McCarley v. Social Security Administration, No. 3:2011cv00441 - Document 21 (D. Or. 2014)
Court Description: Opinion and Order: The Court DENIES Motion for Authorization of Attorneys' Fees 17 Pursuant to 42 U.S.C. § 406(b). The Court, however, GRANTS Plaintiff leave to show good cause for hi failure to request attorneys fees timely under § 406(b) and to renew his Motion no later than August 26, 2014. Signed on 08/06/2014 by Judge Anna J. Brown. See attached 4 page Opinion and Order for full text. (bb)
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McCarley v. Social Security Administration Doc. 21 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON MICHAEL MCCARLEY, Plaintiff, 3:11-CV-00441-BR OPINION AND ORDER v. CAROLYN W. COLVIN, Commissioner, Social Security Administration,1 Defendant. STEVEN J. MUNSON H. Peter Evans PC 610 S.W. Broadway Suite 405 Portland, OR 97204 (503) 200-2718 Attorneys for Plaintiff 1 Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin should be substituted for Michael J. Astrue as Defendant in this case. No further action need be taken to continue this case by reason of the last sentence of Section 205(g) of the Social Security Act, 42 U.S.C. § 405. 1 - OPINION AND ORDER Dockets.Justia.com 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 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 Motion for Authorization of Attorneys' Fees (#17) Pursuant to 42 U.S.C. § 406(b). For the following reasons, the Court DENIES Plaintiff's Motion with leave to renew upon a showing of good cause for the failure to file the Motion timely. 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 2 - OPINION AND ORDER reversing the Commissioner’s decision and remanding the matter for the calculation and award of benefits pursuant to sentence 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. 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, it appears on this record that Plaintiff’s Motion seeking attorneys’ fees is untimely pursuant to Rule 4000-8. Court, therefore, denies Plaintiff’s Motion. The Nevertheless, the Court grants Plaintiff leave to show good cause for his failure 3 - OPINION AND ORDER to request fees under § 406(b) for nearly two years after the SSA sent Plaintiff the Notice of Award. CONCLUSION For these reasons, the Court DENIES Motion for Authorization of Attorneys' Fees (#17) Pursuant to 42 U.S.C. § 406(b). The Court, however, GRANTS Plaintiff leave to show good cause for his failure to request attorneys’ fees timely under § 406(b) and to renew his Motion no later than August 26, 2014. IT IS SO ORDERED. DATED this 6th day of August, 2014. /s/ Anna J. Brown ANNA J. BROWN United States District Judge 4 - OPINION AND ORDER
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