United States District Court, D. Connecticut
ORDER DENYING MOTION FOR EXTENSION OF TIME AND
DECLARATION OF DEFAULT
JEFFREY ALKER MEYER, UNITED STATES DISTRICT JUDGE
Pamela Wright has filed this action against the Acting
Commissioner of the Social Security Administration seeking
review of the denial of her application for disability
The Court entered a standing scheduling order to allow 60
days from the filing of the record for plaintiff to file a
motion for reversal and 60 more days for the Commissioner of
the Social Security Administration to file a response. Doc.
#6. The Court's scheduling order stated in part that
“requests for extensions of time are discouraged, and
unless circumstances dictate otherwise, counsel should
generally not seek extensions.” Doc. #6 at 2.
timely filed her motion for reversal on September 14, 2017,
and the Commissioner's response was due by November 13,
2017. That day came and went without the Commissioner filing
a response or a motion for extension of time.
than a week later, the Commissioner filed a belated motion on
November 22, 2017, seeking an additional 60-day extension of
time and citing unspecified “recurrent health
issues” from which counsel was “just now
recovering.” Doc. #18 at 1. The Court granted this
motion to allow the Commissioner until January 16, 2018, to
file any opposition papers. Doc. #19.
Commissioner's counsel bided her time until that very
date to file for yet another extension of time. Doc. #20.
This latest extension request vaguely cites “the
holidays and various weather delays and closings” that
allegedly require 30 more days for her to
“finalize” a response. Ibid. The
Commissioner's counsel states that she
“contacted” opposing counsel on some unspecified
date about whether she would consent to the extension request
but reports that opposing counsel “did not respond
before the undersigned filed this request for an
Commissioner's counsel also claims that this is
“the first request for additional time to respond to
plaintiff's motion.” Doc. #20 at 1. As counsel well
knows, she had previously (and untimely) sought and been
granted a 60-day extension of time.
now deny counsel's motion for extension of time for
several reasons. First, the Court's rules provide that a
motion for extension of time “will not be granted
except for good cause, ” and that “[t]he good
cause standard requires a particularized showing that the
time limitation in question cannot reasonably be met despite
the diligence of the party seeking the extension.” D.
Conn. L. Civ. R. 7(b)(1). Counsel's motion recites
amorphous reasons for an extension of time that do not
satisfy the particularized good cause standard.
the Court's rules provide that “[a]ll motions for
extensions of time shall include a statement of the movant
that (1) the movant has inquired of all non-moving parties
and there is agreement or objection to the motion, or that
(2) despite diligent effort, including making the inquiry in
sufficient time to afford non-movant a reasonable opportunity
to respond, the movant cannot ascertain the position(s) of
the non-movant(s).” D. Conn. L. Civ. R. 7(b)(2).
Counsel's vague allusions to contacting plaintiff's
counsel at some point in time to seek consent does not show
that she made a timely and diligent effort to secure consent
from opposing counsel before filing this motion.
the Court's rules provide that “[a]ll motions for
extension of time shall be filed at least three (3) days
before the deadline sought to be extended, except in cases in
which compelling circumstances warranting an extension arise
during the three days before the deadline, ” and that
“[a]ny motion for extension of time filed fewer than
three days before the deadline sought to be extended shall,
in addition to satisfying all other requirements of this
Rule, set forth reasons why the motion was not filed at least
three days before the deadline in question.” D. Conn.
L. Civ. R. 7(b)(3). Counsel has paid no attention at all to
these requirements of the rule.
counsel has misrepresented the facts to state that this is
her first request for an extension of time. The reward for
misstating facts will not be an additional extension of time.
I conclude in light of all the circumstances that the
Commissioner has willfully defaulted on her obligations to
follow the Court's rules and to participate in good faith
in the litigation of this action.
not the first judge to deal with a lawyer for the
Commissioner of Social Security who won't comply with
basic scheduling and briefing requirements. Decades ago the
First Circuit considered to what extent a court may sanction
the Commissioner in such circumstances. See Alameda v.
Sec'y of Health, Ed. & Welfare, 622 F.2d 1044
(1st Cir. 1980) (Coffin, J.). At the outset, the First
Circuit acknowledged that a court may not simply grant a
default judgment against the Commissioner, even though it
would have the power to do so if the Commissioner were a
private party. Id. at 1047-48 (citing 42 U.S.C.
§ 405(g) and Fed.R.Civ.P. 55(e) (now codified as
Fed.R.Civ.P. 55(d)). Without the option of outright
dismissal, this prompted the First Circuit to ask if the law
“allow[s] any room for a court's penalizing a
party's failure to contribute a brief?”
Id. at 1048. Its answer was that the law not only
“permit[s] some measured sanctioning” but
“require[s] it.” Ibid. I agree.
First Circuit then explained the “measured
sanctioning” to impose. Citing the text of Fed.R.Civ.P.
55 that permits entry of a default judgment against the
government if there is “evidence satisfactory to the
court” to support a judgment in claimant's favor,
the First Circuit concluded that “[w]e think the
natural intendment of this language is that, after entry of
default against the government, the quantum and quality of
evidence that might satisfy a court can be less than that
normally required.” Ibid. It explained that
“the somewhat more relaxed review contemplated by Rule
55(e) [now Rule 55(d)] would allow a court in a case where a
brief from the Secretary is not forthcoming to rely on a
claimant's brief pointing out the lack of sufficient
evidentiary support in the administrative transcript for the
Secretary's conclusion.” Id. at 1048-49
(internal footnote omitted).
in its ruling, the First Circuit suggested that a court's
review in such circumstances should focus on whether the
claimant has “introduce[ed] some evidence that the
Secretary's conclusions are not supported by substantial
evidence.” Id. at 1047. Put differently, a
court need not conduct a de novo review of the
entire administrative record or try to concoct from the
record the arguments that the Commissioner might have made if
the Commissioner had tried to comply in good faith with the
a court need only consider if “the claimant's
district court brief and reference to the record appeared
relevant, fair and reasonably comprehensive, ” and to
ensure that plaintiff's briefing does not errantly
“refer to evidence supporting the Secretary's
decision that was clearly ‘substantial.'”
Id. at 1049. As the First Circuit noted, “if
the district court and we have been put in the predicament of
flying on one wing, the flight need not be ...