Batchelder v. Astrue

Filing 20

MEMORANDUM-DECISION AND ORDER denying 18 Motion for Attorney Fees: ORDERED that plaintiff's motion (Dkt. No. 18) for attorney's fees pursuant to the EqualAccess to Justice Act, 28 U.S.C. § 2412, is DENIED. Signed by U.S. District Judge Mae A. D'Agostino on 10/1/12. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
MARIANN BATCHELDER,
Plaintiff,
vs.

10-CV-00267
(MAD)

MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

OFFICE OF STEPHEN J. MASTAITIS
1412 State Route 9P
Saratoga Springs, New York 12866
Attorney for Plaintiff

Stephen J. Mastaitis, Esq.

Social Security Administration
Office of Regional Counsel
Region II
26 Federal Plaza - Room 3904
New York, New York 10278
Attorney for Defendant

Michelle L. Christ, Esq.
Special Asst. U.S. Attorney

Mae A. D’Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
Plaintiff Mariann Batchelder commenced the above-captioned action pursuant to 42

U.S.C. § 405(g) seeking a review of the Commissioner of Social Security’s decision to deny her
application for disability insurance benefits (“DIB”) and supplemental social security income
(“SSI”). Familiarity with the background and procedural history in the case is assumed based on
this Court’s previous Order. See Batchelder v. Astrue, 10-CV-0267, Dkt. No. 16 (December 23,
2011) (Memorandum-Decision and Order). In that Order, the Court remanded this matter to the

Commissioner for further proceedings. On December 23, 2011, the Court entered judgment in
plaintiff’s favor. (Dkt. No. 17). Presently before the Court is plaintiff’s motion for an award of
attorney’s fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. (Dkt. No. 18).
The Commissioner opposes plaintiff’s motion arguing that the request for fees is untimely. (Dkt.
No. 19).
II.

DISCUSSION
The EAJA provides:
[A] court shall award to a prevailing party . . . fees and other expenses
. . . incurred by that party in any civil action . . . including proceedings
for judicial review of agency action, brought by or against the United
States in any court having jurisdiction of that action, unless the court
finds that the position of the United States was substantially justified
or that special circumstances make an award unjust.

28 U.S.C. 2412(d)(1)(A).
Moreover, § 2412(d)(1)(B) provides:
A party seeking an award of fees and other expenses shall, within thirty
days of final judgment in the action, submit to the court an application
for fees and other expenses which shows that the party is a prevailing
party and is eligible to receive an award under this subsection, and the
amount sought, including an itemized statement from any attorney or
expert witness representing or appearing in behalf of the party stating
the actual time expended and the rate at which fees and other expenses
were computed.
“[F]inal judgment means a judgment that is final and not appealable” and is deemed to
have occurred at the time the government's right to appeal lapses—specifically, 60 days after
entry of judgment. § 2412(d)(2)(G); see also Jones v. Astrue, 2012 WL 3686089, at *1
(W.D.N.Y. 2012); see also Steele ex rel. M.D. v. Astrue, 2012 WL 4093116, at *1 (N.D.N.Y.
2012) (citing Fed. R.App. P. 4(a)(1)(B)(iii)) (in a civil case, if one of the parties is a United States

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officer, the “notice of appeal may be filed by any party within 60 days after entry of the
judgment”).
Courts have found that the thirty-day EAJA time limit is not jurisdictional and may be
subject to equitable tolling. Allen v. Comm’r of Soc. Sec., 2012 WL 1596661, at *2 (S.D.N.Y.
2012). The Court is empowered to equitably toll the time to apply for attorney's fees in
circumstances where counsel has been unable to timely file despite due diligence. Jones v.
Astrue, 2012 WL 3686089, at *1; see also Steele ex rel. M.D., 2012 WL 4093116, at *1 (citing
Torres v. Bowen, 417 F.3d 276, 276 (2d Cir.2005) (“the doctrine of equitable tolling permits
courts to deem filings timely where a litigant can show that ‘he has been pursuing his rights
diligently” and that “some extraordinary circumstance stood in his way.’ ”). However, where the
plaintiff offers no explanation for the untimeliness of her motion, equitable tolling is unwarranted.
See id.
In this case, plaintiff claims that an EAJA award is available as: (1) plaintiff’s net worth
did not exceed $2,000,000 at the time the action was filed; (2) plaintiff was a “prevailing party” in
a case against the government; and (3) the position of the United States was not substantially
justified. The Court entered judgment on December 23, 2011. The time for appeal ended on
February 21, 2012. Pursuant to the EAJA, plaintiff had thirty days to file an application seeking
an award under the EAJA. Thus, plaintiff’s time to file her EAJA application expired on March
22, 2012. However, plaintiff did not file her application until April 4, 2012 and offers no
explanation for her failure to timely file the application and there is no evidence in the record to
suggest that factors outside of her control prevented her from timely filing. See Allen, 2012 WL
1596661, at *2. Moreover, once raised by the Commissioner, plaintiff failed to respond to the
arguments regarding the untimeliness of the application. See Jones, 2012 WL 3686089, at *1 (the
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record does not provide the Court with any basis to conclude that there is a reasonable
explanation for counsel's tardiness, other than an apparent misunderstanding of the law). Thus,
the Court is left with no basis to toll the statutory deadline.
IV.

CONCLUSION
Based upon the foregoing, it is hereby
ORDERED that plaintiff's motion (Dkt. No. 18) for attorney's fees pursuant to the Equal

Access to Justice Act, 28 U.S.C. § 2412, is DENIED.
IT IS SO ORDERED.
Dated: October 1, 2012
Albany, New York

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