Opinion
CIVIL NO. 96-5423(JBS).
January 15, 1999
Alan H. Polonsky, Esq., Polonsky Polonsky, Audubon, New Jersey, Attorney for Plaintiff.
Faith Hochberg, United States Attorney, By: Peter G. O'Malley, Assistant U.S. Attorney, Newark, New Jersey, Attorney for Defendant.
O P I N I O N
Signing a Consent Order submitted by the parties, on August 21, 1997, I remanded this Social Security disability case to the Administrative Law Judge pursuant to the fourth sentence of 42 U.S.C. § 405(g). Almost ten months later, plaintiff filed a motion and application for attorney fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d). Defendant has opposed this motion on the ground that it was not filed timely within the thirty-day limitation of EAJA in 28 U.S.C. § 2412(d)(1)(B), which requires a petition for EAJA fees to be filed within thirty days after the government's time for appeal has expired. For the reasons stated herein, plaintiff's motion for attorney fees will be denied.
I. BACKGROUND
Plaintiff Georgianna Morris filed applications for disability insurance and widow's insurance benefits on May 21, 1992 (Tr. at 107-11, 132-35), and filed for SSI benefits on September 1, 1992. (Id. at 140-43.) On December 18, 1995, following a hearing on plaintiff's claim, the Administrative Law Judge ("ALJ") issued a decision finding that plaintiff was not disabled. (Id. at 13-20.) After the Appeals Council denied plaintiff's request for review (id. at 5-6), plaintiff appealed the decision to this Court.
Page citations are to the transcript of the administrative record filed by the Commissioner of Social Security.
On August 14, 1997, plaintiff's counsel received a letter from defendant's counsel, offering to agree to a remand of the underlying claim by consent, and enclosing a copy of a Consent Order to be signed by counsel and returned to the defendant's counsel for filing. (Polonsky Certif. ¶ 2.) On August 15, 1997, plaintiff's counsel returned the signed Consent Order to defendant's counsel. (Id. at ¶ 3.) On August 21, 1997, I signed that Consent Order, remanding this case to the ALJ pursuant to the fourth sentence of 42 U.S.C. § 405(g). A "Dismissal Order," also dated August 21, 1997, which accompanied the Consent Order, dismissed the action. The Clerk of the Court entered both the Consent Order and the Dismissal Order on the Court's docket on August 22, 1997, and the case was closed on that day. Although the Clerk of Court would routinely send the final Order (and all orders) to both counsel, and although the Assistant U.S. Attorney received his conformed copy from the Clerk of Court by August 26, 1997 (Def.'s Reply Br. Ex. A), plaintiff's counsel has certified that he had not been provided with a copy of the Consent Order. (Polonsky Certif. ¶ 6.) The defendant does not dispute this (Def.'s Reply Br. at 3), and the Court accepts Mr. Polonsky's certification that his office did not receive the August 21, 1997 Consent Order when it should have.
Having heard nothing further in the matter, plaintiff's counsel contacted the Clerk's office on May 22, 1998, inquiring about the status of the matter. (Polonsky Certif. ¶ 4.) When the Clerk's office did not respond, plaintiff's counsel again contacted them on June 1, 1998, at which time he was advised that the Order had been entered on August 21, 1997. (Id.) On June 8, 1998, plaintiff filed a motion and application for attorney fees under the EAJA. Defendant opposes this motion, arguing that it was not filed in a timely manner.
II. DISCUSSION
The EAJA sets out a thirty-day limit in which parties seeking an award of fees and expenses must file their application with the court after a final judgment is taken in the action. 28 U.S.C. § 2412(d)(1)(B). The "final judgment" occurs, and the thirty-day limitation for EAJA petitions begins, when the government's right to appeal the order lapsed. 28 U.S.C. § 2412(d)(2)(G); Miller v. United States, 753 F.2d 270, 273 (3d Cir. 1985). Specifically, the time limitation applies to remand orders brought pursuant to the fourth sentence of 42 U.S.C. § 405(g).Shalala v. Schaefer, 509 U.S. 292, 298 (1993) (quoting Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
The defendant makes several arguments with regard to this thirty-day limitation. First, they argue that the thirty-day period began to run as soon as the Clerk's office entered the Dismissal Order on the Court's docket, citing Dunn v. United States, 775 F.2d 99, 105 (3d Cir. 1985). (Def.'s Br. Opp'n Fees at 4.) As a result, defendant contends, the thirty-day period began on August 22, 1997 and ended on September 23, 1997. (Id.) Second, defendant argues that this limit is a jurisdictional one, again citing Dunn, 775 F.2d at 102-103, and thus plaintiff's failure to file her application for fees by September 23, 1997 deprives this Court of subject matter jurisdiction to award fees. (Def.'s Br. Opp'n Fees at 3.) Finally, defendant argues that even if the time for filing is a statute of limitations for which equitable tolling might apply rather than a jurisdictional bar, this is not an appropriate case for equitable tolling. (Id. at 5.)
Defendant's first two contentions — that the Consent Order was not appealable and that the time limitation is a jurisdictional bar — are not as clear as defendant would have us believe. While Dunn did say that consent orders settling a class action are not appealable because "[h]aving negotiated [the settlement] and agreed to its terms those parties are not aggrieved by it, and thus neither may appeal," 775 F.2d at 105, the language of that dicta applied only to one specific type of consent order and did not set a blanket prohibition. More recently, Judge Irenas, in Luna v. Apfel, 986 F. Supp. 275 (D.N.J. 1997), differentiated the final nature of the class settlement consent order inDunn from consent orders in general, noting that while such an appeal is usually meritless and fruitless, the order is still nonetheless appealable. Id. at 278-279. Whether the Order was appealable, however, is irrelevant to the instant case, for even if it was appealable, it had to be appealed within sixty days of the August 22, 1997 order, see Fed.R.App.P. 4(a)(1), (7), Schaefer, 509 U.S. at 302 , or by October 21, 1997, and no appeal was taken in that time. Thus, regardless of whether the consent judgment was appealable, the fee application in this case was not submitted within thirty days of the end of the appeals period, by November 20, 1997, under the most expansive definition.
Defendant's second contention, that failure to file within the time limit deprives this Court of subject matter jurisdiction, is also not established law in this jurisdiction. In Dunn, the Third Circuit held that defects in a fee petition do not deprive the district court of subject matter jurisdiction so long as the petitioner files something within the thirty-day limit that puts the court, and eventually the government, on notice. 775 F.2d at 104. In reaching that conclusion, the Third Circuit compared the pleading requirements to the time limit requirements, noting that whereas time bars for filing claims against the government should be strictly construed, pleading requirements "should be read as permitting some degree of flexibility." (Id. at 103, 104.) Defendant contends that this language indicates that the Third Circuit, consistent with other courts and with the legislative history of the EAJA, believes the EAJA time bar to be jurisdictional. (Def.'s Reply Br. at 1-2.) In addition to the fact that such language was dicta, however, the Third Circuit expressly did not reach the question of whether the time bar is jurisdictional, stating that "we need not address the question of whether section 2412(d)(1)(B) is merely a statute of limitations and thus subject to the doctrines of waiver, estoppel, or equitable tolling." Id. at 104.
For cases holding that the thirty-day limit in 28 U.S.C. § 2412(d)(1)(B), or the identical limit in 5 U.S.C. § 504(a)(2) for fees from adversarial administrative proceedings, is jurisdictional in nature, see, e.g., Richmond v. Chater , 94 F.3d 263, 266 (7th Cir. 1996) (dicta); Myers v. Sullivan , 916 F.2d 659, 666 (11th Cir. 1990); Howitt v. United States Department of Commerce , 897 F.2d 583, 584 (1st Cir.), cert. denied , 498 U.S. 895 (1990); Long Island Radio v. NLRB , 841 F.2d 474, 477-78 (2d Cir. 1988); Olson v. Norman , 830 F.2d 811, 821 (8th Cir. 1987); Allen v. Secretary of Health and Human Services , 781 F.2d 92, 94 (6th Cir. 1986); Clifton v. Heckler , 755 F.2d 1138, 1144-45 (5th Cir. 1985); Action on Smoking and Health v. Civil Aeronautics Board , 724 F.2d 211, 225 (D.C. Cir. 1984); Columbia Manufacturing Corp. v. NLRB , 715 F.2d 1409, 1410 (9th Cir. 1983). But see James v. United States Dept. of Housing and Urban Dev . , 783 F.2d 997, 999 (11th Cir. 1986) (thirty-day limit "should serve as a statute of limitations, not as a trap for the unwary"); Goldbach v. Sullivan , 779 F. Supp. 9, 11 (N.D.N.Y. 1991); Cervantez v. Sullivan , 739 F. Supp. 517, 520 (E.D. Ca. 1990).
Thus, there is no law in this Circuit that, under § 2412(d)(1)(B), failure to file within thirty days of final judgment deprives this Court of subject matter jurisdiction. While defendant may be correct that the bar should be construed as jurisdictional, I could only reach that conclusion after a detailed analysis of related doctrine and EAJA legislative history. However, I decline to do so because such a painstaking inquiry is unnecessary to my conclusion, for even if the EAJA time bar is a statute of limitations which could be subject to equitable tolling, I find that equitable tolling is not warranted under the present circumstances. Thus plaintiff's motion will be denied for failure to file in a timely manner anyway.
Plaintiff argues I should equitably toll the thirty-day statute of limitations because the Office of the Clerk never sent her or her attorneys a copy of the Consent Order and Dismissal Order which I signed. In support of her argument, she relies upon Judge Irenas' ruling in Delossantos v. Callahan, No. 96-1772 (D.N.J. August 22, 1997). Similarly to the facts of the instant case, in the Delossantos case, the Clerk of the Court failed to send the plaintiff's attorney timely notice of the entry of a consent order, and the plaintiff's fee application was not submitted in a timely manner. See id. (order granting attorney fees). Judge Irenas ruled that the delay in filing was due to an error of the Office of the Clerk rather than an error of plaintiff or his counsel, and he accordingly held that equitable tolling of the thirty-day limit to accommodate a two-week delay was appropriate.
The facts of this case, however, do not support equitable tolling. While the plaintiff's copy of the Consent Order was not received from the Clerk, it is not clear that the Clerk failed to send it to both counsel. Even if we assume the Clerk erroneously failed to send it to plaintiff's counsel, plaintiff did not even inquire as to the status of the entry of the Consent Order until nine months after it was submitted to and entered by this Court. While a two-week delay, as in Delassantos, might be reasonable and worthy of equitable tolling, a delay of nine months is unreasonable.
Additionally, this is not a situation in which the plaintiff or her attorney is unfamiliar with the EAJA requirements. Plaintiff's attorney is a highly experienced practitioner in the area of social security disability litigation, appearing before this Court and dealing with this Clerk's Office on an ongoing basis. He is very familiar with the manner in which this Court functions and with the EAJA's requirements. Moreover, he should have had a heightened awareness of the possibility that the filed order might not reach him, for a similar difficulty had recently occurred in his Delassantos case. It is unfortunate and regrettable if, in this instance, an attorney who could have petitioned for an award of EAJA fees becomes time-barred from doing so, especially if the Clerk of Court failed to provide due notice, but, as Mr. Polonsky's letter of November 12, 1998 also concedes, his own office was not without fault in this circumstance. Mr. Polonsky has candidly stated: "Frankly, the Defendant is correct. We should have known something was wrong when we did not receive the signed Order within a reasonable time after having returned it to the Defendant." Id.
It is especially difficult to sweep away the passage of nine months without inquiry when the entry of the Consent Order was having real consequences for the client. As of August 21, 1997, the Commissioner's denial of her benefits had been reversed and the case remanded for further administrative action, transmitted to the Commissioner on August 26, 1997. Although the record is silent as to post-August, 1997 administrative developments, one would presume that the matter of claimant's benefits was readdressed by the Commissioner in due course after receiving the remand, and well before nine more months elapsed. Any such impact upon the claimant would have provided actual notice that the Consent Order had been entered.
While a two-week delay after a Clerk's error might be reasonable, and while a government defendant might be estopped from raising the statute of limitations if a delay is due to affirmative government misconduct, see Long Island Radio Co. v. NLRB, 841 F.2d 474, 478 (2d Cir. 1988) (citing Schweiker v. Hansen, 450 U.S. 785, 788 (1981)), equitable tolling is not appropriate where an experienced attorney who is on notice to check the status of his Consent Order waits over nine months to do so after submitting the Order to the Court.
That is, assuming that this is a statute of limitations which is subject to estoppel and equitable tolling, rather than a jurisdictional bar, for if this is a jurisdictional bar, no estoppel would apply — either the defendant or the Court could raise jurisdiction.
Thus, as plaintiff failed to submit her fee application within the thirty-day time limit set by § 2412(d)(1)(B) of the EAJA, her motion for attorney fees must be denied as untimely.
III. CONCLUSION
For the reasons stated above, plaintiff's motion for attorney fees must be denied as untimely. The accompanying Order is entered.
O R D E R
This matter having come before the Court upon the motion of plaintiff, Georgianna Morris, for attorney fees pursuant to 28 U.S.C. § 2412; and the Court having considered the submissions of the parties; and for the reasons stated in the Opinion of today's date;
IT IS this ___ day of January, 1999, hereby
ORDERED that plaintiff's motion for attorney fees pursuant to 28 U.S.C. § 2412 be, and hereby is, DENIED AS UNTIMELY.