Stubbs v. Kijakazi
| Connecticut District Court | |
| Judge: | Sarala V Nagala |
| Referred: | Thomas O Farrish |
| Case #: | 3:21-cv-01667 |
| Nature of Suit | 864 Social Security - SSID Title XVI |
| Cause | 42:1383 Review of SSA Decision SSID - SSI Disability Cases |
| Case Filed: | Dec 15, 2021 |
| Terminated: | Aug 10, 2022 |
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| Docket last updated: 04/28/2024 11:59 PM EDT |
| Monday, July 17, 2023 | ||
| 38 | 38
appeal
USCA Mandate
Wed 07/19 4:32 PM
MANDATE of USCA dated 7/17/2023 Withdrawing32 Notice of Appeal. (Mendez, D) |
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| Wednesday, June 28, 2023 | ||
| 37 | 37
appeal
USCA Order
Thu 07/06 2:28 PM
ORDER of USCA as to32 Notice of Appeal USCA Case Number 23-82. (Mendez, D) |
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| Wednesday, May 03, 2023 | ||
| 36 | 36
appeal
USCA Order
Fri 05/05 4:02 PM
ORDER of USCA as to32 Notice of Appeal USCA Case Number 23-82. (Mendez, D) |
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| Monday, February 06, 2023 | ||
| 35 | 35
notice
Notice of Appearance
Mon 02/06 11:34 AM
NOTICE of Appearance by Natasha Oeltjen on behalf of Kilolo Kijakazi (Oeltjen, Natasha) |
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| Friday, January 20, 2023 | ||
| 34 | 34
appeal
Document Forwarded to the Court of Appeals
Tue 01/24 10:46 AM
Exhibit to Notice of Appeal forwarded to the Court of Appeals. (Mendez, D) |
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| Thursday, January 19, 2023 | ||
| 33 | 33
appeal
Clerk's Certificate re: Notice of Appeal
Thu 01/19 4:00 PM
CLERK'S CERTIFICATE RE: INDEX AND RECORD ON APPEAL re:32 Notice of Appeal. The attached docket sheet is hereby certified as the entire Index/Record on Appeal in this matter and electronically sent to the Court of Appeals, with the exception of any manually filed documents as noted below. Dinah Milton Kinney, Clerk. Documents manually filed not included in this transmission: none. (Mendez, D) |
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| 32 | 32
appeal
Notice of Appeal
Thu 01/19 3:48 PM
NOTICE OF APPEAL as to 31 Order on Motion for Reconsideration, by Ivan M. Katz. (Mendez, D) |
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| Monday, January 09, 2023 | ||
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order
Order on Motion for Reconsideration
Mon 01/09 3:34 PM
ORDER denying30 Motion for Reconsideration. The standard for granting [reconsideration] is strict, and "reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked-- matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Van Buskirk v. United Grp. of Cos., Inc. , 935 F.3d 49, 54 (2d Cir. 2019); see also D. Conn. L. Civ. R. 7(c)1; Cho v. Blackberry Ltd. , 991 F.3d 155, 170 (2d Cir. 2021) (cleaned up) . A motion for reconsideration is "not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a second bite at the apple." Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (citation and internal quotation marks omitted). For the following reasons, Plaintiff's motion is denied. In her motion for reconsideration, Plaintiff fails to point to controlling decisions or data that the court overlooked. Instead, she rehashes the same arguments made in her initial motion, with more detail, and asserts that the Court was incorrect in its understanding of the controlling law. A motion for reconsideration is not the appropriate way to relitigate old issues, or "take a second bite at the apple." Id . Thus, Plaintiff has failed to present any legally cognizable reason that the Court should reconsider its decision and it declines to do so. Even were the Court to reconsider its prior decision, however, it would not change the outcome. First, in its initial order, the Court noted the Second Circuit's decision in Long Island Radio Co. v. N.L.R.B. , 841 F.2d 474, 478 (2d Cir. 1988) and expressed some skepticism regarding its ability to extend the deadline. Despite this, the Court also noted that the Supreme Court clarified that the timeliness provision in the EAJA is not jurisdictional, See Scarborough v. Principi , 541 U.S. 401, 413 (2004), and assumed the Court is empowered to extend the deadline. Then, as requested by Plaintiff, the Court examined whether equitable tolling would be appropriate in the instant case. The Court determined that application of the equitable tolling doctrine was not appropriate for the reasons outlined in that order. ECF No. 29. Nothing in Plaintiff's motion for reconsideration affects or changes the Court's discussion of those principles. Plaintiff appears to recognize this issue, as her motion for reconsideration now argues, for the first time, that equitable tolling should only be considered when the Government objects to an untimely request for fees. Essentially, Plaintiff contends that if the Government consents to a fee request, regardless of when such consent occurs, the Court should always grant the request. As this argument was not raised in the original motion the Court will not address it here except to say that were this correct, the time limitation in the EAJA would become all but meaningless in cases where the Defendant consents to a fee award. It appears unlikely to the Court that Congress intended such an outcome. Finally, the Court notes that Attorney Katz argues "if this Court does not approve the EAJA fee stipulation... the party who will suffer the financial loss will be Ms. Stubbs herself, as the full 25 percent of her retroactive benefits will go to her attorney as his fee." ECF No. 30-1 at 5. While the Court agrees that such an outcome would be unfortunate, it notes that whether this is the ultimate outcome in this case is entirely up to Attorney Katz, as his retainer agreement contemplates that he might, in certain circumstances, "waive[] withholding and direct payment" of his fees from the past-due benefits. ECF No. 30-2 at 1. It thus appears that if Attorney Katz is concerned about Ms. Stubbs' recovery being reduced due to his untimely filing, he is free to waive his fees in this matter, in whole or in part, and allow Ms. Stubbs to recover her past-due benefits. Therefore, Plaintiff's motion for reconsideration is DENIED. Signed by Judge Sarala V. Nagala on 1/9/23. (Marks, Joshua) |
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| Wednesday, December 28, 2022 | ||
| 30 | 30
motion
Reconsideration
Wed 12/28 7:01 PM
MOTION for Reconsideration re 29 Order,,,,,,,,,,,,,,,, by Donna Marie Stubbs.(Katz, Ivan) |
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Att: 1
Statement of Material Facts (Declaration of Plaintiff's Attorney),
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Att: 2
Exhibit to Declaration,
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Att: 3
Memorandum in Support
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| Wednesday, December 21, 2022 | ||
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order
Order
Wed 12/21 4:39 PM
ORDER denying25 stipulation settling EAJA fees. As discussed in ECF No. 27, the EAJA requires that a petition for fees be "filed within thirty days of final judgment." It is uncontested that the current stipulation for fees was filed after this deadline had lapsed. ECF No. 28 at 1. In response to this Court's order inquiring why it should nonetheless grant Petitioner's fee request, Petitioner contends that the time limit is not jurisdictional and that the Court may invoke the doctrine of equitable tolling to grant the petition. First, while the Supreme Court has stated the time limit imposed by the EAJA "does not concern the federal courts' subject-matter jurisdiction," Scarborough v. Principi , 541 U.S. 401, 413 (2004), it still "renders the United States liable for attorney's fees for which it would not otherwise be liable, and thus amounts to a partial waiver of sovereign immunity." Ardestani v. I.N.S. , 502 U.S. 129, 137 (1991). As a limited waiver of sovereign immunity, it "must be strictly construed in favor of the United States." Id. In accordance with this principle, the Second Circuit has held that a court does not "have the power to waive" the deadline contained in the EAJA. Long Island Radio Co. v. N.L.R.B. , 841 F.2d 474, 478 (2d Cir. 1988). Therefore, despite the occasional practice of district courts in this circuit to apply the equitable tolling doctrine to EAJA fee requests, see Tamburri v. Berryhill , No. 16-CV-5784 (PKC), 2018 WL 1175141, at *2 (E.D.N.Y. Mar. 5, 2018), it is not entirely clear to this Court that it has the power to expand the deadline set forth in the EAJA through equitable tolling or otherwise. Even were equitable tolling available for EAJA petitions, however it is not appropriate here. The Second Circuit has made clear that equitable tolling is to be invoked, "only in 'rare and exceptional' circumstances." Jenkins v. Greene , 630 F.3d 298, 302 (2d Cir. 2010). In order to benefit from this doctrine a plaintiff must show "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Dillon v. Conway, 642 F.3d 358, 362 (2d Cir. 2011). Plaintiff fails to make such a showing. Judgment was entered in Plaintiff's case on August 10, 2022. ECF No. 23. It was not until October 19, 2022, that Plaintiff first contacted Defendant regarding fees potentially recoverable under the EAJA. This was only three weeks before the expiration of Plaintiff's time to file a motion and gave the parties very little time to work out an arrangement ahead of the deadline. This is not a diligent pursuit of his rights. In turning to the second factor, Petitioner admits that "the filing of a protective motion on or before" the deadline would have been the better course of action. ECF No. 28 at 4. It is clear that there was nothing preventing Plaintiff from filing this motion other than a belief that the Court would excuse any late filing simply because there was an agreement between the parties. While the Court appreciates the parties' desire to work together to arrive at a stipulation regarding fees due under the EAJA, this is not an excuse for an untimely filing. In fact, the Second Circuit has held that a government agency defendant in an action has "no power to waive the EAJA deadline imposed by Congress." Long Island Radio Co. , 841 F.2d at 478. Thus, even were the stipulation interpreted as Defendant allowing Plaintiff an extension of time to file, such an agreement would not change the Court's holding. For these reasons, Plaintiff's request for attorneys fees under the EAJA, filed by way of stipulation at ECF No. 25, is DENIED. Signed by Judge Sarala V. Nagala on 12/21/22. (Marks, Joshua) |
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| Wednesday, December 14, 2022 | ||
| 28 | 28
respm
Response
Wed 12/14 3:47 PM
RESPONSE re 27 Order,,,,,, filed by Donna Marie Stubbs. (Katz, Ivan) |
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| Thursday, December 08, 2022 | ||
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order
Order
Thu 12/08 1:47 PM
ORDER. A party who prevails in a civil action against the United States may seek an award of fees and costs under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. In order for an award of attorney's fees to enter, the Court must find: (1) that Plaintiff is a prevailing party; (2) that the Commissioner's position was without substantial justification; (3) that no special circumstances exist that would make an award unjust; and (4) that the fee petition was filed within thirty days of final judgment. 28 U.S.C. § 2412(d)(1)(A)-(B). The EAJA further defines final judgment as "a judgment that is final and not appealable." 28 U.S.C. § 2412(d)(1)(G). In the instant action, judgment was entered on August 10, 2022. This judgment became "final and not appealable" sixty days later, on October 9, 2022. Fed. R. App. P. 4(a)(1)(B). As this was a Sunday followed by a legal holiday, the deadline was moved to October 11, 2022. Fed. R. App. P. 26(a)(1)(C). Plaintiff's ability to file his request for fees expired thirty days later, on November 10, 2022. The present stipulation was filed on December 7, 2022. Thus, it appears to the Court this stipulation is untimely. Nevertheless, Plaintiff may file a memorandum in support of the stipulation for fees no later than December 15, 2022 detailing any case law or facts supporting the proposition that the Court should grant the stipulation despite its apparent untimeliness. Signed by Judge Sarala V. Nagala on 12/8/22. (Marks, Joshua) |
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| Wednesday, December 07, 2022 | ||
| 26 | 26
trial
Exhibit
Wed 12/07 2:30 PM
EXHIBIT Statement of Plaintiff's Attorney with Declaration of Plaintiff by Donna Marie Stubbs re25 Stipulation.(Katz, Ivan) |
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Att: 1
Affidavit of the plaintiff
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| 25 | 25
misc
Stipulation
Wed 12/07 2:22 PM
STIPULATION settling EAJA fees by Kilolo Kijakazi. (Morrison, Graham) |
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| Friday, October 21, 2022 | ||
| 24 | 24
notice
Notice of Appearance
Fri 10/21 1:25 PM
NOTICE of Appearance by Graham Morrison on behalf of Kilolo Kijakazi (Morrison, Graham) |
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| Wednesday, August 10, 2022 | ||
| 23 | 23
order
Judgment
Wed 08/10 11:36 AM
JUDGMENT entered reversing the Commissioner's decision and remanding this case to the Commissioner for additional administrative proceedings. For Appeal Forms please go to the following website: http://www.ctd.uscourts.gov/forms/all-forms/appeals_forms Signed by Clerk on 8/10/2022.(Bozek, M.) |
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notice
Judicial Evaluation Program Survey
Wed 08/10 11:37 AM
JUDICIAL PROCEEDINGS SURVEY - FOR COUNSEL ONLY: The following link to the confidential survey requires you to log into CM/ECF for SECURITY purposes. Once in CM/ECF you will be prompted for the case number. Although you are receiving this survey through CM/ECF, it is hosted on an independent website called SurveyMonkey. Once in SurveyMonkey, the survey is located in a secure account. The survey is not docketed and it is not sent directly to the judge. To ensure anonymity, completed surveys are held up to 90 days before they are sent to the judge for review. We hope you will take this opportunity to participate, please click on this link: https://ecf.ctd.uscourts.gov/cgi-bin/Dispatch.pl?survey (Bozek, M.) |
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| Thursday, August 04, 2022 | ||
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order
Order on Motion to Remand to Agency
Thu 08/04 11:14 AM
ORDER granting20 Consent Motion to Remand to Agency. Signed by Judge Sarala V. Nagala on 8/4/22. (Marks, Joshua) |
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order
Order on Motion to Reverse the Decision of the Commissioner
Thu 08/04 11:16 AM
ORDER finding as moot16 Motion to Reverse the Decision of the Commissioner in light of the Court's Order Granting the Consent Motion to Remand to Agency (ECF. No. 21 ). The Clerk is directed to close this case. Signed by Judge Sarala V. Nagala on 8/4/22. (Marks, Joshua) |
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| Wednesday, August 03, 2022 | ||
| 20 | 20
motion
Remand to Agency
Wed 08/03 5:31 AM
Consent MOTION to Remand to Agency the Social Security Administration by Kilolo Kijakazi.Responses due by 8/24/2022 (Canning, Dennis) |
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| Thursday, July 21, 2022 | ||
| 19 | 19
notice
Notice of Appearance
Thu 07/21 12:34 PM
NOTICE of Appearance by Dennis J. Canning on behalf of Kilolo Kijakazi (Canning, Dennis) |
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| Wednesday, July 20, 2022 | ||
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order
Order on Motion for Extension of Time to File Response/Reply to Motion
Wed 07/20 11:45 AM
ORDER granting nunc pro tunc 17 Consent Motion for Extension of Time. Defendant shall file a motion to affirm or a motion for voluntary remand, supporting memorandum of law, and statement of material facts on or before August 18, 2022 . Should Defendant file a motion to affirm, Plaintiff may file any reply no later than September 1, 2022 . Signed by Judge Sarala V. Nagala on 7/20/22. (Marks, Joshua) |
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utility
Set Deadlines/Hearings
Mon 07/25 3:13 PM
Set Deadline: Motion to affirm or a Motion for voluntary remand, supporting memorandum of law, and statement of material facts due by 8/18/2022. (Bozek, M.) |
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| Tuesday, July 19, 2022 | ||
| 17 | 17
motion
Extension of Time to File Response/Reply to Motion
Tue 07/19 3:24 PM
Consent MOTION for Extension of Time to File Response/Reply Nunc Pro Tunc and for Leave to File Out of Time Defendant's Response as to16 MOTION to Reverse the Decision of the Commissioner until August 18, 2022 by Kilolo Kijakazi. (Fitzhugh, Nicol) |
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| Tuesday, May 03, 2022 | ||
| 16 | 16
motion
Reverse the Decision of the Commissioner
Tue 05/03 4:45 PM
MOTION to Reverse the Decision of the Commissioner by Donna Marie Stubbs.(Katz, Ivan) |
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Att: 1
Statement of Material Facts,
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Att: 2
Memorandum in Support
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| Friday, March 04, 2022 | ||
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order
Order on Motion for Extension of Time
Fri 03/04 9:10 AM
ORDER granting Consent Motion for Extension of Time (ECF No14 ). Plaintiff's motion to reverse or remand shall be filed no later than May 9, 2022 . Defendant's motion to affirm or for voluntary remand shall be filed no later than July 8, 2022 . Signed by Judge Sarala V. Nagala on 3/4/22. (Marks, Joshua) |
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order
Scheduling Order ~Util - Set Deadlines/Hearings
Mon 03/07 2:52 PM
Reset Deadlines: Plaintiff's Motion to Reverse or Remand due by 5/9/2022; Defendant's Motion to Affirm or for Voluntary Remand due by 7/8/2022. (Velez, F.) |
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| Wednesday, March 02, 2022 | ||
| 14 | 14
motion
Extension of Time
Wed 03/02 2:38 PM
Consent MOTION for Extension of Time until May 9, 2022 to file Motion to Reverse the Decision of the Commissioner by Donna Marie Stubbs. (Katz, Ivan) |
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order
Order of Transfer
Wed 03/02 10:42 AM
ORDER OF TRANSFER. Absent consent to a Magistrate Judge, this case has been reassigned to Judge Sarala V. Nagala for all further proceedings. Signed by Clerk on 3/2/2022.(Anastasio, F.) |
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| Monday, February 07, 2022 | ||
| 10 | 10
2
pgs
order
Order
Mon 02/07 9:39 AM
REMINDER: Standing Order on Social Security Appeals Signed by Judge Stefan R. Underhill on 2/7/2022.(Anastasio, F.) |
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Att: 1
Consent Form
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order
Scheduling Order
Mon 02/07 6:13 PM
SCHEDULING ORDER: The Government having filed its administrative record (Doc. No. 9), the court hereby enters the following Scheduling Order: Plaintiff shall file a motion to reverse and/or remand, supporting memorandum of law, and statement of material facts on or before April 8, 2022 . Defendant shall file a motion to affirm or a motion for voluntary remand, supporting memorandum of law, and statement of material facts on or before June 7, 2022 . Plaintiff may file a reply brief pursuant to Local Rule 7(d) on or before June 21, 2022 . Prior to the filing of any dispositive motions, counsel are encouraged to confer regarding the merits of the case in an effort to determine whether a reversal and voluntary remand are appropriate. The court reminds the parties of the previously filed Standing Scheduling Order which sets forth page limits and form and content requirements for motions, supporting memoranda, and statement of materials facts. (Doc. No. 5) The parties should avoid boilerplate discussions of the governing legal standards as the court is familiar with the standard of review and the sequential evaluation process employed in the analysis of Social Security disability applications. The parties should focus on informing the court of relevant and controlling legal authority and applying it to the facts of this case. Motions filed by the parties must comply with the requirements set forth above and in the Local Rules of Civil Procedure. Failure to comply may result in denial of the motion. Requests for extensions of these deadlines are discouraged and, unless unusual circumstances dictate otherwise, counsel should not seek an extension of greater than 30 days. Any motion for extension of a deadline must include a showing of good cause as required by Local Rule 7(b)(2) and must be filed at least three days before the existing deadline. Dispositive Motions due by 4/8/2022 Signed by Judge Stefan R. Underhill on 2/7/22.(Caldero, M.) |
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order
Scheduling Order
Mon 02/07 6:14 PM
SUPPLEMENTAL SCHEDULING ORDER: The Government having filed the administrative record on February 7, 2022 , the Court hereby enters the following Scheduling Order: Plaintiff shall file a motion to reverse and/or remand and supporting memorandum of law no later than April 8, 2022. Defendant shall then have until June 7, 2022 to file a motion to affirm or a motion for voluntary remand. Within 14 days after Defendant files its motion, Plaintiff may file a reply pursuant to Local Rule 7(d). Prior to the filing of any dispositive motions, the parties are encouraged to confer regarding the merits of the case in an effort to determine whether a reversal and voluntary remand are appropriate. The Court reminds the parties of the previously filed Standing Scheduling Order which sets forth page limits and form and content requirements for motions and supporting memoranda. In addition to complying with these requirements, memoranda should avoid boilerplate discussions of the governing legal standards as the Court is familiar with the standard of review and the sequential evaluation process employed in the analysis of Social Security disability applications. The parties should focus on informing the Court of relevant and controlling legal authority and applying it to the facts of this case. Motions filed by the parties must comply with the requirements set forth above, in the Standing Scheduling Order, and in the Local Rules of Civil Procedure. Failure to comply may result in denial of the motion. Requests for extensions of these deadlines are discouraged and, unless unusual circumstances dictate otherwise, counsel should not seek an extension of greater than thirty (30) days. Any motion for extension of a deadline must include a showing of good cause as required by Local Rule 7(b)(2) and must be filed at least three (3) days before the existing deadline. SO ORDERED at Hartford, Connecticut. Signed by Judge Thomas O. Farrish on 02/07/2022.(Geisler, James) |
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| Sunday, February 06, 2022 | ||
| 9 | 9
answer
Social Security Transcripts
Sun 02/06 8:08 PM
Social Security Transcripts. (Fitzhugh, Nicol) |
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| 8 | 8
notice
Notice of Appearance
Sun 02/06 8:05 PM
NOTICE of Appearance by Nicol Fitzhugh on behalf of Kilolo Kijakazi (Fitzhugh, Nicol) |
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| Thursday, December 16, 2021 | ||
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misc
Docket Annotation
Thu 12/16 9:12 AM
Docket Entry Correction re4 Standing Order on Social Security Appeals; corrected file date. (Anastasio, F.) |
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order
Order on Motion for Leave to Proceed In Forma Pauperis
Thu 12/16 10:13 AM
ORDER granting2 Motion for Leave to Proceed in forma pauperis. Plaintiff has filed a motion seeking to proceed without payment of fees and costs, which motion includes a declaration under penalty of perjury as to her current financial circumstances. See ECF No. 2. The declaration states that she is unemployed, and has been for sixteen years; that she is substantially living off government benefits; that her monthly expenses exceed her income; and that she has only about $1,500 in total assets. These allegations are sufficient to establish that she is unable to pay the filing fees ordinarily required by the Court. See 28 U.S.C. 1915(a)(1). Her motion for leave to proceed in forma pauperis is therefore granted. Signed by Judge Thomas O. Farrish on 12/16/21. (Wood, R.) |
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| Wednesday, December 15, 2021 | ||
| 6 | 6
order
Electronic Filing Order
Thu 12/16 9:06 AM
ELECTRONIC FILING ORDER FOR COUNSEL - PLEASE ENSURE COMPLIANCE WITH COURTESY COPY REQUIREMENTS IN THIS ORDER Signed by Judge Stefan R. Underhill on 12/15/2021.(Anastasio, F.) |
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| 5 | 5
order
Scheduling Order
Thu 12/16 9:06 AM
STANDING SCHEDULING ORDER Signed by Judge Stefan R. Underhill on 12/15/2021.(Anastasio, F.) |
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| 4 | 4
2
pgs
order
Order
Thu 12/16 9:05 AM
Standing Order on Social Security Appeals Signed by Judge Stefan R. Underhill on 12/15/2021.(Anastasio, F.) Modified on 12/16/2021 to correct filed date (Anastasio, F.) |
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Att: 1
Consent Form
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| 3 | 3
notice
Notice of Appearance
Thu 12/16 9:04 AM
NOTICE of Appearance by Ivan Michael Katz on behalf of Donna Marie Stubbs (Anastasio, F.) |
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| 2 | 2
motion
Proceed In Forma Pauperis
Thu 12/16 9:02 AM
MOTION for Leave to Proceed in forma pauperis by Donna Marie Stubbs. (Anastasio, F.) |
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| 1 | 1
cmp
Complaint
Thu 12/16 9:00 AM
COMPLAINT against Kilolo Kijakazi, filed by Donna Marie Stubbs.(Anastasio, F.) |
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Att: 1
Civil Cover Sheet
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utility
Update Answer Deadline
Thu 12/16 9:07 AM
Answer deadline updated for Kilolo Kijakazi to 2/13/2022. (Anastasio, F.) |
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