Norman v. Commissioner Social Security

Filing 29

ORDER ON EAJA FEES. Based on the foregoing, plaintiff's Application for Fees Pursuant to the Equal Access to Justice Act (Doc. # 25) is DENIED. IT IS SO ORDERED. Signed on 01/11/2013 by Judge Malcolm F. Marsh. (pvh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Case No. 3:11-cv-00854-MA

TOBY M. NORMAN,

ORDER ON EAJA FEES

Plaintiff,

v.
MICHAEL J. ASTRUE,
Commissioner of Social
Securtiy,
Defendant.
MARSH, Judge
On August 8, 2012,
a·nd

remanding

the

I issued an order and judgment reversing

Commissioner's

nondisability

pursuant to sentence four of 42 U.S.C.

§

Currently

Motion

before

me

is

plaintiff's

2412.

(Doc. #20

405(g).

pursuant to the Equal Access to Justice Act

determination

for

&

Attorney

(EAJA),

21.)
Fees

28 U.S.C.

§

The Commissioner opposes plaintiff's motion as untimely.
DISCUSSION

Under the EAJA,
attorney fees,
government,

a prevailing party is entitled to recover

costs and expenses in civil actions against the

unless

the

1 - ORDER ON EAJA FEES

government

shows

its

position

in

the

2412(d) (1) (A).

§

The decision to deny EAJA attorney fees is within

the discretion of the court.
1995).

(9th Cir.

u.s.c.

28

justified."

"substantially

was

litigation

Flores v. Shalala, 49 F.3d 562, 567

A social security claimant is a

"prevailing

party" following a sentence-four remand for further proceedings
under 42 U.S.C.

§

The Commissioner does not

Id. at 568.

405(g).

dispute that plaintiff is the prevailing party here.
The EAJA also limits the time within which a prevailing party
Under

may file a fee application.

2412 (d) (1) (B),

§

party

"[a)

seeking an award of fees and other expenses shall, within thirty
days

of

final

judgment

submit to the

in the action,

application for fees and other expenses [ .) "
means

a

judgment which is

2412 (d) (2) (G).

no

court an

A "final judgment"

longer appealable.

28

U.S. C.

§

Under Fed.R.App.P. 4 (a) (1) (B), the Commissioner has

60 days to appeal the judgment.

As a result, a successful social

security claimant has 30 days to file an EAJA fee application after
the 60-day appeal period has expired.

See Melkonyan v. Sullivan,

501 U.S. 89, 102 (1991); Hoa Hong Van v.

Barnhart,

483 F.3d 600,

604 (9th Cir. 2007); Sanford-Murray v. Astrue, 2013 WL 54018,

*

1-2

(D. Or. Jan. 3, 2013).
In this case, I entered judgment remanding this case on August
8, 2012, and the 60-day appeal period expired on or about October
9, 2012.
days

Plaintiff's EAJA filing period then began and expired 30

later

on

or

about

2 - ORDER ON EAJA FEES

November

9,

2012.

According

to

his

affidavit, plaintiff's counsel discovered that the EAJA time period
had lapsed on November 26, 2012.

On November 27, 2012, plaintiff's

counsel contacted opposing counsel,

and then filed a Motion for

Relief for Judgment to File an EAJA Motion pursuant to Fed.R.Civ.P.
60 (b)

and

(d) .

acknowledged

(Doc.

that

#22.)

any

In the
motion

EAJA

Rule
was

60 motion,
untimely,

permission to file such a motion nonetheless.
not oppose the Rule

60 motion,

plaintiff
but

sought

The Commissioner did

but preserved its objections on

timeliness grounds for its response to the underlying motion.
granted plaintiff's Rule 60 motion on December 13, 2012,

I

and on

December 17, 2012, plaintiff filed his application for EAJA fees.
( Doc . 2 4

&

25 . )

There is no dispute that plaintiff's application for EAJA fees
is untimely.

However,

plaintiff contends that the doctrine of

equitable tolling should apply to extend the EAJA fee application
limitation period.
It is not clear that equitable tolling is applicable to the
30-day EAJA deadline.
421

n. 8

equitable

See Scarborough v. Princioi, 541 U.S. 401,

(2004) (explicitly
tolling applies

reserving
to

the

the

EAJA

fee

question
time

of

whether

limitation

in

disability cases); Sanchez v. Astrue, 273 Fed. Appx. 686, 687 (9th
Cir. 2008) (noting that Scarborough did not answer the question, but
that even if equitable tolling could be applied in a disability
case, circumstances did not warrant its application) .
3 - ORDER ON EAJA FEES

Some courts in other jurisdictions have determined that the
doctrine of equitable tolling applies to the EAJA time limitation
for

fee applications in social security disability cases.

Townsend v. Comm'r of Soc.
2005);

Souphalith v.

Sec.,

Astrue,

415 F.3d 578,

2009 WL 35471

581-83

(S.D.

See

(6th Cir.

Cal.

Jan.

5,

2009) (finding that plaintiff's diligent pursuit of fee settlement
negotiations and lack of prejudice warranted applying equitable
tolling EAJA to cure fee application's untimeliness).
however, cites no controlling or persuasive authority

Plaintiff,
applyi~g

the

doctrine of equitable tolling in similar circumstances.
I conclude that even assuming arguendo that equitable tolling
applies to this case, plaintiff has not satisfied its requirements.
Indeed,

for equitable tolling to apply,

plaintiff would need to

(1) that he has been pursuing his rights diligently,

establish:

and (2) some extraordinary circumstance stood in his way.
DiGuglielmo,
excusable

544 U.S.

neglect

is

408,
not

418

(2005).

sufficient.

Moreover,
See

Irwin

Pace v.

negligence or
v.

Dep't

of

Veterans Affairs, 498 U.S. 89, 96 (1990) ("a garden variety claim of
excusable neglectn does not merit exercise of equitable tolling);
Hensley v. United States, 531 F.3d 1052, 1057-58 (9th Cir. 2008),
cert.

denied,

129 S.

Ct.

2432

(2009) (equitable tolling did not

apply where due diligence was not exercised and there was no fraud
or trickery to cause the late filing) .

4 - ORDER ON EAJA FEES

In his affidavit, plaintiff acknowledges that the application
is

untimely,

and

that

the

error

may

have

been

caused

by

a

disruption in office procedures and counsel's absence from the
office due to shoulder surgery.

These reasons fall far short of

diligent pursuit of his rights and extraordinary circumstances, and
thus do not weigh in favor of applying equitable tolling.
Plaintiff also argues that equitable tolling ought to apply
because the government may suffer harm.

Plaintiff submits that

because any money owed to the government must be subtracted from an
EAJA award under Treasury offset program approved in As true v.
Ratliff, 130 S. Ct. 2521

(2010), the government's potential loss

warrants application of equitable tolling.
While

plaintiff may

be

correct

that

any

implications

of

Ratliff should be considered, in this instance, plaintiff has not
demonstrated any actual harm will occur.
me demonstrating that plaintiff,

The is no evidence before

in fact,

owes any monies that

would be recovered under the Treasury offset program.

Thus, even

assuming I could equitably toll the EAJA fee time period, plaintiff
has

failed

Accordingly,

to

demonstrate

plaintiff's

untimely.

Ill/
/Ill
Ill/
5 - ORDER ON EAJA FEES

it

is

appropriate

application

for

fees

to

do
is

so

here.

denied

as

CONCLUSION

Based on

the

foregoing,

plaintiff's

Application

for

Fees

Pursuant to the Equal Access to Justice Act (Doc. #25) is DENIED.
IT IS SO ORDERED.
DATED this~ day of JANUARY, 2012.

Malcolm F. Marsh
United States District Judge

6 - ORDER ON EAJA FEES