United States District Court, D. Kansas
LISA M. KING, Plaintiff,
NANCY A BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
W. Lungstrum United States District Judge.
matter comes before the court on Plaintiff's
“Motion to Alter or Amend Judgment” made pursuant
to Rule 59(e) of the Federal Rules of Civil Procedure. (Doc.
30). The motion was filed on January 12, 2017, twenty-eight
days after the court filed the judgment which the motion
seeks to set aside or amend. Compare (Doc. 30)
(filed January 12, 2017) with (Doc. 29) (filed
December 15, 2016). The Acting Commissioner (hereinafter
Commissioner) has responded in opposition to the motion, and
argues that the motion should be denied. (Doc. 32)
(hereinafter Comm'r Response). Plaintiff filed her reply
on February 3, 2017 (Doc. 33) (hereinafter Reply), and the
motion is ripe for decision. The court has reviewed the
parties' arguments, the pleadings, the administrative
record, the court's order upon which judgment was
entered, and the applicable law, and determines that
Plaintiff's motion shall be denied. Neither parties'
briefing addresses the proper bases to alter or amend
judgment pursuant to Fed.R.Civ.P. 59(e), nor the legal
standard to be applied when considering such a motion. That
is where the court will begin.
59 provides the mechanism by which a court can (1) set aside
a verdict and order a new trial; or (2) reconsider a prior
entry of judgment.” Fed.R.Civ.P. 59 (practice
commentary - overview). Sections (a) through (d) concern
procedures to set aside a verdict and order a new trial, and
section (e) provides for a motion to alter or amend a
judgment. Because there was no trial, and hence no verdict in
this case, Rule 59, sections (a) through (d) are not
applicable here. Judgment, however, was entered in this case
on December 15, 2016 on the court's Memorandum and Order
affirming the Commissioner's decision below. (Docs. 28,
Plaintiff is subject to an adverse judgment of this court,
she may file a motion to alter or amend that judgment
pursuant to Fed.R.Civ.P. 59(e). VanSkiver v. United
States, 952 F.2d 1241, 1243 (10th Cir. 1991). The motion
must be filed within twenty-eight days after the judgment is
entered. See Fed.R.Civ.P. 59(e).
three grounds that justify reconsideration under Rule 59(e)
are: (1) an intervening change in controlling law; (2) the
availability of new evidence; and (3) the need to correct
clear error or prevent manifest injustice. See Servants
of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.
2000); Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th
does not argue a change in controlling law and does not
attempt to present new evidence, so the court considers his
motion as an attempt to argue clear error or manifest
injustice. A motion for reconsideration is inappropriate to
re-argue an issue previously addressed by the court when the
motion merely advances new arguments or supporting facts that
were available at the time of the original application.
Paraclete, 204 F.3d at 1012 (motion to reconsider is
not a proper vehicle through which to “revisit issues
already addressed or advance arguments that could have been
raised in prior briefing”). However, a motion to alter
or amend that reiterates issues originally raised in the
application and that seeks to challenge the legal correctness
of the court's judgment by arguing that the court
misapplied the law or misunderstood the litigant's
position is correctly asserted pursuant to Fed.R.Civ.P.
59(e). See Van Skiver, 952 F.2d at 1244.
case, Plaintiff met the time limitation under Rule 59 by
filing her motion twenty-eight days after the entry of
judgment. However, Plaintiff provides no newly promulgated
authority, no new evidence, and no clear error or manifest
injustice that warrants reconsideration of the court's
Judgment, or Memorandum and Order. In the memorandum
supporting her motion, Plaintiff argues that the court (and
the Administrative Law Judge (ALJ)) misunderstood the
evidence, weighed the evidence wrongly, and reached an
erroneous conclusion with regard to the evidence. (Doc. 31).
But, Plaintiff does not argue that the court misapplied the
law applicable to judicial review of the Social Security
Administration's decision, and she does not argue that
the court misunderstood the arguments made in her Social
Security briefing. But, as the Commissioner argued, her
“motion constitutes merely a reiteration of her
previous contentions and as such [is] merely an invitation to
the court to impermissibly reweigh the evidence in these
regards.” (Comm'r Response 1). A motion to
reconsider is not the proper vehicle through which to
“revisit issues already addressed or advance arguments
that could have been raised in prior briefing.”
Paraclete, 204 F.3d at 1012. It is clear that
Plaintiff disagrees with the final decision of the
Commissioner below, and with the court's determination
that the Commissioner's decision is supported by the
record evidence. The place to advance those arguments is with
the Tenth Circuit Court of Appeals.
THEREFORE ORDERED that Plaintiff's Motion to Alter or
Amend Judgment (Doc. 30) is Denied.
On Jan. 20, 2017, Nancy A. Berryhill,
became Acting Commissioner of Social Security. In accordance
with Rule 25(d)(1) of the Federal Rules of Civil Procedure,
Nancy A. Berryhill is substituted for Acting Commissioner
Carolyn W. Colvin as the defendant. In accordance with the