Burgess v. Social Security Administration

Filing 31

OPINION AND ORDER by Magistrate Judge Kimberly E. West granting 30 Motion for Relief(sjr, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
RHONDA K. BURGESS,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social
Security Administration,
Defendant.

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Case No. CIV-16-105-KEW

OPINION AND ORDER
This matter comes before this Court on Plaintiff’s Motion for
Relief Pursuant to Fed. R. Civ. P. 60(b)(6) filed by Timothy M.
White, counsel for Plaintiff (Docket Entry #30).

Counsel requests

an extension of time under Fed. R. Civ. P. 60 to file a motion for
attorney’s fees pursuant to 42 U.S.C. § 406(b) because he has not
yet received a copy of the agency award upon which the request
would be based. Counsel requests he be allowed until 60 days after
receiving the Notice of Award to file a § 406(b) motion.
This Court sympathizes with counsel’s quandary created by the
unique procedure under Social Security law which does not neatly
fit within the normal requirements of civil procedure.
counsel

has

employed

the

appropriate

method

for

seeking

obtaining an extension under Fed. R. Civ. P. 60(b)(6).
Barnhart, 450 F.3d 493, 505 (10th Cir. 2006).

Clearly,
and

McGraw v.

The timeliness in

filing the motion for attorney fees will be gauged upon the
standard of reasonableness, which certainly will encompass the time
required to obtain a copy of the award.
While a Rule 60(b) request can be combined with the § 406(b)
motion in most instances, the filing of a separate extension motion

may be required in instances where a significant delay in obtaining
the award occurs.

As with most areas of the law, a hard and fast

rule is not entirely possible and counsel will have to evaluate
each case separately for their particular circumstance.
In

this

case,

this

Court

Plaintiff on March 31, 2017.

entered

judgment

in

favor

of

Counsel received notice of a fully

favorable decision from Defendant dated October 25, 2017.

Counsel

is on notice to be seeking the notice of award and should file his
attorney fee motion under § 406(b) as soon as possible after
receipt of the Notice.

While counsel requests 60 days after

receiving the Notice within which to file his fee request, this
Court finds 30 days to be a more reasonable time to require the
filing of the § 406(b) request.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Relief
Pursuant to Fed. R. Civ. P. 60(b)(6) filed by Timothy M. White,
Plaintiff’s

counsel

(Docket

Entry

#30)

is

hereby

GRANTED.

Plaintiff’s counsel shall file his motion for attorneys’ fees under
42 U.S.C. § 406(b) within thirty (30) days of receipt of the notice
of award.

Counsel shall make every effort to obtain the notice as

soon as possible so that the delay is not considered unreasonable.
IT IS SO ORDERED this 27th day of November, 2017.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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