McCarley v. Social Security Administration
Filing
25
Opinion and Order. The Court ADHERES to its August 6, 2014, Opinion and Order denying Plaintiffs Motion for Authorization of Attorneys' Fees Pursuant to 42 U.S.C. § 406(b). Signed on 09/24/2014 by Judge Anna J. Brown. See attached 5 page Opinion and Order. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MICHAEL MCCARLEY,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner, Social Security
Administration,
Defendant.
STEVEN J. MUNSON
H. Peter Evans PC
610 S.W. Broadway
Suite 405
Portland, OR 97204
(503) 200-2718
Attorneys for Plaintiff
S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1003
1 - OPINION AND ORDER
3:11-CV-00441-BR
OPINION AND ORDER
DAVID MORADO
Regional Chief Counsel
FRANCO L. BECIA
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 901
Seattle, WA 98104
(206) 615-2114
Attorneys for Defendants
BROWN, Judge.
This matter comes before the Court on Plaintiff's Response
(#22) to Order to Show Cause.
For the following reasons, the
Court finds Plaintiff has not shown good cause for the Court to
set aside its August 6, 2014, Opinion and Order (#21) denying
Plaintiff's Motion for Authorization of Attorneys' Fees Pursuant
to 42 U.S.C. § 406(b).
Accordingly, the Court ADHERES to its
August 6, 2014, Opinion and Order.
BACKGROUND
On April 4, 2011, Plaintiff filed a Complaint in which he
sought judicial review of a final decision of the Commissioner of
the Social Security Administration denying Plaintiff's
application for Disability Insurance Benefits (DIB) under Title
II of the Social Security Act.
On June 26, 2012, this Court issued an Opinion and Order
reversing the Commissioner’s decision and remanding the matter
for the calculation and award of benefits pursuant to sentence
2 - OPINION AND ORDER
four of 42 U.S.C. § 405(g).
On September 2, 2012, the Social Security Administration
(SSA) sent Plaintiff a Notice of Award.
On May 29, 2014, Plaintiff filed a Motion for Authorization
of Attorney Fees pursuant to 42 U.S.C. § 406(b) in which he seeks
$7,164 in attorneys' fees for work performed in this matter
before this Court.
On August 6, 2014, the Court issued an Opinion and Order in
which it denied Plaintiff’s Motion as untimely and granted
Plaintiff leave to show good cause for his failure to timely
request attorneys’ fees.
DISCUSSION
Local Rule 4000-8 provides in pertinent part:
Plaintiff shall submit any application for
attorneys’ fees under 42 U.S.C. § 406(b) within 60
days after plaintiff’s federal court attorney has
received all of the Notices of Award which are
necessary to calculate the total amount of
retroactive benefits payable. An application
submitted beyond the 60-day period will be deemed
timely only upon a showing of good cause for the
delay.
As noted, the SSA issued a Notice of Award to Plaintiff on
September 2, 2012.
Plaintiff did not file his Motion seeking
attorneys’ fees pursuant to § 406(b) until May 29, 2014.
Accordingly, Plaintiff’s Motion seeking attorneys’ fees is
untimely pursuant to Rule 4000-8.
3 - OPINION AND ORDER
In his Response to Order to Show Cause Plaintiff asserts he
failed to file his Motion seeking attorneys’ fees because the
Social Security Administration (SSA) advised Plaintiff’s counsel
that he needed to register with the SSA
in order to be eligible for direct payment of the
amount [of attorneys’ fees] that was being
withheld in this case. . . . After a review of
the undersigned’s cases our office determined
that, although we had been working with [SSA] to
provide the necessary paperwork to receive
payment, the undersigned had failed to file a
petition with this court for the attorney fees in
question.
Response at 2.
Plaintiff states in his Response that the SSA issued a
Notice of Award to Plaintiff in September 2012.
Accordingly,
Local Rule 4000-8 required Plaintiff’s counsel to seek § 406(b)
fees no later than November 2012.
Counsel’s inability to
finalize direct payment of the fee award with the SSA in no way
prohibited counsel from seeking fees from this Court.
As
Defendant notes, counsel would have ultimately received a check
for attorneys’ fees from the SSA if he had timely requested
attorneys’ fees even though he was unable to finalize direct
payment of attorneys’ fees from the SSA.
Accordingly, on this record the Court concludes Plaintiff
has not established good cause for failing to file a timely
Motion with this Court.
4 - OPINION AND ORDER
CONCLUSION
For these reasons, the Court ADHERES to its August 6, 2014,
Opinion and Order denying Plaintiff’s Motion for Authorization of
Attorneys' Fees Pursuant to 42 U.S.C. § 406(b).
IT IS SO ORDERED.
DATED this 24th day of September, 2014.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
5 - OPINION AND ORDER
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