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EVERARD v. SECRETARY OF HEALTH AND HUMAN SERVICES

August 22, 1990

LAWRENCE EVERARD, PLAINTIFF,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT.



The opinion of the court was delivered by: McCURN, Chief Judge.

MEMORANDUM — DECISION AND ORDER

Background

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.

Discussion

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).

The EAJA requires that:

    [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
  the settlement.

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
  fashion ...

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