                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        August 25, 2006
                            FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court

    JERRY A. BENNETT,

                Plaintiff-Appellant,

    v.                                                    No. 06-5030
                                                   (D.C. No. 03-CV-534-SA J)
    JO A NN E B. BA RN HA RT,                             (N.D. Okla.)
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before H E N RY, A ND ER SO N, and M cCO NNELL, Circuit Judges.




         Jerry Bennett appeals the district court’s decision to deny an award of

attorney’s fees under the Social Security Act, 42 U.S.C. § 406(b)(1). W e have

jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and we REVERSE

the denial of fees and REM AND for further proceedings.


*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      The Social Security Commissioner initially denied M r. Bennett’s

application for disability insurance benefits and supplemental security income.

The district court vacated the agency’s decision and remanded for further

proceedings. On remand, the administrative law judge issued a decision fully

favorable to M r. Bennett, and the agency calculated M r. Bennett was due

$33,233.20 in past-due disability insurance benefits.

      Based on the award of past-due benefits, M r. Bennett moved the district

court to aw ard attorney’s fees under 42 U.S.C. § 406(b)(1). The district court

denied the fee request, holding that § 406(b)(1) does not permit the court to

make a fee award when the Commissioner awards past-due benefits on remand,

as distinguished from the district court itself awarding benefits. The district

court further concluded that the request was untimely filed under

Fed. R. Civ. P. 54(d)(2).

      W hile this appeal was pending, this court held that § 406(b)(1) does permit

the district court to award attorneys’ fees for work before the court when benefits

are awarded at the agency level on remand. M cGraw v. Barnhart, 450 F.3d 493,

503 (10th Cir. 2006). 1 In that case, we also explained that Rule 54(d)(2) is not



1
      Neither party filed a Fed. R. App. P. 28(j) notice of supplemental authority
to draw the panel’s attention to M cGraw, which was decided approximately two
weeks after briefing concluded in this appeal. Although a Rule 28(j) notice is not
required under our rules, it is a hallmark of good advocacy to file such a notice,
especially where the supplemental authority clearly controls, as in this appeal.
Further, we consider it courteous to the court.

                                         -2-
practical in SSA fee award cases when benefits are awarded on remand. Id. at

504. Thus, we approved of using Fed. R. Civ. P. 60(b)(6) to seek a § 406(b) fee

award, noting that such a motion “should be filed within a reasonable time of the

Commissioner’s decision awarding benefits.” Id. at 505. Thus, we REVERSE the

district court’s denial of attorney’s fees and REM AND for further proceedings in

light of M cGraw. 2 As in M cGraw, we leave the questions of the reasonableness

of counsel’s requested fees and the timeliness of the fee motion to the district

court’s consideration in the first instance. See id. at 505.

                                                     Entered for the Court



                                                     Robert H. Henry
                                                     Circuit Judge




2
       In addition to questions addressed by M cGraw, M r. Bennett argues on
appeal that fee awards under § 406(a) and § 406(b) for all work before the agency
and the court for all attorneys involved in a particular case are not limited to an
aggregate of twenty-five percent of the past-due benefits. The district court did
not reach this issue, which the Commissioner initially raised, because it held that
it did not have authority under § 406(b)(1) and Fed. R. Civ. P. 54(d)(2) to make a
fee award. In light of our remand for further proceedings, we leave this question
for the district court’s consideration in the first instance.

                                          -3-
