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LUNA v. APFEL

December 4, 1997

Olga Luna, Plaintiff
v.
Kenneth S. Apfel, Commissioner of Social Security, 1 Defendant



The opinion of the court was delivered by: IRENAS

 IRENAS, District Judge:

 Plaintiff Olga Luna applies, pursuant to the Equal Access to Justice Act, for an award of costs and attorney fees for services rendered in this action against the Commissioner of Social Security. Defendant Kenneth S. Apfel, Commissioner of Social Security, opposes plaintiff's motion. For the reasons discussed below, this Court will grant plaintiff's application for costs and attorney fees.

 Plaintiff Olga Luna filed the Complaint in this action on September 9, 1996, seeking, pursuant to 42 U.S.C. § 405(g) (1994), this Court's review of the final decision of the Commissioner of Social Security ("the Commissioner") denying plaintiff's January 29, 1993, application for social security income. On August 11, 1997, this Court signed and entered the Consent Order to Remand in this action, remanding plaintiff's cause of action to the Commissioner for further administrative action.

 On October 2, 1997, plaintiff filed an application for an award of counsel fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d) (1994), in the amount of $ 4,725.00, plus costs in the amount of $ 120.00. On October 23, 1997, the Commissioner filed an opposition to plaintiff's motion, asserting that plaintiff's application was not timely filed and therefore this Court lacks subject matter jurisdiction to award attorney fees.

 II. DISCUSSION

 The Equal Access to Justice Act provides that a prevailing party in a civil action brought by or against the United States or any agency or any official of the United States acting in her official capacity may be awarded a judgment for costs, 28 U.S.C. § 2412(a)(1) (1994), and shall be awarded reasonable attorney fees and expenses unless the court finds that the position of the United States was substantially justified or that special circumstances make such an award unjust, id. § 2412(d)(1)(A). EAJA further provides:

 
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, and the amount sought, including an itemized statement from the attorney . . . representing . . . the party stating the actual time expended and the rate at which fees and other expenses were computed.

 Id. § 2412(d)(1)(B). *fn2"

 The Commissioner applied for a consent order remanding plaintiff's cause of action to the Commissioner for further administrative action pursuant to sentence four of 42 U.S.C. § 405(g) (1994) ("sentence-four"). Sentence-four provides with respect to judicial review of final decisions of the Commissioner that "the Court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). This Court signed and entered the Consent Order to Remand on August 11, 1997.

 That plaintiff is a "prevailing party" under EAJA is not disputed. *fn3" The Commissioner's argument is that this Court lacks subject matter jurisdiction to enter a judgment awarding costs and fees because plaintiff's application was untimely. He contends that it was untimely because it was not filed within thirty days of the date of entry of the Consent Order to Remand.

 EAJA provides that a party seeking an award of costs and fees under its provisions "shall, within thirty days of final judgment in the action" submit its application for such award. 28 U.S.C. § 2412(d)(1)(B). "'Final judgment' means a judgment that is final and not appealable, and includes an order of settlement[.]". Id. § 2412(d)(2)(G). A sentence-four remand order is a final judgment for purposes of appealability. Shalala v. Schaefer, 509 U.S. 292, 303, 125 L. Ed. 2d 239, 113 S. Ct. 2625 (1993); Kadelski v. Sullivan, 30 F.3d 399, 401 (3d Cir. 1994). It becomes a "final judgment" within the meaning of EAJA upon expiration of the time for appeal. Schaefer, 509 U.S. at 298; see Melkonyan v. Sullivan, 501 U.S. 89, 102, 115 L. Ed. 2d 78, 111 S. Ct. 2157 (1991).

 The question here concerns the point at which the Consent Remand Order became, or will become, a "judgment that is final and not appealable." In Shalala v. ...


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