social security - atty. fees - sentence four remand - filing deadline

Walker v. Astrue - 3d Cir. - February 2, 2010

http://www.ca3.uscourts.gov/opinarch/081446p.pdf

This case presents a question of first impression in the Third Circuit and one that has divided our sister courts of appeals: what filing deadline under the Federal Rules of Civil Procedure governs a petition for attorney fees under Section 406(b) of the Social Security Act when a case is remanded under sentence four of Section 405(g) for a determination of benefits?

The Fifth and Eleventh Circuits have held that Rule 54(d)(2)’s fourteen-day filing deadline applies, see Bergen v. Barnhart, 454 F.3d 1273, 1277 (11th Cir. 2006); Pierce v. Barnhart, 440 F.3d 657, 663 (5th Cir. 2006), while the Tenth Circuit uses the more amorphous “reasonable time” standard under Rule 60(b), see McGraw v. Barnhart, 450 F.3d 493, 505 (10th Cir. 2006).

The District Court sua sponte dismissed Counsel’s petitions, holding that, under either rule, Counsel’s request was untimely.

We now join the Fifth and Eleventh Circuits in holding that Rule 54(d)(2) is the appropriate standard, subject to tolling until counsel’s notification of an award of benefits on remand. Accordingly, we will reverse the District Court’s dismissal and remand to give Counsel an opportunity to present evidence of his notification of the award.

I.

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