McDonald v. Schweiker

• Decision Date: 15 March 1984
• Docket Number: No. 83-1046,83-1046
• Citation: 726 F.2d 311
• Parties: , Unempl.Ins.Rep. CCH 15,086 Sarah L. McDONALD, Plaintiff-Appellee, v. Richard SCHWEIKER, Secretary of Health and Human Services, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 311

726 F.2d 311

4 Soc.Sec.Rep.Ser. 103, Unempl.Ins.Rep. CCH 15,086

Sarah L. McDONALD, Plaintiff-Appellee, v. Richard SCHWEIKER, Secretary of Health and Human Services,

Defendant-Appellant.

No. 83-1046.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 28, 1983.

Decided Dec. 12, 1983.

Rehearing and Rehearing En Banc Denied March 15, 1984.

R. Lawrence Steele, Jr., Hammond, Ind., Donald P. Moroz, So. Bend, Ind., William Kanter, Appellate Staff, Civil Div., Dept. of Justice, Washington, D.C., for defendant-appellant.

Gregory S. French, Legal Services Program of Northern Ind., South Bend, Ind., Ivan E. Bodensteiner, Legal Services Program of Northern Ind., Valparaiso Un. School of Law, Valparaiso, Ind., for plaintiff-appellee.

Before CUDAHY and POSNER, Circuit Judges, and WILKINS, Senior District Judge. ^*

POSNER, Circuit Judge.

This appeal by the government from a fee award under the Equal Access to Justice Act, 28 U.S.C. Sec. 2412(d), requires us to decide a question of first impression in this circuit: whether an application for such an award is untimely if filed more than 30 days after the district court renders its final judgment, although less than 30 days after any appellate proceedings are completed.

In 1975 Mrs. McDonald, who was then 58 years old, asked her local social security office whether she would be eligible for social security benefits when she reached 62. She was told she would not be, because she would be six quarters short of the work experience required for early retirement. The office had miscomputed; she had all the requisite quarters. But not knowing this she did not apply for social security benefits when she reached 62 in November 1978. Some months later, however, she happened to be in the social security office with her husband, who was applying for his own benefits, and in the course of interviewing him the staff looked through its file on the couple and discovered the mistake. Mrs. McDonald applied for benefits immediately and was awarded them, but only from the date of application--August 1979--rather than from the date on which she had become eligible. After exhausting her administrative remedies Mrs. McDonald brought this action in federal district court under 42 U.S.C. Sec. 405(g) to challenge the government's refusal to pay benefits to her from the earlier date. Her theory was that the government was estopped, by its having misinformed her, to enforce the statutory provision that (with immaterial exceptions) bars payment of social security benefits for any period before they are applied for. See 42 U.S.C. Secs. 402(a)(3), 402(j)(4).

Since the proceeding in the district court was a review proceeding involving no taking of evidence, the court directed the parties to file simultaneous motions for summary judgment, and to do so by October 1, 1981. Although Mrs. McDonald filed her motion on time, the government neither filed its motion nor requested an extension of time. The court did not declare the government in default, but did on October 5 grant Mrs. McDonald's motion for summary judgment and enter judgment for her for $652.50. 537 F.Supp. 47 (N.D.Ind.1981). The government filed a notice of appeal to this court on December 2, 1981, which was within the 60 days that the government has to appeal, see Fed.R.App.P. 4(a)(1). But on March 24, 1982, after the time for filing its appeal brief had expired, the government moved to dismiss the appeal, and it was dismissed on March 30. On April 29 Mrs. McDonald moved the district court for an award of $3,000 in attorney's fees under the Equal Access to Justice Act and $71 in costs. The district court granted the motion. 551 F.Supp. 327 (N.D.Ind.1982). The government has appealed only from the award of attorney's fees.

The Equal Access to Justice Act requires the district court to "award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action (other than cases sounding in tort) 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. Sec. 2412(d)(1)(A). But a party seeking such an award "shall, within thirty days of final judgment in the action, submit to the court an application ...," 28 U.S.C. Sec. 2412(d)(1)(B), and we must first decide whether the plaintiff's application for attorney's fees, filed more than 30 days after the district court's judgment in her favor but within 30 days after dismissal of the government's appeal, which made the district court's judgment final in the sense of no longer contestable through the appellate process, was timely, as the district court held. 551 F.Supp. at 329-30.

The term "final judgment," which appears 151 times in the United States Code, does not have a single fixed meaning. Sometimes it denotes a judgment that disposes of the plaintiff's claim in the district court. See, e.g., Fed.R.Civ.P. 54(b); cf. 28 U.S.C. Sec. 1291 ("final decisions"). But sometimes it denotes the judgment that writes finis to the entire litigation, after all appellate remedies have been either exhausted or, as here, abandoned. See, e.g., Clayton Act, Sec. 5(a), 15 U.S.C. Sec. 16(a). Context may disambiguate. Where the purpose of a statute or rule is to indicate what orders are appealable, as is true of Fed.R.Civ.P. 54(b) or 28 U.S.C. Sec. 1291, finality must refer to the pre-appellate proceedings. But in a statute such as 46 U.S.C. Sec. 748, which defines the circumstances under which the United States will pay admiralty claims, "final judgment" must mean final after all appeals, for one cannot imagine the government being willing to pay before then (as we are about to see).

In this case we have only context, or stated otherwise purpose inferable from context, to guide us. The legislative history of the Equal Access to Justice Act contains no explanation of the meaning of "final judgment." The government's suggestion that the question can be decided by reference to the familiar proposition that waivers of sovereign immunity are narrowly construed is unpersuasive since we cannot see what difference it will make to the Treasury of the United States if the 30-day period for making a fee application runs from the end of the district court proceedings or from the end of all the proceedings; the amount of the fee award will not be affected and that is the important thing to the public fisc.

The practical consequences of the government's interpretation persuade us that it is wrong. One such consequence is the cost to the applicant of having to file multiple fee applications. United States v. 329.73 Acres, 704 F.2d 800, 810-11 (5th Cir.1983), holds, and the government does not question, that the Equal Access to Justice Act, like other attorney-fee statutes, allows a prevailing party in appropriate cases to obtain an award of fees for time spent prosecuting or defending an appeal as well as for time spent litigating in the district court. Cf. Bond v. Stanton, 630 F.2d 1231, 1234 (7th Cir.1980). This in itself is a damaging concession for the government to make since if "final judgment" means final judgment in the district court a prevailing party would have to file an application for fees on appeal before the amount of those fees was known. As this would be a rather absurd way of proceeding we interpret the government's concession to mean that, for purposes of getting an award of fees for appellate work, "final judgment" means the final decision of the appellate court. This shows that "final judgment" indeed does not have one meaning and also that under the government's view Mrs. McDonald would have had to file a second fee application, for any appellate work (if the government had pursued its appeal), after the end of the appellate proceedings. 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, though if the government unreasonably resists the fee application, and the claimant seeks fees for proving fees, as in Bond v. Stanton, supra, 630 F.2d at 1235, or Muscare v. Quinn, 680 F.2d 42 (7th Cir.1982), the claimant would have to file a supplementary fee application after the conclusion of the proceeding on his initial fee application.

The other side of the coin is that requiring the fee application to be filed within 30 days of the district court's final judgment would allow the application to be acted on in time for any appeal from the fee award to be consolidated with the appeal from the judgment, thus effecting a judicial economy at the court of appeals level. This would parallel suggestions that have been made for establishing, by order of court, deadlines for filing applications for attorney-fee awards under other statutes. See, e.g., Obin v. International Ass'n of Machinists & Aerospace Workers, 651 F.2d 574, 583 (8th Cir.1981). But there is no indication that the Congress that enacted the Equal Access to Justice Act was worried about the burdens the Act might place on the courts of appeals. And in any event the judicial economy may be largely illusory if as we have said the claimant is entitled in suitable cases to reimbursement of appellate fees. It may be illusory for another reason. The legislative history indicates and the government concedes that the 30-day provision in the Act was meant to establish a deadline, not a starting point. H.R.Rep. No. 1418, 96th Cong., 2d Sess. 18 (1980), U.S.Code Cong. & Admin.News 1980, p. 4953. The claimant can apply for fees as soon as he has prevailed, i.e., as soon as the district court has entered its final judgment; and in many cases the claimant's lawyer, being hungry to see some cash, will do just that and the advantages of consolidated appeals will be realized. (As we shall see, the lawyer will not actually be paid till all appellate proceedings are...