United States District Court, W.D. Washington
SHERRI L. NEWMAN, Plaintiff,
NANCY BERRYHILL, Defendant.
ORDER ON EAJA FEES
L. ROBART UNITED STATES DISTRICT JUDGE
the court is Plaintiff Sherri L. Newman's motion for
fees, costs, and expenses under the Equal Access to Justice
Act (“EAJA”), 28 U.S.C. § 2412(d). (Mot.
(Dkt. # 24).) Defendant Nancy Berryhill, Acting Commissioner
of Social Security (“the Commissioner”), opposes
Ms. Newman's motion as untimely. (Resp. (Dkt. # 25).) The
court has considered the motion, the parties' submissions
in support of and opposition to the motion, the relevant
portions of the record, and the applicable law. Being fully
advised,  the court DENIES the motion for the
reasons set forth below.
BACKGROUND & ANALYSIS
Newman filed her social security appeal on January 10, 2017.
(See IFP Mot. (Dkt. # 1); see also Compl.
(Dkt. # 3).) On July 10, 2017, the court reversed the
Commissioner's final decision and remanded the matter for
further administrative proceedings under sentence four of 42
U.S.C. § 405(g). (7/10/17 Order (Dkt. # 22) at 1-2.) On
October 17, 2017, Ms. Newman moved for an award of
attorneys' fees, expenses, and costs for attorneys
Jeffrey Baird and Elie Halpern. (Mot. at 1.) Ms. Newman
argues that she is both a prevailing and an eligible party,
the attorneys' fees are reasonable, and the
Commissioner's position in the litigation was not
substantially justified. (Id. at 2-5.)
Commissioner opposes Ms. Newman's motion, arguing that
her application is untimely. (Resp. at 2.) Judgment became
final 60 days after July 10, 2017, and Ms. Newman had until
30 days after the judgment-October 10, 2017-to file her EAJA
application. (Id.); see also 28 U.S.C.
§ 2412(d)(1)(B). Ms. Newman failed to file her
application until October 17, 2017. (Resp. at 2; see
also Mot.) The Commissioner does not argue that her
position in the litigation was substantially justified or
attack the reasonableness of the requested fees. (See
Newman admits that her application is untimely but asks the
court to equitably toll the 30-day period for seeking fees
and costs. (Reply (Dkt. # 26) at 2-3.) She states that
“new personnel erred in timeliness due to
misunderstanding of the statute of limitations, ” and
argues that Mr. Baird, “a contract attorney who
produced his own hours on time, ” should not bear Mr.
Halpern's error in filing the application late.
(Id. at 3; Halpern Decl. (Dkt. # 26-1) at 1 (stating
that the law office's “new support person . . . did
not know she was late when she sent [Mr. Halpern] the
documents to file for EAJA fees” and admitting that Mr.
Halpern “did not perform the requisite training”
for the support person).) She proposes that the court award
only Mr. Baird fees. (Mot. at 3; see also Halpern
Decl. at 1 (“Mr. Baird will have his fees stripped away
if the statute of limitations is strictly followed
here.”).) In addition, Mr. Halpern states that
“[i]n the past year, [he has] had to undergo
chemotherapy and radiation for non-Hodgkin's Lymphoma,
but that at the time of the due date for filing EAJA fees,
[he] cannot say that the chemotherapy or radiation was
affecting [his] practice, although [he] may have been
overburdened with back work building up during my
treatment.” (Halpern Decl. at 1.) The court now
addresses the motion.
EAJA Fees, Costs, and Expenses
prevailing party may recover attorneys' fees, costs, and
expenses in social security appeals unless the Commissioner
demonstrates that her litigation position was substantially
justified. 28 U.S.C. § 2412(d)(1)(A). The claimant is
“a ‘prevailing party' following a
sentence-four remand for further proceedings under 42 U.S.C.
§ 405(g).” Norman v. Astrue, No.
3:11-cv-00854-MA, 2013 WL 141146, at *1 (D. Or. Jan. 11,
2013) (citing Flores v. Shalala, 49 F.3d 562, 568
(9th Cir. 1995)).
28 U.S.C. § 2412(d)(1)(B), “[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] successful social security
claimant has 30 days to file an EAJA fee application after
the 60-day appeal period has expired.” Norman,
2013 WL 141146, at *1. Although the 30-day requirement is not
jurisdictional, Scarborough v. Principi, 541 U.S.
401, 413-14 (2004), the court must construe strictly the time
limits for EAJA fee applications because the EAJA is a waiver
of sovereign immunity, Arulampalam v. Gonzales, 399 F.3d
1087, 1089 (9th Cir. 2005).
the Supreme Court and Ninth Circuit have not explicitly
determined whether equitable tolling applies to the 30-day
EAJA application deadline, Scarborough, 541 U.S. at
421 n.8; Sanchez v. Astrue, 273 F. App'x 686,
687 (9th Cir. 2008), other courts have held that it does,
see Townsend v. Comm'r of Soc. Sec., 415 F.3d
578, 581-83 (6th Cir. 2005); Souphalith v. Astrue,
No. 06-CV-01410-H (AJB), 2009 WL 35471, at *2 (S.D. Cal. Jan.
5, 2009). To invoke equitable tolling, the claimant must
demonstrate that (1) she has pursued her rights diligently
and (2) extraordinary circumstances prevented her from timely
filing her fee application. “[A] garden variety claim
of excusable neglect” is insufficient. Irwin v.
Dep't of Veteran Affairs, 498 U.S. 89, 96 (1990);
see Hensley v. United States, 531 F.3d 1052, 1057-58
(9th Cir. 2008). Courts routinely conclude that even if
equitable tolling applies to the 30-day deadline, it is
inappropriate when counsel files a late application due to
counsel's foreseeable medical issues and calendaring
errors. See Norman, 2013 WL 141146, at *2 (denying
equitable tolling where “the error may have been caused
by a disruption in office procedures and counsel's
absence from the office due to shoulder surgery”);
Bernal v. Colvin, No. 1:14-cv-00733-SKO, 2015 WL
4873024, at *1 (E.D. Cal. Aug. 12, 2015) (declining to apply
equitable tolling because “a computer calendaring error
was responsible” for the untimely application);
Sorrel v. Colvin, No. 13-cv-04874-SI, 2015 WL
4942154, at *3 (N.D. Cal. Aug. 18, 2015) (concluding that a
“miscalculation of the filing date constitutes garden
variety excusable neglect”); Beck v. Astrue,
No. CV 11-01813-PHX-FJM, 2012 WL 3641425, at *1 (D. Ariz.
Aug. 24, 2012) (same); cf. Lane v. Colvin, No. CV
15-53-BLG-CSO, 2016 WL 5936866, at *2 (D. Mont. Oct. 12,
2016) (applying equitable tolling where counsel suffered
“an unanticipated medical emergency).
even if the court concluded that equitable tolling applies to
EAJA fee applications, Ms. Newman has not demonstrated that
she pursued her rights diligently or that extraordinary
circumstances prevented her counsel from timely filing the
application. Rather, the untimeliness stemmed from a
misunderstanding of the applicable deadline, and Mr.
Halpern's inattention in training his new staff.
(See Mot. at 3; Halpern Decl. at 1.) These events
constitute the kind of “garden variety” claim of
excusable neglect that falls short of the equitable tolling
threshold. Irwin, 498 U.S. at 96. Although the court
understands that the untimeliness falls most heavily on Mr.
Baird, who did not file the application, Ms. Newman has not
demonstrated the two elements necessary to invoke equitable
tolling. Therefore, she is not entitled to fees, expenses,
and costs under the EAJA.