Jeffrey S. Dunham v. Carolyn W. Colvin

Filing 33

SECOND ORDER TO SHOW CAUSE by Magistrate Judge Shashi H. Kewalramani. Response to Order to Show Cause due by 7/24/2018. (dc)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Case No. 8:16-cv-02154-SHK

JEFFREY S. DUNHAM,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

SECOND ORDER TO SHOW CAUSE
WHY EAJA FEE PETITION SHOULD
NOT BE DENIED

Defendant.

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Plaintiff Jeffrey Dunham (“Plaintiff”) brought this action for judicial review

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of the Commissioner of the Social Security Administration’s (“Commissioner” or

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“Agency”) final decision denying his application for disability insurance benefits

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(“DIB”) under Title II of the Social Security Act (the “Act”). Electronic Case

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Filing Number (“ECF No.”) 1, Complaint. After the Court reversed the

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Commissioner’s decision to deny Plaintiff’s DIB application under sentence four of

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42 U.S.C. Section 405(g) and remanded the case back to the Agency for further

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proceedings on November 21, 2017, Plaintiff petitioned the Court for attorney fees,

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expenses, and costs, totaling $4,023.44, under the Equal Access to Justice Act

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(“EAJA”), 28 U.S.C. §§ 1920 and 2412, on February 21, 2018. ECF No. 26,

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Opinion and Order at 12-13; ECF No. 27, Judgment; ECF No. 28, Plaintiff’s

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Petition for Attorney Fees, Costs, and Expenses Under EAJA (“Petition”) at 2-3.

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On June 6, 2018, the Court ordered Plaintiff to show cause why the Petition

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should not be denied as untimely, because Plaintiff’s Petition was filed ninety-two

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days after the Court entered final judgment reversing the decision of the

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Commissioner and remanding the case to the Agency for further administrative

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proceedings. ECF No. 31, Order to Show Cause (“OSC”). Specifically, the Court

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found that the thirty-day filing period in 28 U.S.C. § 2412(d)(1)(B) and the sixty-

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day appeal period in Federal Rule of Appellate procedure (“FRAP”) 4(a)(1)(B),

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which when taken together result in a ninety-day filing deadline, had lapsed by two

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days when Plaintiff filed his Petition. Id. Thus, because Plaintiff filed his Petition

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two days after the ninety-day combined filing deadline imposed by 28 U.S.C. §

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2412(d)(1)(B) and FRAP 4(a)(1)(B), Plaintiff was ordered to show cause why his

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Petition should not be denied as time-barred. Id.
On June 20, 2018, Plaintiff responded to the Court’s OSC and argued that

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the Petition was timely filed. ECF No. 32, Response to OSC. Plaintiff argued the

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Petition was timely filed because the sixty-day deadline under FRAP 4(a) lapsed on

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January 22, 2018—a Saturday—and “[t]he sixty days cannot lapse on a Saturday or

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Sunday (or a Court holiday) because the Court is not open to receive the parties

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appeal.” Id. at 2. Plaintiff added that the sixty-day deadline also “cannot lapse on

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January 19, 2018 because that would in this case only allow 59 days to appeal.” Id.

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Plaintiff, however, cited no authority whatsoever in support of these arguments.
Plaintiff is therefore ordered to show cause within fourteen days—with

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reasons supported by legal authority—why the Petition should not be denied as

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untimely. Defendant shall have fourteen days after the date of Plaintiff’s response,

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if any, to file a reply. In its reply, Plaintiff shall cite to any authority that supports

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his position including any legal authority indicating that this Court retains

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jurisdiction during the relevant time period.
IT IS SO ORDERED.

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DATED: 7/10/2018

________________________________
HONORABLE SHASHI H. KEWALRAMANI
United States Magistrate Judge

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