Newman v. Colvin

Filing 27

ORDER denying Plaintiff's 24 Motion for EAJA fees, costs, and expenses. Signed by Judge James L. Robart. (PM)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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SHERRI L. NEWMAN,

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CASE NO. C17-5018JLR
ORDER ON EAJA FEES

Plaintiff,

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v.
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NANCY BERRYHILL,

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Defendant.

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I.

INTRODUCTION

Before the court is Plaintiff Sherri L. Newman’s motion for fees, costs, and

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expenses under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). (Mot.

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(Dkt. # 24).) Defendant Nancy Berryhill, Acting Commissioner of Social Security (“the

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Commissioner”), opposes Ms. Newman’s motion as untimely. (Resp. (Dkt. # 25).) The

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court has considered the motion, the parties’ submissions in support of and opposition to

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ORDER - 1

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the motion, the relevant portions of the record, and the applicable law. Being fully

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advised,1 the court DENIES the motion for the reasons set forth below.

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II.
A.

BACKGROUND & ANALYSIS

Procedural Background
Ms. Newman filed her social security appeal on January 10, 2017. (See IFP Mot.

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(Dkt. # 1); see also Compl. (Dkt. # 3).) On July 10, 2017, the court reversed the

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Commissioner’s final decision and remanded the matter for further administrative

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proceedings under sentence four of 42 U.S.C. § 405(g). (7/10/17 Order (Dkt. # 22) at

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1-2.) On October 17, 2017, Ms. Newman moved for an award of attorneys’ fees,

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expenses, and costs for attorneys Jeffrey Baird and Elie Halpern. (Mot. at 1.) Ms.

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Newman argues that she is both a prevailing and an eligible party, the attorneys’ fees are

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reasonable, and the Commissioner’s position in the litigation was not substantially

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justified. (Id. at 2-5.)

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The Commissioner opposes Ms. Newman’s motion, arguing that her application is

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untimely. (Resp. at 2.) Judgment became final 60 days after July 10, 2017, and Ms.

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Newman had until 30 days after the judgment—October 10, 2017—to file her EAJA

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application. (Id.); see also 28 U.S.C. § 2412(d)(1)(B). Ms. Newman failed to file her

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application until October 17, 2017. (Resp. at 2; see also Mot.) The Commissioner does

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not argue that her position in the litigation was substantially justified or attack the

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reasonableness of the requested fees. (See generally Resp.)

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Neither party requests oral argument, and the court determines that oral argument would
not help its disposition of the motion. See Local Rules W.D. Wash. LCR 7(b)(4).

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Ms. Newman admits that her application is untimely but asks the court to

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equitably toll the 30-day period for seeking fees and costs. (Reply (Dkt. # 26) at 2-3.)

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She states that “new personnel erred in timeliness due to misunderstanding of the statute

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of limitations,” and argues that Mr. Baird, “a contract attorney who produced his own

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hours on time,” should not bear Mr. Halpern’s error in filing the application late. (Id. at

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3; Halpern Decl. (Dkt. # 26-1) at 1 (stating that the law office’s “new support

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person . . . did not know she was late when she sent [Mr. Halpern] the documents to file

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for EAJA fees” and admitting that Mr. Halpern “did not perform the requisite training”

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for the support person).) She proposes that the court award only Mr. Baird fees. (Mot. at

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3; see also Halpern Decl. at 1 (“Mr. Baird will have his fees stripped away if the statute

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of limitations is strictly followed here.”).) In addition, Mr. Halpern states that “[i]n the

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past year, [he has] had to undergo chemotherapy and radiation for non-Hodgkin’s

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Lymphoma, but that at the time of the due date for filing EAJA fees, [he] cannot say that

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the chemotherapy or radiation was affecting [his] practice, although [he] may have been

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overburdened with back work building up during my treatment.” (Halpern Decl. at 1.)

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The court now addresses the motion.

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B.

EAJA Fees, Costs, and Expenses
A prevailing party may recover attorneys’ fees, costs, and expenses in social

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security appeals unless the Commissioner demonstrates that her litigation position was

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substantially justified. 28 U.S.C. § 2412(d)(1)(A). The claimant is “a ‘prevailing party’

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following a sentence-four remand for further proceedings under 42 U.S.C. § 405(g).”

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ORDER - 3

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Norman v. Astrue, No. 3:11-cv-00854-MA, 2013 WL 141146, at *1 (D. Or. Jan. 11,

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2013) (citing Flores v. Shalala, 49 F.3d 562, 568 (9th Cir. 1995)).

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Under 28 U.S.C. § 2412(d)(1)(B), “[a] party seeking an award of fees and other

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expenses shall, within thirty days of final judgment in the action, submit to the court an

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application for fees and other expenses.” 28 U.S.C. § 2412(d)(1)(B). “[A] successful

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social security claimant has 30 days to file an EAJA fee application after the 60-day

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appeal period has expired.” Norman, 2013 WL 141146, at *1. Although the 30-day

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requirement is not jurisdictional, Scarborough v. Principi, 541 U.S. 401, 413-14 (2004),

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the court must construe strictly the time limits for EAJA fee applications because the

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EAJA is a waiver of sovereign immunity, Arulampalam v. Gonzales, 399 F.3d 1087,

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1089 (9th Cir. 2005).

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Although the Supreme Court and Ninth Circuit have not explicitly determined

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whether equitable tolling applies to the 30-day EAJA application deadline, Scarborough,

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541 U.S. at 421 n.8; Sanchez v. Astrue, 273 F. App’x 686, 687 (9th Cir. 2008), other

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courts have held that it does, see Townsend v. Comm’r of Soc. Sec., 415 F.3d 578, 581-83

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(6th Cir. 2005); Souphalith v. Astrue, No. 06-CV-01410-H (AJB), 2009 WL 35471, at *2

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(S.D. Cal. Jan. 5, 2009). To invoke equitable tolling, the claimant must demonstrate that

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(1) she has pursued her rights diligently and (2) extraordinary circumstances prevented

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her from timely filing her fee application. “[A] garden variety claim of excusable

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neglect” is insufficient. Irwin v. Dep’t of Veteran Affairs, 498 U.S. 89, 96 (1990); see

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Hensley v. United States, 531 F.3d 1052, 1057-58 (9th Cir. 2008). Courts routinely

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conclude that even if equitable tolling applies to the 30-day deadline, it is inappropriate

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when counsel files a late application due to counsel’s foreseeable medical issues and

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calendaring errors. See Norman, 2013 WL 141146, at *2 (denying equitable tolling

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where “the error may have been caused by a disruption in office procedures and counsel’s

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absence from the office due to shoulder surgery”); Bernal v. Colvin,

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No. 1:14-cv-00733-SKO, 2015 WL 4873024, at *1 (E.D. Cal. Aug. 12, 2015) (declining

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to apply equitable tolling because “a computer calendaring error was responsible” for the

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untimely application); Sorrel v. Colvin, No. 13-cv-04874-SI, 2015 WL 4942154, at *3

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(N.D. Cal. Aug. 18, 2015) (concluding that a “miscalculation of the filing date constitutes

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garden variety excusable neglect”); Beck v. Astrue, No. CV 11-01813-PHX-FJM, 2012

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WL 3641425, at *1 (D. Ariz. Aug. 24, 2012) (same); cf. Lane v. Colvin,

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No. CV 15-53-BLG-CSO, 2016 WL 5936866, at *2 (D. Mont. Oct. 12, 2016) (applying

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equitable tolling where counsel suffered “an unanticipated medical emergency).

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Here, even if the court concluded that equitable tolling applies to EAJA fee

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applications, Ms. Newman has not demonstrated that she pursued her rights diligently or

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that extraordinary circumstances prevented her counsel from timely filing the application.

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Rather, the untimeliness stemmed from a misunderstanding of the applicable deadline,

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and Mr. Halpern’s inattention in training his new staff. (See Mot. at 3; Halpern Decl. at

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1.) These events constitute the kind of “garden variety” claim of excusable neglect that

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falls short of the equitable tolling threshold. Irwin, 498 U.S. at 96. Although the court

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understands that the untimeliness falls most heavily on Mr. Baird, who did not file the

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application, Ms. Newman has not demonstrated the two elements necessary to invoke

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equitable tolling. Therefore, she is not entitled to fees, expenses, and costs under the

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EAJA.

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III.

CONCLUSION

For the foregoing reasons, the court DENIES Ms. Newman’s motion for EAJA
fees, costs, and expenses (Dkt. # 24).
Dated this 8th day of November, 2017.

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A

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JAMES L. ROBART
United States District Judge

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ORDER - 6