                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 05a0305p.06

                     UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                      _________________


                                                     X
                                Plaintiff-Appellant, -
 STELLA TOWNSEND,
                                                      -
                                                      -
                                                      -
                                                                 No. 03-6440
 WOLODYMYR CYBRIWSKY; DODD D. DIXON,
                                                      ,
                  Plaintiff’s Attorneys-Appellants, >
                                                      -
                                                      -
                                                      -
          v.

                                                      -
                               Defendant-Appellee. -
 COMMISSIONER OF SOCIAL SECURITY,
                                                     N
                          Appeal from the United States District Court
                        for the Eastern District of Kentucky at Lexington.
                       No. 01-00224—Jennifer B. Coffman, District Judge.
                                    Argued: December 10, 2004
                                Decided and Filed: July 20, 2005
                  Before: KENNEDY, MARTIN, and MOORE, Circuit Judges.
                                        _________________
                                             COUNSEL
ARGUED: Wolodymyr Cybriwsky, LAW OFFICES OF WOLODYMYR CYBRIWSKY,
Prestonsburg, Kentucky, for Appellant.          Nancy R. Bartlett, SOCIAL SECURITY
ADMINISTRATION OFFICE OF GENERAL COUNSEL, Atlanta, Georgia, for Appellee.
ON BRIEF: Wolodymyr Cybriwsky, LAW OFFICES OF WOLODYMYR CYBRIWSKY,
Prestonsburg, Kentucky, for Appellant. Brian C. Huberty, Susan Kelm Story, Dennis R. Williams,
Mary Ann Sloan, John Samuel Childs, SOCIAL SECURITY ADMINISTRATION OFFICE OF
GENERAL COUNSEL, Atlanta, Georgia, for Appellee.
                                        _________________
                                            OPINION
                                        _________________
        KAREN NELSON MOORE, Circuit Judge. Stella Townsend (“Townsend”) and her
attorneys appeal from the district court’s denial of her request for reimbursement of her attorney fees
and costs under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), in this social
security benefits action. Because we conclude that equitable tolling is applicable to the EAJA, we
REVERSE the district court’s judgment and REMAND the case for further consideration as to
whether equitable tolling is warranted in this case.



                                                  1
No. 03-6440           Townsend v. Comm’r of Social Security                                    Page 2


                                        I. BACKGROUND
        On November 19, 1999, Townsend filed an application for supplemental security income on
the grounds that she was disabled as a result of “borderline intellectual functioning, vision problems,
epicondylitis in her right arm and elbow, anxiety and depression, decreased grip strength in her right
hand, and pain in her back, neck, and right arm and shoulder.” Joint Appendix (“J.A.”) at 8 (Mem.
Op. and Order at 1). Townsend’s application as well as her motion for reconsideration were denied.
Townsend then requested and was granted a hearing before an Administrative Law Judge (“ALJ”).
On November 8, 2000, a hearing was held, and the ALJ later affirmed the denial of Townsend’s
application.
        Townsend then filed a complaint in federal district court asserting that the denial of her
application was erroneous and was not supported by substantial evidence. Once before the district
court, Townsend filed a motion for summary judgment which the district court granted on the
grounds that “the Commissioner’s decision [was] not fully supported by substantial evidence.” J.A.
at 15 (Mem. Op. & Order at 7). The district court then entered a judgment on August 7, 2002,
reversing the ALJ’s decision and remanding the case for further consideration of her mental
impairment pursuant to sentence four of 42 U.S.C. § 405(g). J.A. at 16 (J. at 1).
         On October 9, 2002, the Commissioner filed a motion for relief from judgment pursuant to
Federal Rule of Civil Procedure 60(b). The Commissioner alleged that there was substantial
evidence to support the ALJ’s determination and that the district court had committed legal error in
its interpretation of the relevant listing of impairments. The motion did not specify which of the six
statutory grounds enumerated in Rule 60(b) entitled the Commissioner to relief from judgment. On
December 18, 2002, the district court denied the Commissioner’s motion. Despite the
Commissioner’s failure to reference explicitly a specific provision of Rule 60(b) entitling the
Commissioner to relief, the district court concluded that the Commissioner was asserting that relief
ought to be granted based on a legal error by the district judge. The district court therefore
construed the motion as invoking Rule 60(b)(1), which entitles a movant to relief from judgment
based on “mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). After
determining that the motion should properly be labeled as a Rule 60(b)(1) motion, the court denied
the motion as untimely because it had not been filed, as required by decisions interpreting Rule
60(b)(1) motions claiming legal error, before the time for taking an appeal had expired. See Pierce
v. United Mine Workers, 770 F.2d 449, 451 (6th Cir. 1985) (“A 60(b)(1) motion based on legal error
must be brought within the normal time for taking an appeal.”). Additionally, the district court
concluded that even if the motion had been timely, the Commissioner’s motion failed to establish
that the district court’s prior judgment was legally erroneous.
         On February 20, 2003, Townsend petitioned the district court to obtain payment of her
attorney fees and costs from the government pursuant to the EAJA, 28 U.S.C. § 2412(d)(1)(a). The
district court denied Townsend’s request as untimely. The district court acknowledged that “that
the plaintiff’s attorneys should be compensated for their valuable legal service,” but the court
concluded that the EAJA time limits were “jurisdictional in nature and must be strictly construed
and enforced.” J.A. at 96 (D. Ct. Order at 2). Townsend and her attorneys then filed this timely
appeal.
                                          II. ANALYSIS
        Townsend and her attorneys assert that the district court erred in denying her reimbursement
of her attorney fees and costs under the EAJA. Normally, we review a district court’s decision to
award or deny attorney fees pursuant to the EAJA for abuse of discretion. United States v. Ranger
Elec. Communications, Inc., 210 F.3d 627, 631 (6th Cir. 2000). Whether a district court has
properly concluded that a motion was untimely within the terms of the EAJA, however, is a question
No. 03-6440               Townsend v. Comm’r of Social Security                                                   Page 3


of law which we review de novo. Peters v. Sec’y of Health and Human Servs., 934 F.2d 693, 694
(6th Cir. 1991).
        The EAJA provides that prevailing parties in certain federal court proceedings may recover
attorney fees and costs from the government. In order to qualify for such reimbursement, however,
the EAJA requires that “[a] party seeking an award of fees and other expenses shall, within thirty
days of final judgment in the action, submit to the court” its application for reimbursement. 28
U.S.C. § 2412(d)(1)(B); Scarborough v. Principi, 541 U.S. ---, 124 S. Ct. 1856, 1862 (2004)
(“[Section] 2412(d)(1)(B)   sets a deadline of 30 days after final judgment for the filing of a fee
application.”).1 “Final judgment” is defined by the EAJA as “a judgment that is final and not
appealable.” 28 U.S.C. § 2412(d)(2)(G).
         The district court determined that Townsend’s fee application was untimely by using the
following calculations: The district court determined that its August 7, 2002 judgment became final
for EAJA purposes when that judgment was no longer appealable by the Commissioner. Federal
Rule of Appellate Procedure 4(a) establishes that, in a civil case to which a federal officer is a party,
the time for appeal ends sixty days after entry of judgment. The district court’s August 7, 2002
judgment therefore became unappealable, and hence final within the meaning of the EAJA, on
October 7, 2002. Thus, for Townsend’s fee application to have been timely, the application ought
to have been filed by November 6, 2002, thirty days after the district court’s August 7, 2002
judgment became final and unappealable. Because Townsend’s fee application was not filed until
February 20, 2003, which was over three months after the thirty-day deadline had expired, the
district court concluded that Townsend’s fee application was untimely.
         We do not disagree with the district court’s calculations or its selection of the August 7, 2002
judgment as the critical judgment for the purpose of calculating the time limitation. That judgment
became final on October 7, 2002, and the thirty-day clock began to run at that time. Instead, we
disagree with the district court’s determination that it lacked the power to apply equitable tolling
under the EAJA because the time limitation was jurisdictional. Admittedly, our past precedent
characterized the EAJA’s time limitation for fee applications as jurisdictional. See Ranger, 210 F.3d
at 631. This precedent, however is overruled by the Supreme Court’s recent decision in
Scarborough v. Principi, 541 U.S. ---, 124 S. Ct. 1856 (2004), where the Supreme Court held that
the EAJA’s “30-day deadline for fee applications and its application-content specifications are not
properly typed ‘jurisdictional.’” Id. at 1865. Specifically, the Court concluded that 28 U.S.C.
§ 2412(d)(1)(B) does not involve subject matter jurisdiction but instead addresses “a mode of relief
(costs including legal fees) ancillary to the judgment of a court that has plenary ‘jurisdiction of [the
civil] action’ in which the fee application is made.” Id. at 1864 (citation omitted). Importantly, the
Court also explicitly left open the question of whether the EAJA time limitation for fee applications
is subject to equitable tolling. Id. at 1869 n.8 (“Because our decision rests on other grounds, we
express no opinion on the applicability of equitable tolling in the circumstances here presented.”).
        Having clarified the posture of the EAJA’s time limitation for fee applications, the Court in
Scarborough concluded that the relation-back doctrine did apply to fee applications under the EAJA
and that a delayed amendment to a fee application adding an allegation that the government’s
position was not substantially justified would relate back to a timely filed fee application. In
reaching this conclusion, the Court looked to the longstanding principle that “limitation principles
should generally apply to the Government in the same way that they apply to private parties.”
Scarborough, 124 S. Ct. at 1869 (internal quotation marks and citation omitted). After concluding

         1
             This thirty-day deadline applies to fee applications brought under either 28 U.S.C. § 2412(d)(1)(A) or
28 U.S.C. § 2412(b). See United States v. Ranger Elec. Communications, Inc., 210 F.3d 627, 633 (6th Cir. 2000). Thus,
it is irrelevant with respect to timeliness that Townsend argues on appeal that she is entitled to reimbursement under both
provisions of the EAJA.
No. 03-6440           Townsend v. Comm’r of Social Security                                    Page 4


that the relation-back doctrine applied in private litigation, the Court determined that, absent
evidence of a contrary congressional intent, the relation-back doctrine properly applied to the EAJA.
See id. at 1870 (“Once Congress waives sovereign immunity, . . . judicial application of a time
prescription to suits against the Government, in the same way the prescription is applicable to
private suits, ‘amounts to little, if any, broadening of the congressional waiver.’”) (quoting Irwin v.
Dep’t of Veterans Affairs, 498 U.S. 89, 95 (1990)). The Court also relied on the fact that there was
no evidence that the government would be prejudiced by permitting the relation-back doctrine to
apply to the EAJA. Scarborough, 124 S. Ct. at 1870 (“We note, finally, that the Government has
never argued that it will be prejudiced if Scarborough’s ‘not substantially justified’ allegation is
permitted to relate back to his timely filed fee application.”). Thus the Court concluded that
application of the relation-back doctrine to fee applications under the EAJA was proper.
         These same factors counsel that equitable tolling is appropriate under the EAJA. “Time
requirements in lawsuits between private litigants are customarily subject to equitable tolling.”
Irwin, 498 U.S. at 95 (internal quotation marks and citation omitted). This fact, absent evidence of
congressional intent to the contrary, strongly supports our conclusion that the EAJA time limitation
for fee applications should be subject to equitable tolling. There is no evidence in the EAJA
suggesting that Congress wished to foreclose equitable tolling in this context. On the contrary, “in
enacting EAJA, Congress expressed its belief that ‘at a minimum, the United States should be held
to the same standards in litigating as private parties.’” Scarborough, 124 S. Ct. at 1869 n.9 (quoting
H.R. Rep. No. 96-1418, at 9 (1980)).
        Additionally, we do not believe that applying equitable tolling in certain limited
circumstances will prejudice the government. The “EAJA itself has a built-in check: Section
2412(d)(1)(A) disallows fees where ‘special circumstances make an award unjust.’” Scarborough,
124 S. Ct. at 1870 (quoting H.R. Rep. No. 96-1418, at 11 (1980) and noting that “§ 2412(d)(1)(A)’s
‘safety valve’ gives ‘the court discretion to deny awards where equitable considerations dictate an
award should not be made’”). Thus, our conclusion that equitable tolling may be applied to the
EAJA time limitation for fee applications will not expose the government to any unfair imposition.
Therefore, based on the Supreme Court’s analysis in Scarborough, we interpret the factors discussed
above as indicating that the EAJA time limitation for fee applications is subject to equitable tolling.
         In sum, we conclude that based on the Supreme Court’s decision in Scarborough, the EAJA
time limitation for fee applications is subject to equitable tolling. It is understandable that the
district court reached a different legal conclusion, however, as the district court did not have the
benefit of Scarborough at the time of its ruling. We thus conclude that it is appropriate for the
district court to consider whether in light of Scarborough and our decision in this case, equitable
tolling is warranted under the facts of this case. Once the district court has ruled on this question,
if either party so chooses, we may review the district court’s application of the equitable-tolling
doctrine for an abuse of discretion. Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d 367, 376 (6th Cir.
2002).
                                        III. CONCLUSION
        For the reasons discussed above, we REVERSE the district court’s judgment that equitable
tolling does not apply under the EAJA and REMAND the case for determination as to whether
equitable tolling of the EAJA time limitation is warranted in this case.
