Arnold v. Wood, 238 F.3d 992, 995 n.2 (8th Cir. 2001), cert. denied, 534 U.S. 975
(2001) (reaching same decision). The reason given in support of these decisions is that
the 10-day time period for filing a Rule 59(e) motion is triggered by the date of the “entry
of the judgment” rather than the date of the “service of the notice or other paper.” See
Fed. R. Civ. P. 59(e) (“[a]ny motion to alter or amend a judgment shall be filed no later
than 10 days after entry of the judgment’) (emphasis added). As the D.C. Circuit
explained in Derrington-Bey:

Mere quotation of Rule 6(e) shows why it is inapplicable to Rule 59(e)

motions. The period for filing a Rule 59(e) motion does not—in the words of

Rule 6(e)—begin with “service of a notice.” True, the clerk of the district court

must “immediately” serve by mail a notice of the entry of a judgment... But

the critical point for measuring the timeliness of a Rule 59(e) motion is not the

date of service, nor is it the date of the court’s order. The 10 days allowed by

Rule 59(e) begin with the clerk’s ministerial act of entering the court's

judgment in a “book’-today, often in the form of an automated

system—‘“known as the ‘civil docket’”.
39 F.3d at 1225. We agree with the reasoning of these courts and find that Rule 6(e)
does not apply to Rule 59(e) motions. As such, Plaintiff cannot rely on Rule 6(e) to
make his Rule 59(e) motion timely.”

RULE 60(b)

Perhaps recognizing the futility of his Rule 59(e) argument, Plaintiff argues, in his

Reply Brief, that his motion to alter or amend the judgment should be treated by the

2 Both Plaintiff and Defendant cited, in footnotes, the district court decisions

of Moberg v. City of West Chicago, No. 0002504, 2002 WL 31834872, at *4 (N.D. Ill.
2002) and Bell v. Marseilles Elementary Sch., 160 F. Supp. 2d 883, 885 n.2 (N.D. Ill.
2001), which seem to suggest that Rule 6(e) would apply to Rule 59(e) motions. As
both parties point out, these decisions are not binding. We agree with Defendant that
these decisions do not properly apply Rule 6(e) and deciine to follow them to the extent
they hold that Rule 6(e) may be applied to Rule 59(e) motions.

4.


merely suggested the district court made mistakes of law rather than conforming to any
grounds specified in Rule 60(b)); Cincinnati Ins. Co. v. Flanders Elec. Motor Serv., Inc.,
131 F.3d 625, 630 (7th Cir. 1997) (affirming denial of relief under Rule 60(b)(6)). As
Plaintiff has failed to demonstrate extraordinary circumstances that create a substantial
danger of an unjust result, his motion for reconsideration is denied.*
Conclusion

For all of the reasons set forth above, Plaintiff's motion to alter or amend the
judgment, or for reconsideration, as to his request for attorneys’ fees and costs
pursuant to the EAJA is denied. It is so ordered.

ENTER:

| xg LP

MICHAEL T. MASON
United States Magistrate Judge

Dated: May §, 2003

We note, in any event, that even if we were to conduct an analysis as to
the merits of Plaintiff's arguments, we would still find the Commissioner to be
substantially justified. First, we find that the ALJ's failure to have discussed the state
agency physician’s report more fully does not lead to a finding that the Commissioner
was not substantially justified on the facts here — even in light of SSR 96-6p. Second,
we do not believe that there was an unbridgeable gap between the record and the
ALJ's conclusions in this case, as there was in Scott. Although we remanded so that
certain evidence (e.g., the Diversey Medical Reports and Dr. O’Donnell’s diagnosis)
could be further addressed and explained, we never found an unbridgeable gap
between the record and the ALJ’s conclusions.

-9-


has been a controlling change in the law or facts since the submission of the issue to
the court); Russell, 51 F.3d at 749 (‘[t]he rule was designed to address mistakes
attributable to special circumstances and not merely to erroneous applications of the
law”). In addition, Rule 60(b) motions “must be shaped to the specific grounds for
modification or reversal listed in Rule 60(b)—they cannot be general pleas for relief.”
Deutsch, 981 F.2d at 301. In this regard, district court judges should not be burdened
with “agonizing” over whether a motion for reconsideration asserts grounds for relief
included in Rule 60(b), because it is the movant’s task to make its Rule 60(b)
contentions clear. Deutsch, 981 F.2d at 302.

With these standards in mind, we turn to the motion for reconsideration before
us now. Defendant argues that Plaintiff's motion for reconsideration should be denied
because Plaintiff has not made any arguments nor cited to any authorities in support of
a finding that he is entitled to relief from the Court's judgment under the more stringent
requirements of Rule 60(b). We agree with Defendant. Plaintiff failed to state any Rule
60(b) contentions with specificity or in a clear and straightforward manner, as required
by law, and instead seemed to argue only that the circumstances of the case justified
relief generally. While the Court is under no duty to manufacture a Rule 60(b)
argument for Plaintiff, we will examine the briefs to see if any 60(b) contentions were
made. We note, first, that Plaintiff did not sufficiently argue in his brief that there was
any “mistake, inadvertence, surprise, or excusable neglect” by the Court in denying
Plaintiffs motion for attorneys’ fees. Fed. R. Civ. P. 60(b)(1). Nor did Plaintiff argue
that there was any “newly discovered evidence” that might have shown that the

judgment was erroneous. Fed. R. Civ. P. 60(b)(2). Likewise, Plaintiff did not argue that

-6-


Court as a motion to reconsider pursuant to Rule 60(b). A motion to alter or amend a
judgment will be evaluated under Rule 60(b) when it is filed more than 10 days after the
judgment. Helm v. Resolution Trust Corp., 43 F.3d 1163, 1166-67 (7th Cir. 1995);
United States v. Deutsch, 981 F.2d 299, 301 (7" Cir. 1992). Because Plaintiff's motion
to alter or amend the judgment was filed more than 10 days after the judgment, we will
treat it as a Rule 60(b) motion to reconsider.

Rule 60(b) authorizes a court to grant relief from final judgment or order for the
following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly

discovered evidence which by due diligence could not have been

discovered in time to move for a new trial under Rule 59(b); (3) fraud

(whether heretofore denominated intrinsic or extrinsic), misrepresentation,

or other misconduct of an adverse party; (4) the judgment is void; (5) the

judgment has been satisfied, released, or discharged, or a prior judgment

upon which it is based has been reversed or otherwise vacated, or it is no

longer equitable that the judgment should have prospective application; or
(6) any other reason justifying relief from the operation of the judgment.

Fed. R. Civ. P. 60(b). It is settled law that Rule 60(b) relief is “an extraordinary remedy
and is granted only in exceptional circumstances.” Mares v. Busby, 34 F.3d 533, 535
(7th Cir. 1994) (quoting Dickerson v. Board of Educ., 32 F.3d 1114 (7th Cir. 1994)); see
also Cash v. lilinois Div. of Mental Health, 209 F.3d 695, 698 (7" Cir. 2000) (stating that
a Rule 60(b) motion “is not an alternate route for correcting simple legal errors”);
Zakutansky v. Bionetics Corp., No. 92 C 2002, 1992 WL 390898, at *1 (N.D. Ill. 1992)
(stating that motions to reconsider are appropriate in rare situations, such as where a
court has patently misunderstood a party, made a decision outside the adversarial

issues presented, made an error not of reasoning but of apprehension, or where there


points out that SSR 96-6p states that an ALJ “must” explain the weight given to
opinions of state agency physicians, yet the Court stated, in its opinion denying
attorneys’ fees, that the ALJ “should have” discussed the state agency physician’s
opinion. Plaintiffs second argument — that the Court failed to follow Scott v. Barnhart,
supra — is based on Plaintiff's assertion that, as in Scott, there was an unbridgeable gap
in the instant case between the record and the ALJ’s conclusions due to the ALJ’s
failure to fully discuss the weight of the state agency physician’s report and the
Diversey Medical Reports, and this gap required a finding that the Commissioner was
not substantially justified.

We find that Plaintiff's arguments fail to meet the standard for reconsideration
required by Rule 60(b)(6). More specifically, Plaintiff does not, in our view, present the
“extraordinary circumstances” necessary to warrant relief from the Court's judgment
denying his application for attorneys’ fees. Rather, Plaintiffs arguments amount to a
generalized statement that the Court “got it wrong” when it found the Commissioner’s
position to be substantially justified. Such argument fails to persuade the Court here --
particularly as Rule 60(b) relief was not meant to be used as “an alternate route for
correcting simple legal errors.” Cash, 209 F.3d at 698. See, Fidelity Mutual Life Ins.
Co. v. Chicago Title and Trust Co., No. 92 C 8475, 1994 WL 571903, at *2 (N.D. Ill.
1994) (stating that defendants’ argument that the court "got it wrong" and should
therefore reconsider its decision misapprehends the proper purpose of a motion for
reconsideration); Talano v. Northwestern Med. Faculty Found., Inc., 273 F.3d 757, 762

(7° Cir. 2001) (affirming denial of motion for reconsideration where plaintiff's motion


Minute Order Form (06/97)

United States District Court, Northern District of Mlinois

Name of Assigned Judge Michael T. Mason Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 00 C 8003 DATE 5/8/2003
CASE Bob Mirza vs. Jo Anne Barnhart
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.]

()

MOTION:

DOCKET ENTRY:

qd) Oo Filed motion of [ use listing in “Motion” box above.]

(2) im Brief in support of motion due

(3) o Answer brief to motion due___. Reply to answer briefdue__.

(4) o Ruling/Hearingon_____ssetfor__—_at

(5) oO Status hearing[held/continued to] [set for/re-set for}on__setfor___—_at

(6) O Pretrial conference[held/continued to] [set for/re-set for]on__—setfor__—at_

(o) oO Trial[set for/re-set for]on___at

(8) o [Bench/Jury trial] [Hearing] held/continued to at.

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) CLocal Rule 41.1 CFRCP41(a)(1) 1 FRCP41(a)(2).

qo) {Other docket entry] For the reasons stated in the attached Memorandum Opinion and Order,

plaintiff’ s motion to alter [36-1] or to amend judgment [36-2] is denied. Enter Memorandum Opinion and

Order.

a [For further detail see order attached to the original minute order.]

No notices required, advised in open court.
4

No notices required. ,
unbee of aotloes

Notices mailed by judge’s staff.

Notified counsel by telephone. MAY “ew 9 2003

te docketed

Docketing to mail notices.
Mail AO 450 form. Dine tenes il nay 4 2

Copy to judge/magistrate judge.

5/8/2003
courtroom dats mailed notice

KF deputy’s @
initials

central Clerk’s Office mailing deputy initials



the judgment may have been obtained by fraud, misrepresentation, or other misconduct
of the adverse party, or that the judgment was void. Fed. R. Civ. P. 60(b)(3), (4). And,
finally, Plaintiff did not argue that the judgment had been satisfied, released, or
discharged, or that a prior judgment upon which the decision was based was reversed
or vacated, or was no longer equitable. Fed. R. Civ. P. 60(b)(5). Accordingly, Plaintiff
does not appear to claim the right to reconsideration under Rule 60(b)(1),(2),(3),(4), or
(5).

Thus, the only subsection remaining as a means for Plaintiff to obtain relief
under Rule 60(b) (and, we note, the only subsection actually cited by Plaintiff in support
of his claim for relief) is Rule 60(b)(6)'s “catchall” provision. The “catchall” provision
allows the Court to reconsider the judgment “for any reason justifying relief.” Fed. R.
Civ. P. 60(b)(6). Rule 60(b)(6) relief is appropriate only if “the grounds asserted for
relief do not fit under any other subsections of Rule 60(b).” Margoles v. Johns, 798
F.2d 1069, 1073 n.6 (7th Cir. 1986). Moreover, relief under the “catchall” provision is
warranted only upon a showing of “extraordinary circumstances that create a
substantial danger that the underlying judgment was unjust.” /d. at 1073.

Plaintiff argues that he is entitled to relief from the Court’s judgment denying his
application for attorneys’ fees due to the Court’s alleged error in finding the
Commissioner to be substantially justified. In asserting such argument, Plaintiff
contends that the Court failed to consider SSR 96-6p or the decision of Scott v.
Barnhart, No. 99 C 4651, 2003 WL1524624 (N.D. Ill. Mar. 21, 2003) (slip copy). With

respect to his first argument — that the Court failed to consider SSR 96-6p — Plaintiff

-7-


Plaintiff's motion to alter or amend the judgment is untimely under Rule 59(e).
Specifically, even if the judgment were entered on February 20, 2003 -- the latest date
contended by either party -- the 10-day period (excluding weekend days and holidays)
would have expired on March 6, 2003 — one day prior to the date on which Plaintiff filed
his motion.

In an effort to save his Rule 59(e) motion, Plaintiff relies on Rule 6(e), which
allows a party three additional days to file a pleading “whenever the party has the right
or is required to do some act or take some proceedings within a prescribed time period
after the service of a notice or other paper upon the party and the notice is served upon
the party under Rule 5(b)(2)(B),(C), or (D).” Fed. R. Civ. P. 6(e). Our research did not
uncover, and the parties did not cite, any case law decided by the Seventh Circuit
addressing whether Rule 6(e) applies to Rule 59(e) motions. However, as Defendant
pointed out in her response, many other Circuits have addressed this issue, and have
found the answer to be in the negative. See, e.g., FHC Equities, L.L.C. v. MBL Life
Assurance Corp., 188 F.3d 678, 682 (6th Cir. 1999) (stating that “every court that has
considered this precise issue ... has rejected the Plaintiff's argument” and citing Halicki
v. Louisiana Casino Cruises, Inc., 151 F.3d 465, 467-68 (5th Cir. 1998); Parker v.
Board of Public Utilities of Kansas City, Kan., 77 F.3d 1289, 1290-91 (10th Cir.1996);
Derrington-Bey v. District of Columbia Dep't of Corrections, 39 F.3d 1224, 1225 (D.C.
Cir. 1994); Adams v. Trustees of N.J. Brewery Employees’ Pension Trust Fund, 29 F.3d
863, 870-71 (3d Cir. 1994); Flint v. Howard, 464 F.2d 1084, 1087 (1st Cir. 1972); JAMES

W. Moore ET AL., MOORE’S FEDERAL PRACTICE § 6.05[3] at 6-35 (3d ed. 1998)); see also

3.


Plaintiff's motion for attorneys’ fees was denied by this Court in a Minute Order
dated February 14, 2003 and entered on February 18, 2003. On March 7, 2003,
Plaintiff filed a “Motion To Alter Or Amend Judgment” pursuant to Rule 59(e). In
response to that motion, Defendant argued that Plaintiff's motion should be denied as
untimely. Defendant further argued that, in the event this Court should decide to treat
Plaintiff's Rule 59(e) motion as a motion for reconsideration pursuant to Rule 60(b), the
motion should still be denied. For the following reasons, this Court denies Plaintiff's
motion.

RULE 59(e)

Under Rule 59(e), a motion to alter or amend the judgment must be filed “within
ten days of the eniry of judgment.” Russel! v. Delco Remy Div. of General Motors
Corp., 51 F.3d 746, 749 (7th Cir. 1995). The 10-day period begins on the date
following the entry of judgment. Fed. R. Civ. P. 6(a). Weekend days and holidays are
not counted in the 10-day period. See Fed. R. Civ. P. 6(a) (“[w]hen the period of time
prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal
holidays shall be excluded in the computation”). Notably, “[a] district court may not
extend the time within which a party may move to alter or amend a judgment under
Rule 59(e).” Hope v. United States, 43 F.3d 1140, 1143 (7th Cir. 1994).

Plaintiff initially asserted that the judgment was entered on February 18, 2003;
but, in his reply brief, asserted that the judgment was entered on February 20, 2003.
Defendant, in her response, asserted that the judgment was entered on February 19,

2003. We find the dispute to be of no bearing here because, under either date,


IN THE UNITED STATES DISTRICT COURT DOCKETED
NORTHERN DISTRICT OF ILLINOIS MAY ~ 9 2003
EASTERN DIVISION
BOB J. MIRZA,

Plaintiff,
No. 00 C 8003
v.
Mag. Judge Michael T. Mason
JO ANNE B. BARNHART, Commissioner
of the Social Security Administration,’

Defendant.
MEMORANDUM OPINION AND ORDER

Michael T. Mason, United States Magistrate Judge:

Plaintiff, Bob J. Mirza, was denied benefits under the Social Security Act by Jo
Anne Barnhart, the Commissioner of Social Security. On April 25, 2002, this Court
vacated that judgment and remanded the case back to the Social Security
Administration (“SSA”) for further proceedings. Plaintiff subsequently filed a motion for
an award of attorneys’ fees under the Equal Access to Justice Act (“EAJA"), 28 U.S.C.
§ 2412(d). Under the EAJA, a court shall award to a prevailing party, other than the
government, attorneys’ fees and expenses unless the court finds that the position of the
Commissioner was “substantially justified or that special circumstances make an award
unjust.” 28 U.S.C. § 2412 (d)(1)(A). Plaintiff is a prevailing party because his case was
disposed of pursuant to the fourth sentence of 42 U.S.C. 405(g). See Shalala v.

Schaefer, 509 U.S. 292, 296-7 (1993).

' At the time this case was filed, Larry G. Massanari was Acting Commissioner
of the Social Security Administration.

Hh