Newman v. Berryhill, No. 3:2017cv05018 - Document 27 (W.D. Wash. 2017)

Court Description: ORDER denying Plaintiff's 24 Motion for EAJA fees, costs, and expenses. Signed by Judge James L. Robart. (PM)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 SHERRI L. NEWMAN, 10 CASE NO. C17-5018JLR ORDER ON EAJA FEES Plaintiff, 11 v. 12 NANCY BERRYHILL, 13 Defendant. 14 15 I. INTRODUCTION Before the court is Plaintiff Sherri L. Newman’s motion for fees, costs, and 16 17 expenses under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). (Mot. 18 (Dkt. # 24).) Defendant Nancy Berryhill, Acting Commissioner of Social Security (“the 19 Commissioner”), opposes Ms. Newman’s motion as untimely. (Resp. (Dkt. # 25).) The 20 court has considered the motion, the parties’ submissions in support of and opposition to 21 // 22 // ORDER - 1 1 the motion, the relevant portions of the record, and the applicable law. Being fully 2 advised,1 the court DENIES the motion for the reasons set forth below. 3 4 5 II. A. BACKGROUND & ANALYSIS Procedural Background Ms. Newman filed her social security appeal on January 10, 2017. (See IFP Mot. 6 (Dkt. # 1); see also Compl. (Dkt. # 3).) On July 10, 2017, the court reversed the 7 Commissioner’s final decision and remanded the matter for further administrative 8 proceedings under sentence four of 42 U.S.C. § 405(g). (7/10/17 Order (Dkt. # 22) at 9 1-2.) On October 17, 2017, Ms. Newman moved for an award of attorneys’ fees, 10 expenses, and costs for attorneys Jeffrey Baird and Elie Halpern. (Mot. at 1.) Ms. 11 Newman argues that she is both a prevailing and an eligible party, the attorneys’ fees are 12 reasonable, and the Commissioner’s position in the litigation was not substantially 13 justified. (Id. at 2-5.) 14 The Commissioner opposes Ms. Newman’s motion, arguing that her application is 15 untimely. (Resp. at 2.) Judgment became final 60 days after July 10, 2017, and Ms. 16 Newman had until 30 days after the judgment—October 10, 2017—to file her EAJA 17 application. (Id.); see also 28 U.S.C. § 2412(d)(1)(B). Ms. Newman failed to file her 18 application until October 17, 2017. (Resp. at 2; see also Mot.) The Commissioner does 19 not argue that her position in the litigation was substantially justified or attack the 20 reasonableness of the requested fees. (See generally Resp.) 21 1 22 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). ORDER - 2 1 Ms. Newman admits that her application is untimely but asks the court to 2 equitably toll the 30-day period for seeking fees and costs. (Reply (Dkt. # 26) at 2-3.) 3 She states that “new personnel erred in timeliness due to misunderstanding of the statute 4 of limitations,” and argues that Mr. Baird, “a contract attorney who produced his own 5 hours on time,” should not bear Mr. Halpern’s error in filing the application late. (Id. at 6 3; Halpern Decl. (Dkt. # 26-1) at 1 (stating that the law office’s “new support 7 person . . . did not know she was late when she sent [Mr. Halpern] the documents to file 8 for EAJA fees” and admitting that Mr. Halpern “did not perform the requisite training” 9 for the support person).) She proposes that the court award only Mr. Baird fees. (Mot. at 10 3; see also Halpern Decl. at 1 (“Mr. Baird will have his fees stripped away if the statute 11 of limitations is strictly followed here.”).) In addition, Mr. Halpern states that “[i]n the 12 past year, [he has] had to undergo chemotherapy and radiation for non-Hodgkin’s 13 Lymphoma, but that at the time of the due date for filing EAJA fees, [he] cannot say that 14 the chemotherapy or radiation was affecting [his] practice, although [he] may have been 15 overburdened with back work building up during my treatment.” (Halpern Decl. at 1.) 16 The court now addresses the motion. 17 B. EAJA Fees, Costs, and Expenses A prevailing party may recover attorneys’ fees, costs, and expenses in social 18 19 security appeals unless the Commissioner demonstrates that her litigation position was 20 substantially justified. 28 U.S.C. § 2412(d)(1)(A). The claimant is “a ‘prevailing party’ 21 following a sentence-four remand for further proceedings under 42 U.S.C. § 405(g).” 22 // ORDER - 3 1 Norman v. Astrue, No. 3:11-cv-00854-MA, 2013 WL 141146, at *1 (D. Or. Jan. 11, 2 2013) (citing Flores v. Shalala, 49 F.3d 562, 568 (9th Cir. 1995)). 3 Under 28 U.S.C. § 2412(d)(1)(B), “[a] party seeking an award of fees and other 4 expenses shall, within thirty days of final judgment in the action, submit to the court an 5 application for fees and other expenses.” 28 U.S.C. § 2412(d)(1)(B). “[A] successful 6 social security claimant has 30 days to file an EAJA fee application after the 60-day 7 appeal period has expired.” Norman, 2013 WL 141146, at *1. Although the 30-day 8 requirement is not jurisdictional, Scarborough v. Principi, 541 U.S. 401, 413-14 (2004), 9 the court must construe strictly the time limits for EAJA fee applications because the 10 EAJA is a waiver of sovereign immunity, Arulampalam v. Gonzales, 399 F.3d 1087, 11 1089 (9th Cir. 2005). 12 Although the Supreme Court and Ninth Circuit have not explicitly determined 13 whether equitable tolling applies to the 30-day EAJA application deadline, Scarborough, 14 541 U.S. at 421 n.8; Sanchez v. Astrue, 273 F. App’x 686, 687 (9th Cir. 2008), other 15 courts have held that it does, see Townsend v. Comm’r of Soc. Sec., 415 F.3d 578, 581-83 16 (6th Cir. 2005); Souphalith v. Astrue, No. 06-CV-01410-H (AJB), 2009 WL 35471, at *2 17 (S.D. Cal. Jan. 5, 2009). To invoke equitable tolling, the claimant must demonstrate that 18 (1) she has pursued her rights diligently and (2) extraordinary circumstances prevented 19 her from timely filing her fee application. “[A] garden variety claim of excusable 20 neglect” is insufficient. Irwin v. Dep’t of Veteran Affairs, 498 U.S. 89, 96 (1990); see 21 Hensley v. United States, 531 F.3d 1052, 1057-58 (9th Cir. 2008). Courts routinely 22 conclude that even if equitable tolling applies to the 30-day deadline, it is inappropriate ORDER - 4 1 when counsel files a late application due to counsel’s foreseeable medical issues and 2 calendaring errors. See Norman, 2013 WL 141146, at *2 (denying equitable tolling 3 where “the error may have been caused by a disruption in office procedures and counsel’s 4 absence from the office due to shoulder surgery”); Bernal v. Colvin, 5 No. 1:14-cv-00733-SKO, 2015 WL 4873024, at *1 (E.D. Cal. Aug. 12, 2015) (declining 6 to apply equitable tolling because “a computer calendaring error was responsible” for the 7 untimely application); Sorrel v. Colvin, No. 13-cv-04874-SI, 2015 WL 4942154, at *3 8 (N.D. Cal. Aug. 18, 2015) (concluding that a “miscalculation of the filing date constitutes 9 garden variety excusable neglect”); Beck v. Astrue, No. CV 11-01813-PHX-FJM, 2012 10 WL 3641425, at *1 (D. Ariz. Aug. 24, 2012) (same); cf. Lane v. Colvin, 11 No. CV 15-53-BLG-CSO, 2016 WL 5936866, at *2 (D. Mont. Oct. 12, 2016) (applying 12 equitable tolling where counsel suffered “an unanticipated medical emergency). 13 Here, even if the court concluded that equitable tolling applies to EAJA fee 14 applications, Ms. Newman has not demonstrated that she pursued her rights diligently or 15 that extraordinary circumstances prevented her counsel from timely filing the application. 16 Rather, the untimeliness stemmed from a misunderstanding of the applicable deadline, 17 and Mr. Halpern’s inattention in training his new staff. (See Mot. at 3; Halpern Decl. at 18 1.) These events constitute the kind of “garden variety” claim of excusable neglect that 19 falls short of the equitable tolling threshold. Irwin, 498 U.S. at 96. Although the court 20 understands that the untimeliness falls most heavily on Mr. Baird, who did not file the 21 application, Ms. Newman has not demonstrated the two elements necessary to invoke 22 // ORDER - 5 1 equitable tolling. Therefore, she is not entitled to fees, expenses, and costs under the 2 EAJA. 3 4 5 6 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. 7 8 A 9 JAMES L. ROBART United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER - 6