United States District Court, S.D. New York
October 12, 2005.
LEON P. ROSE, Plaintiff,
JO ANNE B. BARNHART, as COMMISSIONER OF SOCIAL SECURITY Defendant.
The opinion of the court was delivered by: RONALD ELLIS, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Counsel for the plaintiff Leon P. Rose submitted a petition for
attorney's fees pursuant to the Social Security Act,
42 U.S.C. § 406(b)(1), after the Court granted Rose's motion for remand to
the Social Security Administration for further proceedings, and
Rose won an award of past-due Social Security disability benefits
on remand. This Court had already granted counsel's fee award
pursuant to the Equal Access to Justice Act ("EAJA"),
28 U.S.C. § 2421(d)(1)(A). This Court denied counsel's § 406(b)(1) fee
petition. See Opinion and Order, September 16, 2005 ("Sept. 16
Order"). Counsel now moves for reconsideration and reargument
pursuant to Rule 60(b)(1) of the Federal Rules of Civil Procedure
("FRCP") and Local Rule 6.3. For the reasons that follow, the
motion is DENIED.
II. STANDARD FOR RECONSIDERATION AND REARGUMENT
A party may move for reconsideration of an order on the basis
of "mistake, inadvertence, surprise, or excusable neglect." FRCP
60(b)(1). Local Rule 6.3 specifies that the party must outline
"the matters or controlling decisions which counsel believes the
court has overlooked." Reconsideration or reargument is merited if the party can
"demonstrate that the Court overlooked controlling decisions or
factual matters that were put before it on the underlying
motion." Shamis v. Ambassador Factors Corp., 187 F.R.D. 148,
151 (S.D.N.Y. 1999). The matters must "reasonably be expected to
alter the conclusion reached by the court." Davidson v. Scully,
172 F. Supp. 2d 458, 461 (S.D.N.Y. 2001). "Local Rule 6.3 is to
be narrowly construed and strictly applied so as to avoid
repetitive arguments on issues that have been considered fully by
the court." Id.
Counsel argues that the Court relied on non-binding authority
from other jurisdictions, while overlooking binding law.
Memorandum of Law in Support of Plaintiff's Motion for
Reconsideration and Reargument ("Pl. Mem.") at 2. Counsel does
not point, however, to any cases the Court overlooked, or any
cases which are, in fact, binding. Counsel describes Boyd v.
Barnhart, 2002 WL 32096590 (E.D.N.Y. Oct. 24, 2002), as
"absolutely binding on this Court," arguing that "It is not . . .
for this Court to construe legislative intent or statutory
language in determining the underlying motion for attorney fees,
as this issue is not before the Court." Pl. Mem. at 3.
A case from the Eastern District of New York, or the Southern
District for that matter, is not binding on this Court. The fact
remains that there is no controlling Second Circuit case law on
the availability of § 406(b)(1) fee petitions in cases in which
the district court remanded for further proceedings. There is
also no controlling Supreme Court case law on the issue. Counsel
points to Shalala v. Schaefer, 509 U.S. 292 (1993), Pl. Mem. at
4, which the Court did consider. Sept. 16 Order at 2-3. However,
Schaefer established that plaintiffs who obtained remands pursuant to sentence four had final judgments, and therefore
could be considered "prevailing parties" for the purposes of
their attorneys' EAJA fee petitions. 509 U.S. at 300-02. The
Schaefer Court did not consider the language of § 406(b)(1), as
no fee petition pursuant to the Social Security Act was at issue
in that case. With no binding precedent, it is precisely the
Court's role to "construe legislative intent or statutory
language." Pl. Mem. at 3. This Court's Sept. 16 Order did refer
to cases outside this jurisdiction to aid in this analysis. As
counsel points out, these cases are "merely instructive." Id.
Counsel's additional arguments are without merit as they do not
point to any "controlling decisions or factual matters that were
put before [the Court] on the underlying motion" and which the
Court overlooked. Shamis, 187 F.R.D. at 151. In light of the
foregoing, Rose's motion for reconsideration and reargument is
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