Sinkler v. Berryhill, 080219 FED2, 18-2044-cv

Docket Nº:18-2044-cv
Opinion Judge:Reena Raggi, Circuit Judge
Party Name:Lakisha Janey Sinkler, Plaintiff-Appellant, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant-Appellee.
Attorney:Melissa A. Palmer (Howard D. Olinsky, Olinsky Law Group, on the brief), for Plaintiff- Appellant. Heetano Shamsoondar, for James P. Kennedy, Jr., United States Attorney, Western District of New York, for Defendant- Appellee.
Judge Panel:Before: Cabranes, Raggi, and Droney, Circuit Judges.
Case Date:August 02, 2019
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Lakisha Janey Sinkler, Plaintiff-Appellant,

v.

Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant-Appellee.

No. 18-2044-cv

United States Court of Appeals, Second Circuit

August 2, 2019

Argued: June 19, 2019

On Appeal from the United States District Court for the Western District of New York

On appeal from a judgment of the United States District Court for the Western District of New York (Wolford, J.) denying a successful Social Security claimant's 42 U.S.C. § 406(b) application for attorney's fees as untimely, appellant challenges the application of the fourteen-day filing period prescribed by Fed.R.Civ.P. 54(d)(2)(B) to § 406(b) attorney's fee motions.

Melissa A. Palmer (Howard D. Olinsky, Olinsky Law Group, on the brief), for Plaintiff- Appellant.

Heetano Shamsoondar, for James P. Kennedy, Jr., United States Attorney, Western District of New York, for Defendant- Appellee.

Before: Cabranes, Raggi, and Droney, Circuit Judges.

Reena Raggi, Circuit Judge

Appellant Lakisha Janey Sinkler, who successfully litigated her claim to supplemental Social Security income, now appeals from a judgment of the United States District Court for the Western District of New York (Elizabeth A. Wolford, Judge), denying as untimely her application for attorney's fees pursuant to 42 U.S.C. § 406(b). See Sinkler v. Berryhill, 305 F.Supp.3d 448, 453-59 (W.D.N.Y. 2018), reconsideration denied 317 F.Supp.3d 687 (W.D.N.Y. 2018). Specifically, Sinkler challenges the district court's application of Fed.R.Civ.P. 54(d)(2)(B)'s fourteen-day filing period to her fee application, arguing in favor of an unspecified "reasonable" period pursuant to Fed.R.Civ.P. 60(b). Our sister circuits are divided on the question of which of these two rules of procedure properly determines the timeliness of § 406(b) fee applications. Compare Walker v. Astrue, 593 F.3d 274, 280 (3d Cir. 2010) (applying Rule 54), Pierce v. Barnhart, 440 F.3d 657, 663 (5th Cir. 2006) (same), and Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273, 1277 (11th Cir. 2006) (same), with McGraw v. Barnhart, 450 F.3d 493, 505 (10th Cir. 2006) (applying Rule 60(b)). Today, we join those circuits applying Rule 54. In doing so, we recognize that the rule's fourteen-day filing period is subject to equitable tolling. See Walker v. Astrue, 593 F.3d at 280. Where, as here, a Social Security claimant secures a judgment reversing a denial of benefits and remanding for further proceedings, the fourteen-day filing period is tolled until the claimant receives notice of the amount of any benefits award. That is because the benefits award amount is necessary to identify the maximum attorney's fee that may be awarded under § 406(b).

Sinkler's § 406(b) fee application having been filed well beyond the fourteen days prescribed by Rule 54(d)(2)(B), even when so tolled, we affirm the judgment denying Sinkler's attorney's fee application as untimely. No different conclusion would obtain even on reasonableness review because Sinkler fails to come forward with a factual basis for deeming her six-month filing delay reasonable.

I. Background

On August 8, 2014, Sinkler initiated this action for judicial review of a decision of the Social Security Administration ("SSA") denying her application for supplemental social security income. On June 2, 2015, the district court entered a "sentence four" final judgment in her favor, reversing the denial of benefits and remanding the case for further proceedings. See 42 U.S.C. § 405(g).1 On remand, an Administrative Law Judge ruled, in a decision dated November 7, 2016, that Sinkler was entitled to supplemental social security income. Approximately six weeks later, on December 28, 2016, the Commissioner of Social Security ("Commissioner") issued a letter advising Sinkler of her entitlement to $67, 404 in past-due benefits. Sinkler's counsel received this letter on January 3, 2017.

Not until six months later, however, on July 6, 2017, did Sinkler apply to the district court for attorney's fees, requesting the statutory maximum of 25% of the past-due benefits award, or $16, 851. See id. § 406(b).2 The district court denied the motion as untimely, holding that (1) Sinkler's application was outside the fourteen-day limitations period prescribed by Fed.R.Civ.P. 543; and, in any event, (2) Sinkler's delay in seeking fees was unreasonable. See Sinkler v. Berryhill, 305 F.Supp.3d at 453-59. Upon denial of reconsideration, see Sinkler v. Berryhill, 317 F.Supp.3d at 687, this timely appeal followed.

II. Discussion

While we review the denial of an attorney's fee award deferentially for abuse of discretion, we consider underlying questions of law de novo. See Fresno Cty. Empls.' Ret. Ass'n v. Isaacson/Weaver Family Tr, 925 F.3d 63, 67 (2d Cir. 2019). Because this appeal turns on the legal interpretation of § 406(b) and Rule 54, our review is de novo.

A. Rule 54(d)(2)(B) Prescribes the Filing Time for § 406(b) Motions

As the text quoted supra at note 2 indicates, § 406(b) authorizes a court that enters a judgment favorable to a social security claimant to award, "as part of its judgment," a reasonable fee for counsel's representation before the court, not to exceed 25% of the total past- due benefits to which the claimant is entitled "by reason of such judgment." 42 U.S.C. § 406(b)(1)(A); see Gisbrecht v. Barnhart, 535 U.S. 789, 807-08 (2002) (observing that provision protects against "inordinately large fees" and affords "independent check" that fee agreements "yield reasonable results"). That section further authorizes the Commissioner to certify for such a court-awarded fee to be paid out of a past-due benefits award. See 42 U.S.C. § 406(b)(1)(A); 20 C.F.R. § 404.1728(b).4

Where, as here, a district court judgment reverses a denial of benefits to a claimant and remands for further agency consideration of benefits, the parties-as well as the seven of our sister circuits to have considered the question-agree that the district court may await conclusion of the remand proceedings to consider a § 406(b) attorney's fee application. See Jackson v. Astrue, 705 F.3d 527, 531 (5th Cir. 2013); Bergen v. Comm'r of Soc. Sec., 454 F.3d at 1276-77 (11th Cir. 2006); McGraw v. Barnhart, 450 F.3d at 501-502 (10th Cir. 2006)...

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