrington v. City of Chicago, 433 F.3d 542, 546 (7th Cir. 2006); Jennings v. Rivers,
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A “judgment” under the Rules “includes any order from which an appeal lies.”
Fed. R. Civ. P. 54.
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394 F.3d 850, 855-56 (10th Cir. 2005); Nisson v. Lundy, 975 F.2d 802, 806 (11th Cir.
1992); Butler v. Pearson, 636 F.2d 526, 529 (D.C. Cir. 1980); cf. Ky. Ass’n of Elec.
Coops., Inc. v. Local Union No. 369, Int’l Bhd. of Elec. Workers, AFL-CIO, 780 F.2d
1021 (Table), 1985 WL 13967, at *3 (6th Cir. 1985) (declining to consider the
appellant’s motion for reconsideration as a motion under Rule 60(b) because the
motion was labeled only a “Motion for Reconsideration”; the attached proposed
judgment recited Federal Rules of Civil Procedure 56 and 59; and the memorandum in
support did not explicitly or implicitly cite any of the grounds for a Rule 60(b) order). For
the following reasons, however, Rule 60(b)(1) is unavailing.
Rule 60(b)(1) provides that “[o]n motion and just terms, the court may relieve a
party or its legal representative from a final judgment, order, or proceeding for . . .
mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). In
order to be eligible for relief under Rule 60(b)(1), the movant must demonstrate (1) the
existence of mistake, inadvertence, surprise, or excusable neglect, and (2) that he has
a meritorious defense. Marshall v. Monroe & Sons, Inc., 615 F.2d 1156, 1160 (6th Cir.
1980). Courts have defined “neglect” to include late filings caused by mistake,
inadvertence, or carelessness, as well as intervening circumstances beyond the party’s
control. Burnley v. Bosch Ams. Corp., 75 F. App’x 329, 333 (6th Cir. 2003). Whether
“neglect” is excusable involves an equitable determination that takes into account (1)
the danger of prejudice to the other party, (2) the length of delay, (3) its potential impact
on judicial proceedings, (4) the reason for the delay, and (5) whether the movant acted
in good faith. Jinks v. AlliedSignal, Inc., 250 F.3d 381, 386 (6th Cir. 2001). Courts

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have discretion in ruling upon motions under Rule 60(b)(1). Douglass v. Pugh, 287
F.2d 500, 502 (6th Cir. 1961).
Here, the Commissioner has not explained, and the Court does not find, any
basis to conclude that counsel’s failure to observe a clear deadline set forth in the
Court’s June 28, 2012, Order was excusable under Rule 60(b)(1).2 Although the Court
sympathizes with the time constraints of counsel’s office, mere carelessness on the part
of a moving party does not justify relief under Rule 60(b)(1).3 See Merriweather v.
Wilkinson, 83 F. App’x 62, 63 (6th Cir. 2003); see also Deo-Agbasi v. Parthenon Grp.,
229 F.R.D. 348, 352 (D. Mass. 2005) (finding that a paralegal’s “workload and
carelessness are not adequate to excuse the neglect in this case”); McDermott v.
Lehman, 594 F. Supp. 1315, 1319 (D. Me. 1984) (“The mere fact that an attorney is

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Counsel is reminded that briefing on “supplemental” matters is generally limited
in scope and, therefore, requires much less time.

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No injustice will result from declining to reconsider the Court’s prior ruling in
light of the Commissioner’s response to Plaintiff’s supplemental EAJA
application. Although it is Plaintiff’s burden to show that his requested
attorney’s fees are reasonable, Plaintiff provided abundant evidence in support
of his EAJA application and the Commissioner’s response provides no
countervailing evidence. Further, the Commissioner does not request a
hearing. Finally, the Commissioner’s response relies principally on the
argument that Plaintiff was required to provide evidence of prevailing billing
rates among attorneys who practice Social Security disability benefits law and
completely ignores the fact that the OSBA report Plaintiff provided indicates
average billing rates for attorneys who primarily practice administrative law,
public benefits law, and worker’s compensation law on behalf of plaintiffs. In
this Court’s experience, the practices of administrative law, public benefits law,
and worker’s compensation law are similar to the practice of Social Security
disability benefits law; and the Court observes that the average rates of
attorneys who practice in those areas of law are greater than both the rate
Plaintiff initially requested ($180.59 per hour) and the rate this Court granted
Plaintiff ($176.95 per hour). (See Pl.’s Ex. 1, Doc. No. 28-1, at 3.)
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busy with other matters does not excuse . . . neglect on his part for the purposes of
Rule 60(b).”).
Finally, Plaintiff’s supplemental request for an award of attorney’s fees based on
6.25 hours of services rendered by counsel on Plaintiff’s opposition to the
Commissioner’s motion for reconsideration is denied. At some point, fees in pursuit of
fees are not reasonable—and this is such an instance.
IV.
For the foregoing reasons, the Commissioner’s motion for reconsideration is
DENIED and Plaintiff’s additional request for an award of attorney’s fees is DENIED.
IT IS SO ORDERED.

s/ Nancy A. Vecchiarelli
U.S. Magistrate Judge
Date: August 1, 2012

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