Hicks v. Commissioner of Social Security

Filing 28

ORDER signed by Magistrate Judge Kendall J. Newman on 3/29/2019 DENYING 23 Motion for Attorney Fees as premature, subject to renewal after the judgment is final. (Washington, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

STEPHEN DANIEL HICKS,

12
13
14
15
16

No. 2:17-cv-02480-TLN-KJN

Plaintiff,
v.

ORDER

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

17
18

Presently pending before the court is plaintiff’s February 21, 2019 motion for attorney

19

fees, costs, and expenses pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C.

20

§ 2412(d). (ECF No. 23.) Defendant has opposed the motion as premature. (ECF No. 27.)

21

EAJA entitles a prevailing party to apply for attorney fees and expenses. However, a

22

motion for such fees and expenses shall be filed “within thirty days of final judgment in the

23

action.” 28 U.S.C. § 2412(d)(1)(B). Under EAJA, a final judgment is “a judgment that is final

24

and not appealable.” 28 U.S.C. § 2412(d)(2)(G). Here, the court entered judgement in favor of

25

plaintiff on February 6, 2019. (ECF No. 22.) “[T]he time for appeal does not end until 60 days

26

after ‘entry of judgement.’” Shalala v. Schaefer, 509 U.S. 292, 302 (1993). Thus, the judgement

27

will not be final for the purposes of EAJA, until April 8, 2019. Consequently, plaintiff’s EAJA

28

motion (ECF No. 23) is premature.
1

1

Accordingly, IT IS HEREBY ORDERED that:

2

1. Plaintiff’s motion for attorney fees, costs, and expenses (ECF No. 23) is DENIED as

3
4
5

premature, subject to renewal after the judgment is final.
IT IS SO ORDERED.
Dated: March 29, 2019

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2