WELLER v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 30

ORDER ON MOTION FOR ATTORNEY FEES re 27 Motion for Attorney Fees By JUDGE D. BROCK HORNBY. (clp)

Case 2:18-cv-00069-DBH Document 30 Filed 02/11/21 Page 1 of 3

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UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
RYAN WELLER,
PLAINTIFF
V.

ANDREW M. SAUL, COMMISSIONER,
SOCIAL SECURITY ADMINISTRATION,
DEFENDANT

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CIVIL NO. 2:18-CV-69-DBH

ORDER ON MOTION FOR ATTORNEY FEES
Local Rule 54.2 requires that an application for attorney fees in a Social
Security disability case “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.” This case explores once
again the consequence of failing to comply with that deadline. For earlier cases
see Weimer v. Commissioner, No. 2:13-cv-458-DBH, 2016 WL 1069948 (D. Me.
Mar. 18, 2016); Cordice v. Astrue, No. 1:09-cv-254-JAW, 2012 WL 243089 (D.
Me. Jan. 24, 2012); Reer v. Astrue, 2:08-cv-21, 2010 WL 2927255 (D. Me. July
20, 2010), R. & R. adopted, 2:08-cv-21-GZS, 2010 WL 3168266 (D. Me. Aug. 10,
2010); Richardson v. Astrue, No. 2:07-cv-62, 2010 WL 2927269 (D. Me. July 20,
2010), R. & R. adopted, No. 2:07-cv-62-DBH (ECF No. 28) (D. Me. Aug. 9, 2010).
In this case, the Social Security Administration notified the plaintiff and
his lawyer by letter dated September 21, 2020, that his “past-due Social Security
benefits are $23,605.00,” and that it is withholding “$5,901.25 . . . to pay the

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representative.” Status Notice at 6 (ECF No. 24-1). The plaintiff’s lawyer did not
file his application for fees until December 24, 2020, (ECF No. 24), well over 30
days later. He admits it was late. Id. at 1 n.1.
But on December 26, 2020, the Social Security Administration sua sponte
issued a corrected Status Notice that “replaces our previous letter dated
September 21, 2020,” and states that the past-due amount is actually
$50,843.00. Notice of Award at 4 (ECF No. 27-1). The plaintiff’s lawyer then
withdrew his December 24 request for fees (ECF No. 26) and filed a “Corrected
Motion” on January 19, 2021 (ECF No. 27).

Relying on a contingent fee

agreement that would entitle him to $12,710.75, he now seeks $10,000 in fees
(less than 25% of the past-due benefits), and agrees to remit to the plaintiff the
amount of an earlier EAJA award.1 The Social Security Administration argues
that the lawyer forfeited any right to the $5,901.25 that he should have requested
by October 21, 2020, and asks that it be subtracted from the $12,710.75 that
the contingent fee agreement would support. It says the plaintiff’s lawyer should
receive a net award of $6,809.50. It does not challenge the fees in any other way.
(ECF No. 28).
The Social Security Administration has no economic interest in the
outcome of this dispute over fees, for the fees come from the plaintiff, not the
Administration. Nevertheless, I appreciate its advocacy and concern because
otherwise there is no one arguing on behalf of the plaintiff when the lawyer is

In 2018, the plaintiff petitioned for and was awarded Equal Access to Justice Act fees. (ECF
Nos. 21, 22). The EAJA fees are not part of the present controversy.
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seeking fees from the plaintiff.

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See Weimer, 2016 WL 1069948, at *1 n.1;

Richardson, 2010 WL 2927269, at *2.
I have not found any District of Maine decision that explains the reason
for the Social Security fee application deadline in Local Rule 54.2, and the parties
have cited none. It seems obvious, however, that the purpose is that of docketclearing and repose, so that these cases come to a prompt and definable end.
In this case, if the Commissioner had not effectively re-opened the matter
by providing a new benefits calculation, the plaintiff’s lawyer would have little
basis to seek any fees after October 21, 2020, especially given the Court’s prior
warnings to the bar (at times to this very lawyer) about the deadline. Marion M.
v. Soc. Sec. Admin. Comm’r, 1:18-cv-490-LEW, 2019 U.S. Dist. LEXIS 190639
(D. Me. Nov. 4, 2019); Reer, 2010 WL 2927255; Richardson, 2010 WL 2927269.
But here the Commissioner did reopen the matter, and so nothing is gained by
forfeiting part of the lawyer’s fee. Indeed (and ironically), if the lawyer had timely
filed his request for fees in the first place, this court would have exactly the
piecemeal litigation over fees that Weimer said the Rule should avoid.
I therefore OVERRULE the Commissioner’s objection and AWARD the
requested fee of $10,000. The parties shall prepare and present to the Clerk the
text of such an award, including the lawyer’s obligation to repay the plaintiff the
earlier EAJA award.
SO ORDERED.
DATED THIS 11TH DAY OF FEBRUARY, 2021
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE
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