Edward E. GRAY, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee , 983 F.2d 954 ( 1993 )

BEEZER, Circuit Judge,

dissenting:

I am compelled to apply United States Supreme Court precedent concerning the district court’s jurisdiction to entertain an application for Equal Access to Justice Act (EAJA) attorney fees. See 28 U.S.C. § 2412. The Supreme Court quite clearly explains the jurisdictional framework surrounding SSI disability benefit attorney fee applications. Melkonyan v. Sullivan, — U.S. -, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991). Because I conclude that the district court lacked jurisdiction to consider Gray’s application, I would vacate the district court’s order denying fees and remand for dismissal of Gray’s application.

I

A district court’s jurisdiction over an SSI attorney fee application depends on the finality of the order the court files in the merits action. The Supreme Court identifies three routes by which an SSI disability benefits case can return to the Secretary after judicial review has been sought. First, a district court may affirm, modify, or reverse a decision of the Secretary, with or without remanding. 42 U.S.C. § 405(g) (a “sentence four” remand). Second, a district court may forgo a substantive ruling and remand for the taking of additional evidence, for good cause shown. Id. (a “sentence six” remand). Section 405(g) authorizes only these two types of remands. Melkonyan, — U.S. at ---, 111 S.Ct. at 2164-65. Third, the parties may stipulate to a remand. Fed.R.Civ.P. 41(a) (voluntary dismissal). See generally Mel-konyan, — U.S. at-, 111 S.Ct. at 2163-65 (discussing three possible routes).

The procedure by which a case returns to the Secretary determines finality for purposes of the EAJA, and thus prescribes the time frame within which an application for attorney fees must be filed:

In sentence four cases, the filing period begins after the final judgment (“affirming, modifying, or reversing”) is entered by the court and the appeal period has run, so that the judgment is no longer appealable. See § 2412(d)(2)(G). In sentence six cases, the filing period does not begin until after the postremand proceedings are completed, the Secretary returns to court, the court enters a final judgment, and the appeal period runs....

... [I]f the court’s order was, in effect, a dismissal under Fed.Rule Civ.Proc. 41(a), the District Court’s jurisdiction over the case would have ended at that point, and petitioner would not have been a prevailing party “in [a] civil action.” 28 U.S.C. § 2413(d)(1)(A). Under those circumstances, the Secretary would not return to the District Court and petitioner would not be eligible to receive EAJA fees.

Id. — U.S. at -, 111 S.Ct. at 2165.

This circuit has already embarked on fleshing out the Supreme Court’s opinion in Melkonyan. In Scanlon v. Sullivan, 974 F.2d 107 (9th Cir.1992), we considered a case in which

[t]he parties stipulated to the entry of the tentative decision, and the district court’s order remanding the case was entered on July 7, 1988. The court ordered that “after the case is remanded and after such additional administrative proceedings as are required are completed, the Secretary of Health and Human Services shall modify or affirm the findings of fact or the decision, or both, and shall file with this Court any such additional or modified findings of fact and decision, and proposed judgment for entry.”

Id. at 108. The Secretary found in Scan-lon’s favor; neither Scanlon nor the Secretary ever returned to the district court. Id.

Because the issue had not been presented to the district court, we declined to consider whether Melkonyan would render the district court’s order a final judgment. We held, however, that the absence of a final judgment precluded the district court from considering Scanlon’s fee petition. Id. at 108. For us to conclude that the district court had not rendered a final judgment, its action must have been either a sentence six remand or a voluntary dismissal. By not finding a showing of “good cause” supporting remand, see Melkonyan, — U.S. at -, 111 S.Ct. at 2164, the district court must have “treated the joint request for remand as a voluntary dismissal.” Id. — U.S. at -, 111 S.Ct. at 2165. Hence our holding: “in the absence of a final judgment, the district court lacked jurisdiction to consider Scanlon’s fee petition.” Scanlon, 974 F.2d at 108.

II

A party seeking an award of attorney fees under the EAJA “shall, within thirty days of final judgment in the action, submit to the court an application for fees.” 28 U.S.C. § 2413(d)(1)(B). A “ ‘final judgment’ means a judgment that is final and not appealable.” Id. § 2412(d)(2)(G). A final judgment under § 2412 must be entered by a court of law, not an administrative agency.¹ Melkonyan, — U.S. at -, 111 S.Ct. at 2161 (noting that § 2412 addresses a “final judgment in the action,” whereas 5 U.S.C. § 504 addresses a “final disposition in the adversary adjudication”).

I further note the distinction that under § 2412 a party applies to the court for an award of fees, whereas under § 504 a party applies to the agency. Compare 28 U.S.C. § 2412(d)(1)(B) with 5 U.S.C. § 504(a)(2). When a matter becomes final, under either statute, a party has thirty days to seek, with the relevant adjudicative body, attorney fees that pertain to the proceedings conducted before it. Gray seeks attorney fees under § 2412, so we look to the proceedings conducted before a court.

The Secretary initially denied Gray’s petition for disability benefits. Gray appealed to the district court, which affirmed the Secretary’s determination. Gray appealed the district court’s judgment to us, and we reversed, directing that the Secretary reconsider his determination using correct legal standards. Gray v. Secretary of Health & Human Servs., 874 F.2d 816 (9th Cir.1989). Procedurally, however, our mandate issued to the district court, which then remanded the matter to the Secretary. See Bunnell v. Sullivan, 947 F.2d 341, 348 (9th Cir.1991) (en banc). On June 6, 1989, the district court remanded to the Secretary after a reversal of his decision, a sentence four remand.² See Melkonyan, — U.S. at -, 111 S.Ct. at 2163.

“In sentence four cases, the filing period begins after the final judgment (‘affirming, modifying, or reversing’) is entered by the court and the appeal period has run, so that the judgment is no longer appealable.” Id. — U.S. at -, 111 S.Ct. at 2165. Our final judgment in Gray’s merits appeal was filed April 21, 1989. The Secretary had ninety days to file a petition for a writ of certiorari with the Supreme Court. Sup.Ct. Rs. 11, 12. “The 30-day EAJA clock beg[an] to run after the time to appeal that ‘final judgment’ [] expired.” Melkonyan, — U.S. at -, 111 S.Ct. at 2162. Without quibbling over the niceties of counting days, I can safely say that March 19, 1990 is more than 120 days after April 21, 1989.

Finally, I would hold that the thirty day time period within which Gray had to seek attorney fees is jurisdictional. See Scanlon, 974 F.2d at 108; cf. Columbia Mfg. Corp. v. NLRB, 715 F.2d 1409, 1410 (9th Cir.1983) (thirty day EAJA filing period for adversary adjudications is jurisdictional). The fee statutes are intimately bound up with the finality of judgments and the time periods within which a party must file a notice of appeal. Such time periods are jurisdictional. Rodgers v. Watt, 722 F.2d 456, 457-58 (9th Cir.1983) (en banc).

Because Gray did not timely appeal for attorney fees with the district court, the district court had no jurisdiction to consider the application. I would vacate the district court’s order denying Gray’s fee application and remand with instructions to dismiss the application.

I respectfully dissent.

1 . In Sullivan v. Finkelstein, 496 U.S. 617, 110 S.Ct. 2658, 110 L.Ed.2d 563 (1990), the Supreme Court held that a remand order for rehearing under the fourth sentence of § 405(g) was a final judgment subject to immediate appeal under 28 U.S.C. § 1291. Such final judgment "terminated the civil action” that challenged the initial denial of benefits.

2 . On March 6, 1990, an administrative law judge granted Gray’s petition for disability benefits, terminating his merits proceedings. Gray applied for attorney fees in the district court on March 19, 1990. The district court denied Gray's application on February 19, 1991. He timely appealed.