Sinkler v. Berryhill

• Decision Date: 02 August 2019
• Docket Number: August Term 2018,No. 18-2044-cv,18-2044-cv
• Citation: 932 F.3d 83
• Parties: Lakisha Janey SINKLER, Plaintiff-Appellant, v. Nancy A. BERRYHILL, Acting Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

932 F.3d 83

Lakisha Janey SINKLER, Plaintiff-Appellant,

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

No. 18-2044-cv

August Term 2018

United States Court of Appeals, Second Circuit.

Argued: June 19, 2019

Decided: August 2, 2019

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, 122 S.Ct. 1817, 152 L.Ed.2d 996 (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) ; Smith v. Bowen , 815 F.2d 1152, 1155 (7th Cir. 1987) ; Fenix v. Finch , 436 F.2d 831, 835 (8th Cir. 1971) ; Philpott v. Gardner , 403 F.2d 774, 775 (6th Cir. 1968) ; Conner v. Gardner , 381 F.2d 497, 500 (4th Cir. 1967). We also reach that conclusion.

The issue raised on this appeal is whether Fed. R. Civ. P. 54 can sensibly be applied to § 406(b) attorney's fee applications in such circumstances. As indicated supra at note 3, Rule 54 requires a motion for attorney's fees to be made within fourteen days of "judgment," defined to include "any order from which an appeal lies." Fed. R. Civ. P. 54(a), (d)(2)(B)(i). A "sentence four" remand is a final and appealable judgment. See Forney v. Apfel , 524 U.S. 266, 270–71, 118 S.Ct. 1984, 141 L.Ed.2d 269 (1998) (holding sentence four remand appealable by either party); accord Mead v. Reliastar Life Ins. Co. , 768 F.3d 102, 115 (2d Cir. 2014) (observing that appealability of sentence four remand is exception to "generally accepted rule that remand orders are interlocutory"). As such, it is presumptively subject to the fourteen-day filing limitation of Rule 54(d)(2)(B). Cf. Shalala v. Schaefer , 509 U.S. 292, 296–97, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993) (holding sentence four remand is "judgment" triggering limitations period for attorney's fee motion under Equal Access to Justice Act, 28 U.S.C. § 2412 ). Nevertheless, a practical problem arises with filing a motion within that time: the Commissioner typically does not calculate the amount of past-due benefits until months after the district court remands, and § 406(b) caps attorney's fees at 25% of the benefits award. Thus, where a sentence four judgment orders remand, Rule 54(d)(2)(B) may present "a deadline that cannot be met" within fourteen days of that judgment. Walker v. Astrue , 593 F.3d at 280.

In addressing this dilemma, our sister circuits have not agreed on a solution. The Tenth Circuit eschews the application of Rule 54 in this context. See McGraw v. Barnhart , 450 F.3d at 504. Instead, it derives a "reasonableness" standard from language in Fed. R. Civ. P. 60 permitting a court to relieve a party from a "final judgment, order, or proceeding" for "any [ ] reason that justifies relief" upon a motion "made within a reasonable time." Fed. R. Civ. P. 60(b)(6), (c)(1). The Tenth Circuit explains that Rule 60's "grand reservoir of equitable power to do justice" provides the "best option" for addressing the practicalities of sentence four judgments ordering remand and, thus, it holds that a motion for attorney's fees pursuant to § 406(b) is timely if filed "within a reasonable time of the Commissioner's decision awarding benefits." McGraw v. Barnhart , 450 F.3d at 504–05 (internal quotation marks omitted).

By contrast, the Third Circuit concludes that Rule 54 applies to § 406(b) applications following sentence four remands. It observes that there is "little support" in law for using Rule 60 to determine the timeliness of such applications. Walker v. Astrue , 593 F.3d at 279. Indeed, such reliance appears to "conflict[ ] in principle with Supreme Court jurisprudence that instructs that a post-judgment motion for attorney fees is not properly asserted as a motion to amend or alter judgment." Id. (citing White v. N.H. Dep't of Emp't Sec. , 455 U.S. 445, 451, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982) (holding attorney's fees request inappropriate under Fed. R. Civ. P. 59(e) )). Mindful nevertheless that a rigid application of Rule 54 to § 406(b) applications following sentence four remand judgments can produce "injustice," the Third Circuit avoids that concern by tolling the rule's filing deadline "until the notice of award is issued by the Commissioner" on remand, "and counsel is notified of that award." Id. at 280. In short, once a successful claimant receives notice of the Commissioner's award on remand, he would have the fourteen days afforded by Rule 54(d)(2)(B) to file a § 406(b) motion for attorney's fees. The Eleventh and Fifth Circuits had earlier reached similar conclusions about the application of Rule...