Case l:ll-cv-00260-SM Document 9 Filed 05/21/12 Page 1 of 6
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Christopher A. Chasse, Claimant
v. Case No. ll-cv-260-SM Opinion No. 2012 DNH 088 Michael J. Astrue, Commissioner, Social Security Administration, Respondent
O R D E R
Before the court is defendant's Motion to Vacate the Order
of Remand and Reinstate the Case, document no. 5. For the
following reasons, the motion is denied.
Plaintiff filed this case in May, 2011. On July 20, 2011,
defendant filed an assented-to motion for remand. The motion
stated that the Commissioner could not locate the recording of
the administrative hearing, which, he argued, amounted to "good
cause" for remand under 42 U.S.C. §§ 405(g) and 1383(c)(3). See
document no. 4 at 1. The motion also represented that " [u]pen
remand, a de novo hearing will be held." .Id. at 2. By endorsed
order dated July 28, 2011, this court granted the motion and
closed the case. See Endorsed Order, dated July 28, 2011.
Apparently six days after entry of the remand order, the
Office of Disability Adjudication and Review (ODAR) located the Case l:ll-cv-00260-SM Document 9 Filed 05/21/12 Page 2 of 6
missing recording. Defendant did not, however, promptly notify
plaintiff's counsel or the court that the recording had been
found.1 Instead, ODAR unilaterally began preparing an
administrative record for judicial review. Document no. 5 at 2.
On October 14, defendant informed plaintiff's counsel that the
recording had been found. On November 8, 2011, over three months
after it found the missing recording, defendant filed a Motion to
Vacate the Order of Remand and Reinstate the Case, document no.
5.
Defendant argues that the remand order should be vacated
under Federal Rule of Civil Procedure 60(b), because the
recording - that once was lost, but now is found - "obviates the
need for a de novo hearing." .Id. at 2.2
1 In fact, the entire file had been missing, not just the recording.
2 Defendant also argues, without development or citation to authority, that, despite his own request, this court "lacked jurisdiction to remand this case in the first place" because plaintiff did not exhaust his administrative remedies. Document no. 8, at 3. The argument is without merit. The requirement that plaintiff exhaust all steps in the agency process may be waived by the Commissioner. Wilson v. Secretary of Health & Human Serv., 671 F.2d 673, 677 (1st Cir. 1982). Defendant's request for remand in this case operated as a waiver. See Dvorak v. Astrue, 2008 WL 4372885, at *2 (D. Kan. Sept. 22, 2008) (court had jurisdiction to address Commissioner's motion for remand, which was based on fact that claimant's file was missing, where Commissioner did not raise waivable requirement for judicial review).
2 Case l:ll-cv-00260-SM Document 9 Filed 05/21/12 Page 3 of 6
Rule 60(b) provides that a "court may relieve a party . . .
from a final judgment, order, or proceeding" under circumstances
described in any one of six subsections. Defendant does not
specify which subsections he believes apply under these
circumstances. Nevertheless, because subsections (b)(2) through
(5) plainly do not apply, the court will consider the motion as
one brought under subsections (b)(1) and (b)(6). Under those
subsections, respectively, an order may be set aside for
"mistake, inadvertence, surprise, or excusable neglect," or for
"any other reason that justifies relief." Fed. R. Civ. P.
60(b)(1), (b)(6). To obtain relief under subsection (b)(6), the
moving party must show that the circumstances are "extraordinary"
such that "principles of equity mandate relief." Aguiar-
Carrasquillo v. Agosto-Alicea, 445 F.3d 19, 28-29 (1st Cir. 2006)
(quotation omitted).
Defendant is not entitled to relief under Rule 60(b)(1) for
at least two reasons. First, there has been no "mistake" that
would warrant relief under that subsection. Remand was sought
because the Commissioner lost the file and did not expect to find
it within a reasonable time, no doubt having already conducted a
thorough but fruitless search. A decision had to be made based
upon the best information available and the Commissioner made it
- the file was indeed lost at the time; the Commissioner didn't
expect to find it; and the Commissioner made an informed decision
3 Case l:ll-cv-00260-SM Document 9 Filed 05/21/12 Page 4 of 6
to resolve the problem by seeking a remand, with plaintiff's
agreement, and by conducting a de novo hearing. There is no
"mistake" to be found in the Commissioner's understanding of the
pertinent facts or his decision. See McCormick v. City of
Chicago, 230 F.3d 319, 328 (7th Cir. 2000) (even if subsequent
factual development was "'unexpected,'" there was no mutual
mistake at the time of settlement agreement for purposes of Rule
60(b)(1)). That the Commissioner found the lost recording after
the ordered remand merely describes a factual circumstance that
changed after the court remanded the case in accordance with the
agreed upon request of the parties.
Second, the remand order resulted from defendant's
deliberate decision-making, which also militates strongly against
affording relief under Rule 60(b)(1). See Ungar v. Palestine
Liberation Org.. 599 F.3d 79, 85 (1st Cir. 2010) (there is no
"mistake, inadvertence, surprise, or excusable neglect" where the
judgment "resulted from [defendants'] deliberate strategic
choice"). As plaintiff correctly points out, the Commissioner
could have sought a conditional remand - that is, a remand order
providing that a de novo hearing would not be necessary, and the
case would be reinstated, should the recording be located within
a reasonable time after remand. That the Commissioner decided,
instead, to seek an unconditional remand and committed to provide
a de novo administrative hearing counsels against relief under
4 Case l:ll-cv-00260-SM Document 9 Filed 05/21/12 Page 5 of 6
Rule 60(b)(1). See Sweeney v. Verizon Comm., Inc., 2010 WL
3191589, at *2 (D. Mass. Aug. 12, 2010) (excusable litigation
mistakes are those "that a party could not have protected
against," but not those "which were the result of a deliberate
and counseled decision by the complaining party.") (quotation
omitted). That is especially so because vacating the remand
order now would deprive plaintiff, over his objection, of the
benefit of the Commissioner's commitment to provide a de novo
hearing, which proffer no doubt informed plaintiff's decision to
assent to the remand request. After all, plaintiff may now
significantly add to the record evidence during a de novo
hearing, and might resolve potential procedural difficulties.
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Case l:ll-cv-00260-SM Document 9 Filed 05/21/12 Page 1 of 6
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Christopher A. Chasse, Claimant
v. Case No. ll-cv-260-SM Opinion No. 2012 DNH 088 Michael J. Astrue, Commissioner, Social Security Administration, Respondent
O R D E R
Before the court is defendant's Motion to Vacate the Order
of Remand and Reinstate the Case, document no. 5. For the
following reasons, the motion is denied.
Plaintiff filed this case in May, 2011. On July 20, 2011,
defendant filed an assented-to motion for remand. The motion
stated that the Commissioner could not locate the recording of
the administrative hearing, which, he argued, amounted to "good
cause" for remand under 42 U.S.C. §§ 405(g) and 1383(c)(3). See
document no. 4 at 1. The motion also represented that " [u]pen
remand, a de novo hearing will be held." .Id. at 2. By endorsed
order dated July 28, 2011, this court granted the motion and
closed the case. See Endorsed Order, dated July 28, 2011.
Apparently six days after entry of the remand order, the
Office of Disability Adjudication and Review (ODAR) located the Case l:ll-cv-00260-SM Document 9 Filed 05/21/12 Page 2 of 6
missing recording. Defendant did not, however, promptly notify
plaintiff's counsel or the court that the recording had been
found.1 Instead, ODAR unilaterally began preparing an
administrative record for judicial review. Document no. 5 at 2.
On October 14, defendant informed plaintiff's counsel that the
recording had been found. On November 8, 2011, over three months
after it found the missing recording, defendant filed a Motion to
Vacate the Order of Remand and Reinstate the Case, document no.
5.
Defendant argues that the remand order should be vacated
under Federal Rule of Civil Procedure 60(b), because the
recording - that once was lost, but now is found - "obviates the
need for a de novo hearing." .Id. at 2.2
1 In fact, the entire file had been missing, not just the recording.
2 Defendant also argues, without development or citation to authority, that, despite his own request, this court "lacked jurisdiction to remand this case in the first place" because plaintiff did not exhaust his administrative remedies. Document no. 8, at 3. The argument is without merit. The requirement that plaintiff exhaust all steps in the agency process may be waived by the Commissioner. Wilson v. Secretary of Health & Human Serv., 671 F.2d 673, 677 (1st Cir. 1982). Defendant's request for remand in this case operated as a waiver. See Dvorak v. Astrue, 2008 WL 4372885, at *2 (D. Kan. Sept. 22, 2008) (court had jurisdiction to address Commissioner's motion for remand, which was based on fact that claimant's file was missing, where Commissioner did not raise waivable requirement for judicial review).
2 Case l:ll-cv-00260-SM Document 9 Filed 05/21/12 Page 3 of 6
Rule 60(b) provides that a "court may relieve a party . . .
from a final judgment, order, or proceeding" under circumstances
described in any one of six subsections. Defendant does not
specify which subsections he believes apply under these
circumstances. Nevertheless, because subsections (b)(2) through
(5) plainly do not apply, the court will consider the motion as
one brought under subsections (b)(1) and (b)(6). Under those
subsections, respectively, an order may be set aside for
"mistake, inadvertence, surprise, or excusable neglect," or for
"any other reason that justifies relief." Fed. R. Civ. P.
60(b)(1), (b)(6). To obtain relief under subsection (b)(6), the
moving party must show that the circumstances are "extraordinary"
such that "principles of equity mandate relief." Aguiar-
Carrasquillo v. Agosto-Alicea, 445 F.3d 19, 28-29 (1st Cir. 2006)
(quotation omitted).
Defendant is not entitled to relief under Rule 60(b)(1) for
at least two reasons. First, there has been no "mistake" that
would warrant relief under that subsection. Remand was sought
because the Commissioner lost the file and did not expect to find
it within a reasonable time, no doubt having already conducted a
thorough but fruitless search. A decision had to be made based
upon the best information available and the Commissioner made it
- the file was indeed lost at the time; the Commissioner didn't
expect to find it; and the Commissioner made an informed decision
3 Case l:ll-cv-00260-SM Document 9 Filed 05/21/12 Page 4 of 6
to resolve the problem by seeking a remand, with plaintiff's
agreement, and by conducting a de novo hearing. There is no
"mistake" to be found in the Commissioner's understanding of the
pertinent facts or his decision. See McCormick v. City of
Chicago, 230 F.3d 319, 328 (7th Cir. 2000) (even if subsequent
factual development was "'unexpected,'" there was no mutual
mistake at the time of settlement agreement for purposes of Rule
60(b)(1)). That the Commissioner found the lost recording after
the ordered remand merely describes a factual circumstance that
changed after the court remanded the case in accordance with the
agreed upon request of the parties.
Second, the remand order resulted from defendant's
deliberate decision-making, which also militates strongly against
affording relief under Rule 60(b)(1). See Ungar v. Palestine
Liberation Org.. 599 F.3d 79, 85 (1st Cir. 2010) (there is no
"mistake, inadvertence, surprise, or excusable neglect" where the
judgment "resulted from [defendants'] deliberate strategic
choice"). As plaintiff correctly points out, the Commissioner
could have sought a conditional remand - that is, a remand order
providing that a de novo hearing would not be necessary, and the
case would be reinstated, should the recording be located within
a reasonable time after remand. That the Commissioner decided,
instead, to seek an unconditional remand and committed to provide
a de novo administrative hearing counsels against relief under
4 Case l:ll-cv-00260-SM Document 9 Filed 05/21/12 Page 5 of 6
Rule 60(b)(1). See Sweeney v. Verizon Comm., Inc., 2010 WL
3191589, at *2 (D. Mass. Aug. 12, 2010) (excusable litigation
mistakes are those "that a party could not have protected
against," but not those "which were the result of a deliberate
and counseled decision by the complaining party.") (quotation
omitted). That is especially so because vacating the remand
order now would deprive plaintiff, over his objection, of the
benefit of the Commissioner's commitment to provide a de novo
hearing, which proffer no doubt informed plaintiff's decision to
assent to the remand request. After all, plaintiff may now
significantly add to the record evidence during a de novo
hearing, and might resolve potential procedural difficulties.
Defendant is also not entitled to relief under Rule
60(b)(6). The circumstances here are not exceptional, and
equitable principles do not mandate that the Commissioner be
relieved of the obligation he voluntarily undertook, and upon
which plaintiff no doubt relied. Indeed, the equities favor
plaintiff, not the Commissioner. The Commissioner agreed to
provide a new hearing and plaintiff expected to have one within a
reasonable time. As noted, a new hearing may well prove
meaningful to plaintiff and he should not be deprived of that
opportunity just because "things changed" after the Commissioner
decided upon a course of action, moved for specific relief, and
the court acted on the motion by issuing a final order closing
5 Case l:ll-cv-00260-SM Document 9 Filed 05/21/12 Page 6 of 6
the case. At the time of remand, the Commissioner probably had
little expectation that the record would be found, and so
reasonably joined with plaintiff in resolving the matter. That
his expectation turned out, after the fact, to be too pessimistic
does not provide a basis upon which to undo the decided-upon
course and deprive plaintiff of the benefit afforded him.
Absent truly extraordinary circumstances, the government
should ordinarily be held to its litigation commitments,
particularly those commitments that afford a meaningful benefit
to an adverse party. That different decisions might have been
made had the Commissioner anticipated that the file would be
found in a timely fashion is somewhat beside the point - as is
the fact that the file actually was found (but not disclosed)
shortly after the case was remanded.
Defendant's Motion to Vacate the Order of Remand and
Reinstate the Case, document no. 5., is denied.
SO ORDERED.
Steven J./McAuliffe United States District Judge May 21, 2012
cc: Christine W. Casa, Esq. Gretchen L. Witt, AUSA