IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

KLAYTON V. ALBRIGHT, 

Plaintiff, 

v. 

COMMISSIONER SOCIAL SECURITY 

ADMINISTRATION, 

Defendant. 

MARSH, Judge 

Case No. 3:16-cv-00436-MA 

ORDER ON EAJA FEES 

On June 23, 2017, the Court issued an order and judgment reversing and remanding the 

Commissioner's nondisability determination for an immediate payment of benefits pursuant to 

sentence four of 42 U.S.C. § 405(g). Op. & Order, ECF No. 20. Currently before the Comt is 

Plaintiffs Application for Attorney Fees pursuant to the Equal Access to Justice Act (EAJA), 28 

U.S.C. § 2412. ECF No. 22. The Commissioner opposes Plaintiffs motion as untimely. 

DISCUSSION 

Under the EAJA, a prevailing patty is entitled to recover attorney fees, costs and expenses 

in civil actions against the government, unless the government shows its position in the litigation was 

"substantially justified." 28 U.S.C. § 2412(d)(l)(A). The decision to deny EAJA attorney fees is 

1 - ORDER ON EAJA FEES 
within the discretion of the court. Decker v. Berryhill, 856 F.3d 659, 663 (9th Cir. 2017); Flores v. 

Shala/a, 49 F.3d 562, 567 (9th Cir. 1995). A social security claimant is a "prevailing party" 

following a sentence-four remand i.mder 42 U.S.C. § 405(g). Flores, 49 F.3d at 568. The 

Commissioner does not dispute that Plaintiff is the prevailing party here. 

The EAJA also limits the time within which a prevailing party may file a fee application. 

Under§ 2412(d)(l)(B), "[a] party seeking an award of fees and other expenses shall, within thirty 

days of final judgment in the action, submit to the comi an application for fees and other 

expenses[.]" A "final judgment" means a judgment which is no longer appealable. 28 U.S.C. § 

2412(d)(2)(G). Under Fed.R.App.P. 4(a)(l)(B), the Commissioner has 60 days to appeal the 

judgment. As a result, a successful social security claimant has 30 days to file an EAJA fee 

application after the 60-day appeal period has expired. See lvfelkonyan v. Sullivan, 501 U.S. 89, 102 

(1991); Hoa Hong Van v. Barnhart, 483 F.3d 600, 604 (9th Cir. 2007); Norman v. As true, Case No. 

3:11-cv-00854-MA,2013WL141146, *l (D. Or. Jan.11, 2013). Although the 30-dayrequirement 

is not jurisdictional, the comi must constrne strictly the time limits for EAJA fee applications 

because the EAJA is a waiver of sovereign immunity. Arulampalam v. Gonzales, 399 F.3d 1087, 

1089 (9th Cir. 2005). 

In this case, the Comi entered judgment on June 23, 2017 and the 60-day appeal period 

expired on or about August 22, 2017. Plaintiffs EAJA filing period then began and expired 30 days 

later, on or about September 21, 2017. However, Plaintiff did not file his EAJA application until 

November 8, 2017, some 47 days after the time period lapsed. Plaintiff has offered no explanation 

for its untimeliness, and did not file a Reply in response to the Commissioner's contention that the 

Application is untimely. 

2 - ORDER ON EAJA FEES 
There is no dispute that Plaintiff's application is untimely. Accordingly, the Comi denies 

Plaintiff's Application for attorney fees under the EAJA because it was filed more than thitiy days 

after judgment became final. See Sanchezv. Astrue, 273 F. App'x 686, 687 (9th Cir. 2008) (denying 

untimely social security EAJA fee application). 

CONCLUSION 

Based on the foregoing, Plaintiff's Application for Fees Pursuant to the Equal Access to 

Justice Act (ECF No. 22) is DENIED. 

IT IS SO ORDERED. 

DATED this °20day of DECEMBER, 201'f. 

?nak,.4>. -r ?n~ Malcolm F. Marsh 

United States District Judge 

3 - ORDER ON EAJA FEES