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, where it is fully favorable to a claimant, is sufficient to constitute an EAJA final judgment. Melkonyan v. Heckler, 895 F.2d 556 (9th Cir. 1990). This court follows the conclusions reached in Guthrie and Brown.
Essentially, the arguments of both plaintiff and the Secretary turn on how the court should interpret the procedural posture of its remand order. Plaintiff argues that the Secretary was obliged by statute to submit to the court a copy of the transcript and record of his proceedings on remand, after which the court was to enter a judgment affirming or reversing this decision. Plaintiff contends this type of judgment, once it becomes nonappealable, constitutes the only "final judgment" for purposes of the EAJA. Such a judgment never was entered here. The Secretary responds that the court's remand order was itself final, and that if plaintiff was to recover his fees for time subsequently spent at the remand proceeding, he was required to apply within 30 days of that judgment, which itself became final and nonappealable.
The remand powers referred to by each party are codified at 42 U.S.C. § 405(g). Under this provision,
"any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides or has his principal place of business, or, if he does not reside or have his principal place of business within any such judicial district, in the United States District Court for the District of Columbia. As part of his answer the Secretary shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for rehearing. The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive, and where a claim has been denied by the Secretary or a decision is rendered under subsection (b) of this section which is adverse to an individual who was a party to the hearing before the Secretary, because of failure of the claimant or such individual to submit proof in conformity with any regulation prescribed under subsection (a) of this section, the court shall review only the question of conformity with such regulations and the validity of such regulations. The court may, on motion of the Secretary made for good cause shown before he files his answer, remand the case to the Secretary for further action by the Secretary, and it may at any time order additional evidence to be taken before the Secretary, but only upon showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding; and the Secretary shall, after the case is remanded, and after hearing such additional evidence if so ordered, modify or affirm his findings of fact or his decision, or both, and shall file with the court any such additional and modified findings of fact and decision, and a transcript of the additional record and testimony upon which his action in modifying or affirming was based. Such additional or modified findings of fact and decision shall be reviewable only to the extent provided for review of the original findings of fact and decision. The judgment of the court shall be final except that it shall be subject to review in the same manner as a judgment in other civil actions. . . ."