United States District Court, W.D. Arkansas, Harrison Division
OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE
pending before this Court are Plaintiff Bobbie Marie
Gage's Motion for Attorney Fees (Doc. 24) and Brief in
Support (Doc. 25), filed on November 14, 2016, pursuant to
the Equal Access to Justice Act ("EAJA"), 28 U.S.C.
§ 2412. Defendant Carolyn W. Colvin, Commissioner of the
Social Security Administration ("the
Commissioner"), filed a Response in Opposition to the
Motion (Doc. 26) on November 28, 2016, expressing no
objection to the amount of fees requested, but observing that
the Motion was filed "prematurely, " that is,
before the time had run for the Commissioner to file an
appeal of the Court's Judgment, if desired. On the same
day that the Commissioner filed her Response, Ms. Gage filed
a Reply (Doc. 27), disagreeing that her Motion for Fees was
premature and pointing out that "[i]t would be ludicrous
to require one to wait for an appeal when the Defendant, who
would be the appealing party, is the one who made the Motion
to Remand." A party may file for attorney fees under the
EAJA within 30 days of final judgment. 28 U.S.C. §
2412(d)(1)(B). A final judgment, for purposes of the EAJA, is
one that is "final and not appealable." 28 U.S.C.
§ 2412(d)(2)(G). Where, as here, the United States is a
party to the proceedings, the appeal period runs for 60 days
from the entry of judgment. See Fed. R. App. P.
4(a)(1)(8). Thus, a request for an award of attorney fees
under the EAJA may be filed as late as 30 days after the
judgment becomes "not appealable, " i.e.,
30 days after the 60-day time for appeal has ended.
to the Eighth Circuit, a district court should generally
"refrain from passing on the question of attorney fees
until the litigation is final for purposes of the EAJA"
so that it can "avoid deciding an issue that may become
moot if the government prevails on appeal." Harmon
v. United States, 101 F.3d 574, 587 (8th Cir. 1996).
However, in the instant case, even though Ms. Gage filed her
EAJA petition before the end of the 60-day appeal period,
there was no possibility that the Commissioner would file an
appeal. Because of that unassailable fact, Ms. Gage's
Motion for Fees was not premature.
for the Court's conclusion is found in Aarda v.
United States Citizenship and Immigration Services, an
opinion authored by the Honorable Richard H. Kyle, United
States District Judge for the District of Minnesota. 2008 WL
974916, at *3 (D. Minn. Apr. 8, 2008). In the Aarda
case, Judge Kyle surveyed the case law from around the
country discussing when a reviewing court should consider an
EAJA petition to have been prematurely filed. It appears that
most courts considering the issue have found that "the
EAJA sets forth only a deadline for filing such
[fee] applications, not a starting date." Id.
(emphasis added) (citing Johnson v. Gonzales, 416
F.3d 205, 208 (3d Cir. 2005); Auke Bay Concerned
Citizen's Advisory Council v. Marsh, 779 F .2d 1391,
1393 (9th Cir. 1986); James v. Dep't of Haus. &
Urban Dev., 783 F.2d 997, 998 (11th Cir. 1986);
Gonzalez v. United States, 44 Fed.Cl. 764, 767-68
(Fed. Cl. 1999)). In particular, the Third Circuit in
Taylor v. United States explained that, according to
the legislative history of the EAJA, a petition for fees may
be filed at any time "after a losing party asserts that
no further appeal will be taken." 749 F.2d 171, 174
& n.8 (3d Cir. 1984). The Eighth Circuit has also
indicated-albeit in dicta-that it believes "no useful
purpose" is served in dismissing an EAJA fee petition as
premature when, at the time of the petition's filing, all
parties acknowledge that the petitioner has prevailed and is
entitled to fees. See Welter v. Sullivan, 941 F.2d
674, 675-76 (8th Cir. 1991) (citing to Auke Bay, 779
F.2d at 1393).
instant dispute, the Commissioner conceded on September 6,
2016, that Ms. Gage was the prevailing party and requested
that the Court enter judgment in her favor, thus "ending
this case." (Doc. 20, p. 3). The Commissioner went so
far as to note in her briefing that the dismissal should be
"without prejudice to the subsequent filing for attorney
fees under the Equal Access to Justice Act (EAJA)"-a
motion the Commissioner surely anticipated. Id. Yet,
when Ms. Gage's Motion for Fees was filed two months
later, on November 14, 2016, the Commissioner objected that
it had been filed one month too soon, and that counsel for
Ms. Gage should have waited 28 more days-so as to fully
exhaust the Government's 60-day appeal period.
should be obvious from the discussion above that the
Commissioner's objection is not well taken by the Court.
The Commissioner does not, and indeed cannot, offer any
practical reason why Ms. Gage's counsel should have
delayed a moment longer in filing her request for fees.
Indeed, the Court can only surmise that the Commissioner
asserted her objection in order to cause delay in these
proceedings, and perhaps to waste opposing counsel's
time. Therefore, counsel for the Commissioner is cautioned to
avoid making objections such as this one in the future.
now to the substance of the Motion for Fees, the Court finds
that Ms. Gage was the prevailing party in this dispute, and
that the Commissioner's decision to deny benefits was not
substantially justified. Further, the Court finds that the
number of attorney and paralegal hours claimed by Ms.
Gage's counsel, and the rates requested to perform these
services, are reasonable, given the demands of the
litigation. Accordingly, IT 15 ORDERED that Plaintiff Bobbie
Marie Gage receive an attorney's fee award under the EAJA
in the amount of $3, 306.00, which represents 18.2 attorney
hours expended between 2014 and 2016 at an hourly rate of
$180.00, and 0.40 paralegal hours at an hourly rate of
to Astrue v. Ratliff, 130 S.Ct. 2521, 2528 (2010),
the EAJA fee award should be made payable to Plaintiff. As a
matter of practice, however, an EAJA fee made payable to a
plaintiff may properly be mailed to the plaintiff's
parties are reminded that, in order to prevent double
recovery by Plaintiff's counsel, the award made herein
under the EAJA will be taken into account at such time as a