Vana v. Social Security Administration
Filing
39
OPINION AND ORDER by Magistrate Judge Paul J Cleary ; granting 38 Motion for Relief (crp, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
HEATHER MARIE VANA,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social
Security Administration,
Defendant.
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Case No. 14-CV-706-GKF-PJC
OPINION AND ORDER
The Motion for Relief Pursuant to Fed. R. Civ. P. 60(b)(6) filed by Plaintiff’s counsel
on July 25, 2016, [Dkt. 38] 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,
pursuant to sentence four of 42 U.S.C. § 406(g). Plaintiff’s counsel represents to the court
that the Commissioner has issued a fully favorable decision on July 12, 2016. 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 sixty days from receipt of 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) [Dkt. 38] 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 8th day of September, 2016.
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