STONE v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 26

ORDER ON MOTION FOR ATTORNEY FEES AND MOTION FOR EXTENTION OF TIME NUNC PRO TUNC granting 20 Motion for Attorney Fees; 24 Motion to Extend Time By JUDGE D. BROCK HORNBY. (clp)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
LINDA S.,
PLAINTIFF
V.

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

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CIVIL NO. 2:18-CV-224-DBH

ORDER ON MOTION FOR ATTORNEY FEES AND
MOTION FOR EXTENTION OF TIME NUNC PRO TUNC
This is a case in which the plaintiff’s lawyer prevailed against the
Commissioner in this court, and then on remand obtained full benefits at a new
administrative hearing. Her lawyer subsequently requested this court’s approval
(as 42 U.S.C. § 406(b) requires) of his fees accrued before this court pursuant to
a contingent fee agreement. Pl. Mot. for Att’y Fees (ECF No. 20). In response,
the Commissioner stated that he had no objection to the merits or amount of the
attorney fees claim, but objected on the basis that the request was untimely
(about two weeks late) under this court’s Local Rule 54.2. Def. Response (ECF
No. 21). (The statute itself has no deadline.) The plaintiff then filed a motion for
a nunc pro tunc extension of time so that the fee request would be timely under
the Local Rule.

Pl. Mot. to Extend Time Nunc Pro Tunc (ECF No. 24).

The

Commissioner’s lawyer has told the Clerk’s Office that the Commissioner takes
no position on the nunc pro tunc motion.

The nunc pro tunc motion is GRANTED. I am grateful to the Commissioner’s
lawyer for flagging the late filing. It is an important reminder to all lawyers who
represent social security disability or SSI plaintiffs. But as the Commissioner
says, he has no direct stake in the controversy since any fees will come not from
the Commissioner, but from the plaintiff herself as she agreed to in the
contingent fee agreement. In this case, the court’s administration of the case
and its docket also has not been affected by the plaintiff’s lawyer’s delay.
I reiterate the court’s warning in 2010 that failure to file attorney fee
petitions on time can result in forfeiture of the fees. Richardson v. Astrue, 2010
WL 2927269, at *4 (D. Me. July 20, 2010), R.&R. adopted, No. 2:07-cv-62-DBH
(D. Me. Aug. 9, 2010) (ECF No. 28); Reer v. Astrue, 2010 WL 2927255, at *4 (D.
Me. July 20, 2010), R.&R. adopted, 2010 WL 3168266 (D. Me. Aug. 10, 2010).
Here, however, given the absence of any prejudice and the shortness of the delay,
rejecting the fee request would be an unnecessary penalty.
Accordingly, the motion for extension of time is GRANTED. That being the
case, there is no opposition to the underlying motion for fees, which will be
granted once the parties present the conventional order to that effect, including
the provision that the plaintiff’s lawyer shall remit to the plaintiff the attorney
fee he previously received under the Equal Access to Justice Act.
SO ORDERED.
DATED THIS 17TH DAY OF SEPTEMBER, 2019
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

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