Quinnell, Penny v. Colvin, Carolyn
Filing
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OPINION and ORDER denying 29 Motion for Attorney Fees. Signed by District Judge Barbara B. Crabb on 3/29/2018. (kwf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - PENNY JO QUINNELL,
OPINION and ORDER
Plaintiff,
14-cv-601-bbc
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiff Penny Jo Quinnell filed this suit in 2014, seeking review of a decision
denying her claim for disability insurance benefits under the Social Security Act. I granted
plaintiff’s motion for summary judgment, reversing the decision of the Commissioner and
remanding the case for further proceedings. Dkt. #19.
Pursuant to the Equal Access to
Justice Act, plaintiff’s attorney, Dana Duncan, was granted $8,250.00 in attorney fees. On
remand, an administrative law judge concluded that plaintiff was disabled and entitled to
past-due benefits of $57,620.00. Plaintiff’s notice of award was issued on July 12, 2016.
On October 31, 2016, the Commissioner wrote Duncan, inquiring whether counsel
would be seeking a fee. Dkt. #29-2. On March 13, 2017, the Commissioner sent Duncan
a letter advising him that the withheld past-due benefits would be released unless he filed a
fee petition within 20 days of the date of the letter. Dkt. #31-2. Duncan did not submit
a fee petition, however, and on June 2, 2017, the Commissioner released the withheld pastdue benefits to plaintiff. Dkt. #31-3.
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Then, on June 15, 2017, Duncan filed the present motion for an award of attorney
fees under 42 U.S.C. § 406(b). Dkt. #29. He seeks $14,405.00 in fees, which is 25 percent
of plaintiff’s past-due benefits award of $57,620.00. Because he has received $8,250.00
already, Duncan seeks an order awarding him $6,155.00 to be paid from fees withheld from
plaintiff’s past-due benefits. In response, the Commissioner argues that Duncan’s request
is untimely, as the previously withheld fees have been released to plaintiff. Duncan did not
file a reply brief addressing the Commissioner’s arguments or the timeliness issues, and his
time to do so has long passed.
Section 406(b) does not contain a time limitation for filing a motion for attorney
fees. However, the Court of Appeals for the Seventh Circuit Court has held that “a petition
for fees under § 406(b)(1) must be brought within a reasonable time.” Smith v. Bowen, 815
F.2d 1152, 1156 (7th Cir. 1987). The court did not explain what constitutes a “reasonable
time,” but other courts have concluded that a fee request may be untimely if filed long after
the Commissioner issues a benefits award and if the claimant is prejudiced by the delay. See,
e.g., Logan v. Berryhill, No. 10 C 5051, 2017 WL 1344521, at *4 (N.D. Ill. Apr. 12, 2017)
(fee request filed two years after benefits award was untimely); Hilbert v. Colvin, No.
413CV00089TABTWP, 2016 WL 6071762, at *1 (S.D. Ind. Oct. 17, 2016) (fee request
filed one year after benefits award was untimely); Garland v. Astrue, 492 F. Supp. 2d 216,
221 (E.D.N.Y. 2007) (fee request filed nine months after benefits award was untimely).
In the instant case, I conclude that counsel’s request is untimely. Duncan has
provided no explanation for his delay in submitting his fee request and I can discern none.
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The fee request is not complex. Duncan’s motion is primarily boilerplate in nature, with
large excerpts of the administrative law judge’s decision cut and pasted into the request. The
number of hours expended in the federal court litigation was calculated already as part of
Duncan’s earlier Equal Access to Justice Act application. Duncan does not indicate that he
did not receive notice of the award in a timely manner or that he did not receive the notices
from the Commissioner regarding the release of the withheld past-due benefits.
Further, counsel’s delay in submitting a fee request has prejudiced plaintiff. Because
the Commission withheld 25 percent of plaintiff’s benefits pending the disposition of any
attorney’s fee application, the delay by Duncan in seeking an award of fees delayed plaintiff’s
receipt of the full award of past-due benefits to which she was entitled. Specifically, plaintiff
was denied access to the $8,250.00 that had been awarded previously to Duncan as an
Equal Access to Justice Act award. Moreover, now that the entire past-due benefits have
been released to her, any award to Duncan would have to be paid by plaintiff, not the
Commissioner. Duncan gives no indication that plaintiff would have ability to pay him the
fee at this point and, in light of his unexplained delay, I will not require plaintiff to do so.
For all of these reasons, I am denying Dana Duncan’s fee request under 42 U.S.C. §
406(b) fee request in its entirety.
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ORDER
IT IS ORDERED that Dana Duncan’s motion for attorney fees, dkt. #29, is
DENIED.
Entered this 29th day of March, 2018.
BY THE COURT:
/s/
____________________
BARBARA B. CRABB
District Judge
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