Meo, Robert v. Colvin, Carolyn
ORDER denying 13 Motion for Attorney Fees under the EAJA. Signed by Magistrate Judge Stephen L. Crocker on 12/5/2017. (kwf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
On April 27, 2017, the court granted the parties’ joint motion to remand this case for
further proceedings before an administrative law judge, pursuant to sentence four of 42 U.S.C.
§ 405(g). See dkts. 11 & 12. On October 4, 2017, over five months after the entry of that order,
plaintiff’s counsel, Attorney Curtiss Lien, moved for an award of fees under the Equal Access to
Justice Act (EAJA), 28 U.S.C. § 2412, in the amount of $3,021.12. Dkt. 13. The commissioner
has objected to the request on the ground that the motion is untimely. Dkt. 18.
The commissioner points out that an application for attorney fees under the EAJA must
be filed within 30 days of a final judgment for which the time for appeal has ended. 28 U.S.C.
§§ 2412(d)(1)(B) and (d)(2)(g); Shalala v. Schaefer, 509 U.S. 292, 302-03 (1993). In 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.” Fed. R. App. Proc. 4(a)(1), (7). Therefore, a claimant typically has 90 days after
the district court enters judgment to file an EAJA application.
Shalala, 509 U.S. 302-03;
Dinunzio v. Apfel, 101 F. Supp. 2d 1028, 1032 (N.D. Ill. 2000) (“EAJA provides a thirty-day
period commencing at the end of the appeal period in which to file an application for attorney
fees”). However, the Court of Appeals for the Seventh Circuit has concluded that a party may
appeal a settlement or consent decree only if he expressly reserves the right to appeal, so when
remand is ordered pursuant to a settlement in which there was no such reservation, a party has
only 30 days from the entry of judgment to file an EAJA application. INB Banking Co. v. Iron
Peddlers, Inc., 993 F.2d 1291, 1292 (7th Cir. 1993); Olvey v. Colvin, 2015 W L 5672622, *3 (S.D.
Ind. Sept. 25, 2015).
In this case, I entered final judgment on April 28, 2017, giving Attorney Lien 30 days–
until May 27, 2017–to file his EAJA application. Lien did not file an application until October
4, 160 days after the entry of final judgment. Many courts have held that the EAJA application
deadline is subject to equitable tolling in social security cases in which the plaintiff pursued his
rights diligently and an extraordinary circumstance prevented timely filing. See, e.g., Townsend
v. Commissioner of Soc. Sec., 415 F.3d 578, 583 (6 th Cir. 2005) (“In sum, we conclude that based
on the Supreme Court’s decision in Scarborough, the EAJA time limitation for fee applications is
subject to equitable tolling.”); Criss v. Berryhill, 2017 W L 3430578, at *2 (N.D. Ill. Aug. 9,
2017); Doelling v. Colvin, 2015 W L 1280106, at *2 (W .D. Ark. Mar. 20, 2015) (“Because the
30-day deadline is not jurisdictional, courts may consider equitable-tolling and the relation back
doctrine when addressing an untimely filing or amended application for attorney fees.”). See also
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (describing equitable tolling standard).
Attorney Lien, however, has not filed a reply brief disputing the Commissioner’s
contentions, he has not made a case for equitable tolling, and he has not otherwise acknowledged
the fact that his petition was untimely. Simple counsel error is not enough to meet this standard
because a plaintiff is held responsible for the errors of his attorney. Sheikh v. Grant Reg’l Health
Ctr., 769 F.3d 549, 552 (7th Cir. 2014) (“[I]n civil litigation the lawyer’s errors are attributed
to the client; the client’s only remedy is an action for malpractice”).
It is ORDERED that plaintiff’s motion for attorney fees pursuant to the Equal Access to
Justice Act, 28 U.S.C. § 2412, dkt. 13, is DENIED as untimely.
Entered this 5 th day of December, 2017.
BY THE COURT:
STEPHEN L. CROCKER
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