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October 23, 1990

BILLY WILSON, Plaintiff,
LOUIS W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant

Harry D. Leinenweber, United States District Judge.

The opinion of the court was delivered by: LEINENWEBER


 Defendant, Louis W. Sullivan, M.D., Secretary of Health and Human Services ("Secretary"), moves to alter or amend the court's decision granting plaintiff's supplemental motion for attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. The question turns on how to define "final judgment" under the EAJA. This issue has not been addressed by the Seventh Circuit and there is a conflict between other circuits on the matter. For the reasons herein stated, the court denies the Secretary's motion.


 On April 4, 1984, plaintiff filed an application for Supplemental Security Income benefits, alleging disability resulting from a heart condition. The application was denied initially and on reconsideration, and plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). The ALJ determined that in order to evaluate plaintiff's condition he needed additional information. He stated that he needed records from Cook County Hospital for 1980, 1981 and 1983. The ALJ also determined that an examination by a cardiologist was necessary. The cardiologist was to examine plaintiff's heart condition, as well as his joint and breathing problems associated with the heart condition. The ALJ requested a medical assessment and a treadmill test, if possible. He terminated the hearing upon reaching these conclusions.

 Later, the ALJ sent a letter to plaintiff stating that he was to make an appointment with a certain internist named by the Secretary. Plaintiff, however, was out of state for at least a month. Plaintiff's cousin received the letter and promptly notified the Secretary of plaintiff's unavailability. The cousin did not inform plaintiff of the letter, however. Plaintiff's attorney never received a copy of the letter and was not notified that it had been sent. When plaintiff failed to respond, the ALJ denied benefits to him without considering the additional evidence originally determined to be necessary.

 In August, 1985, plaintiff petitioned the court pursuant to 42 U.S.C. § 405(g) for review of the ALJ's decision. On June 3, 1986, the court denied both plaintiff's and the Secretary's motion for summary judgment and ordered the case remanded for further proceedings before the Secretary. On remand, a supplemental hearing was held and, on July 29, 1988, the Secretary issued a decision finding that plaintiff was disabled. In October, 1988, plaintiff filed a motion for EAJA fees for time spent litigating in district court. The Secretary did not object and the court granted plaintiff the full amount requested.

 A year later, pursuant to the Supreme Court's decision in Sullivan v. Hudson, 490 U.S. 877, 109 S. Ct. 2248, 104 L. Ed. 2d 941 (1989), plaintiff filed a supplemental petition for EAJA fees for time spent at the administrative proceeding on remand. The Secretary objected to this request as untimely because it was not filed within 30 days of final judgment as required by the EAJA. 28 U.S.C. § 2412(d)(1)(B). Plaintiff responded that there was no "final judgment" in this case and so the 30-day period did not apply. The court found for plaintiff and instructed that he was entitled to fees for time spent on remand once a final judgment was entered. The Secretary now requests that the court reconsider this decision and alter or amend the judgment pursuant to Fed.R.Civ.P. 59(e).



 The EAJA provides for the award of attorney's fees and other expenses to a prevailing party other than the United States in any civil action before a court having jurisdiction, unless the position of the United States was substantially justified or where special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A). A petition for fees must be filed within 30 days of a final judgment. 28 U.S.C. § 2412(d)(1)(B). The 30-day requirement is jurisdictional and cannot be waived. Olson v. Norman, 830 F.2d 811, 821 (8th Cir. 1987). See also Vibra-Tech Engineers Inc. v. U.S., 787 F.2d 1416, 1419 (10th Cir. 1986) ("EAJA constitutes a waiver of sovereign immunity and must be construed strictly"). The Secretary's only objection to plaintiff's supplemental fee petition is that it was not filed within 30 days of the date the Secretary's decision awarding plaintiff benefits on remand became final and nonappealable. Accordingly, the sole issue is whether the EAJA's definition of "final judgment" encompasses ALJ decisions without subsequent affirmance by a district court.

 The final judgment requirement appears in Section 2412 of the EAJA, the original text of which provides as follows:

"A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive an award under this subsection. . . ."

 28 U.S.C. § 2412(d)(1)(B) (emphasis added). Upon the EAJA's renewal in 1985, Congress defined "final judgment" as "a judgment that is final and not appealable, and includes an order of settlement." 28 U.S.C. § 2412(d)(2)(G). Congress was no more specific in explaining the meaning of final judgment, and the term appears with varying definitions 151 times in other sections of the U.S. Code. McDonald v. Schweiker, 726 F.2d 311, 313 (7th Cir. 1983). The Third and Fourth Circuits have concluded that a district court order following the administrative proceeding is a prerequisite for activating the 30-day fee application period. Guthrie v. Schweiker, 718 F.2d 104 (4th Cir. 1983); Brown v. Secretary of Health & Human Services, 747 F.2d 878 (3rd Cir. 1984). By contrast, the Ninth Circuit has held that a ruling by the Secretary, ...

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