BEAL v. Colvin

Filing 27

ORDER by Judge Yvonne Gonzalez Rogers denying 25 Motion for Attorney Fees.(fs, COURT STAFF) (Filed on 3/29/2016)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TERESA JEAN BEAL, Case No. 14-cv-04437-YGR Plaintiff, 8 v. 9 CAROLYN W. COLVIN, Acting Commissioner of Social Security 11 United States District Court Northern District of California 10 ORDER DENYING WITHOUT PREJUDICE MOTION FOR ATTORNEY’S FEES Defendant. Re: Dkt. No. 25 12 13 The Court granted in part summary judgment in favor of plaintiff and remanded the case 14 for further administrative proceedings on November 10, 2015. (Dkt. No. 21.) Thereafter, the 15 Court granted a stipulation “extend[ing]” plaintiff’s deadline to file an application for an award of 16 attorney’s fees and costs under the Equal Access to Justice Act (“EAJA”) to February 29, 2016. 17 (Dkt. No. 24.) On February 29, 2016, plaintiff filed said motion. (Dkt. No. 25.) In opposition 18 thereto, defendant correctly noted that the motion was premature because there is not yet a final 19 judgment in this action. (Dkt. No. 26.) 20 An EAJA fee application must be filed “within thirty days of final judgment in the action.” 21 28 U.S.C. § 2412(d)(1)(B). However, because a district court’s order remanding a social security 22 case remains appealable for sixty days from the entry of judgment, the order does not become a 23 “final judgment” until sixty says after the entry of judgment. See Akopyan v. Barnhart, 296 F.3d 24 852, 857 (9th Cir. 2002) (holding that the “time frame . . . to file his petition for attorneys’ fees 25 began to run upon expiration of the 60 day appeal period.”). As judgment is being entered today, 26 the government has 60 days to file its notice of appeal. Once that time period lapses, if no notice 27 of appeal is filed, judgment becomes final, and plaintiff’s motion for fees is due within thirty days 28 thereafter. 1 Thus, the Court DENIES WITHOUT PREJUDICE plaintiff’s motion for attorney’s fees as 2 premature. Plaintiff may refile the motion for attorneys’ fees within 30 days of final judgment as 3 noted above. However, the Court admonishes counsel to meet and confer prior to filing said 4 motion pursuant to Civil Local Rule 54-5(a) and file the required declaration along with the 5 motion pursuant to 54-5(b) to the extend the parties are not able to agree and stipulate to the 6 requested fees. 7 This Order terminates Docket Number 25. 8 IT IS SO ORDERED. 9 10 United States District Court Northern District of California 11 Dated: March 29, 2016 ______________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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