United States District Court, D. South Carolina
V. Hodges, United States Magistrate Judge
matter is before the court on Plaintiff's motion for
attorney's fees pursuant to the Equal Access to Justice
Act (“EAJA”), 28 U.S.C. § 2412(d). Plaintiff
filed a petition requesting $4, 360.04 in attorney's fees
and expenses on the ground that he is a prevailing party
under the EAJA. [ECF Nos. 21 and 21-1 at 2]. The Commissioner
filed a response opposing Plaintiff's petition for
attorney's fees on the basis that it was not timely
filed. [ECF No. 22]. In his reply to the Commissioner's
response, Plaintiff's counsel admits that he was unaware
of the timeline for filing a request for EAJA fees, but
maintains that the Commissioner is not prejudiced by his
delay. [ECF No. 23 at 2-3]. For the reasons set forth below,
the court denies Plaintiff's motion for attorney's
November 13, 2012, Plaintiff protectively filed an
application for DIB in which he alleged his disability began
on April 8, 2008. Tr. at 63 and 131-36. His application was
denied initially and upon reconsideration. Tr. at 85-88 and
90-95. On April 1, 2015, Plaintiff had a hearing before
Administrative Law Judge (“ALJ”) Ann G. Paschall.
Tr. at 29-49 (Hr'g Tr.). The ALJ issued an unfavorable
decision on June 9, 2015, finding that Plaintiff was not
disabled within the meaning of the Act. Tr. at 8-28.
Subsequently, the Appeals Council denied Plaintiff's
request for review, making the ALJ's decision the final
decision of the Commissioner for purposes of judicial review.
Tr. at 1-6. Thereafter, Plaintiff brought this action seeking
judicial review of the Commissioner's decision in a
complaint filed on April 25, 2016. [ECF No. 1]. On January
27, 2017, the court issued an order reversing the decision of
the Commissioner and remanding the action for further
administrative proceedings. [ECF No. 19].
the EAJA, a court shall award reasonable attorney's fees
to a prevailing party in certain civil actions against the
United States unless the court finds that the
government's position was substantially justified or that
special circumstances make an award unjust. 28 U.S.C. §
2412(d)(1)(A). The eligibility requirements for an award of
fees under the EAJA are: (1) that the claimant is a
prevailing party; (2) that the government's position was
not substantially justified; (3) that no special
circumstances make an award unjust; and (4) that the fee
application be submitted to the court within 30 days of final
judgment and be supported by an itemized statement. See
Crawford v. Sullivan, 935 F.2d 655, 656 (4th Cir. 1991).
this court remanded the claim pursuant to 42 U.S.C. §
405(g), Plaintiff is considered the “prevailing
party” under the EAJA. See Shalala v.
Schaefer, 509 U.S. 292, 302 (1993). The Commissioner
does not make a substantial justification argument or
maintain that special circumstance make an award unjust.
However, she contends that Plaintiff's attorney's fee
cannot be paid because the fee petition was filed outside the
statutory period. [ECF No. 22 at 2].
“EAJA requires prevailing parties seeking an award of
fees to file with the court, ‘within thirty days of
final judgment in the action, ' an application for
fees and other expenses.” Melkonyan v.
Sullivan, 501 U.S. 89, 103 (1991) (emphasis in
original), citing 28 U.S.C. § 2412(d)(1)(B). The instant
case was remanded pursuant to sentence four of 42 U.S.C.
§ 405(g) [ECF No. 19], and “[a] sentence four
remand is a ‘final judgment' under the EAJA.”
Petition of Thomason, 777 F.Supp. 1277, 1279 (D.S.C.
1991). In Melkonyan, 501 U.S. at 102, the Supreme
Court clarified that for cases remanded pursuant to sentence
four of 42 U.S.C. § 405(g) “the filing period
begins after the final judgment (‘affirming, modifying,
or reversing') is entered by the court and the appeal
period has run, so that the judgment is no longer
appealable.” For actions in which a United States
agency is a party, Fed. R. App. P. 4(a)(1)(B) provides that a
notice of appeal may be filed within 60 days after entry of
instant action, the court entered a judgment on January 27,
2017. [ECF No. 20], and the 60-day appeal period ended on
March 28, 2017. See Fed. R. App. P. 4(a)(1)(B).
Plaintiff was required to file the fee petition under the
EAJA by April 27, 2017. See 28 U.S.C. §
2412(d)(1)(A). Because Plaintiff filed his fee petition on
September 27, 2017 [ECF No. 21], it was untimely. See
Scarborough v. Principi, 541 U.S. 401 (2004), the
Supreme Court rejected lower courts' rulings that the
30-day requirement under 28 U.S.C. § 2412(d)(1)(A) was
jurisdictional and found that it “concerns a mode of
relief (costs including legal fees) ancillary to the judgment
of a court that has plenary jurisdiction of [the civil]
action in which the fee application is made.” The court
held that the plaintiff was not time-barred from obtaining a
fee award under 28 U.S.C. § 2812(d)(1)(A) where he had
filed the fee petition within the statutory period, but had
amended it after the expiration of the period to assert that
the government's position was not substantially
justified. Id. Nevertheless, neither the Supreme
Court nor the United States Court of Appeals for the Fourth
Circuit has recognized exceptions to 28 U.S.C. §
2812(d)(1)(A)'s requirement that the attorney's fee
petition be filed within 30 days of final judgment.
Fourth Circuit and courts within the Fourth Circuit have
routinely dismissed cases in which fee petitions were filed
outside the statutory period. See Chambers v.
Bailey, 36 F.3d 1091 (Table), 1994 WL 510445, at *2 (4th
Cir. 1994); Smith v. Astrue, No. 2:07-5, 2012 WL
12529, at *2 (W.D. Va. Jan. 3, 2012); Smith v.
Astrue, No. 1:09-19, 2010 WL 1473945, at *1-2 (W.D. Va.
Apr. 9, 2010); Hinchey v. Astrue, No. 5:06-47, 2008
WL 570952, at *1 (W.D. Va. Feb. 29, 2008); Hines v.
Commissioner of Social Sec., 450 F.Supp.2d 628, 631
(E.D. Va. 2006).
concedes that the fee petition was filed untimely because he
was unaware of 28 U.S.C. § 2812(d)(1)(A)'s
requirements and admits that he has not shown good cause for
late filing. [ECF No. 23 at 2]. However, he maintains that
the Commissioner would not be prejudiced if the court were to
grant the untimely motion. Id. at 2-3. In light of
the courts' holdings in the cases cited above and in the
absence of a showing of good cause for the late filing, the
court is constrained to deny Plaintiffs motion.
the foregoing reasons, the court denies Plaintiffs motion for
attorney's fees under the EAJA. This decision is without
prejudice to the rights of Plaintiffs counsel to seek
attorney fees under ...