                                                                             FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                      UNITED STATES COURT OF APPEALS                    October 8, 2008
                                                                     Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                       Clerk of Court




    STEVEN C. EARLY,

                Plaintiff-Appellant,

    v.                                                    No. 07-6294
                                                  (D.C. No. 5:03-CV-00009-HE)
    MICHAEL J. ASTRUE,                                    (W.D. Okla.)
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before TACHA, PORFILIO, and TYMKOVICH, Circuit Judges.



         Plaintiff-appellant Steven C. Early appeals the district court’s denial of his

motion for attorney fees under 42 U.S.C. § 406(b)(1), as untimely filed. Under

that subsection, which governs the award of attorney fees for representation




*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
before a court in social security cases, 1 a court that “renders a judgment

favorable” to a social security claimant may also grant a “reasonable” attorney fee

to the claimant’s attorney, not to exceed “25 percent of the total of the past-due

benefits to which the claimant is entitled by reason of such judgment,” and the

Commissioner may pay that fee out of those past-due benefits. 42 U.S.C.

§ 406(b)(1)(A). In McGraw v. Barnhart, 450 F.3d 493, 504-05 (10th Cir. 2006),

this court held that a district court may award attorney fees under § 406(b)(1),

when, as happened in this case, it rendered a judgment remanding a social

security case to the agency, and the agency subsequently awarded benefits.

      In this case, the disagreement was not over whether attorney fees could be

awarded, but over whether Mr. Early’s attorney had timely filed his district court

fee motion. Federal Rule of Civil Procedure 54(d)(2)(B)(i) directs that fee

motions must be filed with the district court no later than fourteen days after the

“entry of judgment.” This clearly did not happen here, in that Mr. Early’s fee

motion was filed with the district court almost three years after entry of the

district court’s judgment remanding to the agency. But this court recognized in

McGraw that the timely filing of a § 406(b)(1) fee application would often be

impossible in situations where benefits were only granted following remand. 450

F.3d at 504. After examining the law in some of our sister circuits, we directed


1
      Subsection (a), on the other hand, governs fee awards for representation at
the administrative level.

                                          -2-
that the proper procedure in this circuit was for counsel to utilize the authority of

Federal Rule of Civil Procedure 60(b)(6) to file the motion for § 406(b)(1) fees

“within a reasonable time of the Commissioner’s decision awarding benefits.” Id.

at 505.

      Here, as approved by McGraw, Mr. Early’s counsel filed a Rule 60(b)(6)

motion requesting leave to file his fee motion more than fourteen days after the

district court’s entry of judgment remanding the case to the agency. But the

question at issue is whether counsel filed these motions “within a reasonable time

of the Commissioner’s decision awarding benefits.” Id. Counsel did not file the

motions with the district court until May 9, 2007, more than fifteen months after

the administrative law judge’s favorable decision on remand, and thirteen months

after Mr. Early received the Commissioner’s Notice of Award informing him that

he was entitled to $86,826 in past-due benefits and that the fee agreement

between Mr. Early and his counsel had been approved. Counsel argued, among

other things, that he delayed filing his motion for § 406(b)(1) fees in the district

court because he needed to see the actual amount of § 406(a) fees he would

receive for his work at the administrative level, in order to reduce his § 406(b)(1)

fee request by that amount. The district court held that counsel could have easily

calculated his § 406(a) fees after he received the Notice of Award and that he had

not filed his district court fee motion “within a reasonable time of the




                                          -3-
Commissioner’s decision awarding benefits” under McGraw, Aplt. App. at 97-98

(citing McGraw, 450 F.3d at 505), and this appeal followed.

      We have jurisdiction over the appeal under 28 U.S.C. § 1291, and we

review the district court’s denial of the Rule 60(b)(6) motion for § 406(b)(1) fees

for an abuse of discretion, see McGraw, 450 F.3d at 505. “A trial court abuses its

discretion when it issues a ruling that is arbitrary, capricious, whimsical, or

manifestly unreasonable.” King v. PA Consulting Group, Inc., 485 F.3d 577, 590

(10th Cir. 2007) (quotation omitted).

      Mr. Early’s counsel raises three points, none of which have merit. He first

argues that the district court abused its discretion by “attempting to resurrect” the

“rejected concept” that Rule 54(d) applies to an application for § 406(b)(1)

attorney fees. Aplt. Opening Br. at 17. In arguing that Rule 54(d) has no

application in this case, counsel misunderstands our ruling in McGraw. The

district court’s analysis was correct. As it noted, counsel did not meet the

fourteen-day Rule 54(d) deadline that applied to his fee motion. But, as approved

by McGraw, he was nevertheless entitled to utilize Rule 60(b)(6), which we noted

“has been referred to as a grand reservoir of equitable power to do justice in a

particular case[,]” 450 F.3d at 505 (quotation omitted), to obtain consideration of

his untimely motion “within a reasonable time of the Commissioner’s decision

awarding benefits,” id.




                                          -4-
      Counsel’s second argument is that the district court abused its discretion

because it used the issuance of the Notice of Award as the “triggering event” in

deciding whether the § 406(b)(1) fee motion was filed within a reasonable time. 2

Aplt. Opening Br. at 17. As support, he first states that the use of the Notice of

Award as the triggering event was recommended by the Eleventh Circuit in

Bergen v. Commissioner of Social Security, 454 F.3d 1273 (11th Cir. 2006). He

then cites McGraw in stating that “[t]he linkage of timeliness to a fourteen day

period following the Notice of Award has specifically been rejected by the Tenth

Circuit.” Aplt. Opening Br. at 17. If counsel believes that McGraw’s rejection of

Bergen indicates a determination that courts should not utilize the Notice of

Award when determining the timeliness of a § 406(b)(1) fee motion filed after an

award on remand, it is a serious misunderstanding of our holding. Even a cursory

reading of McGraw reveals that our concern with Bergen arose from its

determination to modify the wording of Rule 54(d) when used in these situations,

which is a different issue entirely.

      Finally, counsel argues that the district court abused its discretion in

denying his Rule 60(b)(6) motion because it was reasonable as a matter of law

under our ruling in McGraw from him to wait until after he had actually received

2
       Although Mr. Early apparently reads the district court’s decision as
equating the Notice of Award in this case with “the Commissioner’s decision
awarding benefits” referred to in McGraw, see 450 F.3d at 505, we think it more
likely that the district court simply referenced that document as the latest agency
document that might meet that description.

                                         -5-
his § 406(a) fee to file his motion for his § 406(b)(1) fee. His argument is that

(1) until the § 406(a) fee is actually paid it is a mere contingency, (2) prior to

actual payment, any district court decision awarding a § 406(b)(1) fee would rest

on a hypothetical issue (i.e., that the awarded § 406(a) fee would actually be

paid), and (3) that, as recognized in McGraw, any such decision would be

premature in that there would be no actual case or controversy that could be

decided by the district court. This argument is meritless.

      In McGraw, we noted that district courts do not have the power to issue

decisions relying on hypothetical future occurrences. 450 F.3d at 504. We found

“flawed” a decision by a district court in another circuit awarding attorney fees

that were to be paid only “in the event” that the agency awarded past-due social

security benefits on remand. Id. But this does not mean that McGraw stands for

the proposition that a district court must wait until the agency has paid out the

§ 406(a) fees before it may enter an order on § 406(b)(1) fees. This misreading is

shown by the actual wording of McGraw, which held that the fee motion “should

be filed within a reasonable time of the Commissioner’s decision awarding

benefits[,]” id. at 505 (emphasis added), not within a reasonable time of the

payment of benefits. Consequently, the decision was within the district court’s

discretion and its ruling was certainly not “arbitrary, capricious, whimsical, or

manifestly unreasonable.” King, 485 F.3d at 590 (quotation omitted).




                                           -6-
The judgment of the district court is AFFIRMED.


                                          Entered for the Court



                                          Deanell Reece Tacha
                                          Circuit Judge




                                -7-
