Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted April 4, 1990.
Appeal from the United States District Court for the Central District of California; William J. Rea, District Judge, Presiding.
C.D.Cal.
VACATED AND REMANDED.
Before FLETCHER and KOZINSKI, Circuit Judges, and MUECKE, District Judge.
Honorable C.A. Muecke, Senior United States District Judge for the District of Arizona, sitting by designation.
MEMORANDUM *
Joe Aragon appeals the district court's denial of his application for attorney's fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. Because Aragon failed to file his EAJA application within the jurisdictional time limit, we vacate the judgment denying attorney's fees and remand for dismissal by the district court for lack of subject matter jurisdiction.
BACKGROUND
On May 5, 1986, Aragon filed a motion for attorney's fees pursuant to 28 U.S.C. § 2412. The district court denied the motion, finding that the position of the Secretary in opposing disability benefits was "substantially justified" within the meaning of 28 U.S.C. § 2412(d)(1). Aragon timely appealed the district court's denial. We withdrew this case from submission pending determination of similar issues in Melkonyan v. Heckler, 895 F.2d 556 (9th Cir.1990).
DISCUSSION
A party requesting an award of attorney's fees under section 2412 must submit an application to the court "within thirty days of final judgment in the action." 28 U.S.C. § 2412(d)(1)(B). The thirty-day time limit is jurisdictional; the court lacks subject matter jurisdiction over untimely applications. Melkonyan v. Heckler, 895 F.2d at 557; see also Papazian v. Bowen, 856 F.2d 1455, 1455-56 (9th Cir.1988).
As defined by the EAJA, a final judgment is "a judgment that is final and not appealable." 28 U.S.C. § 2412(d)(2)(G). We explored the meaning of this definition in Melkonyan. There we held as follows:
[W]here, as here, the Secretary determines that the claimant was disabled as of the disability onset date that the claimant alleged in his original application, the 30-day period begins to run immediately upon the decision of the Appeals Council [adopting that determination].
Melkonyan governs the case at hand. On November 19, 1985, the Appeals Council adopted the decision of the ALJ that Aragon became eligible for disability benefits as of July 8, 1980, the date he left government employment. This determination gave Aragon all the benefits he had ever requested and thus the award was no longer subject to appeal by either the Secretary or Aragon. See Melkonyan, 895 F.2d at 558. Aragon's application for attorney's fees was due thirty days later, or December 19, 1985, but he did not submit it to the district court until May 5, 1986. It therefore was untimely, and the district court lacked subject matter jurisdiction over it.
This appeal is resubmitted for decision. The judgment of the district court is VACATED and REMANDED with instructions to DISMISS.
FN** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3.