O'GRADY v. SECRETARY OF US DEPT. OF HHS

• Decision Date: 03 June 1987
• Docket Number: CV 85-0530.,No. CV 78-2558,CV 78-2558
• Citation: 661 F. Supp. 1030
• Parties: Thomas O'GRADY, Plaintiff, v. SECRETARY OF the UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant. Rosa PIERCE, Plaintiff, v. SECRETARY OF the UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.
• Court: U.S. District Court — Eastern District of New York

661 F. Supp. 1030

Thomas O'GRADY, Plaintiff, v. SECRETARY OF the UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.

Rosa PIERCE, Plaintiff, v. SECRETARY OF the UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.

Nos. CV 78-2558, CV 85-0530.

United States District Court, E.D. New York.

June 3, 1987.

COPYRIGHT MATERIAL OMITTED

Scheine, Fusco & Brandenstein, by Victor Fusco, Hempstead, N.Y., for plaintiff.

Andrew J. Maloney, U.S. Atty. by Charles E. Knapp, Asst. U.S. Atty., Brooklyn, N.Y., for defendant.

WEXLER, District Judge.

I.

In a Memorandum and Order dated May 22, 1984, this Court reversed a final decision by the Secretary of the United States Department of Health and Human Services ("Secretary") terminating Thomas O'Grady's Social Security disability benefits, holding that the Secretary's decision was not supported by substantial evidence on the record. O'Grady v. Heckler, 588 F.Supp. 850 (E.D.N.Y.1984). Subsequently, in a Memorandum and Order dated March 13, 1986, the Court directed the Clerk of the Court to enter an award of attorneys fees in the amount of $1,947.00 and costs in the amount of $126.00 under § 2412 of the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412, and an award of attorneys fees in the amount of $2,145.43 pursuant to 42 U.S.C. § 406(b)(1). O'Grady v. Heckler, 629 F.Supp. 1186 (E.D.N.Y.1986).

In a Memorandum and Order dated July 7, 1986, the Court held that the Secretary's final determination that Rosa Pierce was not under a disability as defined by the Social Security Act was not supported by substantial evidence on the record. Accordingly, the Court ordered the Clerk of the Court to enter judgment in favor of Pierce reversing the Secretary's decision and awarding disability benefits. Pierce v. Secretary of the United States Department of Health and Human Services, No. CV 85-0530, slip op. (E.D.N.Y. July 7, 1986). By way of a stipulation between counsel for Pierce and the Secretary, which the Court "so ordered" on October 17, 1986, the parties agreed to settle Pierce's claim under EAJA for $2,800.00, without prejudice to a request for allowance of a fee pursuant to 42 U.S.C. § 406(b)(1). In an Order dated November 4, 1986, the Court concluded that Pierce's counsel should be awarded a fee under § 406(b)(1) in the amount of $500.00, to be paid out of Pierce's past due benefits. Pierce v. Secretary of the United States Department of Health and Human Services, No. CV 85-0530, slip op. (E.D.N.Y. November 4, 1986).

Counsel for the plaintiffs in O'Grady and Pierce has now moved, pursuant to Fed.R. Civ.P. 60(b)(6), for reconsideration of the Court's decisions fixing attorneys fees in the two cases. Counsel specifically seeks that the Court (1) reassess the fee awards made in the two cases and make separate awards under EAJA, to be paid directly to the plaintiffs, and under § 406(b)(1), to be paid directly to counsel; (2) direct the Social Security Administration ("SSA") to continue to withhold amounts set aside from benefit payments for attorneys fee awards until such time as fees, if any, are fixed for work performed in connection with administrative proceedings; (3) reassess its position on the hourly rate it generally awards counsel in Social Security cases; and (4) reassess its position that it will not enforce contingency fee agreements in Social Security cases.

II.

Before considering the substantive merits of the arguments counsel puts forth in support of his motion, the Court must focus on the procedural context in which counsel's request for relief occurs. Initially, it should be observed that counsel's motion attempts to join together two completely separate cases that were never ordered consolidated by the Court and do not appear to be related by anything more than the facts that they both involved appeals under § 405(g) of the Social Security Act and the same law firm represented the plaintiff in each case. Plaintiffs' counsel apparently undertook this unilateral joinder of the two cases without any notice to or authorization by the Court. Nonetheless, in the name of conservation of judicial resources, the Court will resolve the issues the motion presents with regard to O'Grady and Pierce in a single opinion.

More significantly, the Court notes that counsel has attempted to bring his motion pursuant to clause 6 of Fed.R.Civ.P. 60(b). Rule 60(b) states:

Relief from Judgment or Order

. . . . .

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Title 28, U.S.C. § 1655, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.

Rule 60(b)(6) is an inappropriate foundation for counsel's motion, however, for at least two reasons. First, the law is clear that relief under Rule 60(b)(6) should only be granted when the moving party has demonstrated "extraordinary circumstances" or "extreme hardship." E.g., Klapprott v. United States, 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266 (1949); PRC Harris, Inc. v. Boeing Co., 700 F.2d 894 (2d Cir.1983), cert. denied, 464 U.S. 936, 104 S.Ct. 344, 78 L.Ed.2d 311 (1983); United States v. Cirami, 563 F.2d 26 (2d Cir.1977). Purported deficiencies in the amount of and procedures for attorneys fee awards clearly do not constitute a circumstance or hardship that cries out for the unusual remedy of the reopening of a final judgment under Rule 60(b)(6). Cf. Klapprott, 335 U.S. 601, 69 S.Ct. 384 (Rule 60(b)(6) motion granted when ailing, jailed indigent had defaulted in proceeding cancelling naturalization certificate); Cirami, 563 F.2d 26 (motion under Rule 60(b)(6) to reopen default judgment granted where defendants' attorney, who was suffering from psychological disorder, had neglected clients' business while assuring them he was attending to it and had made himself unavailable even to trial judge).

Second, relief can be had under clause 6 only where it is unavailable under any of the preceding five clauses of Rule 60(b). PRC Harris, 700 F.2d 894; In the Matter of Emergency Beacon Corp., 666 F.2d 754 (2d Cir.1981); Cirami, 563 F.2d 26. A close examination of plaintiffs' counsel's moving papers reveals that his motion is premised in large part on the contention that the judgments counsel seeks to have reconsidered rested upon the Court's inappropriate application of the relevant attorneys fee award provisions and the decisions "could not have possibly been the result the Court intended". Memorandum in Support of Motion Pursuant to Rule 60(b)(6) for Relief from a Judgment or Order 3 ("Counsel's Memorandum"). A court's mistaken application of law has been held to fall within the purview of clause 1 of Rule 60(b). Parks v. U.S. Life & Credit Corp., 677 F.2d 838 (11th Cir.), rehearing denied, 685 F.2d 1389 (11th Cir.1982); International Controls Corp. v. Vesco, 556 F.2d 665 (2d Cir.1977), cert. denied, 434 U.S. 1014, 98 S.Ct. 730, 54 L.Ed.2d 758 (1978); Oliver v. Home Indemnity Co., 470 F.2d 329 (5th Cir.1972); see also 11 C. Wright & A. Miller, Federal Practice and Procedure § 2858.

Counsel for plaintiff, therefore, cannot properly base his motion upon Rule 60(b)(6). All motions for relief under Rule 60(b), however, are addressed to the Court's discretion, e.g., Altman v. Connally, 456 F.2d 1114 (2d Cir.1972); United States v. Kirksey, 631 F.Supp. 165 (S.D.N. Y.1986); see also 11 C. Wright & A. Miller, supra, at § 2857, and under the particular circumstances presented by the pending motion, the Court concludes that it would be more equitable to treat the motion as one brought pursuant to clause 1 of Rule 60(b) than to deny it outright as an improperly styled Rule 60(b)(6) motion.

The Court's treatment of plaintiff's counsel's motion as a Rule 60(b)(1) rather than Rule 60(b)(6) motion allows counsel to avoid a procedural obstacle that would otherwise completely bar the Court's consideration of the substantive merits of his motion. The motion, nevertheless, still runs afoul of the case law construing Rule 60(b) to the extent that counsel seeks relief from the fee award decision rendered in O'Grady. Courts have repeatedly stressed that Rule 60(b) is not to be employed as a substitute for a timely direct appeal of an assertedly erroneous judgment, e.g., Parks, 677 F.2d 838; Schildhaus v. Moe, 335 F.2d 529 (2d Cir.1964); Freschi v. Grand Coal Venture, 103 F.R.D. 606 (S.D.N.Y.1984), and have held that Rule 60(b) motions premised...