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GOLBACH v. SULLIVAN

November 29, 1991

ELEANOR O. GOLBACH, PLAINTIFF,
v.
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

INTRODUCTION

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.

BACKGROUND

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 CPI-U.

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.

DISCUSSION

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 ...


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