United States District Court, S.D. Texas, Houston Division
Brian D. Kearnes, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
H. Miller Senior United States District Judge.
before the court is a motion for relief from judgment
pursuant to Federal Rule of Civil Procedure 60(b)(1) filed by
defendant Andrew Saul, Commissioner of Social Security (the
“Commissioner”). Dkt. 25. The Magistrate Judge
filed a Memorandum and Recommendation in which she
recommended remand because (1) the Administrative Law Judge
(“ALJ”) failed to pose a certain hypothetical to
the vocational expert; and (2) the ALJ found the plaintiff
could perform jobs that were not identified by the vocational
expert. Dkt. 17. The Commissioner argues that the purportedly
missing information-the hypothetical and the identification
of jobs by the vocational expert-was in the
Record. Dkt. 26 (citing the relevant aspects of
the Record). The Commissioner contends that the Magistrate
Judge “simply made a mistake in overlooking the
interrogatory testimony” and that the mistake can be
remedied under Rule 60(b)(1). The Commissioner notes that he
“apologizes for not bringing the mistake to the
Court's attention sooner.” Id. He requests
that the court vacate its order adopting the Memorandum and
Recommendation and its final judgment. Id.
plaintiff argues that the Commissioner had “ample time
to argue his position in February and March” and it
“would be a grave injustice to allow [the Commissioner]
to now blatantly challenge this Final Judgment.” Dkt.
26. The Commissioner did not file a reply.
Federal Rule of Civil Procedure 72(b), a party has fourteen
days after being served with a copy of a Magistrate
Judge's recommendation to file objections. Fed.R.Civ.P.
72(b). The Magistrate Judge filed the allegedly erroneous
Memorandum and Recommendation on February 28, 2019. Dkt. 17.
In the Memorandum and Recommendation, she clearly advised
that the parties had fourteen days to file written objections
pursuant to Rule 72. Id. at 26. Nineteen days later
this court, having received no objections, issued an order
adopting the Memorandum and Recommendation. Dkt. 18. The
Commissioner did not timely move for a new trial.
of the Federal Rules of Civil Procedures outlines six
different scenarios in which a party may obtain relief from a
final judgment. See Fed. R. Civ. P. 60(b). The
Commissioner claims he is entitled to relief under subsection
(1) of Rule 60(b). Dkt. 23. This subsection allows a court to
grant relief in the case of “(1) mistake, inadvertence,
surprise, or excusable neglect.” Fed.R.Civ.P. 60(b). A
Rule 60(b) motions must be made within a “reasonable
time, ” and a Rule 60(b) relating, specifically, to
subsections (1) through (3) must be made within a
“reasonable time” and “no more than a year
after the entry of the judgment or order or the date of the
proceeding. Fed.R.Civ.P. 60(c)(1).
purpose of Rule 60(b) is to balance the principle of finality
of a judgment with the interest of the court in seeing that
justice is done in light of the facts.” Hesling v.
CSX Transp., Inc., 396 F.3d 632, 638 (5th Cir. 2005).
“[A]lthough the desideratum of finality is an important
goal, the justice-function of the courts demands that it must
yield, in appropriate circumstances, to the equities of the
particular case in order that the judgment might reflect the
true merits of the case.” Seven Elves,
Inc. v. Eskenazi, 635 F.2d 396, 401 (5th Cir. 1981).
However, “the desire for a judicial process that is
predictable mandates caution in reopening judgments.”
Baily v. Ryan Stevedoring Co., Inc., 894
F.2d 157, 160 (5th Cir. 1990).
in the Fifth Circuit considering whether to grant a Rule
60(b) motion consider the following factors:
(1) That final judgments should not lightly be disturbed; (2)
that the Rule 60(b) motion is not to be used as a substitute
for appeal; (3) that the rule should be liberally construed
in order to do substantial justice; (4) whether the motion
was made within a reasonable time; (5) whether-if the
judgment was a default or a dismissal in which there was no
consideration of the merits-the interest in deciding cases on
the merits outweighs, in the particular case, the interest in
the finality of judgments, and there is merit in the
movant's claim or defense; (6) whether there are any
intervening equities that would make it inequitable to grant
relief; and (7) any other factors relevant to the justice of
the judgment under attack.
Seven Elves, 635 F.2d at 402.
the court agrees with the plaintiff that the factors weigh
against reopening the case at this juncture. The Commissioner
had fourteen days to object to the Memorandum and
Recommendation before the court adopted it, and he failed to
do so. Then, he could have moved for a new trial under Rule
59 within twenty-eight days of the judgment. He failed to do
so. The Commissioner waited almost five months from the date
of the final judgment, and after the court approved a fee
request under the Equal Access Justice Act, to file his Rule
60 motion. He makes no excuse for the delay and presents no
argument as to why the court should find the intervening time
period was “reasonable” under Rule 60(b). While
the court understands there may have been a mistake with
regard to the court's review of the record, that
potential mistake should have been pointed out within
fourteen days of the issuance of the Memorandum and
Recommendation, not more than five months later. The court
finds that the Commissioner did not bring his Rule 60(b)
motion within a reasonable time and that the factors weigh
against reopening at this late juncture.
motion for relief from judgment is DENIED.
 The Commissioner contends that the
information was contained in pre-hearing interrogatories to
the vocational expert rather than in the hearing transcript.