Blair v. Astrue
SUMMARY ORDER - That Blair's 15 Motion for Attorney Fees and Costs is DENIED as untimely. Signed by Chief Judge Gary L. Sharpe on 5/8/12. (jel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MICHAEL J. ASTRUE,
Commissioner of Social Security,
On March 16, 2012, plaintiff Tina Blair filed a motion for attorneys’
fees and costs under 28 U.S.C. § 2412 in the amount of $7,892.39. (See
Dkt. No. 15.) Defendant Commissioner of Social Security counters that
Blair’s motion is untimely because it was filed more than thirty days after
final judgment in contravention of 28 U.S.C. § 2412(d)(1)(B). (See Dkt. No.
16 at 1-3.) Because the court reversed and remanded this action pursuant
to sentence four of 42 U.S.C. § 405(g), (see Dkt. No. 14), the judgment
became final when the Commissioner’s right to appeal lapsed sixty days
after entry. See 28 U.S.C. § 2412(d)(2)(G); Melkonyan v. Sullivan, 501
U.S. 89, 102 (1991) (holding that “[i]n sentence four cases, the filing period
begins after the final judgment (affirming, modifying, or reversing) is
entered by the court and the appeal period has run, so that the judgment is
no longer appealable”) (internal quotation marks and citation omitted)); see
also Fed. R. App. P. 4(a)(1)(B). Here, the Commissioner’s right to appeal
expired on January 30, 2012, and, consequently, Blair had until February
29, 2012 to file a request for fees and costs under 28 U.S.C. § 2412. Thus,
Blair’s motion, which was not filed until March 16, 2012, (see Dkt. No. 15),
ACCORDINGLY, it is hereby
ORDERED that Blair’s motion for attorneys’ fees and costs (Dkt. No.
15) is DENIED as untimely; and it is further
ORDERED that the Clerk provide a copy of this Summary Order to
IT IS SO ORDERED.
May 8, 2012
Albany, New York
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