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Katherine Slack v. Michael J. Astrue

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


June 25, 2012

KATHERINE SLACK, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

FINDINGS AND RECOMMENDATIONS

In this action, plaintiff sought judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act. On March 7, 2011, the then-assigned district judge adopted findings and recommendations and remanded the matter for further proceedings under sentence four of 42U.S.C. § 405(g). Due to the death of plaintiff's counsel, Ian Sammis, on May 29, 2011 and at the request of plaintiff's successor counsel, the district judge, by minute order issued on June 8, 2011, stayed the action nunc pro tunc to May 29, 2011 and directed counsel to advise the court within thirty days as to the status of plaintiff's approval of successor counsel and whether a further continuance of the stay was warranted. Counsel failed to file a status report.

By motion filed April 17, 2012, plaintiff seeks EAJA fees in the amount of $4,478.88. Defendant opposes the motion on the sole ground of untimeliness. It appears that the initial delay in timely seeking EAJA fees was due to plaintiff's counsel's hospitalization and medical issues related to his pacemaker which preceded his demise. Defendant does not contend the EAJA fees should be denied for the initial delay. However, there is no showing in the pleadings which explains the second delay in seeking EAJA fees, i.e. the failure of the present plaintiff's counsel to timely seek fees after the stay was granted in June, 2011 to allow time for Mr. Sammis' clients to obtain successor counsel.

On May 22, 2012, an order to show cause was issued directing plaintiff to show cause why the motion for EAJA fees should not be denied as untimely. Plaintiff has failed to respond to the order to show cause. Pursuant to 28 U.S.C. § 2412(d)(1)(B), an application for fees must be filed with the court within thirty days of final judgment in the action. There appearing to be no justification for the untimeliness of the application at issue here, the court will recommend that no award of fees be made.

Accordingly, IT IS HEREBY RECOMMENDED that plaintiff's motion for attorney's fees (Dckt. No. 35) be denied as untimely.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

20120625

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