CONE v. ASTRUE (M.D.Ala. 7-18-2008)

CIVIL ACTION NO. 2:07cv865-CSC (WO).United States District Court, M.D. Alabama, Northern Division.
July 18, 2008

MEMORANDUM OPINION AND ORDER
CHARLES COODY, Magistrate Judge

Now pending before the court is the plaintiff’s June 26, 2008 motion to amend judgment pursuant to FED. R. CIV. P. 59(e) (doc. # 24) in which she argues that her petition for fees pursuant to 42 U.S.C. § 406(b) cannot be filed within fourteen days after entry of judgment in accordance with FED. R. CIV. P. 54(d)(2).

On June 16, 2008, the court entered final judgment reversing and remanding this case to the Commissioner for further consideration and proceedings consistent with the memorandum opinion entered therewith. See Docs. # 21 22. The court’s remand was pursuant to sentence four of 42 U.S.C. § 405(g).[1]

Pursuant to the Equal Access to Justice Act (“EAJA”), a petition for attorney’s fees

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must be filed “within thirty days of final judgment in the action.” 28 U.S.C. § 2412(d)(1)(B).[2] The Commissioner is permitted 60 days for appeal. See FED.R.APP.PR. 4(a). At the expiration of 60 days, the judgment becomes final if the Commissioner does not file an appeal. The plaintiff would then have 30 days to file a petition for attorney’s fees. See Shalala v. Schaefer, 509 U.S. 292 (1993). Thus, the time for the plaintiff to file a petition for attorney’s fees under 28 U.S.C. § 2412 has not yet begun to run.

In this case, however, the plaintiff wants to file a motion for attorney’s fees pursuant to 42 U.S.C. § 406(b) which also provides for an award of a reasonable attorney’s fee because the court remanded the case to the Commissioner.[3] The law in this circuit is clear that 42 U.S.C. § 406(b) “authorizes an award of attorney’s fees where the district court

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remands the case to the Commissioner of Social Security for further proceedings, and the Commissioner on remand awards the claimant past due benefits.” Bergen v. Comm’r of Soc. Sec., 454 F.3d 1273, 1277 (11th Cir. 2006) (emphasis added). The Commissioner has not yet determined that the plaintiff is entitled to an award of past-due benefits. Consequently, at this juncture, the court cannot determine whether the plaintiff would be entitled to an award of attorney’s fees under 42 U.S.C. § 406(b). Clearly, if the plaintiff is successful on remand, she would be entitled to an award of fees pursuant to 42 U.S.C. § 406(b). See Bergen, 454 F.3d at 1277.

The quandary for the parties and the court is one of time. FED. R. CIV. P. 54(d)(2)(i) and (iii) require a motion for attorney’s fees to “be filed no later than 14 days after the entry of judgment,” and that the motion “state the amount sought or provide a fair estimate of it.” In Bergen, the court held that “FED. R. CIV. P. 54(d)(2) applies to a § 406(b) attorney’s fee claim.” 454 F.3d at 1277. Thus, in order to file a timely motion for attorney’s fees in accordance FED. R. CIV. P. 54(d)(2), the plaintiff would have to file her motion for fees within fourteen days of the court’s judgment remanding the matter to the Commissioner for further proceedings, long before the Commissioner has determined that she is entitled to an award of past due benefits which, of course, determines the amount of fees.[4] The Eleventh Circuit, albeit in an unpublished opinion, recognizes the dilemma presented by 42 U.S.C. § 406(b)

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and FED. R. CIV. P. 54(d)(2)(i).

“We are very sympathetic with the attorney’s plight under the unique circumstances created by a remand judgment under sentence four of 42 U.S.C. § 405(g). Our understanding is the amount of fees owed under a contingency arrangement is not established for months after remand, until the Social Security Administration determines the amount of the client’s award. In Bergen v. Comm’r of Soc. Sec., 454 F.3d 1273 (11th Cir. 2006), we suggested the best practice for avoiding confusion about the integration of FED. R. CIV. P. 54(d)(2)(B) into the procedural framework of a fee award under 42 U.S.C. § 406 is for a plaintiff to request and the district court to include in the remand judgment a statement that attorneys fees may be applied for within a specified time after the determination of the plaintiff’s past due benefits by the Commission. 454 F.3d at 1278 n. 2. As we understand it, however, the best practice has not been a universally-workable solution. Perhaps another vehicle for creating some much needed certainty in this area of the law is for the district courts to fashion a general order or a local rule permitting district-wide application of a universal process for seeking fees under these unique circumstance. It is our hope the district courts, in doing so, will keep in mind Congress’s intent behind § 406(b), to encourage attorneys to represent Social Security claimants. See Bergen, 454 F.3d at 1276.

Blitch v. Astrue, 261 Fed. Appx. 241, 242 fn.1 (11th Cir. 2008).

FED. R. CIV. P. 59(a)(2) permits the court, on a timely motion, to “direct entry of a new judgment.”[5] At this juncture, based on the status of the law and in an abundance of caution, the court concludes that the better course of action is to grant the motion to amend or correct judgment (doc. # 23), vacate the court’s memorandum opinion and judgment (docs. # 21 and 22), and follow the Eleventh Circuit’s suggestion in Bergen by including “in the judgment a statement that attorneys fees may be applied for within a specified time after the determination of Plaintiff’s past due benefits by the Commissioner.” Bergen,

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454 F.3d at 1278 fn. 2.

Accordingly, it is

ORDERED that, pursuant to FED. R. CIV. P. 59, the plaintiff’s motion to amend or correct judgment (doc. # 23) be and is hereby GRANTED and the court’s Memorandum Opinion and Final Judgment entered on June 16, 2008 (docs. # 21 22) be and are hereby VACATED.

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