(a)   Filing an Answer.

 

(1)   Within 60 days of the service upon the United States of a pleading under 42 U.S.C. § 405(g), the Commissioner of Social Security shall deliver to the Clerk of Court an answer and a certified copy of the administrative record.

 

(2)   A motion to extend the time in which to answer shall be brought prior to the expiration of the 60 day period.
 

(b)   Motions - Time Limits.

 

(1)   Within 60 days of the filing and service of the answer and administrative record, plaintiff shall file with the Clerk of Court and serve on defendant a motion for summary judgment and a memorandum of law in support. Within 45 days from the date of service of plaintiff's motion, defendant shall file with the Clerk of Court and serve on plaintiff a motion for summary judgment and a memorandum of law in support. Plaintiff may submit a reply memorandum. The reply memorandum shall be filed with the Clerk of Court and served on defendant within 10 days from the date of service of defendant's motion.

                       

(2)   All motions shall be decided without oral argument unless otherwise ordered by the Court.

 

(3)   Pursuant to Fed.R.Civ.P. 72(b) and the provisions of 28 U.S.C. § 636(b)(1)(B), within 10 days after being served with a copy of a Magistrate Judge's report and recommendation, any party seeking to object to the same shall file with the Clerk of Court and serve on the opposing party written objections to the proposed findings and recommendations. Any party objecting to a Magistrate Judge's proposed findings and recommendation shall file a brief within 10 days after being served with a copy of the recommended disposition. A party may respond to the objecting party's brief within 10 days after being served. All briefs filed under this rule shall be limited to 10 pages.

 

(c)   Review After Remand When Courts Retain Jurisdiction.

 

(1)   Within 60 days of the final decision of the Commissioner of Social Security upon remand, if the final decision upon remand is adverse to the plaintiff, the Commissioner shall file with the Clerk of Court and serve a supplemental administrative record.

 

(2)   If the plaintiff intends to seek review of the Commissioner's action following remand, within 60 days of the service of the supplemental administrative record on plaintiff, plaintiff shall file with the Clerk of Court and serve on defendant a motion for summary judgment and a memorandum of law in support. Within 45 days from the date of service of plaintiff's motion, defendant shall file with the Clerk of Court and serve on plaintiff a motion for summary judgment and a memorandum of law in support.

 

(d)   Attorney's Fees.

 

(1)   Petitions for fees under the Equal Access to Justice Act shall be filed within 30 days of final judgment as defined by 28 U.S.C. § 2412.

 

(2)   Petitions for fees under the Social Security Act shall be filed within 30 days of notice to plaintiff's attorney of the Commissioner's award certificate.

 

(3)   Petitions for attorney's fees under Internal Revenue Code 26 U.S.C.§ 7430 shall be filed within 30 days of final judgment.

 

(4)   Petitions shall be itemized, shall be served on the defendant, and filed. Attorneys are directed to 20 C.F.R. § 404.1725 when preparing their petitions.

 

[Adopted effective November 1, 1996; amended January 3, 2000; amended May 17, 2004; amended October 18, 2007; amended September 24, 2009]

 

1996 Advisory Committee's Note to LR 7.2

 

LR 7.2(b)(3) was amended to properly refer to "Magistrate Judge" rather than  "Magistrate".

 

LR 7.2(c) was amended so that it applies only to cases remanded under sentence six of 42 U.S.C. § 405(g) where the Court has retained jurisdiction.  See Note accompanying LR 7.2(d).     

 

LR 7.2(d)(1):  Although this paragraph was not amended, practitioners should  be aware that the date which triggers the time for filing a motion or petition  for attorney's fees varies in Social Security cases remanded by the Court to  the Secretary depending on which sentence of 42 U.S.C. § 405(g) authorized the  remand.

 

In Melkonyan v. Sullivan, 501 U.S. 89 (1991), the Supreme Court discussed the time for filing a petition for attorney's fees under the Equal Access to Justice Act (EAJA) in Social Security appeals.  The Supreme Court recognized that under 42 U.S.C. § 405(g), a federal district court has the authority to remand a Social Security appeal under two separate and distinct circumstances.

 

The Court may, under the fourth sentence of § 405(g), "enter  . . . a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing."  If the Court remands the cause for a rehearing under this sentence, it is referred to as a "sentence four" remand.

 

The Court may, under the sixth sentence of § 405(g), "on motion for the Secretary made for good cause shown before he files his answer, remand the case to the Secretary for further action by the Secretary, and it may at any time order additional evidence to be taken by the Secretary, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding."  These remands are called "sentence six" remands.

 

When a claim is remanded by the Court under sentence four, the remand is a final decision and the judge's order shall state that a judgment should be entered.  The Court does not retain jurisdiction to review the proceedings on remand.  In Shalala v. Schaefer, 509 U.S. 292 (1993), the Supreme Court held that a claimant becomes a prevailing party by obtaining a sentence-four judgment. The time within which to petition for attorney's fees under the EAJA begins on the date of entry of the final judgment in conjunction with the remand order.  If the decision on remand is adverse to the claimant, the claimant must file and serve a new summons and complaint.

 

When a claim is remanded under sentence six, the Court properly retains jurisdiction until after the administrative proceedings on remand.  After the final decision of the Secretary upon remand, the Court must take some further action.  If the decision is favorable to the claimant, the Court should issue a final judgment in the claimant's favor.  The time within which to petition for attorney's fees under EAJA begins on the date of the entry of the final judgment.  If the final decision of the Secretary upon remand is adverse to the claimant, then the procedure set forth in LR 7.2(c)(1) and (2) should be followed.

 

2007 Advisory Committee’s Note to LR 7.2

The rule was amended by replacing all references to “Secretary of Health and Human Services: to “Commissioner of Social Security” as referenced in the statute upon which the local rule is based.