Kentucky Response

7/21/2019 Kentucky Response

http://slidepdf.com/reader/full/kentucky-response 1/17

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKYSOUTHERN DIVISION

PIKEVILLE

______________________________________________________________________________

) ELECTRONICALLY FI LED

CHERYL MARTIN and ROBERT )

MARTIN, individually, and on behalf of ) all others similarly situated , )

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

Plaintiffs, ))

v. )

)CAROLYN W. COLVIN, )

in her official Capacity as )ACTING COMMISSIONER OF )

THE SOCIAL SECURITY )ADMINISTRATION, )

)

Defendant. )

DEFENDANT’S 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

Court’s order and judgment granting Defendant’s 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. Int’l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999).

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



2

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 Court’s decision was wrong on various

points. See, e.g., Doc. 35-1 (“Mem.”) at 5-7, 10. Through their motion—and 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

Court’s 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 Administration’s (“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 motions—including, 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 Court’s order and judgment, and

such a motion is more properly brought under Rule 59(e). See Fed. R. Civ. P. 59(e). ConstruingPlaintiffs’ 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.




3

injunction—when 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 COURT’S 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 Int’l 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 evidence—much less any newly discovered material

evidence that undermines this Court’s conclusion that it lacks subject-matter jurisdiction over

Plaintiffs’ claims—or any intervening change in law. Nor can Plaintiffs show any clear error of




4

law in this Court’s 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 Court’s 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 35-

36. Plaintiffs cannot make such a showing here: This Court’s decision faithfully applied well-

settled 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 well-

reasoned opinion. The Court did so only after receiving, among other filings: (1) briefing on

Defendant’s 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, 23-

1, 25-1, 26, 27, 28, 30, 31, 32. Plaintiffs’ latest submissions contain nothing new, and do not




5

come close to establishing grounds for altering or amending this Court’s judgment. None of

Plaintiffs’ restated arguments persuades otherwise.

1. This Court ruled that Plaintiffs cannot pursue this case to contest SSA’s

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 SSA’s 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 i denti f ied

providers )” (emphasis added)); Doc. 30 at 2-3 (referring to “the mandate to disregard medical




6

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

fr om the four identif ied 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,




7

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 Court’s

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

2 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 statute’s application has caused and will continue to cause them”); Doc. 28

at 13-14.




8

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 Court’s conclusion that it lacks jurisdiction to

intervene in SSA’s 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. Sec’y 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 theapproximately 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 locatevolunteer 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)).




9

the finality of this Court’s 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 SSA’s 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 Court’s 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 argument—that a

district court incorrectly rejected a legal argument a party previously made—is simply not a basis




10

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

6. Plaintiffs rely extensively on the Northern District of California’s decision

denying SSA’s 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 Court’s Memorandum opinion and order, and nearly a

month before Defendant’s 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 suspectdoctors.” Mem. at 8. But this Court in fact ordered supplemental briefing on this very issue,Doc. 24, and the Court’s opinion noted that Plaintiffs would have to supply “corroborating

evidence fr om other doctors ,” Doc. 33 at 6 (emphasis added); see also Mem. at 4 (noting that the

Court’s reference to evidence submitted by Plaintiffs “presumably refers to medical evidencefrom 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 beconsidered 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 Courtexplained 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 theirapplication 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.




11

even a cursory review of the Court’s decision in that case—which 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 terminated—makes clear that it has no

relevance to this matter. See 2015 WL 4396259, at *4. Finally, Plaintiffs already brought to this

Court’s attention both the Northern District of California’s decision denying SSA’s motion to

dismiss in Hart , and that Court’s 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 Court’s 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 SSA’s

conduct violates Section 405(u), as well as two regulations and a POMS provision. Id. at 11-13.

Plaintiffs’ description of the basis for SSA’s redetermination activities is not accurate, see Doc.

30 at 7, and none of Plaintiffs’ arguments affect this Court’s conclusion that it lacks subject-

matter jurisdiction over Plaintiffs’ claims. In any event, Plaintiffs have made all of these

arguments before—citing these exact same sources, see Doc. 28 at 19-20—and 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.

5 Mr. Goss’s assertion that he represents 49 individuals—together 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 ¶ 7—is, to say the




12

See Aff. ¶ 3. Mr. Goss’s 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 Court’s 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 assertions—and the fact that Plaintiffs were able to produce an

affidavit containing them only four days after this Court granted Defendant’s motion to

dismiss—Plaintiffs might well have developed these points prior to this Court’s 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 Court’s 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.




13

en masse, even if the Court did have jurisdiction).6 The Goss Affidavit’s remaining assertions

likewise do not come close to establishing a basis for disturbing this Court’s judgment.7

***

Plaintiffs may disagree with the Court’s 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 tosecure evidence from other sources, and the results of any such efforts. Simply put, the GossAffidavit 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 moredetail, that would not affect this Court’s 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 noreasonable prospect that an appeal of the ALJ’s 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 follow—if 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, seeid., but this assertion appears to be based on nothing more than Mr. Goss’s 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 Section405(h) even when those limitations “come[] at a price, namely, occasional individual, delay-

related hardship.” 529 U.S. at 13. And even if Mr. Goss’s bare speculation about potential

Appeals Council delays in the future was relevant—which it isn’t—there is no reason Plaintiffscould 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.




14

II. PLAINTIFFS ARE NOT ENTITLED TO AN INJUNCTION, OR AN ORDER

“STAY[ING]” SSA’S 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 hearings”—though styled as distinct demands for relief—in 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

relief—an order stopping the hearings—as 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

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).




15

And whether styled as a “stay” or an “injunction,” there is no basis for any order stopping

SSA’s 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 Court’s order and

judgment granting Defendant’s motion to dismiss.




Respectfully submitted,

BENJAMIN C. MIZER

Principal Deputy Assistant Attorney General

JUDRY L. SUBARAssistant 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 Branch20 Massachusetts Ave, NW

Washington, DC 20530Telephone: (202) 616-8488

Facsimile: (202) 616-8470Email: [email protected]

Counsel for Defendant




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


Documents

Kentucky Response