483 F.3d 600 (9th Cir. 2007), 04-56424, Hoa Hong Van v. Barnhart

Docket Nº:04-56424.
Citation:483 F.3d 600
Party Name:HOA HONG VAN, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security Administration, Defendant-Appellee.
Case Date:February 26, 2007
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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483 F.3d 600 (9th Cir. 2007)

HOA HONG VAN, Plaintiff-Appellant,


Jo Anne B. BARNHART, Commissioner of Social Security Administration, Defendant-Appellee.

No. 04-56424.

United States Court of Appeals, Ninth Circuit.

Feb. 26, 2007

Argued and Submitted Nov. 15, 2006.

Page 601

Alexandra T. Manbeck, San Diego, CA, for the plaintiff-appellant.

Peter D. Keisler, Assistant Attorney General, Carol C. Lam, United States Attorney, Janice L. Walli, Regional Chief Counsel, Region IX, John C. Cusker, Assistant Regional Counsel, Social Security Administration, San Francisco, CA, for the defendant-appellee.

Appeal from the United States District Court for the Southern District of California; Larry A. Burns, District Judge, Presiding. D.C. No. CV-01-00402-LAB/AJB.


REINHARDT, Circuit Judge.


Hoa Hong Van, a successful claimant for Supplemental Security Income ("SSI") benefits, appeals the district court's denial of her application for attorneys' fees as time-barred by the filing provision in the Equal Access to Justice Act ("EAJA" or "the Act"), which requires a party to submit a fee application "within thirty days of final judgment in the action," 28 U.S.C.§ 2412(d)(1)(B), and defines "final judgment" as "a judgment that is final and not appealable...." Id. § 2412(d)(2)(G). The district court held that because, following a

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remand under sentence six of 42 U.S.C. § 405(g), the Commissioner of Social Security ("Commissioner") consented to a judgment enforcing the agency's determination in favor of Van, the judgment became "final and not appealable" immediately, requiring Van to file her fee application within 30 days after entry of judgment, rather than 30 days after expiration of the 60-day appeal period provided for in Rule 4(a)(1)(B) of the Federal Rules of Appellate Procedure. Because Van filed her fee application 62 days after entry of judgment, the district court denied her application as untimely. Id.

In this case, we consider whether in order to be deemed timely under 28 U.S.C. § 2412(d)(1)(B), a Social Security disability claimant who, following a remand under sentence six of 42 U.S.C. § 405(g), obtains a favorable determination from the agency and enforces it in the district court by a judgment to which the government consents must file an application for attorneys' fees under EAJA within 30 days after the entry of judgment, or, whether he may file within 30 days following expiration of the 60-day appeal period provided for by Rule 4(a)(1)(B). We hold that such a claimant, like other successful sentence-six remand claimants, may file within 30 days after the 60-day appeal period in Rule 4(a) has expired. Thus, we reverse the district court and remand with instructions to consider Van's fee application on the merits.


In January 1999, Van filed an application for SSI benefits. The Social Security Administration ("SSA") denied her application in April 1999, and after a hearing before an Administrative Law Judge ("ALJ") in January 2000, the ALJ denied her claim. In January 2001, the Appeals Council denied Van's request for review of the ALJ's decision, and, in March 2001, Van filed an action in the district court pursuant to 42 U.S.C. § 405(g), challenging the denial of her benefits. Thereafter, in January 2002, she filed a motion for summary judgment, and, in response, in February 2002, the Commissioner filed a motion to remand. On March 27, 2002, the district court denied Van's motion for summary judgment and granted the Commissioner's motion to remand. The district judge subsequently made it clear in an April 16, 2002 order that the March 27 remand was issued pursuant to sentence six of 42 U.S.C. § 405(g). Van appealed the remand order to this court, and we held that we lacked jurisdiction to hear an appeal of a sentence-six remand. Van v. Barnhart, 58 Fed.Appx. 766 (9th Cir.2003).

Following the sentence-six remand, the Appeals Council vacated its earlier decision, and, on June 27, 2003, after considering new evidence, an ALJ awarded benefits to Van. On August 6, 2003, Van filed an ex parte motion in the district court, requesting that the case be reopened and that the district court issue a final judgment. District Judge Napoleon Jones reopened the case on August 14, 2003, and on November 12, 2003, Magistrate Judge Anthony Battaglia directed the Commissioner to file a supplemental transcript of the proceedings conducted before the SSA by December 12, 2003. The Commissioner submitted the supplemental transcript on December 18, 2003, and on January 22, 2004, Van submitted to the court an ex parte request for a final judgment. On January 28, 2004, the magistrate judge ordered that a judgment be entered, stating that "[p]ursuant to this Court's order of August 14, 2003, and the results of the post-remand proceedings, which have been filed with this court, and which found that Plaintiff has been disabled since January 6, 1999, IT IS HEREBY ORDERED that

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Judgment in this matter be entered in favor of Plaintiff and against Defendant." Subsequent to the issuance of this order, on February 4, 2004 the Commissioner filed a document with the district court entitled "Consent to Entry of Judgment," which stated that "[b]ecause the Commissioner has awarded benefits to Plaintiff following further proceedings on remand, [the Commissioner] consents to the entry of judgment as proposed by [Van]." On February 6, 2004, District Judge Larry Burns issued an order identical to the one issued nine days earlier by the magistrate judge, and the judgment was entered.

On April 8, 2004, Van filed a motion for attorneys' fees under EAJA with the district court. This filing occurred 62 days after the February 6, 2004 entry of judgment, and 71 days after the January 28, 2004 order. Van requested $18,947.37 in attorneys' fees. The Commissioner opposed the motion and argued, inter alia, that the district court lacked jurisdiction over it because it was untimely. The Commissioner argued that Van was required to file her motion within 30 days after the entry of judgment, because a party cannot generally appeal a consent judgment; she urged that in a case in which the government has so consented, the 30-day period for filing a motion for attorneys' fees under 28 U.S.C. § 2412(d)(1)(B) begins to run immediately upon the district court's entry of final judgment, citing Melkonyan v. Sullivan, 501 U.S. 89, 102, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991), and Slaven v. American Trading Trans. Co., 146 F.3d 1066, 1070 (9th Cir.1998). According to the Commissioner, neither party could appeal the judgment, the judgment was "not appealable" and, as a result, the 30-day period to file for EAJA fees commenced immediately upon entry of the judgment.

The district court agreed with the Commissioner's argument that Van was required to file her motion for attorneys' fees within 30 days after entry of the judgment, 1 and held that Van's motion was untimely because it was filed 62 days after the February 6, 2004 entry of judgment. Accordingly, it denied her EAJA application as time-barred in a written order filed August 4, 2004. 2 Thereafter, Van filed a timely appeal with this court. We have jurisdiction under 28 U.S.C. § 1291.

On appeal, Van asserts that her motion for attorneys' fees was timely filed, because the 30-day period in § 2412(d)(1)(B) did not begin to run until 60 days after entry of the judgment, and she filed 62 days after entry--just two days into the 30-day period. Van argues that under Melkonyan and Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993), when a Social Security disability claimant's case is remanded pursuant to sentence six of 42 U.S.C. § 405(g), and she subsequently obtains a district court judgment enforcing a favorable agency determination,

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the 30-day filing period does not begin to run until the 60-day appeal period provided for in Rule 4(a)(1)(B) has expired, whether or not the government has consented to the judgment. See Fed. R.App. P. 4(a)(1)(B). Relying in part on the legislative history of EAJA, Van asserts that the regular statutory filing period, which includes the 60-day appeal period, is unaffected by the Commissioner's consent to a judgment that follows a remand under sentence six.


We review for an abuse of discretion a district court's denial of attorneys' fees under EAJA, but an error of law constitutes an abuse of discretion. Akopyan v. Barnhart, 296 F.3d 852, 856 (9th Cir.2002) (citing Cooter Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990); Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir.2002)).


"The Equal Access to Justice Act (EAJA or Act) departs from the general rule that each party to a lawsuit pays his or her own legal fees." Scarborough, 541 U.S. at 404-05, 124 S.Ct. 1856 (citing Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 257, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975)). Under EAJA, "[a] party that prevails against the United States in a civil action is entitled, in certain circumstances, to an award of attorney's fees, court costs, and other expenses[,]" Flores v. Shalala, 49 F.3d 562, 566 (9th Cir.1995), but not when the "court finds that the position of the United States was substantially justified...." 28 U.S.C. § 2412(d)(1)(A).

EAJA, however, limits the time during which a claimant may file a fee application. See id. § 2412(d)(1)(B). Under § 2412(d)(1)(B), "[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...

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