IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

TONNETTE P. TRIPLETT, )

)

Plaintiff, ) No. 12 C 4382

)

v. ) Magistrate Judge Jeffrey Cole

)

CAROLYN W. COLVIN, Commissioner )

of Social Security, )

)

Defendant. )

MEMORANDUM OPINION

A.

OnOctober 1, 2014, the partiesfiled an “EmergencyJoint Motion ForAn IndicativeRulingOn

AMotionForReliefThat IsBarredByAPendingAppeal Pursuant ToFederal RuleOfCivilProcedure

62.1(a)(3).” [Dkt. 47]. The Rule provides that:

if a timelymotion is made for reliefthat the court lacks authorityto grant because of an

appeal that has been docketed and is pending, the court may:

(1) defer considering the motion;

(2) deny the motion;

(3) state either that it would grant the motion if the court of appeals

remands for that purpose or that the motion raises substantial issues.

Fed.R.Civ.P. 62.1(a)(emphasis supplied). 

Atthe outset,itshould be noted thatthe two-and-a-half pagemotion isskeletal anduninformative.

It cites not a single case under the rules on which itrelies, and pointsto no case inwhich a district judge
has granted reliefon soskeletal amotion – orindeed, pursuantto anymotion like thatfiledhere.Although

Rule 60(b)is adverted to,themotion does notspecifywhich section oftheRule itwill be relyingon. That

alone is enough to denythe motion. See Nelson v. Napolitano, 657 F.3d 586, 590 (7 Cir. 2011). Nor th

does the motion attempt to explainwhy11months after the entryof judgment this court should grant a

remand in light ofthe requirement ofRule 60(c)thatthemotion bemadewithin a “reasonable time” after

entryof judgment. And the tersemotion did not pause to referto anyrule of appellate procedure or any

SeventhCircuitRule. Finally, consistentwith theCommissioner’s overall approach, themotion did not

make any attempt to explain why it qualified as an emergency.

1

It was not until the hearing on themotion and then onlyin response to questions bythe court that

the lawyers for the Commissioner identified the section of Rule 60(b) on which they were relying –

60(b)(6)-- and theydisclosed the emergencyas the imminencyof the oral argument – which is set for

Thursday, October 9, 2014. But the catch-all provision of Rule 60(b)(6) requires a showing of

“‘extraordinarycircumstances’” justifyingthe reopeningof a finaljudgment.” Gonzalez v.Crosby, 545

U.S. 524, 535 (2005). Themotion pointsto no such circumstances here. As far as one can tell from the

motion, the Commissioner has merely had a change of heart. That’s not covered by the Rule. See

Edwards-Brown v. Crete-Monee 201-U School Dist., 491 Fed.Appx. 744, 747 (7 Cir. 2012)(relief th

Given its uninformative and superficial structure, the motion perhaps could have been denied

1

pursuant to the consistently followed rule that perfunctory, skeletal, conclusory, and unsupported motions are

waived. See, e.g., Massuda v. Panda Exp., Inc. 759 F.3d 779, 783-784 (7 Cir. 2014); United States v. th

Beavers, 756 F.3d 1044, 1059 (7 Cir. 2014); C & N Corp. v. Gregory Kane & Illinois River Winery, Inc.,

th

756 F.3d 1024, 1026 (7 Cir. 2014); Price v. Board of Educ. of City of Chicago, 755 F.3d 605, 608 (7 Cir.

th th

2014); Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir.2012); Mahaffey v. Ramos, 588 F.3d 1142,

1146 (7th Cir.2009).

2
not availablewhen partymade a decision theynowregret); Nelson, 657F.3d at 590 (relief not available

for a tactical decision); McCormick v. City of Chicago, 230 F.3d 319, 327–28 (7 Cir.2000) (relief not th

available for a party’s deliberate choice).

2

Themotionstates generallythat everyaspect ofthe casewill be reevaluated,including theALJ’s

purported failure to assess the effects of the plaintiff’s obesity. That issue, however, was waived by

plaintiff’s counsel,wheninhis briefbefore this court, he referenced obesityoffhandedly,onlyto the extent

that counsel noted thattheALJ hadmentioned it as a severe impairment in his opinion. [Dkt. 22, at 7-8]. 

Plaintiff’s counsel never broughtit up again, and certainlymade no claimthat obesityaffected plaintiff’s

abilitytowork. SeeMueller v.Colvin, 524 Fed.Appx. 282, 286 (7 Cir. 2013)(ALJ’s failure to discuss th

obesity harmless error where plaintiff did not explain how it affected her condition and rendered her

disabled); Prochaska v. Barnhart, 454 F.3d 731, 737 (7 Cir.2006)(same). Indeed, he made no th

argument regarding obesity whatsoever. 

TheSeventhCircuit has consistentlyheld that anyarguments not presented in the district court are

waived. Thompson v. Colvin, 2014 WL 3805470, 6 (7 Cir. 2014); Schomas v. Colvin, 732 F.3d th

702, 707 (7 Cir. 2013); Skarbek v. Barnhart, 390 F.3d 500, 505 (7 Cir. 2004). This is perfectly th th

consistent with the general rule of appellate procedure that arguments not raised below arewaived on

appeal. King v. Kramer, 763 F.3d 635 (7 Cir. 2014). th

Finally, as alreadynoted,Rule 62.1 requiresthat amotion forreliefbe timely; Rule 60(b)requires

that amotion bemadewithin a “reasonable time.” What constitutes a “reasonable time” depends on the

Given the Commissioner’s consistent refusal over a number of years to grant relief to the plaintiff,

2

one would have expected to find an explanation for this sudden volte face.

3
facts of each case. Ingram v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 371 F.3d 950, 952 (7

th

Cir. 2004). “Although ‘[t]here is no hard and fastrule asto howmuch time isreasonable forthe filing of

aRule 60(b)(6)motion,’we look at ‘the interest in finality,the reasonsforthe delay,the practical ability

ofthe litigant to learn earlierofthegroundsrelied upon, andthe consideration of prejudice,if any,to other

parties.’” Ingram, 371 F.3d at 952(quotingKagan v. Caterpillar Tractor Co., 795 F.2d 601, 610 (7th

Cir.1986)). Here,themotionmakes no attempttoexplain thedelay, and theCommissionerhadmore than

ampletime toact at anypointinthepreviousfiveyears.Waitinguntiltheweekbefore oral argumentwould

notseemreasonable, absentsome explanation.TheCommissioner gave no persuasive explanation other

than to say recent cases had dictated that a fresh look be taken of the case. See infra at 6.

TheCommissioner’s unexplained change of position in themotion comes nearlya year afterthe

Commissioner’smotionforsummaryjudgmentwasgranted.Itwill be recalled thatthemotioncomesfive

years afterthe plaintiff applied forSupplementalSecurityIncome. Duringthat period,theCommissioner

has denied the plaintiff’s claimfourtimes. The claimwas denied initiallyand on reconsideration. Itwas

then denied byan administrative lawjudgewho conducted a hearing and poured over a 328-page record. 

And then it was denied by the Appeals Council.3

The plaintiffthenfileda lawsuit hopingto overturn the denial. TheCommissionerthen took two

 The court is well aware of the purposes of the Social Security Act. But the fact remains that the

3

ALJfound that the plaintiff was not a credible witness. [Dkt. 38, at 17-20]. And it certainly would not appear

that that assessment by the ALJ was “patently wrong.” The plaintiff mischaracterized evidence. [Dkt. 38,

at 3 n.2, 16]. She mischaracterized the ALJ’s opinion. [Dkt. 38, at 18, 19 n.4, 21]. The mental health

professionals she saw regularlywere grooming herforjob interviews and employment [Dkt. 38, at 15-16, 19-

20], but she presented a different side to those who could assist her in getting “what she had coming.” [Dkt.

38, at 19-20]. None of this is adverted to in the Commissioner’s motion which inexplicably seeks a do over

of every aspect of the case.

4
monthsto file an answer. The partiesthen spentfourmonths briefingthis case and the ruling finallycame

tenmonthslater. Throughit all,theCommissionerstoodher ground. Thematter has nowbeen on appeal

to theSeventhCircuitfor another ninemonths.It certainlycan be argued that themotionwas notfiled in

a “reasonable time.” See Fed.R.Civ.P. 60(c); Bryant v. General Packaging Products, Inc., 492

Fed.Appx. 697, 698 (7 Cir. 2012)(movant failed to explained how its motion could be considered to th

have been filed within a reasonable time); United States v. Moorehead, 321 Fed.Appx. 512, 513-514

(7 Cir. 2009)(“In the absence of anypersuasive reasonsfor his delay, the district court did not abuse its

th

discretion in concluding that the delay was unreasonable.”).

C.

It was not until the hearing on themotion when the above concerns were expressed bythe court

thattheCommissioner’slawyerssaidthattwodistrict judges(JudgeCrabbandJudgeMcCluskey)in three

separate cases hadgranted virtuallyidenticalmotionsforreliefunderRule 62.1(a)(3) and thattheSeventh

Circuit had approved those orders and remanded the cases to the district court. See Jalali v. Colvin, 4

[Dkt. 50-1 at 12]; Fitzpatrick v. Colvin, [Dkt. 50-1 at page 27]; Halverson v. Astrue, (Posner, J.)

[Dkt. 50-1 at page 38]. I ordered the Commissioner to immediatelyfile on the docket the district court

orders and relatedmotionsin those cases and the related orders oftheCourt ofAppeals.Theyhave done

so. [See Dkt. 50].

When askedwhythemotion made no reference to these cases and failed to append as exhibits

4

the orders entered bythe judgesin those cases, theCommissioner’srepresentative had no answer other

than to say that he was “sorry that the motion did not live up to my standards.”

5
When asked whythiswas an emergencymotion,Iwastold that the emergencywasthat the case

is being argument next Thursday. Why a motion was not filed long before now the Commissioner’s

representatives did not explain.

And forthe first time, theCommissionerspecifiedRule60(b)(6) asthebasisforthe reliefitwas

seeking.Thatsectionprovidesthat a court mayrelieve a partyfrom a finaljudgment,orderor proceeding

for “any other reason [aside from those listed in 60(b)(1)-(5)] that justifies relief.” It was the

Commissioner’s positionthat a change inthe lawqualifiesunderRule60(b)(6) andthattherehasbeenwhat

he claimedwas a drastic change in the lawgoverning this case in the last fewmonths. Nonewere citedin

themotion.Iinstructed theCommissionertofile a list ofthe cases he claims constitute thissea change.He

has done so. [Dkt. 50-2]. Of the six cases, three were decided in July, two in August and one in

September. Moreover, Nash v. Hepp, 740 F.3d 1075, 1078-1079 (7 Cir. 2014) holds that a change

th

in the lawis not an extraordinarycircumstance under Rule 60(b)(6). See alsoGonzalez v.Crosby, 545

U.S. 524, 536 (2005); Hill v. Rios, 722 F.3d 937, 938 (7th Cir.2013) ( ‘Rule 60(b) cannot be used to

reopen the judgment in a civil case just because later authorityshowsthat the judgment mayhave been

incorrect.’); Norgaard v. DePuy Orthopaedics, Inc., 121 F.3d 1074, 1078 (7th Cir.1997).

D.

Seventh Circuit Rule 57, captioned “Remands For Revision of Judgment” provides:

A party who during the pendency of an appeal has filed a motion under Fed.R.Civ.P.

60(a) or 60(b), Fed.R.Crim. P. 35(b), or anyother rule that permits the modification of

a finaljudgment,shouldrequestthe district courtto indicatewhetheritisinclined to grant

themotion.Ifthe district courtso indicates,this courtwillremandthe case forthe purpose

ofmodifyingthe judgment.Anypartydissatisfiedwiththe judgment asmodifiedmustfile

6
a fresh notice of appeal.5

As explained at the outset,there is noRule 60(b)motion on file.There is onlyamotion pursuant

to F.R.C.P. 62.1(a), and that also requires a timelymotion under Rule 60(b). To grant the motion, the

Commissioner’s oral explanation must be treated as the Rule 60(b) motion.

CONCLUSION

Given the rulings by two respected district judges in the three cases discussed above and the

ordersinallthree cases bytheCourt ofAppeals,Ihave concludedthattheCommissioner’smotion in this

case can be granted. Iwould be inclined to grant the parties’motion forreliefforjudgment ifthis cause

were returned to this court by the Court of Appeals. 

ENTERED: 

 UNITED STATES MAGISTRATE JUDGE

DATE: 10/6/14

Remands are obviously not automatic merely because parties agree to a remand.

5

7