Odonnell v. Commissioner of Social Security

Filing 28

MEMORANDUM OPINION AND ORDER re 24 ; signed by Magistrate Judge Phillip J. Green (Magistrate Judge Phillip J. Green, jkw)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______________________

BRIDGET MARY ODONNELL,

)
)
Plaintiff,
)
)
v.
)
)
COMMISSIONER OF
)
SOCIAL SECURITY,
)
)
Defendant.
)
____________________________________)

Case No. 1:16-cv-963
Honorable Phillip J. Green

MEMORANDUM OPINION AND ORDER
This was a social security action brought under 42 U.S.C. § 405(g), seeking
judicial review of a final decision of the Commissioner of Social Security denying
plaintiff=s claims for disability insurance benefits (DIB).

On April 18, 2017, the

Court entered a judgment vacating the Commissioner’s decision and remanding this
matter back to the Commissioner under sentence four of 42 U.S.C. § 405(g).

(ECF

No. 18). On remand, the Social Security Administration awarded plaintiff past-due
benefits.
The matter is now before this Court on a motion by Attorney James Rinck for
attorney’s fees pursuant to 42 U.S.C. § 406(b), payable from the award of past-due
benefits. (ECF No. 24).

Defendant opposes the motion.

(ECF No. 27).

reasons stated herein, plaintiff’s attorney’s motion will be denied.

For the

Standard of Review
The United States Court of Appeals for the Sixth Circuit “review[s] the denial
of a motion for attorney’s fees under Section 406(b) of the Social Security Act for abuse
of discretion.”

Hayes v. Commissioner, 895 F.3d 449, 452 (6th Cir. 2018).

“A

district court abuses its discretion when it relies on clearly erroneous findings of fact,
when it improperly applies the law, or uses an erroneous legal standard.” Glenn v.
Commissioner, 763 F.3d 494, 497 (6th Cir. 2014) (citation and quotation omitted).
Facts
After

the

Court

entered

its

April 18, 2017,

judgment

vacating

the

Commissioner’s decision and remanding this matter under sentence four of 42 U.S.C.
' 405(g) for further administrative proceedings, plaintiff filed a motion for attorney’s
fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. ' 2412.

On

June 20, 2017, the Court granted plaintiff’s motion and awarded plaintiff $4,812.50,
as a full and final adjudication of EAJA fees and expenses in this action. Attorney
Rinck later received the EAJA attorney’s fees from plaintiff in accordance with their
contract. (ECF No. 24-3, PageID.823).
On remand, the Social Security Administration awarded plaintiff past due
benefits. The date of the Notice of Award is November 19, 2017.

(ECF No. 24-1,

PageID.814).
On July 27, 2018, Attorney Rinck filed a motion for attorney’s fees under 42
U.S.C. § 406(b).

(ECF No. 24).

Attorney Rinck is seeking and award of $10,220.00
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from plaintiff’s past due benefits. 1

Attorney Rinck indicates that the Administration

did not send him a copy of the Notice of Award and that he was only able to obtain it
on July 16, 2018, after making “a number of requests” to Attorney Barry Schroder,
the attorney who had represented plaintiff during the administrative proceedings
before this lawsuit was filed.
PageID.820). 2

(ECF No. 24, PageID.808-09; ECF No. 24-2,

The Commissioner opposes this motion.

(ECF No. 27).

Discussion
The Commissioner argues that the motion should be denied because it was
filed months after the deadline for filing such a motion under W.D. MICH. LCIVR
54.2(b).

The Court agrees. 3

Rule 54.2(b) of the Local Civil Rules requires that motions for attorney’s fees
brought under 42 U.S.C. § 406(b) be filed within 35 days after the date shown on the
face of the Notice of Award. W.D. MICH. LCIVR 54.2(b).
dated November 19, 2017. 4

The Notice of Award is

(ECF No. 24-1, PageID.814; ECF No. 27-1, PageID.842).

The net additional amount above the EAJA award that Attorney Rinck is seeking
is $5,407.50. (ECF No. 24, PageID.809).
2 Attorney Rinck’s motion indicates that he had “contacted opposing counsel, and he
ha[d] been informed that Defendant d[id] not intend to object to a finding that by
the Court that Plaintiff’s request for an award of 406(b) fees in the amount of
$5,407.50 [was] reasonable.” (ECF No. 24, PageID.810). Mr. Rink has
acknowledged that this statement was made in error. (See ECF No. 27 at 1 n.1,
PageID.828).
3 It is not necessary to reach defendant’s alternate argument that the motion should
be denied because plaintiff’s attorney failed to comply with the requirements of W.D.
MICH. LCIVR 7.1(d).
4 No party contends that there were multiple or amended Notices of Award.
1

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Accordingly, December 26, 2017, was the deadline for filing a timely motion.
Attorney Rinck filed his motion on July 27, 2018, a full seven months late.
Rule 54.2(b)(ii) states that “[a]ny motion filed after this 35-day deadline will
be considered only by a specific showing of excusable neglect by plaintiff’s attorney.”
W.D. MICH. LCIVR 54.2(b)(ii). Attorney Rinck has not addressed, much less carried
his burden of demonstrating excusable neglect.
“Although ordinarily a litigant must meet the deadlines prescribed by the
rules, a court may invoke its equitable authority to toll applicable deadlines in
appropriate circumstances.”

Hayes v. Commissioner, 895 F.3d at 452.

Attorney

Rinck presents no developed argument claiming an entitlement to equitable tolling
that would extend the December 26, 2017, filing deadline.
In determining whether an attorney claiming section 406(b) attorney’s fees
should be entitled to equitable tolling, the Court should consider the following:
(1) lack of actual notice of the filing requirement, (2) lack of constructive knowledge
of the filing requirement; (3) diligence in pursuing one’s rights, (4) absence of
prejudice to the opposing party, and (5) reasonableness in remaining ignorant of the
legal requirement for filing the claim.

Hayes v. Commissioner, 895 F.3d at 453-54.

The first, second, and fifth factors weigh heavily against equitable tolling.
Attorney Rinck had actual and constructive knowledge of the deadline established by
W.D. MICH. LCIVR 54.2(b), and he was not ignorant of the legal requirement for filing
a timely motion. Rule 54.2 has been in effect since December 2, 2013.
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See In re

Amendment of Local Civil Rule 54.2 Governing Applications for Attorney’s Fees in
Certain Social Security Cases, W.D. Mich. Admin. Order 13-098 (Nov. 8, 2013).

All

attorneys registered for electronic service on the CM/ECF system were provided
notice of the adoption of Rule 54.2 and the Court has posted it on the Court’s website
since 2013.

Id.

Attorney Rinck has represented clients in social security cases for

more than thirty years and represented “hundreds of plaintiffs before the United
States District Court for the Western District of Michigan.”
PageID.754).

(ECF No. 20,

Attorney Rinck is aware of the importance of adhering to the deadline

established by Rule 54.2.

See Kuran v. Commissioner, 1:13-cv-523, 2016 WL

1579959, at *2 (W.D. Mich. Apr. 1, 2016) (finding excusable neglect for Attorney
Rinck’s filing of a section 406(b) motion two days after the deadline), adopted by, 2016
WL 1572706 (W.D. Mich. Apr. 19, 2016).
The most significant factor weighing against equitable tolling is the lack of
evidence that Attorney Rinck diligently pursued his claim. A single sentence stating
that the Social Security Administration never sent him a copy of the Notice of Award
and that he was only able to obtain one through Attorney Schroder after a number of
requests does not suffice. There is no evidence that Attorney Rinck informed the
Social Security Administration that he represented the plaintiff in this lawsuit and
that he should receive a copy of any Notice of Award. There is no evidence that
Attorney Rinck asked the Social Security Administration or his client for a copy of
the Notice of Award. Attorney Rinck’s attempt to attribute his delay in filing his
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section 406(b) motion to Attorney Schroder is vague and unpersuasive. The record
contains no specifics regarding when Attorney Rinck made any of his “number of
requests” to Attorney Schroder. The Court cannot find that Attorney Rinck acted
diligently when the record provides no indication when he first attempted to obtain a
copy of the Notice of Award.
The Commissioner “has no direct financial stake in the answer to the
§ 406(b) question; instead, she plays a part in the fee determination resembling that
of a trustee for the claimants.” Gisbrecht v. Barnhart, 535 U.S. 789, 798 n.6 (2002).
Thus, applying equitable tolling can only result in limited prejudice to the
Commissioner.

As a trustee for the claimant, the Commissioner has an interest in

preventing prejudice to the claimant through excessively generous application of
equitable principles to rescue an attorney’s untimely filing of a section 406(b) motion.
The Court also has an administrative interest in avoiding late-filed motions in closed
cases.

In addition, the Court must be “mindful of the millions of applications for

Social Security benefits that are filed each year, and that the lack of a clear filing
deadline could create havoc in the system.”

Cook v. Commissioner, 480 F.3d 432,

437 (6th Cir. 2007).
None of the factors listed by the Sixth Circuit in Hayes v. Commissioner weighs
in favor of equitable tolling.

Accordingly, the Court finds that equitable tolling does

not apply in this case.

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Conclusion
Plaintiff’s attorney’s motion is untimely, and he has not demonstrated
excusable neglect or grounds for equitable tolling. Accordingly,
IT IS ORDERED that plaintiff’s attorney’s motion for attorney’s fees (ECF
No. 24) is DENIED.
Dated:

December 5, 2018

/s/ Phillip J. Green
PHILLIP J. GREEN
United States Magistrate Judge

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