VAN v. BARNHARDT
The Ninth Circuit Court of Appeals today released an opinion in VAN v. BARNHARDT, No. 04-56424, an appeal in a civil action against the United States. The panel consisted of Dorothy W. Nelson, Stephen Reinhardt, and Jay S. Bybee, Circuit Judges.
REINHARDT, Circuit Judge:
I Hoa Hong Van, a successful claimant for Supplemental Security Income (”SSI”) benefits, appeals the district court’s denial of her application for attorneys’ fees as time-barred by the filing provision in the Equal Access to Justice Act (”EAJA” or “the Act”), which requires a party to submit a fee application “within thirty days of final judgment in the action,” 28 U.S.C. § 2412(d)(1)(B), and defines “final judgment” as “a judgment that is final and not appealable . . . .” Id. § 2412(d)(2)(G). The district court held that because, following a remand under sentence six of 42 U.S.C. § 405(g), the Commissioner of Social Security (”Commissioner”) consented to a judgment enforcing the agency’s determination in favor of Van, the judgment became “final and not appealable” immediately, requiring Van to file her fee application within 30 days after entry of judgment, rather than 30 days after expiration of the 60-day appeal period provided for in Rule 4(a)(1)(B) of the Federal Rules of Appellate Procedure. Because Van filed her fee application 62 days after entry of judgment, the district court denied her application as untimely. Id. In this case, we consider whether in order to be deemed timely under 28 U.S.C. § 2412(d)(1)(B), a Social Security disability claimant who, following a remand under sentence six of 42 U.S.C. § 405(g), obtains a favorable determination from the agency and enforces it in the district court by a judgment to which the government consents must file an application for attorneys’ fees under EAJA within 30 days after the entry of judgment, or, whether he may file within 30 days following expiration of the 60-day appeal period provided for by Rule 4(a)(1)(B). We hold that such a claimant, like other successful sentence-six remand claimants, may file within 30 days after . . .