United States District Court, W.D. Arkansas, Hot Springs Division
BARRY A. BRYANT, U.S. MAGISTRATE JUDGE
now before this Court is Plaintiff's Application for
Attorney Fees Under the Equal Access to Justice Act
(“EAJA”). ECF No. 18. Defendant has responded to
this Motion and objects to any award of fees or expenses
because Plaintiff's motion is untimely. ECF No. 19. The
parties have consented to the jurisdiction of a magistrate
judge to conduct any and all proceedings in this case,
including conducting the trial, ordering the entry of a final
judgment, and conducting all post-judgment proceedings. ECF
No. 9. Pursuant to this authority, the Court issues this
Callaway (“Plaintiff”) appealed to this Court
from the Secretary of the Social Security
Administration's (“SSA”) denial of his
request for Disability Insurance Benefits (“DIB”)
and Supplemental Security Income (“SSI”) under
Titles II and XVI of the Act. ECF No. 1. On July 1, 2016,
this Court reversed and remanded Plaintiff's case
pursuant to sentence four of 42 U.S.C. § 405(g). ECF No.
December 13, 2016, Plaintiff filed the present Motion
requesting an award of attorney's fees under the EAJA.
ECF No. 18. With this Motion, Plaintiff requests an award of
attorney's fees of $4, 204.80, representing 22.50 hours
of attorney time at an hourly rate of $186.88. Id.
responded to this Motion on December 14, 2016 and objects to
any award of fees or expenses because Plaintiff's motion
is filed untimely. ECF No. 19.
to the EAJA, 28 U.S.C. § 2412(d)(1)(A), a court must
award attorney's fees to a prevailing social security
claimant unless the Secretary's position in denying
benefits was substantially justified. The Secretary has the
burden of proving that the denial of benefits was
substantially justified. See Jackson v. Bowen, 807
F.2d 127, 128 (8th Cir.1986) (“The Secretary bears the
burden of proving that its position in the administrative and
judicial proceedings below was substantially
justified”). An EAJA application also must be made
within thirty days of a final judgment in an action,
See 28 U.S.C. § 2412(d)(1)(B), or within thirty
days after the sixty day time for appeal has expired. See
Shalala v. Schaefer, 509 U.S. 292, 298 (1993).
Consequently, a Plaintiff in a case against the Government
has a total of 90 days in which to file an application for
attorney fees under the EAJA. In sentence four remand cases,
the filing period begins after the final judgment is entered
by the court. Melkonyan v. Sullivan, 501 U.S. 89,
present action, judgment was entered on July 1, 2016 ECF No.
17. The Court's judgment became final 60 days later, on
August 30, 2016. As a result, the statutory deadline for
filing an EAJA application was 30 days later, on September
29, 2016. However, Plaintiff did not file his application
until December 13, 2016. ECF. No. 18. Plaintiff's counsel
has not made any showing to excuse the failure to apply for
an award within the required time period.
to submit an application within the required time period bars
an award under EAJA. See Olson v. Norman, 830 F.2d
811, 821 (8th Cir. 1987). The Eighth Circuit has stated it
lacks jurisdiction to consider the merits of fee applications
filed beyond the time limit. See Pottsmith v.
Barnhart, 306 F.3d 526, 527 (8th Cir. 2002).
upon the foregoing, the Court DENIES
Plaintiff's Application for Attorney ...