United States District Court, D. Minnesota
Marlene M. Petitioner,
v.
Andrew Saul, Commissioner of Social Security, [1] Defendant.
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.
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