Opinion
Case No. 02-1232-WEB
September 30, 2003
MEMORANDUM AND ORDER
The Court now considers Plaintiff's Application for Attorney's Fees (Doc. 15.) Plaintiff first brought this action to review Defendant's decision to deny benefits. Plaintiff asked the Court to award benefits, or, in the alternative, to remand for further proceedings. After Plaintiff's brief was filed, the Defendant moved to remand under sentence four of 42 U.S.C. § 405(g). The matter was referred to Magistrate Judge Reid, who, on February 4, 2003, filed his Recommendation and Report suggesting a sentence four remand. Magistrate Judge Reid informed the parties that, "[p]ursuant to 28 U.S.C. § 636(b)(1), as set forth in Fed.R.Civ.P. 72(b) and D.Kan. Rule 72.1.4, the parties may serve and file written objections to the recommendation within 10 days after being served with a copy." (Doc. 12, at 7.)
No written objections were filed, and on March 6, 2003, this Court filed its order adopting the Recommendation and Report. (Doc. 13.) The Clerk of the Court filed a judgment form remanding the matter the next day, and the case was terminated.
On May 21, 2003 Plaintiff then made application for attorney fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 (EAJA). An application for fees under EAJA must be made within thirty days of final judgment. 28 U.S.C. § 2412(d)(1)(B). The EAJA defines "final judgment" as "a judgment that is final and not appealable. . . ." 28 U.S.C. § 2412(d)(2)(G). Thus, the EAJA thirty day period starts running when the time to appeal has expired. Shalala v. Schaefer, 509 U.S. 292, 302, 113 S.Ct. 2625, 125 L.Ed.2d 239, 302 (1993); Bryan v. Office of Personnel Management, 165 F.3d 1315, 1321 (10th Cir. 1999); Goatcher v. Chater, 57 F.3d 980, 981 (10th Cir. 1995).
In Social Security cases, the time to appeal is typically sixty days because an officer of the United States is a party. See 28 U.S.C. § 2107(b); Fed.R.App.P. 4(a)(1)(B); Schaefer, 509 U.S. at 302; 125 L.Ed.2d at 250. However, the Tenth Circuit has adopted a "firm waiver rule," that "provides that the failure to make timely objections to the magistrate's findings or recommendations waives appellate review of both factual and legal questions." U.S. v. One Parcel of Real Property, 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This raises the question whether the thirty day period started running 60 days after the entry of judgment on March 7, 2003, or whether it started running on March 7, 2003, because appellate review had been waived. The Tenth Circuit considered a similar question in Bryan v. Office of Personnel Management, 165 F.3d 1315, 1321 (10th Cir. 1999), where the parties had moved for voluntary dismissal and remand to the administrative level. The Bryan panel held that, because the district court's remand order was not appealable, the thirty day period ran from the entry of the remand order. Id.
In this case, therefore, because the order to remand was not subject to appellate review, the thirty day period ran from March 7, 2003, and was expired on May 21, 2003, when Plaintiff filed the application for fees. The thirty day period is jurisdictional in nature. Bryan, 165 F.3d at 1321. Although "the 28 U.S.C. § 2412(d)(1)(B) time requirement imposes a harsh result upon [P]laintiff's counsel . . ., "the Court must deny the application because "the Tenth Circuit has found compliance with the EAJA thirty day limit to be a requirement for subject matter jurisdiction. . . ." Birnell v. Apfel, 76 F. Supp.2d 1195, 1199 (D.Kan. 1999) (citing Bryan).
IT IS THEREFORE ORDERED that Plaintiff's Application for Attorney's Fees (Doc. 15) is DENIED.
SO ORDERED.