GILES

v.

COMMISSIONER OF SOCIAL SECURITY

The only condition that raises a flag is whether Plaintiff may file an untimely motion. Under EAJA, a prevailing party must move for attorney’s fees within thirty days of final judgment. 28 U.S.C. § 2412(d)(1)(B). On July 24, 2023, the Court entered an Opinion and Order reversing the ALJ’s decision and remanding the case to the Commissioner for further proceedings. (Doc. 21). On July 25, 2023, judgment was entered. (Doc. 22). From this date, the Commissioner had sixty days to appeal the judgment. Fed. R. App. P. 4(a)(1)(b); 26(a). Thus, on September 25, 2023, the decision became final.¹ Plaintiff had thirty days from this date, or until October 23, 2023, in which to move for attorney’s fees. But Plaintiff filed her original motion on October 24, 2023, one day late. (Doc. 23). Although the Eleventh Circuit held that the timely filing of a motion for attorney’s fees under EAJA is jurisdictional, see Myers v. Sullivan, 916 F. 2d 659, 666 (11th Cir. 1990), the Supreme Court reached the opposite conclusion in

§ 2412(d)(1)(A) – does not concern the federal courts’ ‘subject-matter jurisdiction.’” Id. While the Eleventh Circuit has not revisited Myers, a few courts in this circuit have held that the 30-day requirement is not jurisdiction and therefore equitable tolling applies. See Cruz v. Berryhill, 347 F. Supp. 3d 1199, 1206 (S.D. Fla. 2018), report and recommendation adopted, No. 16-cv-21307-KMM, 2018 WL 6620136 (S.D. Fla. Nov. 16, 2018); Miller v. Berryhill, No. 8:17-cv-1470-T-AAS, 2019 WL 1586733, at *1 (M.D. Fla. Apr. 12, 2019).

The Supreme Court directed courts to use equitable relief – such as equitable tolling – sparingly and have allowed equitable tolling only “‘in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass.’” Woods v. Berryhill, No. 4:16-cv-450-VEH, 2019 WL 9513011, at *3 (N.D. Ala. Apr. 8, 2019) (quoting Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)). The Supreme

Court further instructed that equitable tolling does not extend to a garden variety of equitable excuses. Id. (citing Irwin, 498 U.S. at 96). Here, Plaintiff’s counsel states that she inadvertently calendared the judgment date as July 28, 2023 rather than July 25. (Doc. 29,p. 3). This reason amounts to a garden variety excuse, and the Court hesitates to apply equitable tolling based on essentially a clerical error. See Miller v. Berryhill, No. 8:17-cv-1470-T-AAS, 2019

WL 1586733, at *1 (M.D. Fla. Apr. 12, 2019). Even so, the Commissioner does not oppose either the amended motion to allow the filing out-of-time or the amended motion for attorney’s fees. (Doc. 28, p.

2; Doc. 29, p. 1-2). “A court should grant a Social Security claimant’s request for attorney’s fees when it is unopposed.” Miller, 2019 WL 1586733, at *1 (citing Jones v. Colvin, No. 8:13-cv-2900-T-33AEP, 2015 WL 7721334 (M.D. Fla. Nov. 30, 2015)). Thus, the Court will award Plaintiff’s attorney’s fees under EAJA based on the Commissioner’s non-opposition to the motions. EAJA fees are determined under the “lodestar” method by determining the number of hours reasonably expended on the matter multiplied by a reasonable hourly rate. Jean v. Nelson, 863 F. 2d 759, 773 (11th Cir. 1988). The resulting fee carries a strong presumption that it is the reasonable fee. City of Burlington v. Daque, 505 U.S. 557, 562 (1992). Plaintiff’s counsel claims 25.95 hours in EAJA related representation of Plaintiff before this Court. (Doc. 28, p. 2; Doc. 23-1, p. 6-7).2 After reviewing the description of services provided, the Court determines that 25.95 hours is reasonable.

UNITED STATES MAGISTRATE JUDGE

Copies furnished to: Counsel of Record Unrepresented Parties