Feldpausch v. Heckler, 84-5357

• Decision Date: 07 June 1985
• Docket Number: No. 84-5357,84-5357
• Citation: 763 F.2d 229
• Parties: , Unempl.Ins.Rep. CCH 16,154 Carroll E. FELDPAUSCH, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 229

763 F.2d 229

10 Soc.Sec.Rep.Ser. 40, Unempl.Ins.Rep. CCH 16,154

Carroll E. FELDPAUSCH, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services Defendant-Appellee.

No. 84-5357.

United States Court of Appeals Sixth Circuit.

Argued Feb. 19, 1985.

Decided June 7, 1985.

Alvin D. Wax (argued), Stanley W. Whetzel, Jr., Louisville, Ky., for plaintiff-appellant.

Ronald E. Meredith, U.S. Atty., Hancy Jones, III, James H. Barr, Christine Bradfield (argued), Louisville, Ky., for defendant-appellee.

Before ENGEL and KRUPANSKY, Circuit Judges, and PECK, Senior Circuit Judge.

John W. PECK, Senior Circuit Judge.

Appellant Carroll Feldpausch appeals from an order of the United States District Court for the Western District of Kentucky overruling his motion for an award of attorney fees pursuant to 28 U.S.C. Sec. 2412(d)(1)(A). Feldpausch brought suit in the district court to challenge the final determination of the Secretary of Health and Human Services ("Secretary") terminating his disability insurance benefits. On November 21, 1983, the district court sustained Feldpausch's motion for summary judgment. No appeal was taken by the Secretary. ¹ On January 24, 1984, 64 days after judgment, Feldpausch moved for an award of attorney fees under 28 U.S.C. Sec. 2412(d)(1)(A), the Equal Access to Justice Act ("EAJA"), Pub.L. No. 96-481, 94 Stat. 2325 (1980). ² The district court overruled the motion as untimely under 28 U.S.C. Sec. 2412(d)(1)(B) because it was filed more than 30 days after the "final and appealable judgment" of November 21, 1983.

The EAJA provides for an award of costs and fees to certain prevailing parties in actions by or against the United States unless the position of the United States was substantially justified. 28 U.S.C. Sec. 2412(d)(1)(A). ³ Section 2412(d)(1)(B) provides in relevant part:

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 eligible to receive an award under this subsection .... (Emphasis added).

The sole issue on appeal is whether Feldpausch's application for attorney fees, filed more than 30 days after the district court's judgment but within 30 days of the expiration of the time to appeal, was timely filed. Resolution of this issue requires a determination of the meaning of "final judgment" as used in Sec. 2412(d)(1)(B).

The district court determined that Feldpausch needed to file his application within 30 days of the November 21, 1983 judgment in order to meet the requirements of Sec. 2412(d)(1)(B). Thus, the court concluded that Feldpausch's motion filed 64 days later was untimely. Implicit in the court's holding is the conclusion that its November 21, 1983 judgment fell within the meaning of "final judgment" as that term is used in Sec. 2412(d)(1)(B). The district court's interpretation of the meaning of "final judgment" is a conclusion of law, subject to de novo review upon appeal. Foster v. Tourtellotte, 704 F.2d 1109, 1111 (9th Cir.1983); Spencer v. NLRB, 712 F.2d 539, 563 (D.C.Cir.1983).

Numerous other circuits have addressed the question of whether a "final judgment" occurs when the district court enters an appealable order rather than when a party's right to appeal that order has lapsed. In McDonald v. Schweiker, 726 F.2d 311 (7th Cir.1983), the Seventh Circuit held that an application for attorney fees under the EAJA was timely, even though filed more than 30 days after the district court rendered its final judgment, because the application was filed less than 30 days after appellate proceedings were completed. In Taylor v. United States, 749 F.2d 171 (3d Cir.1984), the Third Circuit adopted the McDonald approach. The D.C. Circuit has also expressly adopted the Seventh Circuit's analysis and holding, in Massachusetts Union of Public Housing Tenants v. Pierce, 755 F.2d 177, 180 (D.C.Cir.1985). ⁴ See also Rawlins v. United States, 686 F.2d 903, 914, 210 Ct.Cl. 672 (1982). The Ninth Circuit, however, in McQuiston v. Marsh, 707 F.2d 1082, 1085 (9th Cir.1983), held that the 30 day requirement of Sec. 2412(d)(1)(B) referred to 30 days after the final judgment of the district court, not to 30 days after the expiration of the time to appeal. See also Gold Kist, Inc. v. U.S. Dept. of Agriculture, 741 F.2d 344 (11th Cir.1984); Guthrie v. Schweiker, 718 F.2d 104, 106 (4th Cir.1983). ⁵

In McQuiston, the court reasoned that " 'final judgment' should be defined by its common usage in contexts such as 28 U.S.C. Sec. 1291, Fed.R.App.P. 4(a), and Fed.R.Civ.P. 54." The court concluded that "a request for attorneys' fees under subsection (d) is untimely if filed more than 30 days after the district court has entered judgment." Id. at 1085.

The Seventh Circuit, however, was unpersuaded by the "common usage" rationale of McQuiston. In McDonald, the court noted that the term "final judgment" does not actually appear in either 28 U.S.C. Sec. 1291 or Fed.R.App.P. 4(a). The court further observed that "final judgment" does not have a single fixed meaning, but varies according to context. As an example, the court compared Fed.R.Civ.P. 54(b) and 28 U.S.C. Sec. 1291, in which finality refers to the pre-appellate proceedings, to "final judgment" in the Clayton Act, Sec. 5(a), 15 U.S.C. Sec. 16(a), which courts have constructed to mean when the time to appeal has run or the judgment has been affirmed by the court of last resort. See, e.g., State of Illinois v. Sperry Rand Corp., 237 F.Supp. 520, 523 (N.D.Ill.1965); Twin Ports Oil Co. v. Pure Oil Co., Inc., 26 F.Supp. 366, 368 (D.Minn.1939). The court in McDonald, however, based its conclusion upon the practical consequences of the position advanced by the government. Under the McQuiston approach, the court observed, the EAJA fee applicant may have to bear the cost of having to file multiple fee applications; the court stated that "it makes more sense, at least from the claimant's viewpoint, to be able to file a single application at the conclusion of all the proceedings...." Id. at 314. Further, the court, in observing that in many cases the prevailing party will actually seek fees within the 30 day period after the district court's entry of judgment, even when the case is appealed, stated: "In any event, giving the claimant a choice whether to ask for fees after he wins in the district court or after the appeal maximizes his welfare, at some cost perhaps to the courts but none we can think of to the executive branch." Id. at 34. Next, the court concluded that under the interpretation advanced by the government, the filing of completely meritorious fee applications could be discouraged because (as apparently admitted by the government in that case) the government would be more likely to pursue an appeal if the stakes have been increased by a fee application:

Thus, if Mrs. McDonald's counsel had had to decide whether to apply for fees before the government had to decide whether to pursue the appeal, he would have faced an exquisite dilemma: forego any fee application and thereby preserve the wretched pittance that his client had wrung from the Social Security Administration only after bringing a review proceeding in a federal district court, or jeopardize her judgment in the hope of getting a reasonable fee for his work. The framers of the Equal Access to Justice Act could not have meant to create such a dilemma when they used the words 'final judgment' without in all likelihood considering what the words might mean in the setting of the present case. They wanted to make it easier, not harder, for people of limited means to collect their small claims from the government. See H.R.Rep. No. 1418, supra, at 18.

Id. at 315. The court also observed that because the government had stated that it does not approve any actual payment of attorney fees until the completion of all proceedings, including appeals, there appears to be no reason for requiring fee applications prior to completion of the proceedings. Finally, the court in McDonald suggested that Congress could resolve the issue by shedding some light on its intent when considering reenactment of the EAJA upon its expiration on October 1, 1984.

We consider the reasoning of the Seventh Circuit in McDonald to be persuasive and we therefore hold that Feldpausch's application for attorney fees within 30 days of the expiration of the time to appeal was timely. We are further persuaded by the reasoning of the court in Taylor, 749 F.2d at 171. In determining that the term "final judgment" means final and not appealable, the Third Circuit in Taylor held that the plaintiff's request for attorney fees under the EAJA, filed within 30 days of the date when the government notified the plaintiff that no further appeal would be pursued, was timely. The court noted that Congress acted upon the suggestion made by the Seventh Circuit in McDonald:

Congress has clarified the meaning of 'final judgment' for purposes of the EAJA, 28 U.S.C. Sec. 2412(d)(1)(B), adopting the Seventh Circuit's McDonald approach. The original EAJA, Pub.L. 96-481, 94 Stat. 2327 (1980) expired on October 1, 1984. Two bills, S. 919 and H.R. 5479 were introduced in the respective houses of Congress to re-enact the EAJA. On October 4, 1984, the Senate approved H.R. 5479, which had adopted the language of S. 919 with minor revisions. Following a series of amendments in both houses. [sic] Congress approved a final version of H.R. 5479 on October 11, 1984. Although the President declined to sign the bill into law, we nonetheless find its language and legislative history to be instructive on the question of the meaning of 'final judgment' under the original EAJA.

The bill passed by Congress sought to clarify 28 U.S.C. Sec. 2412(d)(2) by adding a series of definitional passages. New definition Sec. 2412(d)(2)(G) reads: " 'final...