Seegers v. Commissioner of Social Security Administration
ORDER denying 21 MOTION for Attorney Fees Before the Federal District Court. Signed by Magistrate Judge Shiva V. Hodges on 10/12/2017.(bshr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Michael O’dell Seegers,
Nancy A. Berryhill,1 Acting
Commissioner of Social Security
C/A No.: 1:16-1263-SVH
This matter is before the court on Plaintiff’s motion for attorney’s fees pursuant to
the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). Plaintiff filed a petition
requesting $4,360.04 in attorney’s fees and expenses on the ground that he is a prevailing
party under the EAJA. [ECF Nos. 21 and 21-1 at 2]. The Commissioner filed a response
opposing Plaintiff’s petition for attorney’s fees on the basis that it was not timely filed.
[ECF No. 22]. In his reply to the Commissioner’s response, Plaintiff’s counsel admits
that he was unaware of the timeline for filing a request for EAJA fees, but maintains that
the Commissioner is not prejudiced by his delay. [ECF No. 23 at 2–3]. For the reasons set
forth below, the court denies Plaintiff’s motion for attorney’s fees.
On November 13, 2012, Plaintiff protectively filed an application for DIB in
which he alleged his disability began on April 8, 2008. Tr. at 63 and 131–36. His
application was denied initially and upon reconsideration. Tr. at 85–88 and 90–95. On
Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23,
2017. Pursuant to Fed. R. Civ. P. 25(d), Nancy A. Berryhill is substituted for Acting
Commissioner Carolyn W. Colvin as the defendant in this lawsuit.
April 1, 2015, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Ann G.
Paschall. Tr. at 29–49 (Hr’g Tr.). The ALJ issued an unfavorable decision on June 9,
2015, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 8–28.
Subsequently, the Appeals Council denied Plaintiff’s request for review, making the
ALJ’s decision the final decision of the Commissioner for purposes of judicial review.
Tr. at 1–6. Thereafter, Plaintiff brought this action seeking judicial review of the
Commissioner’s decision in a complaint filed on April 25, 2016. [ECF No. 1]. On
January 27, 2017, the court issued an order reversing the decision of the Commissioner
and remanding the action for further administrative proceedings. [ECF No. 19].
Under the EAJA, a court shall award reasonable attorney’s fees to a prevailing
party in certain civil actions against the United States unless the court finds that the
government’s position was substantially justified or that special circumstances make an
award unjust. 28 U.S.C. § 2412(d)(1)(A). The eligibility requirements for an award of
fees under the EAJA are: (1) that the claimant is a prevailing party; (2) that the
government’s position was not substantially justified; (3) that no special circumstances
make an award unjust; and (4) that the fee application be submitted to the court within 30
days of final judgment and be supported by an itemized statement. See Crawford v.
Sullivan, 935 F.2d 655, 656 (4th Cir. 1991).
Because this court remanded the claim pursuant to 42 U.S.C. § 405(g), Plaintiff is
considered the “prevailing party” under the EAJA. See Shalala v. Schaefer, 509 U.S. 292,
302 (1993). The Commissioner does not make a substantial justification argument or
maintain that special circumstance make an award unjust. However, she contends that
Plaintiff’s attorney’s fee cannot be paid because the fee petition was filed outside the
statutory period. [ECF No. 22 at 2].
The “EAJA requires prevailing parties seeking an award of fees to file with the
court, ‘within thirty days of final judgment in the action,’ an application for fees and other
expenses.” Melkonyan v. Sullivan, 501 U.S. 89, 103 (1991) (emphasis in original), citing
28 U.S.C. § 2412(d)(1)(B). The instant case was remanded pursuant to sentence four of
42 U.S.C. § 405(g) [ECF No. 19], and “[a] sentence four remand is a ‘final judgment’
under the EAJA.” Petition of Thomason, 777 F. Supp. 1277, 1279 (D.S.C. 1991). In
Melkonyan, 501 U.S. at 102, the Supreme Court clarified that for cases remanded
pursuant to sentence four of 42 U.S.C. § 405(g) “the filing period begins after the final
judgment (‘affirming, modifying, or reversing’) is entered by the court and the appeal
period has run, so that the judgment is no longer appealable.” For actions in which a
United States agency is a party, Fed. R. App. P. 4(a)(1)(B) provides that a notice of
appeal may be filed within 60 days after entry of the judgment.
In the instant action, the court entered a judgment on January 27, 2017. [ECF No.
20], and the 60-day appeal period ended on March 28, 2017. See Fed. R. App. P.
4(a)(1)(B). Plaintiff was required to file the fee petition under the EAJA by April 27,
2017. See 28 U.S.C. § 2412(d)(1)(A). Because Plaintiff filed his fee petition on
September 27, 2017 [ECF No. 21], it was untimely. See id.
In Scarborough v. Principi, 541 U.S. 401 (2004), the Supreme Court rejected
lower courts’ rulings that the 30-day requirement under 28 U.S.C. § 2412(d)(1)(A) was
jurisdictional and found that it “concerns a mode of relief (costs including legal fees)
ancillary to the judgment of a court that has plenary jurisdiction of [the civil] action in
which the fee application is made.” The court held that the plaintiff was not time-barred
from obtaining a fee award under 28 U.S.C. § 2812(d)(1)(A) where he had filed the fee
petition within the statutory period, but had amended it after the expiration of the period
to assert that the government’s position was not substantially justified. Id. Nevertheless,
neither the Supreme Court nor the United States Court of Appeals for the Fourth Circuit
has recognized exceptions to 28 U.S.C. § 2812(d)(1)(A)’s requirement that the attorney’s
fee petition be filed within 30 days of final judgment.
The Fourth Circuit and courts within the Fourth Circuit have routinely dismissed
cases in which fee petitions were filed outside the statutory period. See Chambers v.
Bailey, 36 F.3d 1091 (Table), 1994 WL 510445, at *2 (4th Cir. 1994); Smith v. Astrue,
No. 2:07-5, 2012 WL 12529, at *2 (W.D. Va. Jan. 3, 2012); Smith v. Astrue, No. 1:09-19,
2010 WL 1473945, at *1–2 (W.D. Va. Apr. 9, 2010); Hinchey v. Astrue, No. 5:06-47,
2008 WL 570952, at *1 (W.D. Va. Feb. 29, 2008); Hines v. Commissioner of Social Sec.,
450 F. Supp. 2d 628, 631 (E.D. Va. 2006).
Plaintiff concedes that the fee petition was filed untimely because he was unaware
of 28 U.S.C. § 2812(d)(1)(A)’s requirements and admits that he has not shown good
cause for late filing. [ECF No. 23 at 2]. However, he maintains that the Commissioner
would not be prejudiced if the court were to grant the untimely motion. Id. at 2–3. In light
of the courts’ holdings in the cases cited above and in the absence of a showing of good
cause for the late filing, the court is constrained to deny Plaintiff’s motion.
For the foregoing reasons, the court denies Plaintiff’s motion for attorney’s fees
under the EAJA. This decision is without prejudice to the rights of Plaintiff=s counsel to
seek attorney fees under section 406(b) of the Social Security Act, 42 U.S.C. § 406(b).
IT IS SO ORDERED.
October 12, 2017
Columbia, South Carolina
Shiva V. Hodges
United States Magistrate Judge
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