SIMPSON v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 41

ORDER ON MOTION FOR SUPPLEMENTAL ATTORNEY FEES AND MOTION FOR EXTENSION OF TIME NUNC PRO TUNC granting 35 Motion for Attorney Fees; granting 37 Motion to Extend Time By JUDGE JON D. LEVY. (akr)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
SUSAN S.,
Plaintiff,
v.
ANDREW SAUL, SOCIAL SECURITY
ADMINISTRATION COMMISSIONER,
Defendant.

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ORDER ON MOTION FOR SUPPLEMENTAL ATTORNEY FEES AND
MOTION FOR EXTENSION OF TIME NUNC PRO TUNC
Susan S. seeks an award of attorney fees pursuant to 42 U.S.C. § 406(b) (ECF
No. 35). The Commissioner objects to the request as untimely filed. In response,
Plaintiff seeks a retroactive extension of time to file her fee request, thereby making
the fee request “timely” as filed (ECF No. 37). Because the delay was brief and has
not affected the Court’s administration of the case, I grant Susan S.’s request for an
extension, and, having considered her fee request, award attorney fees.
I. ANALYSIS
Following a remand from this Court, Susan S. was found to be entitled to Social
Security disability benefits. She subsequently requested the Court’s approval, as
required by 42 U.S.C. § 406(b), of her attorney fees accrued under a contingent fee
agreement, which I granted.

See ECF No. 34.

Susan S.’s dependents were

subsequently awarded retroactive benefits, and Susan S. filed a motion for a
supplemental award of § 406(b) fees in the amount of $6,000. See ECF No. 35.

Although there is no statutory deadline for seeking attorney fees under 42
U.S.C. § 406(b) in a Social Security appeal, our local rules require that any such
application “shall be filed within 30 days of the date of the Commissioner of Social
Security’s notice of award that establishes both that there are past due benefits and
the amount thereof.” D. Me. Local R. 54.2. Counsel for Susan S. admits that he filed
the request three days beyond the 30-day window, having “mistakenly calendared”
the deadline for 30 days from the date he received the notice of award in the mail,
instead of 30 days from the notice of award itself. ECF No. 35 at 5. Because of this
error, Susan S. seeks a retroactive extension of the initial fee request deadline,
thereby making her fee request timely as filed. ECF No. 37. The Commissioner
opposes both the award and the extension of time.
The failure to timely file attorney fee petitions can result in a forfeiture of fees.
See Richardson v. Astrue, Civil No. 07-62-P-H, 2010 WL 2927269, at *4 (D. Me. July
20, 2010), adopted by No. 2:07-cv-62-DBH, ECF No. 28 (D. Me. Aug. 9, 2010); Reer v.
Astrue, Civil No. 08-21-P-S, 2010 WL 2927255, at *4 (D. Me. July 20, 2010), adopted
by Civil No. 08-21-P-S, 2010 WL 3168266 (D. Me. Aug. 10, 2010). However, given the
shortness of the delay in this case, and the absence of any claim of actual prejudice
by the Social Security Administration, refusing to consider the fee request because it
was submitted three days late would be a disproportionate and unjust penalty. See
Linda S. v. Saul, Civil No. 2:18-cv-00224-DBH, ECF No. 26 at 2 (D. Me. Sept. 17,
2019).

Thus, I consider the substance of Susan S.’s fee request and, finding it

reasonable, conclude that it should be granted.

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II. CONCLUSION
It is hereby ORDERED that Plaintiff’s Motion for Extension of Time (ECF No.
37) and Plaintiff’s Motion for Supplemental Attorney Fees (ECF No. 35) are
GRANTED.

Plaintiff is awarded supplemental attorney fees in the amount of

$6,000.00. The Social Security Administration shall pay these fees from Plaintiff’s
dependents’ retroactive Social Security benefits.

SO ORDERED.
Dated this 15th day of January, 2020.
/s/ JON D. LEVY
CHIEF U.S. DISTRICT JUDGE

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