Case Information
*1 18-2044-cv
Sinkler v. Berryhill
In the
United States Court of Appeals
for the Second Circuit A UGUST T ERM No. cv
L AKISHA J ANEY S INKLER ,
Plaintiff Appellant , N ANCY A. B ERRYHILL Acting Commissioner Social Security, Defendant Appellee .
On Appeal United States District Court Western District New York
A RGUED : J UNE D ECIDED : A UGUST
Before: C ABRANES R AGGI D RONEY Circuit Judges .
____________ *2 On appeal from judgment United States District Court for Western District New York (Wolford, J. ) denying successful Social Security claimant’s U.S.C. application for attorney’s untimely, appellant challenges application prescribed P. motions. A FFIRMED .
M ELISSA A. P ALMER (Howard D. Olinsky, Olinsky Law Group, brief ), Plaintiff ‐ Appellant .
H EETANO S HAMSOONDAR James Kennedy, Jr., United States Attorney, Western District New York, Defendant ‐ Appellee.
R EENA R AGGI Circuit Judge :
Appellant Lakisha Janey Sinkler, who successfully litigated her claim supplemental Social Security income, now appeals United States District Court Western District New York (Elizabeth A. Wolford, Judge ), denying untimely pursuant Berryhill F. Supp. 3d (W.D.N.Y. 2018), reconsideration denied F. Supp. 3d (W.D.N.Y. 2018). *3 S pecifically, challenges court’s application of Fed. R. Civ. P. 54(d)(2)(B)’s fourteen day filing period her fee application, arguing favor unspecified “reasonable” period pursuant 60(b). Our sister circuits divided on question these two rules procedure properly determines timeliness fee applications. Compare Walker v. Astrue , F.3d 274, (3d Cir. 2010) (applying Rule 54), Pierce v. Barnhart F.3d 657, (5th Cir. 2006) (same), Bergen Comm’r Soc. Sec. F.3d (11th Cir. 2006) (same), with McGraw Barnhart F.3d (10th 2006) (applying 60(b)). Today, we join those circuits applying 54. doing so, we recognize rule’s fourteen day filing period is subject equitable tolling. Walker Astrue Where, here, Social Security claimant secures judgment reversing denial remanding further proceedings, fourteen is tolled until amount award. That because necessary identify maximum fee awarded
Sinkler’s fee application having been filed well beyond prescribed 54(d)(2)(B), even when so tolled, affirm denying Sinkler’s untimely. No different conclusion would obtain even reasonableness review because fails come forward factual basis deeming six month delay reasonable.
Background
On August 8, 2014, Sinkler initiated this action judicial review of a decision of the Social Security Administration (“SSA”) denying her supplemental social security income. On June 2, 2015, the district court entered a “sentence four” final judgment in her favor, reversing denial remanding case further proceedings. U.S.C. § 405(g). On remand, an Administrative Law Judge ruled, a decision dated November 7, 2016, Sinkler was entitled supplemental social security income. Approximately six weeks later, on December 28, 2016, Commissioner Social Security (“Commissioner”) issued letter advising entitlement $67,404 past due benefits. Sinkler’s counsel received letter on January 3,
Not until six months later, however, July 2017, did apply court fees, requesting statutory maximum 25% award, or $16,851. id. court denied as untimely, holding (1) Sinkler’s was outside limitations prescribed by Fed. R. Civ. P. 54 [3] ; and, in event, Sinkler’s delay in seeking unreasonable. Berryhill F. Supp. 3d 453–59. Upon denial of reconsideration, see Berryhill F. Supp. 3d 687, timely appeal followed.
Discussion
While we review denial of fee deferentially for abuse of discretion, consider underlying questions of law de novo . Fresno Cty. Empls.’ Ret. Ass’n Isaacson/Weaver Family Tr. (2d 2019). Because
appeal turns legal interpretation § 406(b) and our review de novo . Prescribes Filing Time
Motions As text quoted supra note indicates, authorizes enters favorable a social security claimant award, “as part its judgment,” reasonable fee counsel’s
reasonable fee such representation, excess percent total past due entitled reason such judgment, Commissioner . . . . . . certify amount such payment such attorney out of, addition to, benefits. 406(b)(1)(A). states pertinent part: “Unless statute order provides otherwise, [a fees] must: (i) filed no later than entry judgment.” 54(d)(2)(B). *6 representation before the court, to exceed 25% of the total past ‐ due benefits claimant entitled “by reason of such judgment.” 42 U.S.C. § 406(b)(1)(A); see Gisbrecht v. Barnhart , 535 U.S. 789, 807–08 (observing provision protects against “inordinately large fees” and affords “independent check” fee agreements “yield reasonable results”). That section further authorizes Commissioner certify for a court awarded fee paid out of past due benefits award. See 42 U.S.C. 406(b)(1)(A); 20 C.F.R. § 404.1728(b). [4]
Where, here, court reverses denial of remands further agency consideration of benefits, parties—as well seven of our sister circuits have considered question—agree court await conclusion proceedings consider attorney’s application. See Jackson v. Astrue , 705 F.3d 527, 531 (5th Cir. 2013); Bergen v. Comm’r Soc. Sec. , 454 F.3d at 1276–77 (11th Cir. 2006); McGraw v. Barnhart , 450 F.3d (10th Cir. 2006); Smith Bowen F.2d 1152, 1155 (7th Cir. 1987); Fenix v. Finch 436 F.2d (8th 1971); Philpott Gardner 774, (6th Cir. *7 1968); Connor v. Gardner , F.2d 497, 500 (4th Cir. 1967). We also reach that conclusion. issue raised appeal is whether Fed. R. Civ. P.
sensibly be applied attorney’s fee applications circumstances. As indicated supra note 3, requires motion attorney’s be made within fourteen days “judgment,” defined include “any order appeal lies.” 54(a), (d)(2)(B)(i). A “sentence four” remand is final appealable judgment. Forney v. Apfel U.S. 266, 270–71 (1998) (holding sentence four remand appealable either party); accord Mead Reliastar Life Ins. Co. F.3d (2d 2014) (observing appealability sentence four remand is exception “generally accepted rule remand orders interlocutory”). As such, it presumptively subject fourteen limitation 54(d)(2)(B). Cf. Shalala Schaefer U.S. (holding sentence four “judgment” triggering limitations motion Equal Access Justice Act, 2412). Nevertheless, practical problem arises within time: Commissioner typically does calculate until months remands, caps 25% award. Thus, where orders remand, present “a deadline cannot met” judgment. Walker Astrue addressing dilemma, our sister circuits have agreed a solution. The Tenth Circuit eschews application Rule 54 in context. McGraw v. Barnhart F.3d 504. Instead, it derives a “reasonableness” standard from language Fed. R. Civ. P. permitting a to relieve a party a “final judgment, order, or proceeding” “any [] reason that justifies relief” upon a motion “made reasonable time.” Fed. R. Civ. P. 60(b)(6), (c)(1). Tenth Circuit explains that Rule 60’s “grand reservoir equitable power do justice” provides “best option” addressing practicalities sentence four judgments ordering remand and, thus, it holds that motion fees pursuant 406(b) is timely if filed “within reasonable time Commissioner’s decision awarding benefits.” McGraw Barnhart F.3d (internal quotation marks omitted).
By contrast, Third Circuit concludes that applies applications following sentence four remands. It observes there “little support” law using determine timeliness such applications. Walker Astrue Indeed, reliance appears “conflict[] principle Supreme Court jurisprudence instructs post motion attorney properly asserted amend alter judgment.” Id. (citing White N.H. Dep’t Emp’t Sec. U.S. (holding request inappropriate 59(e))). Mindful nevertheless rigid applications following judgments produce “injustice,” Third Circuit avoids concern *9 tolling the rule’s deadline “until the notice of award is issued by Commissioner” on remand, “and counsel notified of that award.” Id. at short, once successful of Commissioner’s remand, he would have afforded by Rule 54(d)(2)(B) to file fees. The Eleventh Fifth Circuits had earlier reached similar conclusions about application Rule Bergen Comm’r Soc. Sec. F.3d & n.1; Pierce v. Barnhart F.3d 663–64.
With consideration views our sister circuits, conclude, largely reasons stated Third Circuit, provides applicable limitations motions. tolling rule, rather than 60(b)(6), best resolves practical concerns arise when reverses denial social security remands case agency further proceedings. This comports our own precedent, recognizes “[s]tatutes limitations generally subject equitable tolling where necessary prevent unfairness plaintiff who fault lateness filing.” Gonzalez Hasty (2d 2011) (internal quotation marks omitted) (tolling statute limitations while plaintiff exhausts administrative remedies); see generally Nutraceutical Corp. Lambert S. Ct. (recognizing time limitation Federal Civil or Appellate Procedure tolled when, here, “pertinent rule rules invoked” do show “clear intent preclude tolling”). That principle sensibly *10 applies to 54(d)(2)(B)’s limitations period because parties who must await Commissioner’s benefits on remand cannot be expected to file an fees statutorily capped by an yet unknown benefits award. Once counsel notice benefits award—and, therefore, maximum may claimed—there no sound reason not to apply 54(2)(B)’s limitations to a filing, just it would apply to any other final or appealable judgment. urging otherwise, Sinkler argues “the Social Security
Administration’s own policies procedures” make a tolling solution unworkable. Appellant Br. She observes a claimant has appeal Commissioner’s calculation benefits, administrative appeal result an adjustment benefits. C.F.R. §§ 404.909, 416.1409. Sinkler further asserts that, after issuing award, agency still amend it downward offset Workers Compensation received claimant, upward provide benefits claimant’s dependents. Hopkins Cohen U.S. (discussing awarded based on claimants dependents). argument fails persuade several reasons. First, has shown posited scenarios could not occur even
if were afforded “reasonable” time determination file application. Second, does claim that, upon agency adjustment an initial award, would entertain motion to adjust attorney’s fees awarded basis the original calculation. Certainly, agency contemplates modifications its own attorney’s fee awards in those circumstances. SSA, Program Operations Manual System, GN 03940.035 (stating procedure adjusting attorney’s fee authorized by Commissioner following auxiliary benefits); GN 03920.040 (same following administrative decrease in award); GN 03920.051 (stating policy recovering excess fee payment). Further, in January District Court Western District New York amended its local rules specifically advise parties it would entertain motions adjust 406(b) awards light changed circumstances pursuant W.D.N.Y. Loc. 5.5(g)(1) (“Should information come attention either party entry order approving under suggesting information used calculate appropriate fee incorrect or incomplete, be brought 60(b)(1), (2), Federal Rules Civil Procedure seeking correction approved.”). Thus, persuaded parties who secure judgments will prejudiced having file motions specified long *12 period is tolled until benefits calculation is made and thereof received by parties. further argues 54(d)(2)(B)’s day limitations period is odds with SSA’s own regulation affording parties days after award request approval fees direct payment from past due benefits. C.F.R. § 404.1730(c). It clear whether regulation applies only fees administrative representation under § 406(a), also fees representation § Compare id. § 404.1730(a) (referencing “fee allowed by Federal Court”), with id. 404.1730(c)(2)(i) (referencing § 404.1725 regarding “fee services . . . performed dealing us,” i.e. SSA); see also id. 404.1728(b) (authorizing payment fees awarded federal out ‐ due but providing no time period request payment). No matter. Even if regulation’s applied awards, SSA appears do practice, see SSA, Program Operations Manual System, GN 03930.091, would still only indicate time within which party must request direct payment fees from Commissioner, time request from court, see generally Culbertson Berryhill S. Ct. (differentiating between “past agency can withhold direct payment” “amount approved representation before *13 agency or court”). It the latter request that we today hold is subject fourteen day filing limitation of once a party notice of a calculation following a sentence four remand judgment.
In holding 54 applicable these circumstances, we are mindful that its fourteen limitations period not absolute. rule expressly states specified period applies “[u]nless statute or court order provides otherwise.” Fed. R. Civ. P. 54(d)(2)(B). Thus, courts are empowered enlarge filing where circumstances warrant. See Walker Astrue F.3d at 280; Pierce Barnhart F.3d 664; Bergen Comm’r of Soc. Sec. n.2. To be sure, courts cannot adopt local rules orders inconsistent with federal rules of procedure. U.S.C. § 2071; R. 83(a)(1) (requiring “local rule must be consistent with—but duplicate—federal statutes [rules of federal procedure]”). Nevertheless, where, here, rule *14 itself affords courts discretion alter specified filing time, will generally defer in deciding when such alteration appropriate in particular case as, example, when party needs more time assemble file administrative record.
Sinkler filed her application more than six months after receiving notice Commissioner’s calculation remand. This was far outside fourteen ‐ day period prescribed 54(d)(2)(B), even when tolled warranted following sentence four remand judgments. Thus, reasonably denied motion untimely rule.
Sinkler Fails To Show Her Six Month Filing Delay Was Reasonable argues that, even if 54(d)(2)(B)’s fourteen day
filing period applied future applications following judgments, it should apply case because she had no notice limitation period’s application. insists “[t]he practice various District Courts Circuit consider whether [§ 406(b)] was filed reasonable time,” Appellant Br. courts routinely W.D. Ky. Joint Loc. R. 83.11(D) (affording days); D. Minn. Loc. R. 7.2(e) (affording days); D. Me. Loc. R. 54.2 (affording days); D. Md. Loc. R. 109.2(c) (affording days); E.D. Mich. Loc. R. 54.2(a) (affording fourteen days); S.D.W.V. Loc. 9.6 (requiring “promptly” plaintiff benefits). This decision, however, now clarifies 54(d)(2)(B)’s such circumstances. This should make need generally applicable local rules unnecessary circuit. *15 found filings more than fourteen after SSA Notice Award “reasonable,” see id. at (collecting cases).
Assuming would entertain Sinkler’s notice argument, it fails on merits because she provides no factual basis to support claim that it was “reasonable” to delay filing her 406(b) more than six months after she received notice calculation on remand. Certainly, she offered no explanation this delay court. Sinkler Berryhill F. Supp. 3d (“Plaintiff’s counsel has failed provide any explanation justifying this significant delay.”); Berryhill F. Supp. (same). Nor has she done so appeal. Rather, her counsel argues that “he did not, still does not, need present good cause timeliness his filing because case law Circuit . . . led him believe that his motion was filed reasonable time.” Reply Br. In fact, counsel cites only one case circuit has entertained filed more than six months calculation. He points no precedent indicating unexplained delays length will always deemed reasonable. short, because points no facts would allow her
(or her counsel) think six month delay her case reasonable, she hardly claim prejudice lack 54(d)(2)(B)’s standard would determine timeliness filing.
Nor Sinkler use U.S.C. § 2071(b) support notice complaint. As district correctly observed, notice comment requirements statute apply courts prescribing local rules conduct their business, courts interpreting rules law controlling their adjudication claims. Beryhill F. Supp. 3d 693.
Thus, de novo review applicable law, we conclude Sinkler’s untimely under 54(d)(2)(B), controls, but also reasonableness standard urges. We, therefore, affirm court’s denying relief. Conclusion
To summarize, conclude follows: 1. 54(d)(2)(B) provides filing time applications pursuant 2. The fourteen day period prescribed subject equitable tolling when motions must await SSA Commissioner’s calculation following court’s judgment. circumstance, starts run when notice calculation. plaintiff here having waited more than six months
receiving Commissioner’s calculation *17 before filing her motion court, acted its discretion denying as untimely. Insofar plaintiff claims lack motions warrants review more lenient reasonableness standard,
argument fails because record devoid facts demonstrating plaintiff’s sixth month delay reasonable.
Accordingly, AFFIRMED all respects.
[1] “Sentence four” 405(g) empowers court enter “a judgment affirming, modifying, or reversing decision Commissioner Social Security, without remanding cause rehearing.” 405(g); see Raitport Callahan (2d 1999) (distinguishing sentence six remand, under court retains jurisdiction).
[2] Section states pertinent part follows: Whenever court renders judgment favorable subchapter who represented before attorney, determine allow part its
[4] Section 406(a) separately authorizes Commissioner fees representation before Commissioner . 406(a); C.F.R. §§ 404.1720, 404.1725. Those also capped 25% past due benefits, although “aggregate both stages representation” so capped. Culbertson Berryhill S. Ct. (2019). practice, SSA “withholds single pool 25% direct payment agency fees.” Id. It will withhold percentage until decides pending fees. SSA, Program Operations Manual System, GN 03930.091.
[5] Nothing opinion departs law’s presumption party communications three mailing. Tiberio Allergy Asthma Immunology Rochester (2d 2011).
[6] On this appeal, do consider propriety so much of recently adopted, earlier referenced Western District local rule affords parties longer than days notice calculation remand file § 406(b) applications. W.D.N.Y. Loc. R. 5.5(g)(1) (“Plaintiff’s counsel file petition 406(b) no later than sixty five days date final notice sent plaintiff’s counsel record conclusion defendant’s benefit calculation stating withheld fees.”). absence clear decision court, understandably sought provide parties standard timely applications following judgment. Courts other districts outside circuit made similar efforts, although setting different deadlines. See, e.g. D.S.C. Loc. 83.VII.07 (requiring applications made calculation); E.D. &