United States District Court, Northern District of New York
November 29, 1991
ELEANOR O. GOLBACH, PLAINTIFF,
LOUIS W. SULLIVAN, M.D., SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT.
The opinion of the court was delivered by: McCURN, Chief Judge.
MEMORANDUM-DECISION AND ORDER
Defendant, the Secretary of Health and Human Services ("Secretary"),
moves for relief from this court's final judgment, dated June 12, 1991,
pursuant to Fed.R.Civ.P. 60(b)(4) based on the theory that the judgment is
void for lack of subject matter jurisdiction. As a basis for this claim,
the Secretary asserts that plaintiff failed to file her motion for
attorney's fees within the jurisdictional time limit established by the
EAJA. In response, plaintiff argues that the EAJA's time limit within
which a prevailing party must file an application for attorney's fees is
not jurisdictional but rather a statute of limitations that is subject to
waiver and rules of equitable tolling. In the alternative, plaintiff
argues that even if this time limit were jurisdictional, defendant may
not collaterally attack a final judgment based on a theory that it is
void where defendant had an opportunity to litigate the matter during
trial or on direct appeal but failed to do so.
The procedural history leading to the present motion is not in
dispute. Initially, plaintiff brought the underlying action pursuant to
section 405(g) of the Social Security Act ("Act"), 42 U.S.C. § 405(g),
to review a final determination of the Secretary denying plaintiff's
application for disability insurance benefits and Supplemental Security
Income under the Act. By order dated January 18, 1991, this court adopted
the Magistrate's Report-Recommendation in favor of plaintiff and remanded
the case to the Secretary for the calculation and payment of benefits.
The Court's final judgment on the merits of this action was entered on
January 23, 1991.
As a result of this favorable ruling, on April 23, 1991, plaintiff
submitted, by mail, a motion for attorney's fees pursuant to the Equal
Access to Justice Act ("EAJA"), 28 U.S.C. § 2412 (d). After hearing
oral argument on this motion, this court granted plaintiff's motion and
awarded $7,140.64 in attorney's fees and costs. However, in calculating
the amount of fees to be awarded, the court refused to adopt plaintiff's
argument that it should use the "legal services" rate of the Consumer
Price Index ("CPI-U"). Instead, it employed the "all items" index of the
Plaintiff appealed this court's order for the limited purpose of
seeking a ruling with regard to the question of the proper index to be
used in calculating attorney's fees under the EAJA. The Secretary filed
no cross appeal. At a preargument conference with a staff attorney
employed by the Second Circuit, the staff attorney raised the question of
whether plaintiff's motion for fees had been timely filed. As a result of
this conference, plaintiff withdrew her appeal. Therefore, this court's
ruling of June 12, 1991, with regard to the issue of attorney's fees, is
the final judgment of the court on that issue.
A. Is the EAJA's Time Limit Jurisdictional or a Statute of Limitations?
Section 2412(d)(1)(B) of the EAJA states in pertinent part:
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, . . . The party shall
also allege that the position of the United States was
not substantially justified. . . .
28 U.S.C.A. § 2412(d)(1)(B) (emphasis added).
The Secretary argues that the EAJA's 30 day limitation to submit an
application for attorney's fees is jurisdictional; and that since
plaintiff did not file within 30 days, this court lacked subject matter
jurisdiction to hear plaintiff's motion for an award of attorney's fees.
As support for this argument, defendant cites Long Island Radio Co. v.
NLRB, 841 F.2d 474, 477 (2d Cir. 1988), in which the Second Circuit held
that failure of a prevailing party to timely submit an application
deprives a court of subject matter jurisdiction to award attorney's
fees. Id. at 477; see also Everard v. Secretary of Health and Human
Servs., 742 F. Supp. 739 (N.D.N.Y. 1990) (McCurn, C.J.).
Plaintiff's attorney admits that he filed this motion one day late.
Although he mailed the notice of motion on April 23, 1991, the last day
on which to file an application for attorney's fees, it was not filed by
the clerk in Utica until the following day*fn1 However, plaintiff argues
that the EAJA's 30 day time limit is not jurisdictional but rather a
statute of limitations. As support for this argument, plaintiff cites the
United States Supreme Court's holding in Irwin v. Veteran's Admin., ___
U.S. ___, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990).
In Irwin, the Court was confronted with the jurisdictional limitation
in Title VII governing suits for employment discrimination. Section
2000e-16(c) provides that an employment discrimination complaint against
the Government under Title VII must be filed "[w]ithin thirty days of
receipt of notice of final action taken" by the EEOC. Irwin, ___ U.S. at
___, 111 S.Ct. at 455, 112 L.Ed.2d at 442. The issue before the court was
whether this limit, which partially waived the government's sovereign
immunity, was jurisdictional or merely a statute of limitations subject
to equitable tolling. The Court of Appeals had held, as the Secretary
argues in the present case, that section 2000e-16(c) was a condition of
Congress' waiver of sovereign immunity. Irwin, ___ U.S. at ___, 111
S.Ct. at 456, 112 L.Ed.2d at 442. As such, the court determined that
strict compliance with section 2000e-16(c) was a necessary predicate to
a Title VII suit. Irwin, ___ U.S. at ___, 111 S.Ct. at 456, 112 L.Ed.2d
at 443. The Supreme Court disagreed, noting that the time requirements
for suits between private parties are customarily subject to equitable
tolling. Irwin, ___ U.S. at ___, 111 S.Ct. at 457, 112 L.Ed.2d at 443
(citations omitted). Thus, the Court concluded that "once Congress has
made such a waiver [of sovereign immunity], we think that making the rule
of equitable tolling applicable to suits against the Government, in the
same way that it is applicable to private suits, amounts to little, if
any, broadening of congressional waiver." Irwin, ___ U.S. at ___, 111
S.Ct. at 457, 112 L.Ed.2d at 444. Therefore, the Court held that the same
rebuttable presumption of equitable tolling applicable to suits against
private defendants should apply to suits against the United States.
Irwin, ___ U.S. at ___, 111 S.Ct. at 457, 112 L.Ed.2d at 444.
Nevertheless, the Court held in favor of the Government because the
plaintiff's excuse for failing to timely file was not one for which
equitable tolling was appropriate. Irwin, ___ U.S. at ___, 111 S.Ct. at
458, 112 L.Ed.2d at 444 ("equitable tolling  do[es] not extend to what
is at best a garden variety claim of excusable neglect.").
The EAJA's 30 day limitation is very similar to Title VII's. Both are
mandatory rather than discretionary, and both serve as partial waivers of
the government's sovereign immunity. Accordingly, pursuant to the Court's
holding in Irwin,
this court concludes that the EAJA's 30 day limit for filing an
application for attorney's fees is not jurisdictional but rather a statute
of limitations subject to equitable tolling and waiver.
B. Has the Secretary Waived His Right to Challenge the Lateness of
In his motion to vacate this court's judgment pursuant to Fed.R.Civ.P.
60(b)(4), the Secretary relies solely on the contention that the EAJA's
30 day time limit for filing an application for attorney's fees is
jurisdictional. As stated above, after the Supreme Court's decision in
Irwin, this is no longer a supportable argument. Moreover, even if the
Secretary had argued in the alternative that the principle of equitable
tolling should not be applied to the facts of this case, he would be
estopped from raising such a defense at this time because of his failure
to raise the statute of limitations defense in this responsive
pleadings. See Fed.R.Civ.P. 8(c) and 12(h)(1). In Irwin, the Court did
not have to decide the issue of waiver because the government had argued
from the beginning that the court lacked subject matter jurisdiction
because plaintiff had failed to timely file its complaint. To the
contrary, in the present case, the Secretary did not challenge
plaintiff's late filing of her application for attorney's fees at the time
he opposed the motion or on direct appeal. Although the Secretary argues
that he failed do so because plaintiff's untimely filing was not
immediately evident, this does not change the result. See Defendant's
Memorandum of Law at 4, n. 1.
In the cases that have relied on the holding in Irwin, the Government
has challenged the court's jurisdiction from the outset of the suit. For
example, in Schmidt v. United States, 901 F.2d 680 (8th Cir. 1990),
vacated and remanded, ___ U.S. ___, 111 S.Ct. 944, 112 L.Ed.2d 1033
(1991), the Supreme Court remanded the case to the Eighth Circuit for
reconsideration in light of Irwin. On remand, the Eighth Circuit reversed
the order of the district court dismissing plaintiff's complaint for lack
of subject matter jurisdiction and remanded for a trial on the merits
under the Federal Tort Claims Act. Schmidt v. United States, 933 F.2d 639
(8th Cir. 1991).
Although neither Irwin nor its progeny have dealt specifically with the
issue of the waiver of a statute of limitations claim, there is ample
support for plaintiff's argument. After concluding that the time limit in
section 405(g) was not jurisdictional, but was waivable by the parties,
the court in Johnson v. Heckler, 769 F.2d 1202, 1209 (7th Cir. 1985),
held that Federal Rules of Civil Procedure 8(c) and 12(h)(1) require a
party to raise a statute of limitations defense in its answer or other
responsive pleadings. The court went on to say that failure to do so
results in a waiver of this defense. Id. (citing 5 Wright & Miller,
Federal Practice and Procedure, Civil 1278 (1985 Supp.)). Having
concluded that the EAJA's time limit is a statute of limitations, the
Secretary's failure to raise this defense in his responsive pleadings
serves as a barrier to its now being raised to collaterally attack this
court's judgment. Accordingly, the court concludes that the Secretary has
waived his right to collaterally attack this court's award of attorney's
fees to plaintiff pursuant to the EAJA based on plaintiff's untimely
filing of her application.
C. Additional Award of Attorney's Fees for Opposing this Motion
Plaintiff requests that this court enter a supplemental order awarding
her attorney's fees pursuant to the EAJA for the time required to oppose
this motion. In Commissioner, immigration and Naturalization Serv. v.
Jean, 496 U.S. 154, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990), the Supreme
Court held that a prevailing party who was found to be eligible to
receive attorney's fees was also entitled to recover any fees incurred in
applying for this award. Likewise, in Trichilo v. Secretary of Health and
Human Servs., 823 F.2d 702 (2d Cir. 1987), the Second Circuit awarded
attorney's fees to plaintiff for the time spent litigating the fee
While no award of attorney's fees is automatic under the EAJA, the
court concludes that an additional award of attorney's fees is warranted
in this case. See Commissioner, Immigration and Nationalization Serv. v.
Jean, 496 U.S. at ___, 110 S.Ct. at 2321, 110 L.Ed.2d at 145. First, the
Secretary sought to vacate this court's earlier judgment in this case
pursuant to Fed.R.Civ.P. 60(b)(4) on the theory that the judgment was
void for lack of subject matter jurisdiction. However, the Secretary
failed to discuss the holding of the Supreme Court in Irwin which held
that a 30 day limitation such as the one found in the EAJA was not
jurisdictional, thus making his argument untenable. Secondly, even if
this court had accepted the Secretary's argument that the limitation was
jurisdictional, the Second Circuit's decision in Nemaizer v. Baker,
793 F.2d 58 (2d Cir. 1986), would have foreclosed the Secretary's
collateral attack on this court's jurisdiction. Again, the Secretary
failed to discuss this case. Had the Secretary considered either of these
cases prior to filing his motion, it is reasonable to conclude that he
might have decided not to seek the relief he is now requesting; and
plaintiff would not have had to expend the additional hours required to
oppose this motion. Accordingly, the court awards plaintiff attorney's
fees pursuant to the EAJA for an additional 14.25 hours at the same rate
of $109.23 per hour used to calculate the original award of attorney's
fees in this court's order of June 12, 1991.
The court concludes that the EAJA's 30 day time limit to file an
application for attorney's fees is a statute of limitations and not a
jurisdictional prerequisite. Accordingly, the court denies the
Secretary's motion to vacate its judgment as void pursuant to
Fed.R.Civ.P. 60(b)(4) for lack of subject matter jurisdiction.
In addition, the court awards plaintiff attorney's fees pursuant to the
EAJA for an additional 14.25 hours expended in opposing this motion. The
amount of the award is to be calculated using the same rate of $109.23
per hour used to calculate the original award of attorney's fees in this
court's order of June 12, 1991, thus making the award in connection with
this motion $1,556.52.
IT IS SO ORDERED.