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Pelino v. Astrue

August 25, 2010

AMY M. PELINO, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Michael A. Telesca United States District Judge

ORDER

INTRODUCTION

Plaintiff, Amy M. Pelino ("Plaintiff") initially brought this action against the Commissioner of Social Security ("Commissioner") which denied her application for disability insurance benefits. In a Decision and Order dated January 22, 2010, this Court reversed the decision of the Administrative Law Judge ("ALJ") and remanded the case to the Commissioner for the calculation and payment of benefits. See January 22, 2010 Decision and Order [Docket No. 24].

Plaintiff's attorney, Josephine A. Greco, Esq. ("Greco") now seeks an award of $10,440.00 in attorney's fees and $350.00 in disbursements for services rendered to plaintiff in her application for disability benefits pursuant to the Equal Access to Justice Act ("EAJA"), codified at 28 U.S.C. §2412(d)(1)(A). The Commissioner opposes the EAJA application, and reserves the right to oppose any further application for fees made pursuant the SSA, should one be submitted.

For the reasons set forth below, the Court denies Greco's application under the EAJA for attorney's fees on the basis that it is untimely, and further denies the alternative application for fees pursuant to 42 U.S.C. § 406(b) on the basis that her application is not properly supported.

DISCUSSION

A. Equal Access to Justice Act

The Equal Access to Justice Act provides in relevant part that:

A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive an award under this subsection . . . .

28 U.S.C. §2412(d)(1)(B). An EAJA application must be filed within 30 days after the time for appeal has ended. See 28 U.S.C. §2412(d)(2)(G); Shalala v. Schaefer, 509 U.S. 292, 302 (1993). "[T]he time for appeal does not end until 60 days after 'entry of judgment . . .'" Shalala at 302 (quoting Federal Rules of Appellate Procedure 4(a)(1)(7)).

In the instant case, the Court's Order and Judgment was entered on January 27, 2010. The time for appeal from the Court's Judgment expired on March 28, 2010. Plaintiff's attorney Greco was required to file her EAJA application for fees and costs, no later than April 28, 2010. However, she did not file her application for attorney's fees and disbursements until May 5, 2010. Accordingly, the instant application for fees pursuant to EAJA is clearly untimely and is denied.

Moreover, nothing in the record will permit the Court to extend or apply an equitable toll to the instant application. See Torres v. Bowen, 417 F.3d 276 (2d Cir. 2005) (Doctrine of equitable tolling permits courts to deem filings timely where the litigant can show that she has been pursuing her rights diligently and that some extraordinary circumstance stood in her way). Greco has not submitted any explanation for the tardiness of her application nor has she provided the Court with any basis for applying equitable tolling. Accordingly, Greco's EAJA application for fees is denied with prejudice.

B. Application for Fees Pursuant to 42 U.S.C. § 406(b)

Alternatively, Greco requests that the Court determine that she is entitled to attorney's fees and disbursements pursuant to the SSA, 42 U.S.C. ยง406(b). The basis for this request is that Greco and Plaintiff entered into a contingency fee agreement which provides that Greco would receive 25 percent of any recovery of past-due benefits resulting from a favorable judgment against the Commissioner. This request for ...


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