Ellender v. Schweiker, Docket No. 85-6274

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: Before TIMBERS, KEARSE and PRATT; KEARSE; Cooper
• Citation: 781 F.2d 314
• Parties: , 12 Soc.Sec.Rep.Ser. 150, Unempl.Ins.Rep. CCH 16,555 Dorothy ELLENDER, Angela Zamski, James Trowbridge, Lois W. Brunjes, and Verley Smith, individually and on behalf of all others similarly situated, Plaintiffs- Appellees, v. Richard W. SCHWEIKER, Margaret M. Heckler, as Secretary of the Department of Health and Human Services, John Svahn, and Martha McSteen, individually and as Commissioner of the Social Security Administration, Defendants-Appellants.
• Decision Date: 15 January 1986
• Docket Number: Docket No. 85-6274

Page 314

781 F.2d 314 3 Fed.R.Serv.3d 1414, 12 Soc.Sec.Rep.Ser. 150,
Unempl.Ins.Rep. CCH 16,555 Dorothy ELLENDER, Angela Zamski, James Trowbridge, Lois W.
Brunjes, and Verley Smith, individually and on
behalf of all others similarly situated,
Plaintiffs- Appellees,
v.
Richard W. SCHWEIKER, Margaret M. Heckler, as Secretary of
the Department of Health and Human Services, John Svahn, and
Martha McSteen, individually and as Commissioner of the
Social Security Administration, Defendants-Appellants. Docket No. 85-6274. United States Court of Appeals,
Second Circuit. Argued Nov. 12, 1985.
Decided Jan. 15, 1986.

Page 315

Toby Golick, New York City (Cardozo Bet Tzedek Legal Services, New York City, Joan Mangones, Lester Helfman, The Legal Aid Society, Staten Island, N.Y., John E. Kirklin, Nancy Morawetz, The Legal Aid Society, New York City, on brief), for plaintiffs-appellees.

Steven E. Obus, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Jane E. Booth, Asst. U.S. Atty., New York City, on brief), for defendants-appellants.

Before TIMBERS, KEARSE and PRATT, Circuit Judges.

KEARSE, Circuit Judge.

Plaintiffs-appellees Dorothy Ellender, et al., in this action brought to challenge certain practices of defendants-appellants Richard W. Schweiker, as Secretary of the Department of Health and Human Services, et al. (collectively the "Secretary"), have moved to dismiss the Secretary's appeal insofar as it seeks review of a decision of the district court, Irving Ben Cooper, Judge, reported at 575 F.Supp. 590 (S.D.N.Y. 1983). Plaintiffs contend that a final judgment was entered in the action no later than January 4, 1985, that no notice of appeal was filed by the Secretary until more than 60 days thereafter, and that this Court thus lacks jurisdiction of the present appeal insofar as it seeks review of that final judgment or any prior order. We agree and grant the motion.

BACKGROUND

Plaintiffs commenced this action in 1982 to challenge a program of the Secretary to recover alleged overpayments of supplemental security income ("SSI") benefits from certain former SSI recipients. They contended that the recovery program was unlawful and that the notices sent by the government were constitutionally deficient, and they sought declaratory and injunctive relief, money damages, and attorneys' fees. Plaintiffs successfully moved for partial summary judgment, and on November 17, 1983, Judge Cooper entered a memorandum and order that permanently enjoined the challenged practices ("November 1983 Order"). The Secretary, who earlier had been temporarily restrained from continuing the challenged practices, complied with the November 1983 Order. The Secretary made no attempt to obtain immediate appellate review of that order.

The November 1983 Order left outstanding claims by plaintiffs for monetary relief and attorneys' fees. Plaintiffs promptly moved for an award of fees under the Equal Access to Justice Act, 28 U.S.C. Sec. 2412(d) (1982). The court granted the motion in part in April 1984 and directed the parties to negotiate the amount of fees to be paid. The parties reached agreement on amount, and a stipulation was so-ordered by the court in July 1984. Assistant United States Attorney Steven Obus then informed plaintiffs' counsel that no payment of the agreed fees would be made prior to entry of a judgment ordering such payment. Plaintiffs' counsel pointed out that plaintiffs still had individual damage claims outstanding but advised Obus that

Page 316

she did not believe plaintiffs would pursue these claims. Thereafter, the parties stipulated that all of plaintiffs' remaining claims would be discontinued and dismissed, and this stipulation was so-ordered and entered on December 19, 1984 ("December 1984 Order").

Plaintiffs then conferred with the clerk of the court in an attempt to have a judgment entered ordering the Secretary to pay the agreed-upon fees. After plaintiffs had submitted to the clerk the court's opinion awarding fees, the so-ordered stipulation as to amount, and a judgment form in accordance with the Appendix of Forms annexed to the Federal Rules of Civil Procedure, these papers apparently were submitted to Judge Cooper, who signed a judgment dated January 4, 1985 ("Judgment"), which read as follows:

Upon the annexed opinion and order of the Court entered April 12, 1984 and the annexed stipulation and order entered July 20, 1984 it is

Adjudged that the plaintiffs' counsel do have and recover of the defendants the sum of $40,734.30.

Judge Cooper sent the Judgment to the clerk of the court, accompanied by a memorandum that read as follows:

This judgment closes this case. If for any reason this action cannot be closed, please advise Chambers immediately by calling Law Clerk at Ext. 0972. Thank you.

The clerk noted in the civil docket for January 3, 1985, the entry of a "JUDGMENT" and described the substance of the Judgment. The docket entries contain the further notation "m/c", which is the clerk's abbreviation for "mailed copies", indicating that copies of the Judgment were mailed to counsel for the parties. The New York Law Journal for January 8, 1985, contained a notice that an order had been signed in this case.

The government attorneys, however, apparently did not become aware of the entry of the January 4, 1985 Judgment until March 8, 1985, some 64 days after the date of its entry. On March 28, the Secretary moved...