BEAL v. Colvin

Filing 29

ORDER DENYING WITHOUT PREJUDICE re 25 MOTION FOR ATTORNEYS FEES as Premature. (Corrected version of document # 27 ) (cpS, COURT STAFF) (Filed on 3/29/2016) Modified on 3/30/2016 (cpS, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TERESA JEAN BEAL,

Case No. 14-cv-04437-YGR

Plaintiff,
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v.

ORDER DENYING WITHOUT PREJUDICE
MOTION FOR ATTORNEY’S FEES

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CAROLYN W. COLVIN,
Acting Commissioner of Social Security

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United States District Court
Northern District of California

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Defendant.

Re: Dkt. No. 25

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The Court granted in part summary judgment in favor of plaintiff and remanded the case

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for further administrative proceedings on November 10, 2015. (Dkt. No. 21.) Thereafter, the

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Court granted a stipulation “extend[ing]” plaintiff’s deadline to file an application for an award of

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attorney’s fees and costs under the Equal Access to Justice Act (“EAJA”) to February 29, 2016.

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(Dkt. No. 24.) On February 29, 2016, plaintiff filed said motion. (Dkt. No. 25.) In opposition

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thereto, defendant correctly noted that the motion was premature because there is not yet a final

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judgment in this action. (Dkt. No. 26.)

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An EAJA fee application must be filed “within thirty days of final judgment in the action.”

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28 U.S.C. § 2412(d)(1)(B). However, because a district court’s order remanding a social security

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case remains appealable for sixty days from the entry of judgment, the order does not become a

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“final judgment” until sixty says after the entry of judgment. See Akopyan v. Barnhart, 296 F.3d

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852, 857 (9th Cir. 2002) (holding that the “time frame . . . to file his petition for attorneys’ fees

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began to run upon expiration of the 60 day appeal period.”). As judgment is being entered today,

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the government has 60 days to file its notice of appeal. Once that time period lapses, if no notice

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of appeal is filed, judgment becomes final, and plaintiff’s motion for fees is due within thirty days

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thereafter.

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Thus, the Court DENIES WITHOUT PREJUDICE plaintiff’s motion for attorney’s fees as

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premature. Plaintiff may refile the motion for attorneys’ fees within 30 days of final judgment as

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noted above. However, the Court admonishes counsel to meet and confer prior to filing said

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motion pursuant to Civil Local Rule 54-5(a) and file the required declaration along with the

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motion pursuant to 54-5(b) to the extent the parties are not able to agree and stipulate to the

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requested fees.

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This Order terminates Docket Number 25.

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IT IS SO ORDERED.

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United States District Court
Northern District of California

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Dated: March 29, 2016
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YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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