The opinion of the court was delivered by: McCURN, Chief Judge.
MEMORANDUM — DECISION AND ORDER
Plaintiff brought this action under 42 U.S.C. § 405(g) of the
Social Security Act ("Act") for review of a final decision by the
Secretary of Health and Human Services ("Secretary"), dated
October 21, 1988, in which the Secretary determined that the
plaintiff's disability (alcoholism) had ceased in November 1977,
and that his entitlement
to disability insurance benefits ended in January 1978. A
stipulation of remand and discontinuance was signed by the
parties and by Magistrate DiBianco and filed on August 4, 1989,
by which the case was discontinued without prejudice, and
remanded to the Secretary for the purpose of issuing a favorable
decision to reinstate the plaintiff's disability insurance
benefits. The plaintiff now makes application to the court for
attorney's fees pursuant to the Equal Access to Justice Act
("EAJA"), 28 U.S.C. § 2412, alleging that he was the "prevailing
party" in the proceedings, and that the government's position in
the case was not "substantially justified" nor were there
"special circumstances [to] make an award unjust."
The government objects to the plaintiff's attorney's fee
application. The government contends that the court lacks subject
matter jurisdiction because the application was not filed within
the 30-day time limit contained in 28 U.S.C. § 2412(d)(1)(B). The
government also argues that in the event the court assumes
jurisdiction, the attorney's fee request is excessive since it
includes hours of work performed at the administrative level,
which are not compensable under the EAJA.
The EAJA permits the courts and federal agencies that conduct
adversarial adjudications to award attorney's fees to parties who
prevail against the federal government, unless the government's
position was "substantially justified" or there are special
circumstances which make a fee award unjust.
28 U.S.C. § 2412(d)(1)(A) (judicial proceedings); 5 U.S.C. § 504(a)(1)
(administrative proceedings); McGill v. Sec'y of Health and
Human Services, 712 F.2d 28, 30 (2d Cir. 1983).
[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. . . .
28 U.S.C. § 2412(d)(1)(B).
A "final judgment" within the meaning of that subsection is "a
judgment that is final and not appealable, and includes an order
of settlement. . . ." 28 U.S.C. § 2412(d)(2)(G). Thus, as the
court held in Dunn v. United States, 775 F.2d 99 (3d Cir.
1985), a consent judgment is a "final judgment" as of the date of
its entry, within the meaning of the EAJA. Id. at 105. The
House Judiciary Committee, in reporting on the EAJA, also
commented with respect to settlement agreements that:
[i]f a settlement is reached and [a] fee award is not
part of the settlement, then the thirty-day period
[in 28 U.S.C. § 2412(d)(1)(B)] would commence on the
date when the proceeding is dismissed pursuant to the
settlement or when the adjudicative officer approves
H.R.Rep. No. 120, Pt. I, 99th Cong., 1st Sess. 18 n. 26,
reprinted in 1985 U.S.Code Cong. & Admin.News 132, 146.
Failure to comply with the 30-day requirement for filing an
attorney's fee application is a jurisdictional bar to recovery of
fees. See Long Island Radio Co. v. NLRB, 841 F.2d 474, 477-78
(2d Cir. 1988); Allen v. Sec'y of Health and Human Services,
781 F.2d 92, 94 (6th Cir. 1986); Action on Smoking and Health v.
C.A.B., 724 F.2d 211, 225 (D.C.Cir. 1984). As the court stated
in Action on Smoking:
The thirty day time limitation contained in EAJA is
not simply a statute of limitations. It is a
jurisdictional prerequisite to governmental
liability. [Plaintiff's] failure to file in timely