Opinion
Civil Action No. 98-0241-AH-S.
April 17, 2000.
RECOMMENDATION OF MAGISTRATE JUDGE
This cause is before the Court on Plaintiff's Motion for Attorney's Fees Pursuant to the Equal Access to Justice Act (Docs. 23 and 24), and Defendant's Response to Plaintiff's Motion for Attorney's Fees (Doc. 26). These motions have been referred to the undersigned Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636 (b)(l)(B) and Local Rule 72.2. Upon consideration of all matters presented, and for the reasons set forth below, it is recommended that Plaintiff's Motion for Attorney's Fees Pursuant to the Equal Access to Justice Act be DENIED.
On October 12, 1999, U.S. Magistrate Judge Paul Game, Jr. entered a report and recommendation recommending that the decision of the Commissioner be reversed and remanded for payment of benefits based on Plaintiff's April 25, 1995, Application for Disability Insurance Benefits and Supplemental Security Income (Doc. 19). By Order dated October 28, 1999 (Doc. 22), Senior U.S. District Judge Alex T. Howard, Jr., adopted Judge Game's recommendation and entered judgment in Plaintiff's favor and noted that Plaintiff was "a prevailing party" within the meaning of the Equal Access to Justice Act, 28 U.S.C. § 2412. On February 28, 2000, Plaintiff filed the present Motion for Attorney's Fees Pursuant to the Equal Access to Justice Act (Doc. 23).
In Defendant's Response to Plaintiff's Motion for Attorney's Fees (Doc. 26), Defendant asserts that Plaintiff's motion is due to be denied as untimely. By Order dated March 22, 2000 (Doc. 27), Plaintiff was ordered by April 12, 2000, to show cause why Plaintiff's motion for attorney's fees should not be denied as untimely filed. As of the date of this present report and recommendation, Plaintiff has failed to respond.
The Equal Access to Justice Act (EAJA) requires a Court to
award to a prevailing party . . . fees and other expenses. . . incurred by that party in any civil action. . ., including proceedings for judicial review of Agency action, brought by or against the United States . . ., unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.28 U.S.C. § 2412 (d)(l)(A).
The EAJA further requires that a prevailing party file an application for attorney's fees within thirty days of final judgment in the action. 28 U.S.C. § 2412 (d)(l)(B). The court's judgment is final sixty days after it is entered, which is the time in which an appeal may be taken pursuant to Rule 4 (a) of the Federal Rules of Appellate Procedure. See Shalala v. Schaefer, 509 U.S. 292, 302, 113 S.Ct. 2625, 2632, 125 L.Ed.2d 239 (1993).
Defendant does not contest that Plaintiff became the prevailing Party when the court reversed and remanded this action, Schaefer, 509 U.S. 300-01, 113 S.Ct. 2631, or that Defendant's position was not substantially justified. Defendant does, however, object to Plaintiff's application on the ground that it was untimely filed.
As set forth above, judgment in this action was entered on October 28, 1999. Accordingly, Plaintiff had until January 26, 2000, to timely file his EAJA application. The January 26, 2000, deadline is calculated by adding ninety days to the October 28, 1999, entry of judgment to allow for both the sixty day period of appealibility by the Commissioner, see Fed.R.App.P. 4(a), and the thirty day period stated in the EAJA, see 28 U.S.C. § 2412 (d)(1)(B). Plaintiff's application was not filed until February 28, 2000, some thirty-one days after the filing deadline had passed.
As setforth above, Plaintiff's counsel was afforded an opportunity to explain her failure to timely file this fee application. To date, counsel has failed to offer any explanation or justification.
The Eleventh Circuit Court of Appeals has consistently held that because the EAJA is a waiver of the United States' soverign immunity, "[t]he condition that the application for attorney's fees must be filed within thirty days . . . is jurisdictional."United States v. J.H.T., Inc., 872 F.2d 373, 375 (11th Cir. 1989) (quoting Haitian Refugee Center v. Meese, 791 F.2d 1489, 1494 (11th Cir. 1986) (vacated in part, 804 F.2d 1573 (11th Cir. 1986)); see also Myers v. Sullivan, 916 F.2d 659 (11th Cir. 1990). As such, "[u]pon expiration of this period, the district court loses jurisdiction to consider the merits of any fee petitions not timely filed." Myers, 916 F.2d 668-69. Accordingly, in the case of sub judice, this court lost jurisdiction to consider the merits of Plaintiff's fee application upon expiration of the filing deadline on January 26, 2000.
Therefore, for the reasons setforth herein, it is recommended that Plaintiff's motion for attorney's fees pursuant to the Equal Access to Justice Act be DENIED.
The attached sheet contains important information regarding objections to the report and recormnendation of the Magistrate Judge.