Case: 7:15-cv-00046-ART-HAI Doc #: 36 Filed: 12/11/15 Page: 1 of 17 - Page ID#: 483

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
PIKEVILLE
______________________________________________________________________________

CHERYL MARTIN and ROBERT

MARTIN, individually, and on behalf of
all others similarly situated,
Plaintiffs,
v.
CAROLYN W. COLVIN,
in her official Capacity as
ACTING COMMISSIONER OF
THE SOCIAL SECURITY
ADMINISTRATION,
Defendant.

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ELECTRONICALLY FILED

Civil Action No. 7:15-CV-00046-ART-HAI

DEFENDANTS MEMORANDUM IN OPPOSITION TO PLAINTIFFS MOTION TO

ALTER OR AMEND ORDER AND JUDGMENT ENTERED ON NOVEMBER 16, 2015
The Court should summarily deny Plaintiffs motion (see Doc. 35) to alter or amend this
Courts order and judgment granting Defendants motion to dismiss (see Docs. 33-34).
[R]econsideration of a judgment after its entry is an extraordinary remedy which should be used
sparingly. 11 Charles A. Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice and
Procedure 2810.1 (3d ed.) (collecting cases). Thus, a motion under Rule 59(e) is not an
opportunity to re-argue a case, Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d
367, 374 (6th Cir. 1998), and such a motion should only 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. Intl Underwriters, 178 F.3d 804, 834 (6th Cir. 1999).

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Plaintiffs Rule 59(e)1 motion does not meet this extraordinarily demanding standard and,
indeed, really does not even try to do so. Instead, Plaintiffs memorandum in support of their
motion simply reprises substantially the same arguments Plaintiffs have already made repeatedly
and unsuccessfully in this case, and contends that this Courts decision was wrong on various
points. See, e.g., Doc. 35-1 (Mem.) at 5-7, 10. Through their motionand the Affidavit of
John O. Goss, which likewise contains nothing substantially new, see Doc. 35-2 (Aff.)
Plaintiffs are simply trying to gain a second bite at the apple, which Rule 59(e) prohibits. Slate
v. Am. Broadcasting Cos., 12 F. Supp. 3d 30, 37 (D.D.C. 2013); accord Dixon v. Clem, 419 F.
Supp. 2d 947, 950 (E.D. Ky. 2006). Plaintiffs have fallen far short of identifying an error in this
Courts decision that should strike the court as wrong with the force of a five-week-old,
unrefrigerated dead fish. Slate, 12 F. Supp. 3d at 35 (citation, quotation marks and alteration
omitted). The motion should be denied.
Plaintiffs also appear to contend in cursory and confusing fashion that this Court should
grant them an injunction stopping the Social Security Administrations (SSA) redetermination
hearings (relief for which they have not formally moved in their present motion) or, purportedly
in the alternative, stay all the hearings pending Plaintiffs future appeal to the Sixth Circuit.
Mem. at 14. That pair of requests should likewise be swiftly rejected. This Court already
expressly denied all pending motionsincluding, therefore, Plaintiffs motion for a preliminary
1

Plaintiffs make reference to Rule 59(c) in their motion, see Doc. 35, but that is the Rule
governing submission of affidavits in support of a motion for a new trial. See Fed. R. Civ. P.
59(c). Plaintiffs motion, however, seeks to alter or amend this Courts order and judgment, and
such a motion is more properly brought under Rule 59(e). See Fed. R. Civ. P. 59(e). Construing
Plaintiffs motion as one under Rule 59(e), the motion is still not properly brought because, as
explained elsewhere in this memorandum, Plaintiffs have fallen far short of meeting the
standards applicable to motions under that Rule.

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injunctionwhen it dismissed this case.

There are no grounds for granting such an

extraordinary remedy now, and Plaintiffs identify none. And Plaintiffs alternative request is no
alternative at all: An order stopping the redetermination hearings SSA has been conducting for
nearly three months would be an injunction, not a stay, and there is likewise no basis for
granting this relief.
ARGUMENT
I.

PLAINTIFFS CANNOT ESTABLISH EXTRAORDINARY

CIRCUMSTANCES THAT WOULD JUSTIFY ALTERING OR AMENDING
THIS COURTS JUDGMENT
Rule 59(e) permits a court to alter or amend a judgment, but it may not be used to

relitigate old matters, or to raise arguments or present evidence that could have been raised prior
to the entry of judgment. Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008) (quotation
marks and citation omitted). Such motions are extraordinary in nature and so should only be
granted sparingly. Gesler v. Ford Motor Co., 185 F. Supp. 2d 724, 729 (W.D. Ky. 2001);
accord Buckner v. Kentucky, No. 3:10-36-DCR, 2011 WL 1304747, at *1 (E.D. Ky. Apr. 5,
2011). The Court should grant a Rule 59(e) motion only where there is a clear error of law,
newly discovered evidence, an intervening change in controlling law, or to prevent manifest
injustice. Tritent Intl Corp. v. Kentucky, 395 F. Supp. 2d 521, 523 (E.D. Ky. 2005) (quoting
GenCorp, 178 F.3d at 834).
In support of their motion, Plaintiffs do not even reference the applicable legal standards,
and certainly do not demonstrate grounds for relief under Rule 59(e). Specifically, Plaintiffs do
not cite any newly discovered material evidencemuch less any newly discovered material
evidence that undermines this Courts conclusion that it lacks subject-matter jurisdiction over
Plaintiffs claimsor any intervening change in law. Nor can Plaintiffs show any clear error of

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law in this Courts decision. That is a high bar to meet, requir[ing] the wholesale disregard,
misapplication, or failure to recognize controlling precedent on the part of the court, Buckner,
2011 WL 1304747, at *1; accord Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000),
and Plaintiffs motion shows nothing of the sort. Finally, alteration of this Courts judgment is
not needed to prevent manifest injustice. [A]lthough the term manifest injustice eludes precise
definition, it is clear that manifest injustice is an exceptionally narrow concept in the context of a
Rule 59(e) motion. Slate, 12 F. Supp. 3d at 35 (citation, alteration, and quotation marks
omitted). [M]anifest injustice must entail more than just a clear and certain prejudice to the
moving party, but also a result that is fundamentally unfair in light of governing law. Id. at 3536. Plaintiffs cannot make such a showing here: This Courts decision faithfully applied wellsettled Supreme Court and Sixth Circuit case law concerning 42 U.S.C. 405(g) and Plaintiffs
fall far short of establishing manifest injustice.
Rather than attempting to meet the demanding Rule 59(e) standard, Plaintiffs simply
repeat the same assertions they have previously made over and over again in this case. This
Court considered those arguments and subsequently dismissed Plaintiffs lawsuit in a wellreasoned opinion. The Court did so only after receiving, among other filings: (1) briefing on
Defendants motion to dismiss; (2) briefing on Plaintiffs second motion for a preliminary
injunction; (3) supplemental briefing ordered by the Court; (4) declarations from Plaintiffs and a
putative class member; (5) a declaration submitted by Plaintiffs from the head of a legal aid
center, which purported to describe a representational crisis in the region; (6) an unsolicited
post-briefing status report from Plaintiffs; and (7) a notice from Plaintiffs informing the Court
of two decisions in the Northern District of California. See Docs. 12-2, 12-3, 12-4, 15, 18-1, 231, 25-1, 26, 27, 28, 30, 31, 32. Plaintiffs latest submissions contain nothing new, and do not

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come close to establishing grounds for altering or amending this Courts judgment. None of
Plaintiffs restated arguments persuades otherwise.
1.

This Court ruled that Plaintiffs cannot pursue this case to contest SSAs

redetermination of benefits in situations where there is reason to believe that fraud was involved
in their benefits applications (as required by 42 U.S.C. 405(u)), until SSA issues a final
decision concerning their entitlement to benefits. See Doc. 33 at 1. In contesting that ruling,
Plaintiffs primarily stress that SSA is not permitting beneficiaries to challenge the mandate that
assigned administrative law judges (ALJs) must disregard opinions identified by SSAs Office
of the Inspector General (OIG) from four particular medical providers. See Mem. at 4-5. This
is not a new development. SSA repeatedly made clear throughout this case (and in the notices
sent to Plaintiffs even before this litigation began) that the agency would not consider medical
opinions from those four providers during the redetermination hearings, and that Plaintiffs would
not be permitted to challenge that evidentiary mandate. See Doc. 1 Exs. C, F; Doc. 15 at 6; Doc.
25-1 at 4 (The notices further indicated that, in conducting this redetermination, SSA would be
required to disregard evidence from four medical providers); id. at 8 (SSA will also request
records from any providers that the beneficiary lists as a possible source of medical records
(except the four above-referenced providers), if the beneficiary directs SSA to do so.
(emphasis added)); id. (noting that SSA will . . . consider any relevant newly submitted
evidence (except evidence from the four above-referenced providers) (emphasis added)); Doc.
26 at 8 (ALJs will not be able to reconsider the instruction that they must disregard the opinions
OIG identified.); id. at 10 (SSA will permit beneficiaries to submit any evidence they believe
supports the original disability determination (other than evidence from the four identified
providers) (emphasis added)); Doc. 30 at 2-3 (referring to the mandate to disregard medical

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opinions from four providers during the redetermination process); id. at 4 (explaining that
evidence from four providers will not be considered in the redetermination of those individuals
benefits entitlement); id. at 10 (noting that an ALJ will consider any new and material
evidence a beneficiary believes supports the original disability allowance (other than evidence
from the four identified providers, which is statutorily precluded) (emphasis added)).
Indeed, Plaintiffs themselves acknowledge that they have already raised this complaint
about the redetermination proceedings.

See Mem. at 2 (noting that the Plaintiffs have

contended that [they] will not have the opportunity to challenge the allegedly fraudulent findings
in regard to the four doctors since the Administrative Law Judges assigned to do the hearings
have been ordered to disregard any evidence from the four doctors). This Court in fact
ordered supplemental briefing on that very issue. See Doc. 24.
SSA has addressed the merits of this issue previously, see Doc. 26 at 6-10, and
respectfully refers the Court to that previous discussion. For present purposes, it suffices to note
that Rule 59(e) is not a vehicle to re-hash old arguments in an attempt to gain a different result.
Buckner, 2011 WL 1304747, at *1 (quotation marks omitted); accord Sault Ste. Marie Tribe, 146
F.3d at 374. Plaintiffs argument is not a basis for Rule 59(e) relief.
2.

Relatedly, Plaintiffs state in conclusory fashion that it is statistically likely that

the only evidence to support the disability claims of many is from one of the four doctors whose
reports are being excluded. Mem. at 5. SSA previously explained that this contention was
implausible because, if the serious medical conditions that Plaintiffs and other putative class
members allege are truly disabling, it is exceedingly unlikely that the only medical attention
received for those alleged medical conditions was provided by a consultant secured by Mr. Conn
for the purpose of establishing entitlement to disability benefits. See Doc. 26 at 9. In any event,

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Plaintiffs contention in this regard too is simply a rehash of arguments they previously made or
could have made. And if particular beneficiaries believe that certain opinions were improperly
excluded, they may raise such a challenge when seeking judicial review of any final agency
decision terminating benefits. See generally 42 U.S.C. 405(g). Plaintiffs speculation about
the success rate of beneficiaries during the hearing process is irrelevant to this Courts
conclusion that it does not have jurisdiction to intervene in that process now.
3.

More broadly, Plaintiffs assert that they will be unable to present their

constitutional challenges in the administrative proceedings, see Mem. at 7, but, once again,
Plaintiffs have repeatedly complained about this before, and their motion adds nothing new.2 As
Defendant has noted in response, see Doc. 30 at 8, Doc. 26 at 10, the Supreme Court and Sixth
Circuit have rejected the proposition that a plaintiff may bring suit in the absence of a final
agency decision merely because the agency may not (or will not) entertain particular arguments
during the course of administrative proceedings. See, e.g., Shalala v. Ill. Council on Long Term
Care, Inc., 529 U.S. 1, 23 (2000) (because the court will consider the contention when it later
reviews the action, [t]he fact that the agency might not provide a hearing for that particular
contention, or may lack the power to provide one . . . is beside the point); Heckler v. Ringer,
466 U.S. 602, 608 (1984) (Secretary had issued formal administrative ruling prohibiting ALJs
from ordering Medicare payments for surgery at issue after specified date, based on a finding
that the surgery was never reasonable and necessary within the meaning of the Medicare Act);
BP Care, Inc. v. Thompson, 398 F.3d 503, 509 (6th Cir. 2005) (plaintiff brought constitutional

See, e.g., Doc. 27 at 1-2 (asserting that the agency will not allow Plaintiffs to challenge the
constitutionality of 42 U.S.C. 405(u) or 1631e(7); nor to raise the constitutional due process
deprivation that this statutes application has caused and will continue to cause them); Doc. 28
at 13-14.

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challenge, which ALJs in Medicare administrative proceedings generally do not decide).

Plaintiffs have never meaningfully responded to this point and once again fail to do so here. This
previously raised argument is not a basis for Rule 59(e) relief.
4.

Plaintiffs assert, once again, that the majority of beneficiaries will not be

represented by attorneys during the hearings, see Mem. at 5, 6-7, 9, and thus will purportedly be
unable to navigate the hearing process in various ways. Plaintiffs do not offer any persuasive
reason why this argument calls into question this Courts conclusion that it lacks jurisdiction to
intervene in SSAs affairs at this time. As Defendant has explained previously, the argument is
also meritless. It is well established that the result of a disability benefits hearing is not invalid
even if the individual is not represented by counsel, and ALJs have a duty to assure that a full
and fair administrative record is developed for any claimants who are unrepresented by counsel.
See Doc. 15 at 16-17, and Doc. 30 at 11 (citing Bagby v. Harris, 650 F.2d 836, 839 (6th Cir.
1981), and Duncan v. Secy of Health & Human Servs., 801 F.2d 847, 856 (6th Cir. 1986)). In
any event, Plaintiffs repeatedly pressed this argument in both their motion to dismiss briefing
and their preliminary injunction briefing. See Doc. 28 at 1, 2, 9, 12; Doc. 12-4 at 9. Plaintiffs in
fact acknowledge now that they made this argument before, to no avail.3 As with Plaintiffs
other arguments, there is nothing new here, and certainly nothing that would warrant upsetting
3

See Mem. at 2 (The Plaintiffs filed affidavits and pointed out the total futility in expecting
1800 disabled and impoverished people, mostly isolated in a small handful of counties in a rural,
mountain area, to find representation in a truncated process.); id. at 3 (noting that Plaintiffs
status report purported to advise[] the court that despite an active volunteer attorney recruiting
effort, it was estimated that representation would only be found for less than half of the
approximately 1800 individuals affected (quotation marks omitted)); id. (The Plaintiffs
second motion for preliminary injunction included an affidavit from Legal Aid Director Robert
Johns which described the representational crisis of enormous proportions in trying to locate
volunteer lawyers for those facing hearings. The affidavit detailed the immense logistical
problems in finding lawyers for so many, and how the demand greatly exceeded the capacity.
(quotation marks omitted)).

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the finality of this Courts judgment.

5.

Plaintiffs reprise their argument that SSA is relying on secretive evidence and

that Bowen v. City of New York, 476 U.S. 487 (1986), thus supports waiving the exhaustion
requirement. Mem. at 8. Relatedly, Plaintiffs protest SSAs purported failure to disclose an
alleged secretive Inspector General report, id., a complaint that also echoes identical assertions
they have made previously, see, e.g., Doc. 27 at 2 n.1; Doc. 12-4 at 13 n.3. This Court correctly
found that City of New York is inapposite. In that case, the District Court [had] found a
systemwide, unrevealed policy that was inconsistent in critically important ways with established
regulations and had further found that SSA had followed this covert and illegal policy for at
least five years. 476 U.S. at 483-85; see also Doc. 33 (this Courts opinion accurately describing
City of New York as involving a secret policy to deny some claimants benefits to which they
were legally entitled). As Defendant previously explained, in this case, by contrast, SSA has
told beneficiaries what it is doing (holding a new hearing to redetermine their entitlement to
benefits) and why it is doing so (because there is reason to believe fraud was involved in the
provision of particular medical evidence). Doc. 30 at 6. A copy of the OIG referral explaining
the basis for the redetermination is included in the claims file of each beneficiary, of which
beneficiaries will receive a copy. Id. at 7. Plaintiffs memorandum in fact acknowledges that
there is no secret policy here, as was alleged in City of New York. See Mem. at 6 (The SSA
has never denied that there is a directive or policy to disregard the evidence from the four suspect
doctors in this case.). And more fundamentally, this sort of garden-variety argumentthat a
district court incorrectly rejected a legal argument a party previously madeis simply not a basis

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for disturbing a final judgment under Rule 59(e).4

6.

Plaintiffs rely extensively on the Northern District of Californias decision

denying SSAs motion to dismiss in Hart v. Colvin, No. 3:15-CV-00623, 2015 WL 4396259
(N.D. Cal. Jul. 17, 2015), see Mem. at 3, 6, 9-10, 14, but Hart does not represent an intervening
change in controlling law. The decision is not an intervening legal development because it was
issued nearly four months before this Courts Memorandum opinion and order, and nearly a
month before Defendants motion to dismiss was even filed. The mere citation to a newly
discovered case, which was previously available during consideration of the judgment for which
reconsideration is sought, is insufficient to trigger the necessity for reconsideration and meet the
requirements under Rule 59(e). Slate, 12 F. Supp. 3d at 39. A Northern District of California
decision also cannot constitute a change in controlling law in this district (and indeed, would not
even be controlling in the Northern District of California, see Camreta v. Greene, 563 U.S. 692,
131 S. Ct. 2020, 2033 n.7 (2011)). And even if this Court were to consider Hart on its merits,
4

Plaintiffs also contend that this Court misunderstood the substance of the hearings because
SSA has steadfastly directed that the ALJ[s] are to disregard evidence from the four suspect
doctors. Mem. at 8. But this Court in fact ordered supplemental briefing on this very issue,
Doc. 24, and the Courts opinion noted that Plaintiffs would have to supply corroborating
evidence from other doctors, Doc. 33 at 6 (emphasis added); see also Mem. at 4 (noting that the
Courts reference to evidence submitted by Plaintiffs presumably refers to medical evidence
from sources other than the four suspect doctors). And indeed, the only consequence of the
conclusion that there is reason to believe fraud was involved in the submission of the identified
opinions from the four providers is that evidence from those four providers will not be
considered in the redetermination process. See Doc. 30 at 4. This Court also accurately noted
that, unlike the claimants in Bowen, Plaintiffs are able to submit medical evidence that they are
disabled and that SSA in fact asked the plaintiffs to submit new medical evidence in support of
their disabilities before and during their ALJ hearings. Doc. 33 at 7. Indeed, the Court
explained its view that such submissions constitute the very method that Plaintiffs can use to
negate a suspicion of fraud affecting their applications. Id. (noting that in this case, [P]laintiffs
were able to submit medical evidence that they are disabled, rebutting any suspicion that their
application was fraudulent). Consequently, the Court considered Plaintiffs position, and they
cannot effectively use their apparent interest in challenging a fraud determination more directly
to meet the Rule 59(e) standard.

10

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even a cursory review of the Courts decision in that casewhich does not involve
redeterminations required under 42 U.S.C. 405(u) and which, unlike this case, concerns
individuals whose benefits had already been denied or terminatedmakes clear that it has no
relevance to this matter. See 2015 WL 4396259, at *4. Finally, Plaintiffs already brought to this
Courts attention both the Northern District of Californias decision denying SSAs motion to
dismiss in Hart, and that Courts subsequent decision granting class certification. See Doc. 32.
This is plainly not a basis for seeking relief under Rule 59(e).
7.

Plaintiffs beg to differ with this Courts conclusion that SSA acted in

accordance with 42 U.S.C. 405(u). See Mem. at 10. Plaintiffs go on to assert that SSA has
chosen individuals for redetermination simply because the claimant was represented by a
certain attorney and medical reports by certain doctors were submitted, and contends that SSAs
conduct violates Section 405(u), as well as two regulations and a POMS provision. Id. at 11-13.
Plaintiffs description of the basis for SSAs redetermination activities is not accurate, see Doc.
30 at 7, and none of Plaintiffs arguments affect this Courts conclusion that it lacks subjectmatter jurisdiction over Plaintiffs claims. In any event, Plaintiffs have made all of these
arguments beforeciting these exact same sources, see Doc. 28 at 19-20and SSA has
explained why none of these provisions entitle Plaintiffs to relief here, see Doc. 30 at 12-13.
[B]eg[ging] to differ with the Court does not constitute satisfaction of the Rule 59(e) standard.
8.

Finally, Plaintiffs have submitted an affidavit from John O. Goss, who indicates

that he currently represents 495 members of the putative class in their redetermination hearings.

Mr. Gosss assertion that he represents 49 individualstogether with Plaintiffs previous

submission that 76 attorneys had already volunteered to help as of approximately five and a half
months ago (a number which might well have increased since), see Doc. 12-3 7is, to say the
11

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See Aff. 3. Mr. Gosss affidavit likewise contains no material new information that Plaintiffs
could not have presented previously, much less any information that would warrant altering or
amending this Courts judgment. Mr. Goss notes that the assigned ALJs in fourteen cases have
indicated that they may not consider the opinions from the four medical providers identified by
OIG, Aff. 8, but, as noted above, this development is neither new nor a basis for Rule 59(e)
relief, see pp. 5-6, supra.
Mr. Goss also asserts that, in one case, medical records were destroyed by a health care
provider pursuant to a document retention policy and that, in an unspecified number of cases,
the claimant is no longer receiving treatment from the same provider. Aff. 8-9. Particularly
given the vagueness of these assertionsand the fact that Plaintiffs were able to produce an
affidavit containing them only four days after this Court granted Defendants motion to
dismissPlaintiffs might well have developed these points prior to this Courts decision, and
they do not argue otherwise. See Howard v. United States, 533 F.3d 472, 475 (6th Cir. 2008)
(Rule 59(e) motions cannot be used to present new arguments that could have been raised prior
to judgment.); see also Harrison v. Office of Architect of Capitol, 68 F. Supp. 3d 160, 164
(D.D.C. 2014) (under Rule 59(e), movant bears the burden of establishing extraordinary
circumstances warranting relief from a final judgment). In any event, the possibility that an
unspecified number of claimants might encounter roadblocks assembling evidence of disability
during the hearing process does not affect this Courts conclusion that it lacks jurisdiction to
intervene in those hearings now (and certainly would not have justified enjoining those hearings

least, in tension with Plaintiffs oft-repeated insistence that there is a region-wide

representational crisis affecting members of the putative class.

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en masse, even if the Court did have jurisdiction).6 The Goss Affidavits remaining assertions
likewise do not come close to establishing a basis for disturbing this Courts judgment.7
***
Plaintiffs may disagree with the Courts resolution of this case but disagreement does
not support a Rule 59(e) motion. United States ex rel. Becker v. Westinghouse Savannah River
Co., 305 F.3d 284, 290 (4th Cir. 2002) (quotation marks omitted). Plaintiffs have had ample
opportunity to press the arguments they now make, and their latest motion does not come close
to establishing grounds for taking the drastic and extraordinary step of disturbing a final
judgment. The motion should be summarily denied.
6

It also bears mentioning that the Goss Affidavit contains virtually no information even about
the unspecified number of cases, such as any efforts Mr. Goss and/or his clients have taken to
secure evidence from other sources, and the results of any such efforts. Simply put, the Goss
Affidavit contains no indication that Mr. Goss and his clients (who, it bears noting, cannot all be
named Plaintiffs in this case, since only two individuals are Plaintiffs and this case was never
certified as a class action) have diligently attempted in those cases to secure and present all
potentially relevant and available evidence. But even if the Goss Affidavit contained more
detail, that would not affect this Courts conclusion that it lacks jurisdiction in the absence of a
final agency decision.
7

Mr. Goss states that [b]ecause this action is originated by the Appeals Council . . . there is no
reasonable prospect that an appeal of the ALJs decision back to that same body would be
fruitful. Aff. 10. This argument does not embody any new information and, in any event,
does not logically followif a particular beneficiary presents evidence (other than evidence
from the four providers) in support of a claimed disability and the ALJ nonetheless terminates
benefits, there is no logical reason to think the Appeals Council could not independently and
impartially review that decision. Mr. Goss also suggests that the Appeals Council will keep
beneficiary appeals for an average of two years before issuing a final, appealable decision, see
id., but this assertion appears to be based on nothing more than Mr. Gosss analysis of Appeals
Council activity generally, and not on any special insight or information about how the agency
intends to process these cases in particular. In any event, the Supreme Court also made clear in
Illinois Council that courts must adhere to the jurisdictional limitations set forth in Section
405(h) even when those limitations come[] at a price, namely, occasional individual, delayrelated hardship. 529 U.S. at 13. And even if Mr. Gosss bare speculation about potential
Appeals Council delays in the future was relevantwhich it isntthere is no reason Plaintiffs
could not have offered that speculation earlier. Finally, Mr. Goss asserts in conclusory fashion
that beneficiaries can expect to suffer irreparable harm, id. 11, an argument that SSA has
repeatedly addressed previously, see Doc. 30 at 6, Doc. 15 at 23-24.

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II.

PLAINTIFFS ARE NOT ENTITLED TO AN INJUNCTION, OR AN ORDER

STAY[ING] SSAS REDETERMINATION PROCEEDINGS PENDING
THEIR APPEAL TO THE SIXTH CIRCUIT
Plaintiffs memorandum also contends in cursory fashion that this Court should grant

injunctive relief and order the ongoing administrative hearings ceased while these proceedings
continue. Mem. at 14. Plaintiffs alternatively request that this Court stay all the hearings
pending its appeal to the Sixth Circuit. Id. Plaintiffs did not include these requests in their
motion, see Doc. 35, and, for this reason alone, the requests should be rejected. See L.R. 7.1(a)
(All motions must state precisely the relief requested.).
Even if the Court were to consider them, these requests should be summarily denied.
Initially, Plaintiffs request that the Court grant injunctive relief and the request that this Court
stay all the hearingsthough styled as distinct demands for reliefin fact amount to the same
thing. An order staying the redetermination hearings SSA has been conducting for nearly
three months would in fact be an injunction, not a stay (and would grant Plaintiffs the very same
reliefan order stopping the hearingsas their request for an injunction). See Nken v. Holder,
556 U.S. 418, 428-29 (2009) (noting that, while an injunction directs the conduct of a party, a
stay acts merely upon the judicial proceeding itself . . . either by halting or postponing some
portion of the proceeding, or by temporarily divesting an order of enforceability); Brown v.
Gilmore, 533 U.S. 1301, 1303 (2001) (Rehnquist, C.J., in chambers) ([A]pplicants are seeking
not merely a stay of a lower court judgment, but an injunction against the enforcement of a
presumptively valid state statute).8

Even if Plaintiffs request could properly be characterized as seeking a stay pending appeal,
Plaintiffs would not be entitled to that relief either (the standards for which are similar to those
for a preliminary injunction). See generally Hilton v. Braunskill, 481 U.S. 770, 776 (1987).
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And whether styled as a stay or an injunction, there is no basis for any order stopping
SSAs hearings now. Plaintiffs requested this relief in moving for a preliminary injunction, see
Doc. 12, and this Court already denied that motion when it dismissed this case, see Doc. 33 at 10
(denying all pending motions as moot). And because this Court has concluded that it lacks
subject-matter jurisdiction over Plaintiffs claims, Plaintiffs obviously cannot demonstrate that
they are likely to succeed on their claims (as required for a preliminary injunction).
CONCLUSION
This Court should deny Plaintiffs motion to alter or amend this Courts order and
judgment granting Defendants motion to dismiss.

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Respectfully submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
JUDRY L. SUBAR
Assistant Branch Director
U.S. Department of Justice
Civil Division, Federal Programs Branch
BY:

/s/ Andrew M. Bernie

Andrew M. Bernie (DC BAR# 995376)
Trial Attorney
U.S. Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave, NW
Washington, DC 20530
Telephone: (202) 616-8488
Facsimile: (202) 616-8470
Email: andrew.m.bernie@usdoj.gov
Counsel for Defendant

Case: 7:15-cv-00046-ART-HAI Doc #: 36 Filed: 12/11/15 Page: 17 of 17 - Page ID#: 499

CERTIFICATE OF SERVICE
I hereby certify that on the 11th day of December, 2015, the foregoing was electronically
filed with the clerk of the court by using the CM/ECF system.
/s/Andrew M. Bernie
Andrew M. Bernie