United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
Collins, United States Magistrate Judge
the Court is Plaintiff Rosemarie Hughes's motion for an
extension of time to file a motion to recover attorney fees
under the Equal Access to Justice Act (“EAJA”),
28 U.S.C. § 2412, together with a proposed petition for
attorney fees under the EAJA and supporting documents. (DE 21
through DE 21-2). Defendant Commissioner of Social Security
(“Commissioner”) contends that Hughes's
motion for an extension of time was not timely and should be
denied. (DE 22). Hughes filed a reply (DE 23), and the motion
is now ripe for ruling.
following reasons, Hughes's motion for an extension of
time to file a motion for attorney fees under the EAJA will
January 21, 2016, Hughes brought this action to review the
decision of the Commissioner regarding the denial of
disability benefits. (DE 1). On March 29, 2018, this Court
entered an Opinion and Order reversing the Commissioner's
decision and remanding the case to the Commissioner for
further proceedings. (DE 19). That same day, the Clerk
entered a judgment in Hughes's favor. (DE 20).
2, 2018, Hughes, through her attorney Adriana de la Torre
(“Attorney de la Torre”), filed a motion
requesting that the Court extend the deadline for Hughes to
file a motion for attorney fees under the EAJA, and
acknowledging that the deadline to file a motion for EAJA
fees passed on June 27, 2018. (DE 21). The parties disagree
over whether the Court should grant Hughes's motion to
extend the deadline to file a motion for EAJA fees, even
though the motion was filed after the deadline had passed.
party seeking an award of fees must be a prevailing party,
timely file a petition, request reasonable fees, and allege
that the United States or agency was not substantially
justified.” Miller v. Colvin, No.
3:11-CV-109-TLS, 2014 WL 2435538, at *1 (N.D. Ind. May 29,
2014) (citing 28 U.S.C. § 2412(d)(1)(B)). An application
for attorney fees under the EAJA is considered timely if it
is submitted within 30 days of final judgment in an action.
28 U.S.C. § 2412(d)(1)(B). “A judgment is
considered a ‘final judgment' when it is
‘final and not appealable.'” Miller,
2014 WL 2435538, at *2 (quoting 28 U.S.C. §
2412(d)(2)(G)); see Shalala v. Schaefer, 509 U.S.
292, 302 (1993). Where the Social Security Administration is
a party, a case is not appealable once the 60 days for filing
an appeal has expired. Fed. R. App. P. 4(a)(1)(B)(ii).
“In a Social Security case remanded under sentence four
of 42 U.S.C. § 405(g), the appeal period for purposes of
the EAJA begins upon entry of the final judgment by the
district court.” Miller, 2014 WL 2435538, at
*2 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102
(1991)). “[T]his typically gives a claimant a total of
ninety days to file an EAJA application after the district
court enters judgment.” Olvey v. Colvin, No.
1:14-CV-00901-TWP, 2015 WL 5672622, at *3 (S.D. Ind. Sept.
25, 2015) (citation omitted).
the social security context, a court applies traditional
equitable tolling principles.” Criss v.
Berryhill, No. 16 C 2348, 2017 WL 3430578, at *2 (N.D.
Ill. Aug. 9, 2017) (citing Jackson v. Astrue, 506
F.3d 1349, 1355 (11th Cir. 2007)). Equitable tolling permits
courts to deem filings timely where a litigant shows that she
has been pursuing her rights diligently but was prevented
from filing within the statute of limitations due to
extraordinary circumstances. Id. at *2 (citations
omitted); Miller, 2014 WL 2435538, at *3 (citing
Irwin v. Dep't of Veterans Affairs, 498 U.S. 89,
95-96 (1990)). Thus, “[e]quitable tolling is only
appropriate in rare and exceptional circumstances.”
Criss, 2017 WL 3430578, at *2 (citations and
internal quotation marks omitted). Garden variety claims of
excusable neglect do not justify equitable tolling.
Miller, 2014 WL 2435538, at *3 (citation omitted).
contends that the Court should grant the instant motion
because her five-day delay in filing was due to excusable
neglect. Specifically, Attorney de la Torre represents that
she inadvertently miscalculated the deadline for filing a
motion for EAJA fees. (DE 21 ¶ 6). Relying on
Olvey, 2015 WL 5672622, Hughes argues that excusable
neglect with regard to the untimeliness of the motion to
extend is not a bar to adjudication.
Commissioner argues that Hughes is actually asking the Court
to apply equitable tolling to the EAJA deadline. According to
the Commissioner, because Hughes's late filing was the
result of Attorney de la Torre's calendaring error, which
courts have repeatedly declined to be an acceptable reason to
apply equitable tolling, the Court should deny Hughes's
request for extension.
Commissioner's argument is persuasive. Hughes mistakenly
relies on Olvey in arguing that the Court should
equitably toll the statute of limitations in this case.
There, Mr. Olvey's attorney filed a motion for an
extension of time to file a motion for EAJA fees after the
deadline, and the court granted the motion without opposition
from the Commissioner. Olvey, 2015 WL 5672622, at
*3. Later, when litigating Mr. Olvey's application for
EAJA fees, the Commissioner argued that the application was
not timely because the motion for an extension was filed
after the deadline. Id. Notably, the court in
Olvey did not find that equitable tolling or any
other circumstance justified tolling the statute of
limitations. Id. Rather, the court was
“concerned that Mr. Olvey's attorney failed to
recognize and meet the deadline for the EAJA application.
Indeed, when looking closer at Mr. Olvey's briefs, it
appears that Mr. Olvey's attorney may have been confused
regarding the appropriate deadline . . . .”
Id. “Nevertheless, . . . [the] Court [had]
already granted Mr. Olvey's motion for extension of time,
allowing his attorney to file his EAJA application that same
day. Necessarily, then, [the] Court consider[ed] Mr.
Olvey's EAJA application timely filed.”
Id. Thus, the Court in Olvey did not
consider the merits of Mr. Olvey's request for extension
the parties dispute the merits of Hughes's request for an
extension of time. Hughes represents that Attorney de la
Torre “inadvertently calculated the deadline in which
to file the EAJA Petition. [Attorney de la Torre]
inadvertently docketed June 27, 2018, as the date for
commencing discussion with counsel for the Commissioner about
the EAJA fee to be requested, rather than the deadline by
which the formal EAJA petition must be filed.” (DE 21
on the merits, Hughes is requesting that the Court apply
equitable tolling to the statute of limitations due to a mere
error in calculating the deadline for a motion for EAJA fees.
However, miscalculating the deadline is not the result of an
“extraordinary circumstance beyond [Attorney de la
Torre's] control.” Kellum v. Comm'r of Soc.
Sec., 295 Fed.Appx. 47, 50 (6th Cir. 2008) (citation
omitted). Neither is this “a situation where the
parties were exchanging proposals and counter-proposals down
to the wire, and one party delayed filing a motion so as not
to disrupt the settlement process.” Criss,
2017 WL ...