Hester v. Commissioner of Social Security

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 DARRELL HESTER, 9 Plaintiff, Case No. C21-0228-SKV 10 v. ORDER 11 COMMISSIONER OF SOCIAL SECURITY, 12 Defendant. 13

14 This matter is before the Court on Plaintiff’s motion to alter or amend judgment pursuant 15 to Federal Rule of Civil Procedure 59(e). Dkt. 23. The Commissioner opposes the motion. Dkt. 16 24. For the reasons explained herein, the Court DENIES Plaintiff’s motion. 17 The Court may reconsider and amend a judgment pursuant to Rule 59(e). However, this 18 rule “offers an ‘extraordinary remedy, to be used sparingly in the interests of finality and 19 conservation of judicial resources.’” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 20 (9th Cir. 2000) (quoting 12 James Wm. Moore et al., Moore’s Federal Practice § 59.30[4] (3d ed. 21 2000)). “Indeed, ‘a motion for reconsideration should not be granted, absent highly unusual 22 circumstances, unless the district court is presented with newly discovered evidence, committed 23 clear error, or if there is an intervening change in the controlling law.’” Id. (quoting 389 Orange 1 St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)). See also Turner v. Burlington 2 Northern Santa Fe R.R., 338 F.3d 1058, 1063 (9th Cir. 2003) (reconsideration may also be 3 granted where “necessary to ‘prevent manifest injustice[]’”) (quoted source omitted). “A Rule 4 59(e) motion may not be used to raise arguments or present evidence for the first time when they

5 could reasonably have been raised earlier in the litigation.” Kona Enters., Inc., 229 F.3d at 890 6 (emphasis in original; citing 389 Orange Street Partners, 179 F.3d at 665). 7 In his Rule 59(e) motion, Plaintiff argues the Court committed clear error by “finding 8 Plaintiff waived the Seila Law issue” because he raised it for the first time in his reply brief. 9 Dkt. 23 at 3 (citing Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S.Ct. 2183 (2020)). In 10 his reply brief, Plaintiff argued his constitutional argument “cannot be waived, given that 11 Defendant has an opportunity to respond.” Dkt. 17 at 8. The Court rejected this argument 12 because, in fact, the Commissioner did not have an opportunity to respond, since Plaintiff raised 13 the argument for the first time in his reply brief. Dkt. 21 at 13. 14 Plaintiff argues that the Court “erred in finding that Defendant had not had an opportunity

15 to respond” because the Court “could have offered” a surreply or supplemental briefing. Dkt. 23 16 at 2. Neither party requested a surreply or supplemental briefing. Plaintiff offers no authority 17 for the proposition that the Court committed clear error by failing to sua sponte request further 18 briefing. And in his reply brief, Plaintiff did not identify any other exception to the waiver rule. 19 The Court considered all arguments Plaintiff raised. 20 Plaintiff argues the cases the Court relied on in finding waiver were distinguishable 21 because they “concerned issues of mixed fact and law” while his constitutional argument “is a 22 pure question of law[.]” Dkt. 23 at 3-4. Even assuming his argument involved no factual 23 question, the waiver rule remains applicable. Plaintiff’s reply brief offered no reason why he 1 met an exception to the waiver rule, aside from the factually inaccurate reason that the 2 Commissioner had had an opportunity to respond. Plaintiff did not argue in his reply brief that 3 there is an exception to the waiver rule for a pure question of law. Even in his motion for 4 reconsideration, Plaintiff offers no authority for that proposition. Plaintiff cites Maxwell v. Saul,

5 but in that case the Ninth Circuit only rejected the Commissioner’s argument that a claimant 6 waived an issue on appeal by failing to raise it in administrative proceedings below. 971 F.3d 7 1128, 1130 (9th Cir. 2020). Similarly, in Silveira v. Apfel, an issue was raised for the first time 8 on appeal, not for the first time in a reply brief. 204 F.3d 1257, 1260 n. 8. Plaintiff fails to 9 establish the Court committed clear error by finding waiver of the constitutional issue. 10 On a motion to reconsider, “courts will not address new arguments or evidence that the 11 moving party could have raised before the decision issued.” Banister v. Davis, 140 S. Ct. 1698, 12 1703, 207 L. Ed. 2d 58 (2020). In his Rule 59(e) motion, Plaintiff relies on Varney, where the 13 Ninth Circuit considered an issue first raised in a petition for rehearing based on “an exception 14 … for cases involving extraordinary circumstances.” Varney v. Sec’y of Health & Human Svcs,

15 859 F.2d 1396, 1397-98 (9th Cir. 1988). In that case, the Ninth Circuit had “no wish to further 16 delay the payment of deserved and much-needed benefits[.]” Id. at 1398. Here, however, 17 Plaintiff has not established an entitlement to benefits; on the contrary, the Court concluded he 18 failed to show the ALJ erred in denying benefits. Dkt. 21. Moreover, in Varney, the court found 19 “no indication that the petitioner’s failure to raise this issue initially was willful.” 859 F.2d at 20 1398. Here, in contrast, Plaintiff’s argument was based on Seila Law, a case that was decided in 21 2020. Collins, which he cited for further support, was decided on June 23, 2021. Dkt. 17 at 6 22 (citing Collins v. Yellen, 141 S.Ct. 1761 (2021)). There is no reason Plaintiff could not have 23 raised his constitutional argument in his opening brief, which was filed on July 6, 2021. 1 Plaintiff contends he “raised the constitutional issue for the first time in the Reply 2 because significant events transpired affecting the case after Plaintiff filed the Opening Brief.” 3 Dkt. 23 at 5. Specifically, on July 8, 2021, the Office of Legal Counsel issued a legal opinion 4 that the statutory removal provisions were unconstitutional and, on July 9, President Biden

5 removed Andrew Saul as Commissioner. Id. However, neither of these events altered the 6 constitutional issue. The OLC’s legal opinion is not binding precedent for this Court. And the 7 ALJ issued a decision in Plaintiff’s case in December 2020, before President Biden had even 8 taken office. Plaintiff suggests there are “questions” as to whether former President Trump, who 9 appointed Mr. Saul, “would have terminated Commissioner Saul earlier” if he “had known” the 10 removal provisions were unconstitutional. Dkt. 25 at 2-3. This rank speculation, based on 11 nothing more than Plaintiff’s counsel’s musings, is insufficient to establish entitlement to such an 12 extraordinary remedy as Rule 59(e) relief. 13 The Court also notes that the events Plaintiff cites occurred within three days after he 14 filed his opening brief, well before the Commissioner’s response brief was due. See Dkt. 14.

15 Plaintiff’s failure to raise the issue in a timely manner undermines the supposed significance of 16 the events on which his Rule 59(e) motion relies. Plaintiff fails to establish that any clear error 17 by the Court, rather than his own actions, removed the constitutional issue from consideration. 18 For all of these reasons, the Court finds that Plaintiff has not shown he is entitled to relief 19 under Rule 59(e) and his motion (Dkt. 23) is therefore DENIED. 20 Dated this 30th day of September, 2021. 21 22 A 23 S. KATE VAUGHAN United States Magistrate Judge