Question regarding submitting new evidence to Fedl District Court

[MRA NY]

I am not sure if this is the correct forum for this. I am in NY and am representing my daughter pro se in her appeal to the Federal District Court (Northern).

I wish to submit new evidence and the packet the Court provides for pro se litigants advises that "such evidence must be accompanied by a legal memorandum setting forth an argument for the acceptance of the new evidence based upon the three-part showing required by the regulations." They go on to lay out the three parts: that it is new, that it is material, and set forth good cause for the failure to present earlier. The only regulation they later cite is 42 USC 405 (g) which essentially (and briefly) lays out the three parts.

I am stumped as to the format and content required - is a 'legal memorandum' supposed to include citations of law? or can I just make the three part argument and call it a legal memorandum?

More specifically, the new evidence is from my daughter's surgeon. she provides an analysis of how my daughter's conditions compare to two items in Social Security's list of impairments. I was unaware of this list until about 6 months ago. The SSA staff that took our initial claim, and obtained all medical records; the SSA doctor my daughter had to see who filed a report; and the attorney we had for the hearing level - none ever mentioned the List of Impairments, nor apparently tried to match her condition to an item. Is ignorance of this list valid as support of good cause?

 

[You Are Guilty]

I am not sure if this is the correct forum for this. I am in NY and am representing my daughter pro se in her appeal to the Federal District Court (Northern).

Wait - "representing her pro se" is an oxymoron. Either she is pro se and representing herself, or your are representing her and committing unlicensed practice of law in doing so. (Which I will have to double check, but I believe is a felony). So to be clear, which is it?

I wish to submit new evidence and the packet the Court provides for pro se litigants advises that "such evidence must be accompanied by a legal memorandum setting forth an argument for the acceptance of the new evidence based upon the three-part showing required by the regulations." They go on to lay out the three parts: that it is new, that it is material, and set forth good cause for the failure to present earlier. The only regulation they later cite is 42 USC 405 (g) which essentially (and briefly) lays out the three parts.

This is the correct "test" for new material.

I am stumped as to the format and content required - is a 'legal memorandum' supposed to include citations of law? or can I just make the three part argument and call it a legal memorandum?

Yes, a memorandum contains law. An affidavit contains facts. They usually both get used simultaneously.

More specifically, the new evidence is from my daughter's surgeon. she provides an analysis of how my daughter's conditions compare to two items in Social Security's list of impairments. I was unaware of this list until about 6 months ago. The SSA staff that took our initial claim, and obtained all medical records; the SSA doctor my daughter had to see who filed a report; and the attorney we had for the hearing level - none ever mentioned the List of Impairments, nor apparently tried to match her condition to an item. Is ignorance of this list valid as support of good cause?

IMO? Probably not, but my opinion is immaterial. Only the judge's matters, and the only way you will find out what they think is to make the motion to supplement the record with the new evidence and get a decision.

Good luck.

PS: You will want to familiarize yourself with these before proceeding:
http://www.law.cornell.edu/rules/frcp/

 

[Ronin]

The elements required to introduce new evidence at the federal appellate level are much more complicated than they appear.

The second element will require a very clear showing that if this evidence had been introduced, it would have been strong enough to change the outcome of the case.

The third element would require you to establish that this evidence could not have been obtained during normal discovery. In this case it appears this evidence was available, but no one had specifically sought it out or asked for it. Ignorance or oversight is not good cause for failure to raise the evidence earlier.

The last and most difficult hurdle is appealing in a federal court system that is very much biased against pro se appellants.

Also, if the federal court of appeals finds you are preparing your daughters appeal, that would be a problem.