Luna v. Apfel

• Citation: 986 F.Supp. 275
• Decision Date: 04 December 1997
• Docket Number: No. Civ.A 96-4428(JEI).,Civ.A 96-4428(JEI).
• Parties: Olga LUNA, Plaintiff v. Kenneth S. APFEL, Commissioner of Social Security,<SMALL><SUP>1</SUP></SMALL> Defendant
• Court: United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey

Page 275

986 F.Supp. 275

Olga LUNA, Plaintiff v. Kenneth S. APFEL, Commissioner of Social Security,¹ Defendant

No. Civ.A 96-4428(JEI).

United States District Court, D. New Jersey.

December 4, 1997.

Philip Wolf, Haddonfield, NJ, for Plaintiff.

Faith S. Hochberg, U.S. Atty., Anthony J. LaBruna, Jr., Asst. U.S. Atty., Newark, NJ, for defendant.

OPINION

IRENAS, District Judge.

Plaintiff Olga Luna applies, pursuant to the Equal Access to Justice Act, for an award of costs and attorney fees for services rendered in this action against the Commissioner of Social Security. Defendant Kenneth S. Apfel, Commissioner of Social Security, opposes plaintiff's motion. For the reasons discussed below, this Court will grant plaintiff's application for costs and attorney fees.

I. BACKGROUND

Plaintiff Olga Luna filed the Complaint in this action on September 9, 1996, seeking, pursuant to 42 U.S.C. § 405(g) (1994), this Court's review of the final decision of the Commissioner of Social Security ("the Commissioner") denying plaintiff's January 29, 1993, application for social security income. On August 11, 1997, this Court signed and entered the Consent Order to Remand in this action, remanding plaintiff's cause of action to the Commissioner for further administrative action.

On October 2, 1997, plaintiff filed an application for an award of counsel fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d) (1994), in the amount of $4,725.00, plus costs in the amount of $120.00. On October 23, 1997, the Commissioner filed an opposition to plaintiff's motion, asserting that plaintiff's application was not timely filed and therefore this Court lacks subject matter jurisdiction to award attorney fees.

II. DISCUSSION

The Equal Access to Justice Act provides that a prevailing party in a civil action brought by or against the United States or any agency or any official of the United States acting in her official capacity may be awarded a judgment for costs, 28 U.S.C. § 2412(a)(1) (1994), and shall be awarded reasonable attorney fees and expenses unless the court finds that the position of the United States was substantially justified or that special circumstances make such an award unjust, id. 2412(d)(1)(A). EAJA further provides:

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, and the amount sought, including an itemized statement from the attorney ... representing ... the party stating the actual time expended and the rate at which fees and other expenses were computed.

Id. § 2412(d)(1)(B).²

The Commissioner applied for a consent order remanding plaintiff's cause of action to the Commissioner for further administrative action pursuant to sentence four of 42 U.S.C. § 405(g) (1994) ("sentence-four"). Sentence-four provides with respect to judicial review of final decisions of the Commissioner that "[t]he Court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). This Court signed and entered the Consent Order to Remand on August 11, 1997.

That plaintiff is a "prevailing party" under EAJA is not disputed.³ The Commissioner's argument is that this Court lacks subject matter jurisdiction to enter a judgment awarding costs and fees because plaintiff's application was untimely. He contends that it was untimely because it was not filed within thirty days of the date of entry of the Consent Order to Remand.

EAJA provides that a party seeking an award of costs and fees under its provisions "shall, within thirty days of final judgment in the action" submit its application for such award. 28 U.S.C. § 2412(d)(1)(B). "`[F]inal judgment' means a judgment that is final and not appealable, and includes an order of settlement[.]" Id. § 2412(d)(2)(G). A sentence-four remand order is a final judgment for purposes of appealability. Shalala v. Schaefer, 509 U.S. 292, 303, 113 S.Ct. 2625, 2632, 125 L.Ed.2d 239 (1993); Kadelski v. Sullivan, 30 F.3d 399, 401 (3d Cir.1994). It becomes a "final judgment" within the meaning of EAJA upon expiration of the time for appeal. Schaefer, 509 U.S. at 298, 113 S.Ct. at 2629; see Melkonyan v. Sullivan, 501 U.S. 89, 102, 111 S.Ct. 2157, 2165, 115 L.Ed.2d 78 (1991).

The question here concerns the point at which the Consent Remand Order became, or will become, a "judgment that is final and not appealable." In Shalala v. Schaefer, the Supreme Court explained:

An EAJA application may be filed until 30 days after a judgment becomes "not appealable" — i.e., 30 days after the time for appeal has ended. See §§ 2412(d)(1)(B), (d)(2)(G); see also Melkonyan, 501 U.S. at 102, 111 S.Ct. at 2165, ... Rule 4(a) of the Federal Rules of Appellate Procedure establishes that, in a civil case to which a federal officer is a party, the time for appeal does not end until 60 days after "entry of judgment," and that a judgment is considered entered for purposes of the Rule only if it has been "entered in compliance with Rul[e] 58 ... of the Federal Rules of Civil Procedure." Fed.Rules App.Proc. 4(a)(1), (7). Rule 58, in turn, requires a district court to set forth every judgment "on a separate document" and provides that "[a] judgment is effective only when so set forth."

509 U.S. at 302-03, 113 S.Ct. at 2631-32. Therefore, if appealable in the first instance, the Consent Order to Remand remains appealable under EAJA for sixty days after such date as judgment might be entered in compliance with Federal Rule of Civil Procedure 58. See id. at 303, 113 S.Ct. at 2632; Kadelski, 30 F.3d at 402.

The Commissioner argues as follows:

[A] consent order is not appealable, because the parties negotiated and agreed to its terms and, thus, cannot be aggrieved thereby. See Dunn v. United States, 775 F.2d 99, 105 (3d Cir.1985). Thus, in cases in which a consent order of remand pursuant to sentence four has been entered, the thirty-day period in which to file an EAJA application necessarily commences immediately upon entry.

(Defendant's Mem. of Law in Opp. to Plaintiff's Motion for Attorney Fees at 2).

This Court is not prepared to accept the blanket proposition that a consent judgment is not appealable.⁴ Consent judgments are final decisions entered by district courts. The courts of appeals have jurisdiction to hear appeals from such final decisions. 28 U.S.C. § 1291 (1994). Appeals from consent judgments might be meritless, but "[r]esearch reveals no definitive answer to the question regarding whether an appeal can technically be filed irrespective of the merits of such an appeal." Clark v. Housing Auth. of City of Alma, 971 F.2d 723, 726 n. 4 (11th Cir.1992). Some authorities strongly suggest that a judgment entered by consent is "appealable" notwithstanding that it will be affirmed on appeal without consideration of the merits. For example, in Pacific Railroad v. Ketchum, 101 U.S. 289, 25 L.Ed. 932 (1879), the Supreme Court explained:

It is contended ... that a consent decree in the Circuit Court cannot be appealed from, but we do not so understand the law. Sect. 692 of the Revised Statutes provides that an appeal shall be allowed from all final decrees in the circuit courts, & c., when the matter in dispute exceeds $5,000, and that this court "shall receive, hear, and determine such appeals." This makes appeals to this court, within the prescribed limits, a matter of right, and requires us, when they are taken, to hear and decide them. If, when the case gets here, it appears that the decree appealed from was consented to by the appellant, we cannot consider any errors that may be assigned which were in law waived by the consent, but we must still receive and decide the case. If all the errors complained of come within the waiver, the decree below will be affirmed, but only after hearing. We have, therefore, jurisdiction of this appeal. Id. at 295. Other statements are of similar import. See, e.g., Swift & Co. v. United States, 276 U.S. 311, 324, 48 S.Ct. 311, 314, 72 L.Ed. 587 (1928) (" `[A] decree, which appears by the record to have been rendered by consent, is always affirmed, without considering the merits of the cause.'") (quoting Nashville, Chattanooga & St. Louis Ry. Co. v. United States, 113 U.S. 261, 266, 5 S.Ct. 460, 461, 28 L.Ed. 971 (1885)); United States v. Babbitt, 104 U.S. 767, 768, 17 Ct.Cl. 431, 26 L.Ed. 921 (1881) ("In Pacific Railroad ... we decided that when a decree was rendered by consent, no errors would be considered here on an appeal which were in law waived by such a consent."); Clark, 971 F.2d at 726 ("[W]e read [Pacific Railroad] as holding that the procedural act of actually filing an appeal from a consent decree may be accomplished whether we consider the assignment of errors in the appeal or not."); National Wildlife Fed. v. Gorsuch, 744 F.2d 963, 968 (3d Cir.1984) (stating that consent decrees may be reviewed on appeal when there is claim that consent or jurisdiction was lacking but decree "`rendered by consent, is always affirmed, without considering the merits of the cause'") (quoting Swift, 276 U.S. 311, 48 S.Ct. 311) (second internal quotes omitted); United States v. All American Airways, Inc., 180 F.2d 592, 592 (9th Cir.1950) (per curiam) ("This appeal is from a consent judgment.... Such a judgment is not reversible.... The judgment appealed from is therefore affirmed.") (citing Pacific R.R., Babbitt, Nashville, and Swift); In re 4145 Broadway Hotel Co., 100 F.2d 7, 8 (7th Cir. 1938) (stating that ordinarily party to consent decree cannot question validity on appeal and since order there was consent decree "we are precluded from going into the merits") (citing Pacific...