Lawrence Walker v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, (Pursuant to Rule 43(c),…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-1446
LAWRENCE WALKER,
Appellant
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
(Pursuant to Rule 43(c), F.R.A.P.)
No. 08-1447
JEFFREY R. GARRIS,
Appellant
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY

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2
(Pursuant to Rule 43(c), F.R.A.P.)
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Nos. 01-cv-01946 and 02-cv-01046)
District Judge: Honorable Alan N. Bloch
Argued October 28, 2009
Before: SMITH, FISHER and STAPLETON, Circuit Judges.
(Filed: February 2, 2010 )
Zenford A. Mitchell (Argued)
P.O. Box 99937
Pittsburgh, PA 15233
Counsel for Appellants
Shawn C. Carver
Robert W. Kosman (Argued)
Social Security Administration
SSA/OGC/Region III
6th Floor
P.O. Box 41777
Philadelphia, PA 19101
Counsel for Appellee
OPINION OF THE COURT

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3
FISHER, Circuit Judge.
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.
The relevant facts of these two appeals are virtually
identical. Attorney Zenford A. Mitchell (“Counsel”) filed
Social Security appeals on behalf of two clients, Lawrence
Walker (“Walker”) and Jeffrey Garris (“Garris”) under Title II
of the Social Security Act, 42 U.S.C. §§ 401-433. Both Walker

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The fourth sentence of § 405(g) reads, “The court shall1
have power to enter, upon the pleadings and transcript of the
record, a judgment affirming, modifying, or reversing the
decision of the Commissioner of Social Security, with or
without remanding the cause for a rehearing.” 42 U.S.C.
§ 405(g). Remands issued under this authority are referred to as
“sentence four” remands.
4
and Garris were denied benefits by an Administrative Law
Judge and were denied review by the Appeals Counsel. Both
sought review in the United States District Court for the
Western District of Pennsylvania. Walker’s case was remanded
by the District Court pursuant to sentence four of 42 U.S.C.
§ 405(g) on May 1, 2002, while Garris’s case was remanded
pursuant to the same statute on October 20, 2003. In1
connection with each remand, Counsel sought and received a
partial award of attorney fees under the Equal Access to Justice
Act, 28 U.S.C. § 2412(d).
On administrative remand, both Walker and Garris were
successful in demonstrating that they were disabled within the
meaning of the Social Security Act and therefore entitled to
disability benefits. The Commissioner issued her Notice of
Award finding Walker disabled on February 25, 2004, and
finding Garris disabled on August 27, 2004. The Notices of
Award contained both the valuation of past-due benefits to the
plaintiff as well as notification of the twenty-five percent of
past-due benefits to be withheld pending approval of any
attorney fees.

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Counsel originally sought $12,399.75 in fees for his2
representation of Walker, and $15,558.00 in fees for his
representation of Garris. He received administrative approval
for $7,000 in the Walker case on October 4, 2007, and
represented at arguments that he was paid this amount.
Counsel’s motion to the District Court therefore sought the
balance – $5,399.75 – in the Walker case. Counsel’s motion in
the Garris case seeks the full fee of $15,558.00.
5
It is here the parties’ agreement on the facts ends. The
Social Security Administration claims it sent Counsel a copy of
the Notice of Award in Walker’s case on June 27, 2004.
Counsel alleges he was not informed of Walker’s award until he
received a phone call from a Social Security Administration
representative on June 26, 2007. In the Garris case, the Social
Security Administration claims Counsel was sent a copy of the
Notice of Award on February 2, 2005. Again, Counsel contends
he was notified of the award for the first time by phone on
December 1, 2006.
Counsel filed a motion for attorney fees under § 406(b)
of the Social Security Act in the District Court on February 7,
2007, in the Garris case and on October 17, 2007, in the Walker
case. The District Court sua sponte dismissed both motions as2
untimely on January 29, 2008. This timely appeal followed.
II.
The District Court had subject matter jurisdiction over
the underlying Social Security actions pursuant to 42 U.S.C.

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The Commissioner “takes no position on what, if any,3
time period applies to the filing of a motion for fees under
6
§ 405(g) and jurisdiction over the attorney fees motions pursuant
to 42 U.S.C. § 406(b). We have jurisdiction to review the
District Court’s order under 28 U.S.C. § 1291.
We apply an abuse of discretion standard when reviewing
the District Court’s denial of a petition for fees. See In re Rite
Aid Corp. Sec. Litig., 396 F.3d 294, 299 (3d Cir. 2005).
However, where the District Court bases its denial on an
application of law, our review is plenary. Cf. McKenna v. City
of Philadelphia, 582 F.3d 447, 460 (3d Cir. 2009).
III.
The provision of the Social Security Act providing for
attorney fees reads in relevant part:
Whenever a court renders a judgment favorable to
a claimant . . . who was represented before the
court by an attorney, the court may determine and
allow as part of its judgment a reasonable fee for
such representation, not in excess of 25 percent of
the total of the past-due benefits to which the
claimant is entitled by reason of such judgment .
. . .
42 U.S.C. § 406(b)(1)(A) (“Section 406(b)”). Section 406(b)
does not contain any explicit time limit for requesting fees.3

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Section 406(b).” (Comm. Br. 21 n.10). Therefore, we need not
give deference to his interpretation of the filing requirements of
the Social Security Act.
7
The Fifth and Eleventh Circuits have held that counsel
seeking fees under § 406(b) must do so pursuant to Federal Rule
of Civil Procedure 54(d)(2). See Bergen v. Barnhart, 454 F.3d
at 1277 (“We agree with the Fifth Circuit that Fed. R. Civ. P.
54(d)(2) applies to a § 406(b) attorney’s fee claim.”); Pierce v.
Barnhart, 440 F.3d at 663 (applying Rule 54(d)(2) to a § 406(b)
claim). Rule 54(d) provides that a motion for attorney fees must
“be filed no later than 14 days after the entry of judgment,”
unless otherwise provided by court order or statute. Fed. R. Civ.
P. 54(d)(2)(B)(i).
In Pierce, the initial two § 406(b) fee petitions were filed
twenty and thirty days after the remand, but before the claimants
had been awarded benefits by the ALJ pursuant to the review
required by the remand order. 440 F.3d at 664. The petitions
were dismissed as premature because the value of the award was
not yet known. Id. When the § 406(b) petitions were re-filed
after the award of benefits, they were dismissed as untimely
because they were filed over sixteen months after the entry of
the remand orders. Id. On appeal, the Fifth Circuit held that the
district court had abused its discretion in dismissing the
petitions. Id. It reasoned that Rule 54(d)(2) permitted revision
of the fourteen-day filing deadline by order of the court. See
Fed. R. Civ. P. 54(d)(2)(B) (providing for a fourteen-day period
for filing for attorney fees “[u]nless otherwise provided by
statute or order of the court”). Because the fee petition could

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8
not be filed until the ALJ issued the award, the court held that
the district court should have extended the time to file the
petition pursuant to its Rule 54 authority. 440 F.3d at 664.
In Bergen, the district court also dismissed a § 406(b) fee
petition as untimely under Rule 54(d)(2). On appeal, the
Eleventh Circuit reversed. 454 F.3d at 1277-78. The court held
that Rule 54(d)(2) was the correct standard, but because the
Commissioner had not objected to the timeliness of the petition,
it declined to decide when the fourteen-day period for filing the
petition began. Id. This opinion vacated and superseded an
earlier opinion in the proceedings which held that the fourteen-
day period ran from the day the award notice was issued. See
Bergen v. Comm’r of Social Sec., 444 F.3d 1281, 1286 vacated
and superseded, 454 F.3d 1273 (11th Cir. 2006).
The Tenth Circuit endorsed a different approach in
McGraw v. Barnhart, 450 F.3d at 505. The district court in
McGraw assessed the timeliness of a fee petition under Rule
54(d)(2). On appeal, the Tenth Circuit held that a petition for
fees under § 406(b) should be filed under Rule 60(b)(6), which
permits the court on motion to “relieve a party or its legal
representative from a final judgment, order, or proceeding” for
enumerated reasons, including “any other reason that justifies
relief.” Fed. R. Civ. P. 60(b)(6). The court reasoned that,
although Rule 60(b)(6) is “extraordinary and reserved for
exceptional circumstances . . . the rule should be liberally
construed when substantial justice will thus be served.” 450
F.3d at 505. Under Rule 60(b)(6), a petition for fees under
§ 406(b) “should be filed within a reasonable time of the

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The district court judgment ordering a sentence four4
remand is a final order for purposes of running filing deadlines.
See Shalala v. Schaefer, 509 U.S. 292, 299 (1993) (holding “a
sentence-four remand order terminates the civil action seeking
judicial review of the Secretary’s final decision” and runs the
filing deadline for attorney fees under the EAJA (quotation
marks and brackets omitted)).
9
Commissioner’s decision awarding benefits” and is “committed
to the district court’s sound discretion.” Id.
The confusion in the courts of appeals undoubtedly stems
from the imperfect fit of either approach. The problem the
courts faced in Pierce and Bergen is that a strict application of
Rule 54(d)(2)’s fourteen-day filing deadline is impossible where
a court remands under § 406(b) for administrative determination
of benefits. By its terms, § 406(b) conditions the right to fees on
the award of benefits and caps those fees at twenty-five percent
of the awarded benefits. Thus a court cannot determine whether
a right to a fee award exists and what the value of that fee award
should be until the administrative remand proceeding is
complete and the amount of benefits is fixed. However, a
remand under 42 U.S.C. § 405(g) would rarely, if ever, be
completed within fourteen days of the remand order.4
Therefore, a timely Rule 54(d)(2) motion for fees, filed within
fourteen days of the remand order, is necessarily premature; and
a similar motion filed after the administrative determination of
benefits is most likely untimely.

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10
Although the Tenth Circuit’s approach rectifies the
conflict between the Rule 54(d)(2) filing deadlines and the
realities of administrative remand, McGraw finds little support
in the law. The only authority McGraw cites for the application
of a “reasonable time” standard to § 406(b) fee requests is the
Seventh Circuit decision in Smith v. Bowen, 815 F.2d 1152 (7th
Cir. 1987), where the court held “a petition for fees under
§ 406(b)(1) must be brought within a reasonable time.” Id. at
1156. McGraw does not acknowledge, however, that Smith
based its reasoning on the pre-1993 amendment language of
Rule 54, which contained no time limit for filing and which
courts interpreted to contain “an implicit requirement of
reasonableness.” Smith, 815 F.2d at 1156. Smith is therefore
not good law under the amended Federal Rules of Civil
Procedure, which incorporated a fourteen day filing deadline.
See Fed. R. Civ. P. 54(d)(2)(B)(i) (a motion for attorney fees
must “be filed no later than 14 days after the entry of
judgment”).
McGraw also conflicts in principle with Supreme Court
jurisprudence that instructs that a post-judgment motion for
attorney fees is not properly asserted as a motion to amend or
alter judgment. See White v. New Hampshire Dept. of
Employment Sec., 455 U.S. 445, 451 (1982). In White, the
Supreme Court held that “a request for attorney’s fees . . . raises
legal issues collateral to the main cause of action – issues to
which Rule 59(e) was never intended to apply.” Id.; see also
United States v. Eleven Vehicles, Their Equipment and
Accessories, 200 F.3d 203, 208-09 (3d Cir. 2000). The Supreme
Court has thus been clear that Rule 59(e) should not be used to
seek attorney fees.

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In so holding, we acknowledge that there are instances5
when attorney fees are awarded as part of the original judgment.
In such cases, counsel may appropriately seek to modify them
via Rule 60(b). See, e.g., Flowers v. S. Reg’l Physician Servs.,
Inc., 286 F.3d 798 (5th Cir. 2002); Straw v. Bowen, 866 F.2d
1167 (9th Cir. 1989).
11
Rule 60(b), like Rule 59(e), is a mechanism for relief
from judgment. Although the Rules contain different filing
deadlines, they are substantively interchangeable, and we have
held that an untimely Rule 59(e) motion should be construed as
a Rule 60(b) motion. See, e.g., Ahmed v. Dragovich, 297 F.3d
201, 209 (3d Cir. 2002) (treating an untimely Rule 59(e) as a
Rule 60(b) motion when it presented grounds cognizable under
Rule 60). For this reason, we believe that Rule 60(b) is an
inappropriate vehicle for fee petitions for the same reasons as
those stated in White – the fee petition is a “legal issue[]
collateral to the main cause of action” and cannot be construed
as a request for relief from judgment. White, 455 U.S. at 451;5
see also Bentley v. Comm’r of Social Sec., 524 F. Supp. 2d 921,
922 (W.D. Mich. 2007) (“A § 406(b) motion for attorney’s fees
cannot be viewed as a motion for relief from judgment without
straining the meaning and purpose of a motion for relief from
judgment under Rule 60.”).
Left only with the application of Rule 54(d)(2), we must
reconcile its requirements with the demands of § 406(b) so as to
prevent the absurd outcome inherent in applying a deadline that
cannot be met. The solution lies in the doctrine of equitable
tolling. Although the procedural requirements established by

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The Commissioner conceded at arguments that no rule6
or procedure governs notification of counsel when a benefit
award has been determined. In these cases, the Commissioner
alleges that Counsel was notified four and five months after the
date of the Notice of Award in the respective cases.
Accordingly, a rule that tolls the filing deadline only to the
award date, as opposed to the date of notification of counsel,
would be similarly ineffective.
12
Congress should not be lightly disregarded, we have held that
the tolling of filing deadlines is appropriate where “principles of
equity would make the rigid application of a limitation period
unfair.” Miller v. N.J. Dep’t of Corr., 145 F.3d 616, 618 (3d
Cir. 1998) (alterations omitted). This is clearly such a case.
Where the valuation of benefits necessary to award attorney fees
is not completed until after the deadline for requesting those fees
has expired, a strict application of that deadline works a patent
injustice and undermines Congress’ purpose in providing for
fees in the first place. See Bergen, 454 F.3d at 1277 (noting that
Congress amended the Social Security Act to provide fees “to
encourage effective legal representation of claimants by insuring
lawyers that they will receive reasonable fees directly through
certification by the Secretary”).
Accordingly, we will join the Fifth and Eleventh Circuits
in holding that Rule 54(d)(2) is the appropriate avenue through
which counsel can seek attorney fees following a § 406(b)
administrative remand. We further hold that the application of
the filing deadline is tolled until the notice of award is issued by
the Commissioner and counsel is notified of that award.6

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13
Counsel will have fourteen days from notification of the notice
of award to file a fee petition in the district court. This holding
does not alter the authority of the district court to expand that
filing deadline at the request of the parties. See Fed. R. Civ. P.
54(d)(2)(B) (providing for a fourteen-day period for filing for
attorney fees “[u]nless otherwise provided by . . . order of the
court”).
Because the District Court dismissed Counsel’s motions
sua sponte, the parties did not present and the Court did not
consider evidence related to the date on which Counsel was
notified of the award. Accordingly, we will vacate the District
Court’s dismissal and remand for consideration of the
appropriate date to which the Rule 54(d)(2) filing deadline
should be tolled.
IV.
For the foregoing reasons, we will vacate the District
Court’s dismissal of Counsel’s motions for attorney fees and
remand to the District Court for proceedings consistent with this
opinion.

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