Brandt v. Barnhart, 285 F. Supp. 2d 917 (S.D. Tex. 2003)

Mary Ellen Felps, Austin, TX, for Laurie Brandt, plaintiff.

Cheryl Latrice Chapman, Office of the General Counsel, Social Security Admin, Dallas, TX, for Jo Anne B Barnhart, Commissioner of Social Security, defendant.

HOYT, District Judge.

Having conducted a review of the Memorandum and Recommendation [Doc. # 31], as well as all other materials on file in this proceeding and noting that no Objections have been filed to the Memorandum and Recommendation, this Court finds that the Memorandum and Recommendation is well founded and is adopted herein. It is, therefore,

ORDERED that Brandt's Petition for Attorneys' Fees [Doc. # 25] is DENIED for lack of subject matter jurisdiction.

The Clerk of Court shall file this Memorandum and Order and provide the parties with a true copy.

BOTLEY, United States Magistrate Judge.

Pending before the Court is Plaintiff Laurie Brandt's ("Brandt") Petition for Attorney's Fees (Entry # 25), brought pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412 (1980). Following the filing of the lawsuit, Brandt successfully obtained the remand of the request for social security benefits to the Social Security Administration. See Final Judgment (Entry # 23). Brandt now seeks approval for the award of five thousand eight hundred eighty dollars ($5,880.00) for attorneys' fees and costs, which includes 42 hours of work performed by counsel at the rate of one hundred forty dollars ($140.00) per hour. Brandt's attorney contends that the requested fees reflect *918 legal work reasonably and necessarily expended on Plaintiff's behalf. See Affidavit Supporting Motion for Attorneys' Fees and Costs attached to Memorandum in Support of Petition (Entry # 26). Jo Anne B. Barnhart, Commissioner of Social Security ("Commissioner") maintains, however, that Brandt's request for attorneys' fees is untimely as it was filed more than ninety (90) days following the entry of Final Judgment and, hence, the request for fees must be denied. See Defendant's Response to Plaintiff's Motion to Petition for Attorneys Fees (Entry # 29).

Final Judgment was entered in this matter on October 8, 2002, remanding the case to the administrative agency, pursuant to "sentence four" of the Social Security Act, for further proceedings and determination. See Final Judgment (Entry # 23). Following a favorable finding on her behalf, including an award of past benefits, Brandt sought attorneys fees and costs for the successful pursuit of her case. See Petition for Attorneys Fees (Entry # 25). The Petition for Attorneys Fees (Entry # 25) was filed on February 6, 2003, in excess of ninety days following the entry of Final Judgment (Entry # 23). Counsel for Brandt indicated that the Petition was untimely because of the occurrence of serious family misfortunes as well as a heavy workload during the holidays. See Motion to File Petition for Attorneys Fees Out of Time (Entry # 24).^[2]

Section 2412 of the Equal Access to Justice Act ("EAJA") has been construed to provide for the consideration of those applications for fees and expenses that are filed within thirty (30) days of a final non-appealable judgment. See Briseno v. Ashcroft, 291 F.3d 377, 379 (5th Cir. 2002); see also 28 U.S.C. § 242(d) (1) (B) and (d) (2) (G). The thirty day time period commences after the time to appeal the final judgment has expired. See id.; Melkonyan v. Sullivan, 501 U.S. 89, 96, 111 S. Ct. 2157, 115 L. Ed. 2d 78 (1991).

In this instance, the Court was divested of the jurisdiction necessary to entertain the Petition for Attorneys Fees (Entry # 25) on January 9, 2003, ninety days following the entry of Final Judgment, as the time bar for the filing of attorneys' fees request has been construed as a jurisdictional limitation. See Briseno v. Ashcroft, 291 F.3d at 379, 380; Dole v. Phoenix Roofing, Inc., 922 F.2d 1202 (5th Cir.1991). In failing to file a timely request for the fees, Brandt did not confer the necessary subject matter jurisdiction for the consideration of the EAJA attorneys fees request and she is, thus, statutorily prohibited from recovering the fees. See Briseno v. Ashcroft, id. The Court is, thus, jurisdictionally barred considering or awarding the requested EAJA attorneys fees. It is, therefore,

RECOMMENDED that Brandt's Petition for Attorneys' Fees (Entry # 25) be DENIED for lack of subject matter jurisdiction.

The Clerk of Court shall enter this Memorandum and Recommendation and provide the parties with a true copy. The failure to file written objections to the proposed factual findings and recommendations within ten (10) days of the entry of this Memorandum and Recommendations may bar an aggrieved party, except upon grounds of plain error, from attacking the proposed factual findings and legal conclusions, on appeal. See Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000); Douglass v. United Services Automobile *919 Assoc., 79 F.3d 1415, 1424 (5th Cir.1996) (en banc).

Apr. 16, 2003.

[1] Jo Anne B. Barnhart was appointed Commissioner of Social Security Administration effective November 9, 2001 and, accordingly, is substituted as the defendant in this matter.

[2] The filing of the untimely Petition was allowed, in part, because despite an Order (Entry # 27), the Commissioner's response (Entry # 29) to the Motion to file Petition for Attorneys Fees Out of Time (Entry # 24) was also untimely. See Order (Entry # 30).