Irving v. Astrue

Filing 36

ORDER, denying Appellant's 31 Motion for Attorney Fees without prejudice to re-filing at the appropriate time; within 5 days of the date of this Order, the Commissioner will file a proposed form of final judgment for the Court to enter. Signed by Judge James A Teilborg on 8/31/11.(REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Appellant,
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vs.
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Michael J. Astrue, Commissioner of Social)
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Security,
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Appellee.
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Jenifer May Irving,

No. CV09-1930-PHX-JAT
ORDER

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Currently pending before the Court is Appellant Jenifer May Irving’s Motion for
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Judgment and Motion for Award of Attorney Fees Pursuant to the Equal Access to Justice
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Act (Doc. 31). The Court now rules on the Motion.
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PROCEDURAL BACKGROUND
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On January 12, 2010, in lieu of responding to the merits of Appellant’s Opening Brief,
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the Commissioner moved to remand to the Social Security Administration pursuant to
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sentence six of 42 U.S.C. §405(g). (Doc. 20.) The Court ordered a sentence six remand for
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further administrative proceedings on March 29, 2010. (Doc. 23.)
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Appellant Jenifer May Irving first moved for attorneys’ fees pursuant to the Equal
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Access to Justice Act (the “EAJA”) on June 29, 2010. (Doc. 25.) The Commissioner
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objected to the motion for EAJA attorneys’ fees because Appellant did not become a
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prevailing party for purposes of the EAJA based on the Court’s sentence six remand. (Doc.
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28, p.2.) Appellant conceded in her reply that she was not yet eligible as a prevailing party

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to recover attorneys’ fees under the EAJA. (Doc. 29, p.2.) The Court therefore denied her

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first motion for EAJA attorneys’ fees. (Doc. 30.)

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Appellant again moved for attorneys’ fees pursuant to the EAJA on December 10,

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2010. (Doc. 31.) In support of her motion, Appellant filed a Notice of Decision – Fully

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Favorable that Administrative Law Judge Nancy Alden entered on October 8, 2010. (Doc.

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31-1.) On remand from this Court, ALJ Alden found Appellant disabled since May 5, 2006.

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(Id., p.5.)

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ANALYSIS AND CONCLUSION

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The Commissioner responds to Appellant’s renewed motion for attorneys’ fees under

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the EAJA by again arguing that the motion is premature. The Commissioner asserts that

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Appellant cannot file her motion for EAJA fees until after the Court has entered a final

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judgment. The Commissioner argues, “In this case, while post-remand proceedings herein

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were recently completed, the Commissioner has not had a reasonable opportunity to return

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to court, the Court has not entered a final judgment, and the appeal period has not run . . .

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Indeed, the Commissioner has the regulatory authority to review any decision, even a

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favorable decision, on his own motion for 60 days following the ALJ’s decision, in this case

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until December 7, 2010.” (Doc. 34, p. 3.) The Commissioner does not argue the merits of

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Appellant’s motion for EAJA fees.

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The Court agrees with the Commissioner that Appellant’s motion is premature. The

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filing period for a motion for attorneys’ fees pursuant to the EAJA after a sentence six

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remand “does not begin until after the post remand proceedings are completed, the Secretary

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returns to court, the court enters a final judgment, and the appeal period runs.” Shalala v.

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Schaefer, 509 U.S. 292, 298 (1993)(quoting Melkonyan v. Sullivan, 501 U.S. 89, 102

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(1991)(emphasis added)). The Court understands that, based on a decision out of the Eastern

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District of Wisconsin, Appellant was attempting to streamline the process by filing a joint

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motion for entry of judgment and motion for attorneys’ fees. But, nonetheless, Appellant

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should have waited until after the Court entered a judgment to move for EAJA attorneys’

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fees.

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The Commissioner has not explained why he has failed to “return to the court” with

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the ALJ’s results on remand. By his own admission, the time for reviewing the ALJ’s

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favorable decision ended months ago. Therefore, within five (5) days of the date of this

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Order, the Commissioner will file a proposed form of judgment for the Court to enter in this

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case.

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Accordingly

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IT IS ORDERED DENYING Appellant’s Motion for Award of Attorney Fees

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Pursuant to the Equal Access to Justice Act (Doc. 31) without prejudice to re-filing at the

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appropriate time.

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IT IS FURTHER ORDERED that within five (5) days of the date of this Order, the
Commissioner will file a proposed form of final judgment for the Court to enter.
DATED this 31st day of August, 2011.

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