UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------x VICTOR SILVESTRO,

Plaintiff,

-against- MEMORANDUM AND ORDER Case No. 18-CV-03002 (FB) COMMISSIONER OF SOCIAL SECURITY,

Defendant. ------------------------------------------------x

Appearances: For the Plaintiff: For the Defendant: Christopher James Bowes Richard P. Donoghue Center for Disability Advocacy Rights United States Attorney 100 Lafayette Street Eastern District of New York New York, NY 10013 271 Cadman Plaza East Brooklyn, NY 11201 By: Rachel G. Balaban

BLOCK, Senior District Judge:

Plaintiff’s counsel, Christopher James Bowes, moves under the Equal Access to Justice Act (“EAJA”),

, for an award of $6,143.63 in fees and costs for the successful representation of his client, Victor Silvestro. See ECF 17 (“Motion”). Eligibility for a fee award under the EAJA requires: “(1) that the claimant be a ‘prevailing party’; (2) that the Government’s position was not ‘substantially justified’; (3) that ‘no special circumstances make an award unjust’; and (4) pursuant to

(d)(1)(B), that any fee application be submitted to the court within 30 days of final judgment in the action and be supported by an itemized

statement.” Commissioner, I.N.S. v. Jean,

(1990) (quoting the EAJA); see generally Gomez-Beleno v. Holder,

(2d Cir. 2011) (applying Jean).

Here, the government does not dispute that Plaintiff was the “prevailing party,” nor contend that its position was “substantially justified,” nor argue that “special circumstances” make the fee award “unjust.” Rather, citing § 2412(d)(1)(B), the government submits the Motion should be denied as untimely

by one day. See ECF 19 (Gov’t Opp’n).1 But, as the Supreme Court explained in Scarborough v. Principi, failure to file within the time stated in § 2412 does not deprive a court from considering a EAJA fee-application, as § 2412 “relates only to

postjudgment proceedings auxiliary to cases already within that court’s adjudicatory authority.”

(2004).2 * * *

1 Although the Motion bears an ECF docket entry-date of October 4, 2019, the Motion itself is dated October 3, 2019. 2 Alternatively, the Court finds the 30-day window equitably tolled. Tamburri v. Berryhill, No. 16-CV-5784 (PKC),

, at *2 (E.D.N.Y. Mar. 5, 2018) (“[EAJA] application can be deemed timely under the doctrine of equitable tolling.”). For the foregoing reasons, the fee request of $6,143.63 is granted. SO ORDERED.

_/S/ Frederic Block__________ FREDERIC BLOCK Senior United States District Judge Brooklyn, New York August 20, 2020