Beck v. Astrue

Filing 20

ORDER denying 17 Plaintiff's Motion for Attorney Fees and Expenses. Signed by Judge Frederick J Martone on 08/23/12.(JAMA)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Pamela Ann Beck,

10
11

Plaintiff,
vs.

12
Michael J. Astrue,
13
Defendant.
14

)
)
)
)
)
)
)
)
)
)
)
)

CV 11-01813-PHX-FJM
ORDER

15
16
17

We have before us plaintiff's motion for attorneys' fees and expenses (doc. 17),
defendant's response (doc. 18), and plaintiff's reply (doc. 19).

18

On April 20, 2012, the Clerk entered judgment reversing the Commissioner's order

19

denying plaintiff disability benefits and remanding for further proceedings (doc. 16).

20

Plaintiff moved for an award of attorneys' fees under the Equal Access to Justice Act

21

("EAJA") on July 20, 2012.1 A motion requesting attorneys' fees under the EAJA must be

22

filed within thirty days of final judgment.

23

acknowledges that her motion was filed one day late due to a calendaring error in her

24

lawyer's office. She asks that we apply the doctrine of equitable tolling and treat her motion

25

as timely-filed.

28 U.S.C. § 2412(d)(1)(B).

Plaintiff

26
27
1

28

Plaintiff originally also sought reimbursement of her filing fee under 28 U.S.C. §
1920. On reply, she acknowledges that was error and withdraws her request for expenses.

1

It is unclear whether equitable tolling is available for EAJA motions for attorneys'

2

fees. See Scarborough v. Principi, 541 U.S. 401, 421 n.8, 124 S. Ct. 1856, 1869 n.8 (2004).

3

We need not decide that question today, because even if equitable tolling is available,

4

plaintiff has not shown that it should be applied in her case. Plaintiff urges us to focus on the

5

fact that the motion was filed only one day late, arguing there would be no prejudice to

6

defendant in accepting the late filing. But when equitable tolling applies, its principles "do

7

not extend to. . . garden variety claim[s] of excusable neglect." Irwin v. Dep't of Veterans

8

Affairs, 498 U.S. 89, 96, 111 S. Ct. 453, 458 (1990). Courts are reluctant to receive late

9

filings "where the claimant failed to exercise due diligence in preserving his legal rights," and

10

grant relief "only sparingly." Id. at 96, 111 S. Ct. at 457-58. The only reason plaintiff offers

11

for her late filing is her lawyer's calendaring error. A review of her lawyer's itemization of

12

fees, however, reveals that work on the motion for EAJA fees did not commence until July

13

20, 2012, one day after the deadline for filing the motion. These facts do not show that

14

plaintiff (or more appropriately, her lawyer) exercised due diligence in meeting the filing

15

deadline. Accordingly, even if equitable tolling is available, it is not applicable in this case.

16

IT IS ORDERED DENYING plaintiff's motion for attorneys' fees and expenses

17
18

(doc. 17).
DATED this 23rd day of August, 2012.

19
20
21
22
23
24
25
26
27
28
-2-