Bower v. Social Security Administration

Filing 29

OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; granting 28 Motion for Relief (tjc, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
HEATHER BOWER,

)
)
)
)
)
)

Plaintiff,
v.
NANCY A. BERRYHILL,1
Deputy Commissioner for Operations,
performing the duties and functions
not reserved to the Commissioner of
Social Security,

Case No. 14-CV-382-FHM

)

)
)
)
)
)
)

Defendant.

)
OPINION AND ORDER

The Motion for Relief Pursuant to Fed. R. Civ. P. 60(b)(6) filed by Plaintiff’s counsel,
[Dkt. 28], is before the court for decision. The Commissioner failed to file a response within
the allotted time.
In McGraw v. Barnhart, 450 F.3d 493, 496 (10th Cir. 2006), the Court ruled that
attorney fees are awardable under 42 U.S.C. § 406(b)(1) when the Social Security
Administration awards disability benefits to a claimant following a remand from the federal
court. In such a circumstance the authority of Fed. R. Civ. P. 60(b)(6) is employed to allow
counsel to seek fees under §406(b)(1) long after the usual fourteen days allotted by Fed.
R. Civ. P. 54(d)(2)(B)(I) for filing a motion for attorney fees has expired. McGraw, 450 F.3d
at 505.
The court remanded this case to the Commissioner for further administrative action,
1

Ms. Berryhill, Deputy Commissioner for Operations, is leading the Social Security Administration
pending the nomination and confirmation of a Commissioner. Pursuant to Federal Rule of Civil Procedure
25(d), Deputy Commissioner for Operations Berryhill should be substituted as the defendant in this action.
No further action need be taken to continue this suit by reason of the last sentence of the Social Security Act,
42 U.S.C. § 405(g).

pursuant to sentence four of 42 U.S.C. § 405(g). The Commissioner issued a favorable
decision. Counsel’s motion for relief under Rule 60(b)(6) was filed less than a month after
the issuance of the decision. Counsel represents that, as of the date of filing the instant
motion, the Notice of Award containing the amount of past due benefits has not been
received. Consequently, the amount of the contingent attorney fee cannot be ascertained.
Counsel requests an order allowing the filing of the motion for 406(b) fees within sixty days
of receipt of the Notice of Award.
The court finds that the instant motion was filed within a reasonable time of the
decision awarding benefits and that the request for additional time after the Notice of Award
in which to file a motion for fees under §406(b) is reasonable.
The Motion for Relief pursuant to Fed. R. Civ. P. 60(b)(6) is GRANTED, as follows:
a motion for an attorney fee award under §406(b), together with the required notice to
Plaintiff and statement concerning any objection thereto, may be filed within 60 days of the
Notice of Award.
SO ORDERED this 14th day of May, 2018.

2