United States District Court, D. Maryland
Stephanie A. Gallagher United States Magistrate Judge
B. Carrozza, Esq., has filed a motion seeking payment of $6,
518.75 in attorney's fees in conjunction with his
representation of Jamette Beverly before this Court. [ECF No.
22]. The Commissioner opposes Mr. Carrozza's motion,
alleging that it is untimely. [ECF No. 23]. I have considered
those filings. No hearing is necessary. See Loc. R.
105.6 (D. Md. 2016). For the reasons set forth below, Mr.
Carrozza's motion for payment of attorney's fees is
Carrozza does not specify in his motion whether he seeks
attorney's fees pursuant to the Equal Access to Justice
Act (“EAJA”) or § 406(b) of the Social
Security Act (“SSA”). [ECF No. 22]. Regardless,
Mr. Carrozza's motion is untimely under either provision.
Beginning with the EAJA, prevailing parties in civil actions
brought by or against the United States are entitled to an
award of attorney's fees and expenses, unless the court
finds the position of the government was substantially
justified or that special circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A); Crawford v.
Sullivan, 935 F.2d 655, 656 (4th Cir. 1991). To receive
attorney's fees, the prevailing party must submit a fee
application and an itemized statement of fees to the court
within thirty days of final judgment. Id. The
Supreme Court has noted that:
An EAJA application may be filed until 30 days after a
judgment becomes “not appealable”-i.e., 30 days
after the time for appeal has ended. Rule 4(a) of the Federal
Rules of Appellate Procedure establishes that, in a civil
case to which a federal officer is a party, the time for
appeal does not end until 60 days after “entry of
Shalala v. Schaefer, 509 U.S. 292, 302 (1993);
see also Melkonyan v. Sullivan, 501 U.S. 89, 96
(1991) (“[A] ‘final judgment' for purposes of
28 U.S.C. § 2412(d)(1)(B) means a judgment rendered by a
court that terminates the civil action for which EAJA fees
may be received. The 30-day EAJA clock begins to run after
the time to appeal that ‘final judgment' has
expired.”). In this case, judgment was entered on April
26, 2016, and the time for appeal ran until June 24, 2016.
Mr. Carrozza submitted his motion for attorney's fees on
June 23, 2017, more than one year after this case was
remanded to the Agency for further proceedings. Mr.
Carrozza's motion falls well outside the time period
announced by the Supreme Court, and is therefore untimely
under the EAJA.
to the SSA, where benefits are awarded after appeal, 42
U.S.C. § 406(b) authorizes a reasonable fee for
successful representation before this Court, not to exceed
twenty-five percent of a claimant's total past-due
benefits. 42 U.S.C. § 406(b). The Social Security Act
does not impose a time limit for fee petitions under §
406(b). Rule 54(d)(2)(B) of the Federal Rules for Civil
Procedures states, “Unless a statute or court order
provides otherwise, the motion [for attorney's fees] must
be filed no later than 14 days after entry of
judgment.” Fed.R.Civ.P. 54(d)(2)(B)(i). The Local Rules
for the United States District Court for the District of
Maryland specify that a motion for attorney's fees in
Social Security cases must be filed within thirty days of
“the entry of judgment.” D. Md. R. 109.2(c) (July
1, 2016). Furthermore, “[n]on-compliance with these
time limits shall be deemed to be a waiver of any claim for
attorneys' fees.” D. Md. R. 109.2(a).
term “entry of judgment” has not been defined in
this context. Other courts have run the time for filing a
Social Security fee petition from the date of counsel's
receipt of the SSA's Notice of Award, not from the date
of the remand order, which likely occurred years earlier.
See Walker v. Astrue, 593 F.3d 274, 280 (3d Cir.
2010) (holding that it is appropriate to toll the filing
deadline for a petition for attorney's fees under 406(b)
until the date the attorney is notified of the Notice of
Award); Jones v. Astrue, 1:09CV61, 2012 WL 2568083,
at *1 (W.D. N.C. June 29, 2012) (finding a petition filed
eight months after the court's remand order timely based
on an earlier extension of the time in which plaintiff's
counsel could seek attorney's fees under § 406(b) to
a period thirty days after the final Notice of Award);
see also In Re: Procedures for Applying for
Attorney's Fees Under 42 U.S.C. §§ 406(b) and
1383(d)(2), Standing Order No. 08-03 (N.D.Ga. 2008),
(requiring fee petitions to be filed no later than thirty
days past the date of the Social Security letter containing
the past-due benefit calculation). However, even if this
Court were to use the latest date in this case as the
“entry of judgment, ” which is the April 30, 2017
Notice of Award, (ECF No. 23-1), Mr. Carrozza's petition
is untimely. Mr. Carrozza does not contend that he received
that notice significantly later than April 30, 2017. Mr.
Carrozza's June 23, 2017 petition was submitted
fifty-five days after the date of the Notice of Award,
thereby clearly violating the thirty-day deadline imposed by
Local Rule 109.2(c). In accordance with Local Rule 109.2(a),
then, Mr. Carrozza's non-compliance is deemed to be a
waiver of any claim for attorney's fees for his work
before the district court.
reasons set forth herein, Mr. Carrozza's motion for
attorney's fees (ECF No. 22) is DENIED. Despite the
informal nature of this letter, it should ...