Balik v. Apfel
| Decision Date | 05 February 1999 |
| Docket Number | No. C2-97-042.,C2-97-042. |
| Parties | James J. BALIK, Plaintiff, v. Kenneth S. APFEL, Commissioner, Social Security Administration, Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
Timothy F. Cogan, Cassidy Myers Cogan Voegelin, Wheeling, WV, for Plaintiff.
James E. Rattan, U.S. Atty's Office, Columbus, OH, for Defendant.
This case is before the Court upon the motion filed by the plaintiff for relief from judgment, pursuant to Fed.R.Civ.P. 60(b). Specifically, the plaintiff requests that this Court reenter the final Order issued on April 7, 1998 at a later date so that the plaintiff may file a timely notice of appeal and obtain review of the United States Court of Appeals for the Sixth Circuit.
The procedural history of this case underlying the plaintiff's motion is not in dispute. On April 7, 1998, a final judgment was rendered in favor of the defendant. Because the United States of America is a party to this case, under Fed. R.App.P. 4(a)(1), plaintiff had sixty (60) days in which to file his notice of appeal. Such notice of appeal was due on or before June 8, 1998. Unfortunately, plaintiff's notice of appeal was not filed until two (2) days later, on June 10, 1998.
Thereafter, on June 29, 1998, the Clerk of Courts for the Sixth Circuit issued an order directing the plaintiff to explain why the appeal should not be dismissed for lack of jurisdiction. Further, the Clerk suggested to the plaintiff that a motion be filed in the district court pursuant to Fed. R.App.P. 4(a)(5) requesting an extension of time for filing a notice of appeal. Appellate Rule 4(a)(5) allows the district court, upon a showing of excusable neglect or good cause, to extend the time for filing a notice of appeal upon motion filed not later than thirty (30) days following the expiration of the time prescribed by Fed. R.App.P. 4(a). Plaintiff filed such motion under Rule 4(a)(5) on July 13, 1998. This Court, then, denied plaintiff's motion based on the fact that the motion was not filed within the thirty days required by Fed. R.App.P. 4(a)(5).1
On November 27, 1998, eight days after the Court's Order denying plaintiff's motion under Fed.R.App.P. 4(a)(5), plaintiff moved for relief from judgment pursuant to Fed.R.Civ.P. 60(b). The government has not filed a memorandum in opposition. Further, on February 1, 1999, the Sixth Circuit Court of Appeals dismissed the appeal originally filed by the plaintiff herein finding that the Court lacked jurisdiction. The Court of Appeals did note, however, that the order of dismissal shall have no effect upon the pending motion to vacate currently pending before this Court.
The plaintiff relies upon the case of Lewis v. Alexander, 987 F.2d 392 (6th Cir. 1993) in support of the relief sought from this Court. In Lewis, the Court of Appeals for the Sixth Circuit held that "a district court may employ Rule 60(b) to permit an appeal outside the time constraints of Fed.R.App.P. 4(a)(5)." Id. at 396.
As a procedural precondition, a district court is without authority to grant a 60(b) motion which orders the refiling of the same judgment at a later date if an appeal, even an untimely one, is still pending before the Court of Appeals. This Court notes, however, that as of this day, the Court of Appeals has dismissed the appeal thereby removing this procedural impediment.
In Lewis v. Alexander, supra, the Court of Appeals also noted that a party seeking relief under Fed.R.Civ.P. 60(b) for the refiling of an order at a later date to permit the filing of an appeal must still "establish that the facts of its case are within one of the enumerated reasons contained in Rule 60(b) that warrant relief from judgment." Id. at 396. Further, the Sixth Circuit noted that the plaintiff seeking such relief must also demonstrate a lack of prejudice to the defendant, prompt filing of the motion after actual notice of the improper appeal, and otherwise exercise due diligence in attempting to comply with the time constraints of Fed.R.App.P. 4(a). Id.
While Fed.R.Civ.P. 60(b) sets forth six independent grounds upon which relief from judgment may be granted, only two of the six grounds are applicable to this case. Rule 60(b)(1) permits relief from judgment upon a showing of "mistake, inadvertence, surprise, or excusable neglect." Further, Fed.R.Civ.P. 60(b)(6) permits the granting of relief from judgment for "any other reason justifying relief from the operation of the judgment."
The plaintiff has established his entitlement to relief from judgment under parts (1) and (6) of Fed.R.Civ.P. 60(b). The record demonstrates that the plaintiff suffers from a psychological impairment. The decision of the Administrative Law Judge noted that Mr. Balik suffered from depression, significant dysthymic disorder, and suicidal ideation. Plaintiff's counsel represents, and the government does not dispute, that he wrote to the plaintiff and advised him of the adverse decision issued by this Court on March 9, 1998. Plaintiff did not contact his counsel until May 5, 1998 and advised that he did not have the money for the filing fee to perfect the appeal. Plaintiff's counsel asserts, and again the government does not dispute, that he requested on several occasions an Affidavit of Indigency which was not returned from the plaintiff until June 3, 1998.
Plaintiff's psychological condition is well-documented in the...
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In re Cendant Corp. Prides Litigation, No. CIV. 98-2819(WHW).
...challenges to its claims in the fall of 1999 is excusable because of Mr. Anthony's ongoing illness. See generally Balik v. Apfel, 37 F.Supp.2d 1009, 1010-1011 (S.D.Oh.1999) (using Rule 60(b) to excuse failure to timely appeal because plaintiff suffered from psychological illness). Moreover,......
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Federal court issues
...granted a motion to dismiss on the grounds that the appeal was not filed within the requisite 60-day period. (2) In Balik v. Apfel , 37 F. Supp.2d 1009, 1090 (S.D. Ohio 1999), denial of benefits aff’d, Balik v. Apfel , 210 F.3d 371 (Table) (6 th Cir. Mar. 29, 2000) (unpub.), the claimant re......
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Table of Cases
..., 349 F.3d 549 (8th Cir. Nov. 13, 2003), 8th-03 Balenton v. Halter , 156 F. Supp.2d 776, 784 (N.D. Ill. 2001), § 210.4 Balik v. Apfel, 37 F. Supp.2d 1009, 1090 (S.D. Ohio 1999), denial of benefits aff’d, Balik v. Apfel, 210 F.3d 371 (Table) (6th Cir. Mar. 29, 2000) (unpub.), § 604 . 1 Ball ......
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Table of cases
..., 349 F.3d 549 (8th Cir. Nov. 13, 2003), 8th-03 Balenton v. Halter , 156 F. Supp.2d 776, 784 (N.D. Ill. 2001), § 210.4 Balik v. Apfel, 37 F. Supp.2d 1009, 1090 (S.D. Ohio 1999), denial of benefits aff’d, Balik v. Apfel, 210 F.3d 371 (Table) (6th Cir. Mar. 29, 2000) (unpub.), § 604 . 1 Ball ......