Walker v. Barnhart (MAG+)

Filing 27

RECOMMENDATION of the Magistrate Judge that the 23 MOTION for Attorney Fees be denied. Objections to R&R due by 5/11/2009. Signed by Honorable Wallace Capel, Jr on 4/28/09. (sl, )

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IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION TERRIE ANN WALKER, P la in tif f , v. M IC H A E L J. ASTRUE,1 C o m m is s io n e r of Social Security, D e f e n d a n t. ) ) ) ) ) ) ) ) ) ) C IV IL ACTION NO. 1:06cv120-WKW R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE O n April 14, 2009, Plaintiff filed a Motion For Attorney's Fees (Doc. #23), pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. 2412, and supporting m e m o r a n d u m (Doc. #24). The District Judge referred the Motion to the undersigned M a g is tra te Judge for a report and recommendation. (Doc. #25). On April 16, 2009, the u n d e rsig n e d entered an Order (Doc. #26) directing Plaintiff to show cause, on or before April 2 3 , 2009, why her Motion should not be deemed untimely by the Court and, hence, denied. P la in tif f did not respond to the show cause order. Accordingly, for the reasons stated below, th e Magistrate Judge RECOMMENDS that Plaintiff's Motion for Attorney's Fees be D E N IE D . The Court entered its order reversing and remanding 2 the Commissioner's decision At the time this matter was filed in 2006, Jo Anne B. Barnhart was Commissioner of Social Security. T h e Court's remand was pursuant to sentence four of 42 U.S.C. 405(g), w h ic h Plaintiff acknowledges in her memorandum in support of her Motion for 2 1 d e n yin g benefits to Plaintiff on February 7, 2007. (Doc. #21). Judgment was entered that sam e day. (Doc. #22). There are "three statutory conditions [which] must be satisfied before a district court can award EAJA attorney's fees," one of which is that the "claimant must file a n application for fees `within thirty days of final judgment in the action.'" Myers v. Sullivan, 9 1 6 F.2d 659, 666 (11th Cir. 1990) (internal citations omitted).3 See also 28 U.S.C. 2412 (d )(1 )(B ). Furthermore, a "judgment of remand on sentence-four grounds is a final judgment u n d e r the EAJA, and it usually starts the EAJA attorney's fees application filing period ru n n in g ." Jackson v. Chater, 99 F.3d 1086, 1090 (11th Cir. 1996). Because such a judgment o f remand remains appealable for up to sixty days after judgment is entered, "an EAJA a p p lic a n t seeking fees incurred after the wrongful denial of disability benefits has ninety days (s ix ty plus thirty) to file his application, if the Commissioner does not appeal the district c o u rt's judgment." Id. at n.4. Attorney's Fees. See Memorandum (Doc. #24) at third unnumbered page. In Myers, the Eleventh Circuit opined that the EAJA's timeliness r e q u ir e m e n t is "jurisdictional in nature; thus, a claimant's failure to file an EAJA a p p lic a tio n within this time constraint precludes a district court from considering the m e rits of the fee application." 916 F.2d at 666 (internal citations omitted). However, the S u p re m e Court has since clarified that "whether a [claimant] is time barred by 2 4 1 2 (d )(1 )(B ) from gaining the fee award authorized by 2412(d)(1)(A) . . . does not c o n c ern the federal courts' `subject-matter jurisdiction.' Rather, it concerns a mode of relief (costs including legal fees) ancillary to the judgment of a court that has plenary `ju ris d ic tio n of [the civil] action' in which the application is made." Scarborough v. P r in c ip i, 541 U.S. 401, 413 (2004). In any event, even if improperly construed as ju risd ictio n a l predicates, the statutory prerequisites set forth in the EAJA, as discussed in M y e r s, remain intact and are applicable to any motion for attorney's fees under the EAJA. 2 3 In this instance, judgment was entered on February 7, 2007, and no appeal was taken b y the Commissioner. Accordingly, the time for filing the instant motion appears to have e x p ire d approximately ninety days after February 7, 2007. Thus, Plaintiff's Motion for A tto rn e y's Fees, filed more than two years after judgment, is untimely.4 Likewise, in failing to respond to the Court's show cause Order, Plaintiff has declined to present any argument to the Court about why the thirty-day time limitation should be subject to equitable tolling in this instance. Accordingly, it is the RECOMMENDATION of the Magistrate Judge that P lain tiff 's Motion for Attorney's Fees be DENIED. It is further ORDERED that the Plaintiff file any objections to the this Recommendation on or b e f o re May 11, 2009. Any objections filed must specifically identify the findings in the M a g is tra te Judge's Recommendation to which the party is objecting. Frivolous, conclusive o r general objections will not be considered by the District Court. The parties are advised th a t this Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain The outcome of the administrative proceedings on remand from this Court is irrelevant for EAJA attorney's fees purposes. A claimant who has obtained a sentence-four remand for further administrative proceedings is a "prevailing party" within the meaning of the EAJA, Shalala v. Schaefer, 509 U.S. 292, 301 (1993), and is therefore entitled to immediately pursue attorney's fees under the EAJA. 3 4 error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982); see Stein v . Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982); see also Bonner v. City of P r ic h a r d , 661 F.2d 1206 (11th Cir. 1981, en banc) (adopting as binding precedent all of the d e c is io n s of the former Fifth Circuit handed down prior to the close of business on S ep tem b er 30, 1981). D o n e this 28th day of April, 2009. /s/ Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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