Albright v. Commissioner Social Security Administration

Filing 25

ORDER: Order on EAJA Fees. Plaintiff's Application for Fees Pursuant to EAJA is DENIED 22 . Signed on 12/20/2017 by Judge Malcolm F. Marsh. (ma2)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON Case No. 3:16-cv-00436-MA KLAYTON V. ALBRIGHT, ORDER ON EAJA FEES Plaintiff, v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant. MARSH, Judge On June 23, 2017, the Court issued an order and judgment reversing and remanding the Commissioner's nondisability determination for an immediate payment of benefits pursuant to sentence four of 42 U.S.C. § 405(g). Op. & Order, ECF No. 20. Currently before the Comt is Plaintiffs Application for Attorney Fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. ECF No. 22. The Commissioner opposes Plaintiffs motion as untimely. DISCUSSION Under the EAJA, a prevailing patty is entitled to recover attorney fees, costs and expenses in civil actions against the government, unless the government shows its position in the litigation was "substantially justified." 28 U.S.C. § 2412(d)(l)(A). The decision to deny EAJA attorney fees is 1 - ORDER ON EAJA FEES within the discretion of the court. Decker v. Berryhill, 856 F.3d 659, 663 (9th Cir. 2017); Flores v. Shala/a, 49 F.3d 562, 567 (9th Cir. 1995). A social security claimant is a "prevailing party" following a sentence-four remand i.mder 42 U.S.C. § 405(g). Flores, 49 F.3d at 568. The Commissioner does not dispute that Plaintiff is the prevailing party here. The EAJA also limits the time within which a prevailing party may file a fee application. Under§ 2412(d)(l)(B), "[a] party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the comi an application for fees and other expenses[.]" A "final judgment" means a judgment which is no longer appealable. 28 U.S.C. § 2412(d)(2)(G). Under Fed.R.App.P. 4(a)(l)(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 lvfelkonyan v. Sullivan, 501 U.S. 89, 102 (1991); Hoa Hong Van v. Barnhart, 483 F.3d 600, 604 (9th Cir. 2007); Norman v. Astrue, Case No. 3:11-cv-00854-MA,2013WL141146, *l (D. Or. Jan.11, 2013). Although the 30-dayrequirement is not jurisdictional, the comi must constrne strictly the time limits for EAJA fee applications because the EAJA is a waiver of sovereign immunity. Arulampalam v. Gonzales, 399 F.3d 1087, 1089 (9th Cir. 2005). In this case, the Comi entered judgment on June 23, 2017 and the 60-day appeal period expired on or about August 22, 2017. Plaintiffs EAJA filing period then began and expired 30 days later, on or about September 21, 2017. However, Plaintiff did not file his EAJA application until November 8, 2017, some 47 days after the time period lapsed. Plaintiff has offered no explanation for its untimeliness, and did not file a Reply in response to the Commissioner's contention that the Application is untimely. 2 - ORDER ON EAJA FEES There is no dispute that Plaintiff's application is untimely. Accordingly, the Comi denies Plaintiff's Application for attorney fees under the EAJA because it was filed more than thitiy days after judgment became final. See Sanchezv. Astrue, 273 F. App'x 686, 687 (9th Cir. 2008) (denying untimely social security EAJA fee application). CONCLUSION Based on the foregoing, Plaintiff's Application for Fees Pursuant to the Equal Access to Justice Act (ECF No. 22) is DENIED. IT IS SO ORDERED. DATED this °20day of DECEMBER, 201'f. ?nak,.4>. -r ?n~ Malcolm F. Marsh United States District Judge 3 - ORDER ON EAJA FEES

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