United States District Court, S.D. California
ORDER DENYING MOTION FOR ATTORNEY'S FEES (ECF NO.
Janis L. Sammartino, United States District Judge.
before the Court is a Stipulation for the Award and Payment of
Attorney Fees and Expenses Pursuant to the Equal Access to
Justice Act (“EAJA”), 28 U.S.C. § 2412(d)
and Costs Pursuant to 28 U.S.C. § 1920, (ECF No. 27).
The parties have stipulated that Defendant Nancy A. Berryhill
will compensate Plaintiff Penny Lee Krebs attorney's fees
and expenses in the amount of $4, 500.00 pursuant to 28
U.S.C. § 2412(d). (Id. at 1.) The parties also
stipulated no costs will be awarded pursuant to 28 U.S.C.
§ 1920. Having considered Plaintiff's arguments and
the law, the Court rules as follows.
December 27, 2016, Plaintiff filed a Complaint requesting the
Court reverse and set aside Defendant's decision against
Plaintiff as to her Social Security disability benefits. (ECF
No. 1.) The parties filed cross-motions for summary judgment,
which were referred to Magistrate Judge Bernard G. Skomal.
Judge Skomal issued a Report and Recommendation
(“R&R”) recommending the Court grant
Plaintiff's Motion for Summary Judgment, deny
Defendant's Motion, and remand the case for further
administrative proceedings. (ECF No. 25.) This Court adopted
the R&R on March 20, 2018 and remanded the case to the
Social Security Administration. (ECF No. 26.) On May 2, 2018,
Plaintiff filed the present motion.
EAJA provides, in relevant part,
Except as otherwise specifically provided by statute, a court
shall award to a prevailing party other than the United
States fees and other expenses, in addition to any costs
awarded pursuant to subsection (a), incurred by that party in
any civil action (other than cases sounding in tort),
including proceedings for judicial review of agency action,
brought by or against the United States in any court having
jurisdiction of that action, unless the court finds that the
position of the United States was substantially justified or
that special circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A). The prevailing party must
file an application within thirty days of final judgment.
§ 2412(d)(1)(B). That application must show that the
party is a prevailing party, is eligible to receive an award
under this subsection, the amount sought, which includes an
itemized statement stating the actual time spent and the rate
that the fees and expenses were computed. Id.
U.S.C. § 2412(d)(1)(B) provides that an application for
fees must be filed “within thirty days of final
judgment.” The EAJA further defines final judgment as
“a judgment that is final and not
appealable.” § 2412(d)(2)(G) (emphasis
added). The first issue is what constitutes a final judgment.
Under 42 U.S.C. § 405(g), there are two types of remands
of Social Security cases. See Hoa Hong Van v.
Barnhart, 483 F.3d 600, 607 (9th Cir. 2007). The first
type is a “sentence-four” remand, which refers to
the fourth sentence of § 405(g). “The fourth
sentence of § 405(g) authorizes a court to enter
‘a judgment affirming, modifying, or reversing the
decision of the Secretary, with or without remanding the
cause for a rehearing.'” Melkonyan v.
Sullivan, 501 U.S. 89, 98 (1991) (quoting 42 U.S.C.
§ 405(g)). The second type is a
“sentence-six” remand, which refers to the sixth
sentence of § 405(g) and arises when the district court
“does not rule in any way as to the correctness of the
administrative decision. Rather, the court remands because
new evidence has come to light that was not available to the
claimant at the time of the administrative proceeding and
that evidence might have changed the outcome of the prior
proceeding.” Id. (citing Sullivan v.
Finkelstein, 496 U.S. 617, 626 (1990)). Thus, a
sentence-four remand becomes a final judgment when the
district court affirms, modifies, or reverses the
administrative decision. Id. at 101-02. A
sentence-six remand becomes a final judgment when the
“postremand proceedings are completed [and] the
Secretary returns to court.” Id. at 102.
second issue is when the final judgment is no longer
appealable. Once the judgment becomes final-for either a
sentence-four and sentence-six remand-the timing to apply for
EAJA fees is identical. “[I]n both [remand types] the
claimant must file within 30 days after the appeal
period provided for in [Federal Rule of Appellate
Procedure] 4(a) has run.” Hoa Hong Van, 483
F.3d at 607 (citing Melkonyan, 501 U.S. at 102; and
Shalala v. Schaefer, 509 U.S. 292, 298, 302 (1993);
and Akopyan v. Barnhart, 296 F.3d 852, 857 (9th Cir.
2002); and Yang v. Shalala, 22 F.3d 213, 215-16 (9th
Cir. 1994)). Federal Rule of Appellate Procedure 4(a)(1)(B)
provides for a 60-day appeal period in cases in which the
United States is a party or a United States officer or
employee is sued in an official capacity. Thus, “a
judgment in an [Supplemental Security Income] case is
‘no longer appealable' or ‘not
appealable' when the 60-day post-judgment appeal period
has run. Id. (citing Melkonyan, 501 U.S. at
102; and Barry v. Bowen, 825 F.2d 1324, 1327 (9th
Magistrate Judge Skomal determined that the Social Security
Administration's Administrative Law Judge
(“ALJ”) erred by improperly rejecting
Plaintiff's subjective testimony and improperly rejecting
the opinions of Plaintiff's treating doctors.
(See ECF No. 26, at 3 (summarizing R&R
findings).) Judge Skomal also determined that the ALJ's
error was not harmless and recommended the case be remanded
back to the Social Security Administration. (ECF No. 25, at
20-21.) Because no party objected to the R&R, this Court
applied a “clear error” standard of review to the
R&R and adopted it in its entirety. (ECF No. 26.) The
Court remanded the case back to the Social Security
Administration. This Court did not explicitly specify whether
the remand was pursuant to sentence-four or sentence-six;
however, Judge Skomal's R&R clearly found the ALJ
erred in its decision to deny Plaintiff benefits.
Accordingly, the remand was pursuant to the fourth sentence
of § 405(g) and not the sixth sentence.
Court remanded the case on March 20, 2018, (ECF No. 26). The
EAJA's 30-day filing period will not begin to run until
after the 60-day appeal period has passed. See Hoa Hong
Van, 483 F.3d at 612. Here, the appeal period ends May
21, 2018. Plaintiff's motion for attorney's
fees is not timely until May 21, 2018. Therefore, the Court
DENIES WITHOUT PREJUDICE Plaintiff's
Motion for Attorney's Fees. The Court also notes that
Plaintiff did not comply with the requirements of 28 U.S.C.
§ 2412(d)(1)(B), which requires an itemized statement
with actual time expended, the rate at which fees and other
expenses were computed, and allege that the position of the
United States was not substantially justified. The Court
recognizes that the parties stipulated to the fee and that
Plaintiff signed a representation agreement ...