concluded that she is "totally disabled permanently" due to her
limited mobility, chronic pain, and mild depression, all
stemming from the injury. Consequently, Smith sought Social
Security disability benefits for the injuries she sustained in
the 1980 incident.
Smith applied for Social Security disability benefits on
February 25, 1983 for the on-the-job injuries she sustained.
Her application was denied initially and again upon
reconsideration. In a hearing held in January 1984, an
administrative law judge denied Smith's request for disability
benefits, maintaining that she was not permanently disabled. In
October 1984, the Appeals Council affirmed the denial. At a
second hearing in June 1987, Smith's request was again rejected
for similar reasons, and in October 1987 the Appeals Council
again affirmed, making this denial the final decision of the
Secretary of Health and Human Services (the "Secretary").
Smith thereafter commenced an action in this court pursuant
to Title 42 U.S.C. § 405(g), which allows judicial review
of the final decisions of the Secretary. In a Stipulation and
Order filed April 21, 1989 pursuant to a settlement agreement,
both parties agreed to a remand "solely for the calculation of
benefits" to which Smith was found to be entitled. The court
dismissed the case with prejudice and without costs to either
party. This motion for attorney's fees was considered fully
submitted as of February 2, 1990.
The Equal Access to Justice Act
The Equal Access to Justice Act ("EAJA") allows a party
prevailing against the United States to recover attorney's fees
where the United States acted in bad faith in denying the claim
(Section 2412(c)(2)), or where the government's position was
not substantially justified (Section 2412(d)(1)(A)). Section
2412(d)(1)(B) of EAJA confers subject matter jurisdiction to
federal district courts only if the claimant applies for the
fees within thirty days of entry of final judgment. Allen v.
Secretary of Health & Human Serv., 781 F.2d 92, 94 (6th Cir.
1986); Dunn v. United States, 775 F.2d 99, 102-103 (3d Cir.
1985); Clifton v. Heckler, 755 F.2d 1138, 1144-45 (5th Cir.
1985); Action on Smoking & Health v. Civil Aeronautics Bd.,
724 F.2d 211, 225 (D.C. Cir. 1984); Tripodi v. Heckler, 100 F.R.D.
736, 739 (E.D.N.Y. 1984) ("[t]he thirty-day time period begins
to run when a final order is entered in the district court
dismissing the case").
Section 2412(d)(2)(G) of EAJA defines "final judgment" as
"judgment that is final and not appealable." "In order for
there to be final judgment, the court must enter an order
dismissing the case, and such order must be entered even if a
plaintiff has been awarded benefits at the administrative level
after a remand." LaManna v. Secretary of Health & Human Serv.,
651 F. Supp. 373, 375 (N.D.N.Y. 1987). The reference point for
attorney's fees for EAJA purposes is where the plaintiff
prevails in his or her action to obtain benefits because
"obtaining benefits . . . is the object of a social security
claimant's litigation." McGill v. Secretary of Health and Human
Serv., 712 F.2d 28 at 30 (2d Cir. 1983).
Smith contends that her application for attorney's fees was
within the thirty-day time limit prescribed by Section
2412(d)(1)(B) because the judgment became "final" only after
the time had expired for Smith to seek review of the
calculation of benefits by the Secretary. Since the benefits
were calculated and awarded on October 2, 1989, and since Smith
had sixty-five days to seek review of the calculation, Smith
argues that any fee application filed between December 7, 1989
and January 6, 1990 is timely.
For EAJA purposes, however, the judgment in this case was
"final" upon the April 21, 1989 Remand Order ("Remand Order").
The Remand Order of April 21 specifically stated: "The action
is hereby dismissed, with prejudice and without costs to either
party" and the Secretary treated the court's decision as final
by stipulation that no appeal would be taken. See Taylor v.
United States, 749 F.2d 171, 174 (3d Cir. 1984) ("fee petitions
under EAJA must
be filed no later than thirty days after . . . a losing party
asserts that no further appeal would be taken").
Finally, the House Judiciary Committee has maintained that
"[i]f a settlement is reached and [a] fee award is not part of
the settlement, then the thirty-day period would commence on
the date when the proceeding is dismissed pursuant to the
settlement . . ." H.R.Rep. No. 120, 1st Sess., pt. 1, at 18 n.
26, reprinted in 1985 U.S.Code Cong. and Admin.News 132, 146.
Since the case was remanded solely for the calculation of
benefits,*fn1 the dismissal with prejudice by the court
pursuant to a settlement agreement, with the stipulation of no
further appeal, was a final judgment. Accordingly, the motion
for EAJA fees is untimely because Smith was required to file
for fees within thirty days of the April 21 date if she wished
to recover under the EAJA.
The failure to file within thirty days deprives the court of
subject matter jurisdiction to decide whether or not to award
attorney's fees under EAJA. Consequently, Smith's arguments in
support of her claim that the Secretary acted in bad faith or
without substantial justification are not reached.
The Social Security Act
Smith has also applied for attorney's fees under Title
42 U.S.C. § 406(b)(1), which awards attorney's fees in
social security cases out of the successful claimant's past due
benefits. 42 U.S.C. § 406(b) states that upon issuance of a
favorable judgment, a court may award a reasonable fee not to
exceed twenty-five percent of the past due benefits. 42 U.S.C. § 406(b).
Smith's attorney's office customarily charges $100 per hour
to social security claimants. Since Smith's attorney expended
59.25 hours to secure the disability benefits, Smith requests
$5925 in attorney's fees under the Social Security Act. Given
the results achieved, the time expended, and the risks
associated with contingency, Smith, as a prevailing party, may
recover these reasonable fees. See Wells v. Bowen, 855 F.2d 37,
43-45 (2d Cir. 1988).
For the reason set forth above, Smith's motion for fees under
the EAJA is denied and the motion for fees under the Act is
It is so ordered.