Papazian v. Bowen
| Decision Date | 20 September 1988 |
| Docket Number | No. 88-5505,88-5505 |
| Citation | 856 F.2d 1455 |
| Parties | , Unempl.Ins.Rep. CCH 14182A Onnik PAPAZIAN, Plaintiff-Appellant, v. Otis BOWEN, Secretary of Health and Human Services, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John Ohanian, Los Angeles, Cal., for plaintiff-appellant.
Michael R. Power, Asst. Regional Counsel, Dept. of Health and Human Services, San Francisco, Cal., for defendant-appellee.
Appeal from the United States District Court for the Central District of California.
Before FLETCHER, CANBY and O'SCANNLAIN, Circuit Judges.
Onnik Papazian appeals the district court's order denying for lack of subject matter jurisdiction his motion for attorney fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. Sec. 2412(d) (West Supp.1987). We agree with Papazian that his application was timely filed. We reverse and remand.
On November 29, 1984, Papazian applied for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. Secs. 401-433 (1982). An administrative law judge ("ALJ") found that Papazian was not disabled and not entitled to disability benefits. The Appeals Council denied review of the ALJ's decision and on April 7, 1986, Papazian filed a complaint in the district court seeking judicial review of the Secretary's denial of benefits. During the pendency of that action the parties agreed that Papazian was disabled. Accordingly, the district court on December 5, 1986, entered a "Stipulation for Remand of Action; and Order Thereon" prepared by the Office of the United States Attorney signed by the parties, the magistrate, and the district judge. On remand, the Appeals Council found Papazian disabled from July 27, 1984, and awarded him benefits on December 22, 1986. The Appeals Council's decision was adopted by the district court, which entered a "final judgment," also prepared by the Office of the United States Attorney, on March 10, 1987. On March 26, 1987, Papazian filed his motion for attorney fees. The district court denied this
motion based on the magistrate's finding that it was untimely and therefore the district court lacked subject matter jurisdiction.
Section 2412(d)(1)(B) of the EAJA requires that a party seeking attorney fees apply within thirty days of final judgment in the action in which that party prevails. Section 2412(d)(2)(G) defines final judgment as "a judgment that is final and not appealable, and includes an order of settlement."
At issue here is whether the stipulation and order of December 5, 1986, was an "order of settlement" within the statute's definition of "final judgment." The magistrate concluded that "[i]t is clear that the stipulated remand was an 'order of settlement' under 28 U.S.C. Sec. 2412(d)(2)(G) since it granted the plaintiff all the relief that he had requested and nothing remained to be done but to implement the order." If the magistrate is correct, then we agree that the remand order would be a final order triggering the thirty day filing period. See Allen v. Secretary of Health and Human Services, 781 F.2d 92, 94 (6th Cir.1986) ().
Our review of the district court's order of December 5, 1986 convinces us, however, that neither the parties nor the court intended the litigation to be ended by the remand order. The order refers to "further administrative proceedings." Presumedly, any dispute over the agency's determination on remand would have been presented to the district court and possibly to us on appeal. Thus, a request for fees before a final judgment would be premature. See Skip Kirchdorfer, Inc. v. United States, 803 F.2d 711, 712 (Fed.Cir.1986) (...
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