Perozzi v. Colvin
- Gabriel Gorenstein
- 1:17-cv-00825
- U.S. District Court · Southern District of New York
- 2
In Perozzi v. Colvin, Judge Gorenstein ruled that the 14-day fee-filing period begins after counsel receives the benefits notice; tolling must be requested with the fee application.
The plaintiff’s attorney, who expected to file a request for fees under 42 U.S.C. § 406(b), and the plaintiff whose benefits award would provide the basis for that request.
What happened
In Perozzi v. Colvin, the plaintiff’s attorney told the court that the plaintiff had received a fully favorable Social Security decision but that no notice of the benefits award had been issued yet. The attorney expected to seek an additional attorney-fee award under federal law after learning how much had been withheld for fees.
The attorney asked the court to extend the 14-day deadline for requesting that fee until counsel received the benefits notice. The request relied on a Second Circuit decision stating that the deadline begins when counsel receives notice of the benefits award and that courts may extend the deadline when circumstances justify it.
Judge Gorenstein stated that the court would follow that rule. He said that any request for an extension based on fairness should be made when the attorney files the fee application. The endorsement did not expressly grant or deny the request for an extension.
The detailed version
- Perozzi v. Colvin · No. 1:17-cv-00825
- Gabriel Gorenstein
- Apr. 16, 2021
Background
The plaintiff’s attorney reported that the plaintiff had received a fully favorable administrative decision dated March 4, 2021, in a Social Security disability matter that had previously been sent back to the agency. The attorney said that no notice of award had yet been issued. Based on the administrative record, counsel estimated that the plaintiff would receive at least $144,000 in retroactive benefits and that approximately $36,000 might be withheld for possible attorney fees.
The attorney stated that he had spent nearly 30 hours on the matter and had already received a $5,600 fee under the Equal Access to Justice Act. He anticipated seeking an additional fee under 42 U.S.C. § 406(b), with the amount depending on the benefits actually withheld and the fee requested for work before the agency.
Request and governing rule
The attorney asked the court to equitably toll—that is, extend based on fairness—the 14-day period for filing a § 406(b) fee request until he received the notice of award. He explained that the notice would be sent to the plaintiff and the attorney handling the administrative proceedings, leaving him dependent on that attorney to provide a copy and confirm the administrative fee request.
The attorney relied on Sinkler v. Berryhill, in which the Second Circuit held that the 14-day period under Federal Rule of Civil Procedure 54 begins when counsel receives notice of the benefits award. That decision also stated that district courts may enlarge the filing period when circumstances warrant.
Court’s ruling
Judge Gorenstein stated that the court would apply the rule from Sinkler: the 14-day period begins when counsel receives notice of the benefits award. He further stated that, to the extent counsel sought equitable tolling, the request for that tolling should be made when the fee application is filed.
The endorsement did not expressly state that the request for tolling was granted or denied. The ruling addressed the timing and procedure for a possible attorney-fee application, not the amount of any fee award.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.