Pearson v. Astrue

Filing 32

ORDER denying 28 Motion for Attorney Fees - Signed by District Judge Louise Wood Flanagan on 02/10/2014. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:12-CV-23-FL

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

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ORDER

This matter is before the court on plaintiff’s motion for attorney fees under the Equal Access
to Justice Act, 28 U.S.C. § 2412(d) (“EAJA”) (DE 30). Defendant responded in opposition,
asserting that the motion was untimely. On December 10, 2013, the court directed plaintiff through
counsel to file a reply addressing the government’s argument in opposition within fourteen (14) days
of the date of the court’s order. Plaintiff did not file a reply as directed. In this posture the matter
is ripe for ruling.
Under the EAJA, “[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. . . .” 28 U.S.C. § 2812(d)(1)(B). “An EAJA application may be filed until 30 days after
a judgment becomes ‘not appealable’—i.e., 30 days after the time for appeal has ended.” Shalala
v. Schaefer, 509 U.S. 292, 302 (1993). “[I]n a civil case to which a federal officer is a party, the time
for appeal does not end until 60 days after ‘entry of judgment.’” Id. (quoting Fed. R. App. Proc.
4(a)(1), (7)).

In this case, the court entered judgment on June 26, 2013, remanding to the Commissioner
for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). (DE 27). A sentence four
remand is a final judgment for purposes of EAJA fee applications. See Schaefer, 509 U.S. at 30102. Accordingly, the time to appeal this judgment expired sixty (60) days thereafter, on August 26,
2013, and plaintiff had until thirty (30) days after that, until September 25, 2013, to file an EAJA
application. Plaintiff, however, did not file his application until November 8, 2013. Therefore,
plaintiff’s application is untimely and must be denied on this basis.
SO ORDERED this the 10th day of February, 2014.

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LOUISE W. FLANAGAN
United States District Judge

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