(a) Applicability. This Rule governs an action under 42 U.S.C. § 405(g) for review on the
record of a final decision of the Commissioner of Social Security that presents only an
individual claim. This Rule shall apply to actions filed on or after December 1, 2022
(b) Initial Process. The filing and service of the complaint is governed by Rules 2 and 3 of
the Supplemental Rules for Social Security actions brought under 42 U.S.C. 405(g).
(c) Response to Complaint. The defendant’s response to the complaint is governed by Rule
4 of the Supplemental Rules for Social Security Actions under 42 U.S.C. § 405(g).
(d) Merits Briefing. The filing of the parties’ briefing is governed by Rules 5, 6, 7, and 8 of
the Supplemental Rules for Social Security Actions under 42 U.S.C. § 405(g).
(1) Plaintiff's Brief. The brief shall contain the following items, under the appropriate
headings and in the order here indicated:
(A) A statement of the issues presented for review, set forth in separately
numbered paragraphs.
(B) A statement of the case. This statement should briefly summarize the
course of the proceeding and its disposition at the administrative level and
should set forth a general statement of the facts. The statement of the facts
shall include the plaintiff's age, education, work experience, if relevant, and
a summary of other evidence of record. Each statement of fact shall be
supported by reference to the page in the record where the evidence may
be found.
(C) An argument. The argument shall be preceded by a summary. The
argument shall be divided into sections separately addressing each issue
and must set forth plaintiff's contentions with respect to the issues presented
and reasons therefor. Each contention must be supported by specific
reference to the portion of the record relied upon and by citations to
statutes, regulations, and cases supporting the plaintiff's position. Cases
from other districts and circuits should be cited only in conjunction with
relevant cases from this jurisdiction, or if authority on point from this
jurisdiction does not exist.
(D) A short conclusion stating the relief sought. The issues before the Court
are limited to the issues properly raised in the briefs.
(2) Defendant's Brief. The brief shall conform to the requirements set forth above for
the plaintiff's brief, except that a statement of the issues and a statement of the case
need not be included unless the defendant is dissatisfied with the plaintiff's
recitation of the same.
(3) Opening Brief and Reply Brief Page Limits. Opening briefs under this rule shall
not exceed thirty (30) pages in length. Reply briefs shall not exceed ten (10) pages
in length.
(4) Motions for Enlargement of Time. Requests for enlargements of time shall be
filed by letter motion and shall state whether consent of opposing counsel has been
obtained.
(5) Modification of the Page Limitations. Motions for modification of the page
limitations shall be filed by letter motion.
(e) Oral Argument. There will be no oral argument in cases that fall within the scope of this
rule unless otherwise ordered by the Court. If oral argument is scheduled, unless otherwise
ordered by the Court, oral argument shall be held telephonically.
(f) Petitions under the Equal Access to Justice Act ("EAJA"). Prior to the filing of a petition
under 28 U.S.C. § 2412 in an action under this rule, the plaintiff is encouraged to contact
the defendant to attempt to reach an agreement by stipulation. Unless stipulated, any
petition for fees and expenses under 28 U.S.C. § 2412 in an action under this rule shall not
be filed before the judgment at issue is final and not appealable. The judgment is final and
not appealable sixty (60) days after entry of judgment. The plaintiff shall file the EAJA
petition within thirty (30) days of final judgment. The petition shall contain an explanation
of the plaintiff’s efforts to reach an agreement by stipulation. The defendant shall have
thirty (30) days to respond to a petition under 28 U.S.C. § 2412 in an action under this
rule.
(g) Petitions for Attorney's Fees under 42 U.S.C. § 406(b).
(1) Timing of Petition. The plaintiff's counsel may file a petition for attorney's fees
under 42 U.S.C. § 406(b) in accordance with the time frame set forth in Fed. R.
Civ. P. 54(d)(2)(B) and Sinkler v. Berryhill, 932 F.3d 83 (2d Cir. 2019). Unless
otherwise established, the Court will assume that counsel representing the plaintiff
in federal court received notice of the benefits calculation at the same time as the
plaintiff. Should information come to the attention of either party after the entry
of an order approving fees under 42 U.S.C. § 406(b) suggesting that the information
used to calculate the appropriate fee was incorrect or incomplete, a motion may be
brought under Rule 60(b)(1), (2) or (6) of the Federal Rules of Civil Procedure
seeking a correction of the fee approved.
(2) Service of Petition. The plaintiff's counsel must serve a petition for fees on the
defendant and must attest that counsel has informed the plaintiff of the request.
(3) Contents of Petition. The petition for fees must include:
(A) A copy of the final notice of award showing the amount of retroactive
benefits payable to the plaintiff (and to any auxiliaries, if applicable),
including the amount withheld for attorney's fees, and, if the date that
counsel received the notice is different from the date provided on the notice,
evidence of the date counsel received the notice;
(B) An itemization of the time expended by counsel representing the plaintiff
in federal court, including a statement as to the effective hourly rate (as
calculated by dividing the total amount requested by the number of hours
expended);
(C) A copy of any fee agreement between plaintiff and counsel;
(D) Statements as to whether counsel:
(i) was awarded attorney's fees under the EAJA in connection with the
case and, if so, the amount of such fees; and
(ii) will return the lesser of the EAJA and 42 U.S.C. § 406(b) awards to
the plaintiff upon receipt of the 42 U.S.C. § 406(b) fee award; and
(E) Any other information the Court would reasonably need to assess the
petition.
(4) Response. Within thirty (30) days of service of the petition, the defendant shall file
a response or notice of no response to the petition.
(h) All attorney’s fee and remand stipulations should be filed electronically via CM/ECF
without judicial signature blocks.
