Fifth Circuit Holds that Government’s Dismissal of Its Own Appeal Commences the 30-Day Period for Seeking Attorney’s Fees Under EAJA

Per the Fifth Circuit in Pierce v. Barnhart, --- F.3d ----, 2006 WL 335663 (Feb. 14, 2006):

We first address whether the plaintiffs' applications for attorney's fees were timely under the EAJA. An application for attorney's fees under the EAJA shall be submitted "within thirty days of final judgment in the action." 28 U.S.C. § 2412(d)(1)(B) (2000). The EAJA defines "final judgment" as "a judgment that is final and not appealable." Id. § 2412(d)(2)(G). The Supreme Court has interpreted "final judgment" for purposes of § 2412(d)(1)(B) as "a judgment rendered by a court that terminates the civil action for which EAJA fees may be received." Melkonyan v. Sullivan, 501 U.S. 89, 96, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991). According to the Court, the thirty-day EAJA clock "begins to run after the time to appeal that 'final judgment' has expired." Id.

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When Congress added a statutory clause defining "final judgment" under the EAJA as "a judgment that is final and not appealable," it included an example in the legislative history indicating that the thirty-day period begins once the government dismisses its appeal. See H.R.Rep. No. 99-120(I), at 22 n.26 (1985), reprinted in 1985 U.S.C.C.A.N. 132, 151 n.26 ("When the Government dismisses an appeal, the date of dismissal commences the thirty-day period.").

We hold that where, as here, the government dismisses its own appeal, the date of dismissal commences the thirty-day period. In the present case, the plaintiffs filed their applications more than three months after this court dismissed the government's consolidated appeal. These applications, under our holding, were clearly untimely under the EAJA, depriving the district court of jurisdiction to consider the merits of the applications.In an effort to avoid being found "untimely" under the EAJA, the plaintiffs contend that the magistrate judge's orders reaffirming his prior decisions were "final judgments" under the EAJA, entitling them to new thirty-day periods to file their requests for attorney's fees. The magistrate judge, however, did not issue orders of remand as requested by the plaintiffs. Rather, the magistrate judge found these separate requests "unnecessary," concluding that his previous sentence-four judgments in these cases remained in effect. Accordingly, the magistrate judge merely reaffirmed his prior decision in each case. To adopt the plaintiffs' view would allow claimants, who are trying to meet the statutory requirements but have otherwise failed to fall within the EAJA's thirty-day period, to seek orders reaffirming prior decisions in order to start new EAJA filing periods. Because the plaintiffs' interpretation of "final judgment" is not supported by the decisions interpreting § 2412(d)(1)(B) and because it creates an incentive for claimants to create new "final judgments" for purposes of the EAJA clock, we decline to adopt this view.