McDonald v. Commissioner of Social Security

Filing 35

OPINION AND ORDER denying 32 Petition for Attorney Fees under the Equal Access to Justice Act. Signed by Magistrate Judge Paul R Cherry on 2/9/15. (mc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
PATRICK McDONALD,
Plaintiff,

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v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

Cause No.: 2:13-CV-306-PRC

OPINION AND ORDER
This matter is before the Court on a Petition for Attorney Fees under the Equal Access to
Justice Act [DE 32], filed by Plaintiff on January 20, 2015. The Commissioner filed a response on
January 23, 2015. Plaintiff did not file a reply, and the time to do so has passed.
After a final decision by the Agency that he was not disabled, Plaintiff filed an appeal with
this Court. Upon reviewing Plaintiff’s opening brief, the Commissioner agreed that remand was
warranted, and the parties signed a stipulation asking for remand pursuant to Sentence Four of 42
U.S.C. § 405(g). The Court accordingly reversed the Agency’s decision and remanded this case for
further consideration. That Order was issued on May 30, 2014. Plaintiff now asks for attorney fees
and costs incurred in litigating this case.
The EAJA allows a prevailing plaintiff to recoup reasonable attorney fees incurred in
litigation against the Commissioner of Social Security provided, among other things, that the request
is timely. United States v. Hallmark Constr. Co., 200 F.3d 1076, 1078–79 (7th Cir. 2000) (citing 28
U.S.C. § 2412(d)(1)(A), (B); Commissioner, I.N.S. v. Jean, 496 U.S. 154, 154 (1990)). The deadline
to file an EAJA request falls thirty days after the judgment becomes “not appealable.” See Shalala
v. Schaefer, 509 U.S. 292, 302 (1993) (citing 28 U.S.C. § 2412 (d)(1)(B), (d)(2)(G)). In civil cases
where a federal officer is a party, the time for appeal does not end until sixty days after judgment

was entered. Id. (citing Fed. R. App. P. 4(a)(1), (7)). Thus, a plaintiff has a total of ninety days after
the Court enters judgment to file an EAJA application.
Judgment in this case was entered on May 30, 2014, and the deadline to file a timely request
was accordingly August 28, 2014. Plaintiff’s January 20, 2015 motion is late. Plaintiff doesn’t
discuss timeliness or provide any reasons why his motion was filed nearly five months after the
deadline. The Court sees no reason why the delay should be excused and accordingly DENIES the
Petition for Attorney Fees under the Equal Access to Justice Act [DE 32].
SO ORDERED this 9th day of February, 2015.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
cc:

All counsel of record