Albers v. Astrue

Filing 27

ORDER denying 25 Motion for Attorney Fees; sustaining 26 Objection. The Clerk shall amend the docket sheet to reflect substitution for the defendant of Carolyn W. Colvin, Acting Commissioner of the Social Security Administration for Michael J. Astrue. Ordered by Magistrate Judge Thomas D. Thalken. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MARY E. ALBERS,
Plaintiff,

4:12CV3050

vs.
ORDER
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.
This matter is before the court on the plaintiff’s Application for Attorney Fees
(Filing No. 25). The defendant filed an Objection (Filing No. 26) to the application. The
plaintiff did not file a reply. The plaintiff seeks attorney fees pursuant to the Equal
Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). On December 21, 2012, the court
reversed the final decision of the Commissioner, remanding the matter for further
proceedings. See Filing Nos. 23-24. The plaintiff filed the instant motion on July 17,
2014. See Filing No. 25. Pursuant to the EAJA, a party “shall, within thirty days of final
judgment in the action, submit to the court an application for fees . . . .” 28 U.S.C. §
2412(d)(1)(B).

The thirty-day period begins after final judgment is entered and the

appeals period has run. Melkonyan v. Sullivan, 501 U.S. 89, 96 (1991). The plaintiff’s
application is untimely by over one year under the statute and the plaintiff fails to
suggest equitable tolling might be appropriate. Accordingly,
IT IS ORDERED:
1.

The plaintiff’s Application for Attorney Fees (Filing No. 25) is denied.

2.

The defendant’s Objection (Filing No. 26) is sustained.

3.

Pursuant to Federal Rule of Civil Procedure 25(d), the Clerk of Court shall

amend the docket sheet to reflect substitution for the defendant of Carolyn W. Colvin,
Acting Commissioner of the Social Security Administration for Michael J. Astrue.
DATED this 18th day of August, 2014.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge