Marlene M. v. Saul

          Jacob P. Reitan, for Plaintiff; and

          Michael A. Moss, Special Assistant United States Attorney, for Defendant.

          ORDER

          Tony N. Leung United States Magistrate Judge

         This matter comes before the Court on Plaintiff Marlene M.'s Motion of Award of Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (ECF No. 26).

         I. BACKGROUND

         On March 27, 2019, this Court issued an Order on the parties' cross motions for summary judgment. See generally Marlene M. v. Berryhill, No. 18-cv-258 (TNL), 2019 WL 1383894 (D. Minn. Mar. 27, 2019). Plaintiff's motion was granted in part and denied in part; the Commissioner's motion was denied; and the matter was remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings. Id. at *9. On March 29, 2019, the Clerk of Court entered judgment. (ECF No. 20.)

         Plaintiff first filed the instant motion and supporting documents on June 25. (ECF Nos. 22-25.) The motion was erroneously filed ex parte. Counsel was notified of the error the following day and the Clerk of Court marked the documents as filed in error. On July 1, Plaintiff refiled her motion. (ECF No. 26-29.)

         The Commissioner responded to Plaintiff's motion on July 17, arguing that the motion was untimely and the requested hourly rate was unsupported. (See generally ECF No. 30.) On July 22, Plaintiff filed a supplemental affidavit in support of her motion. (See generally Aff. of Sarah Strand, ECF No. 31.) Addressing the issue of timeliness, Plaintiff stated that the motion had been initially filed on June 25 and then was “immediately refiled” after “noticing that [the prior] filing was rejected.” (Strand Aff. ¶ 4.) Plaintiff also enclosed an exhibit in support of the requested hourly rate that had been inadvertently omitted. (Strand Aff. ¶ 3.)

         II. ANALYSIS

         A. Timeliness of the Motion

         Under the Equal Access to Justice Act (“EAJA”), “[a] party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the Court an application for fees and other expenses.” 28 U.S.C. § 2412(d)(1)(B). A judgment is “final” when it is “not appealable.” Id. § 2412(d)(2)(G). When the federal government is a party to a civil case, as is the case here, the appeal period lapses after 60 days. Fed. R. App. P. 4(a)(1)(B). Therefore, a party seeking EAJA fees must apply within 90 days from the entry of judgment. Shalala v. Schaefer, 509 U.S. 292, 302-03 (1993).

         Here, judgment was entered on March 29. (ECF No. 20.) The 60-day appeal period ended on May 28. See Fed. R. App. P. 4(a)(1)(B). Accordingly, Plaintiff had until June 27 to apply for EAJA fees. See 28 U.S.C. § 2412(d)(1)(B); Shalala, 509 U.S. at 302-03.

         Plaintiff erroneously filed her motion ex parte on June 25, two days before the deadline.^[2] Rather than refiling her motion “immediately” as stated in the supplemental affidavit, however, Plaintiff waited six days to refile. By the time Plaintiff refiled her motion correctly on July 1, the EAJA deadline had lapsed. Accordingly, the issue is whether Plaintiff's untimely motion can be considered by the Court.

         B. ...