Opinion
CASE NO. 8:01CV620
July 31, 2003
MEMORANDUM
AND ORDER
This matter is before the Court on the Plaintiff's Motion for Attorney Fees and Costs (Filing No. 17). The motion is supported by an Affidavit. (Filing No. 18.) The Secretary has filed a Response to the request for attorney fees. (Filing No. 20.)
FACTUAL BACKGROUND
This matter was previously before the Court on the denial of the request of the Plaintiff, Lorraine Mowinkel, for waiver and overpayment of disability benefits under Title II of the Social Security Act, 42 U.S.C. § 401-433. On March 5, 2003, pursuant to sentence four of 42 U.S.C. § 405(g) this Court reversed the decision of the Secretary and remanded the case consistent with the Court's Memorandum and Order. (Filing No. 12.) Final Judgment was also issued on March 5, 2003. (Filing No. 13.)
On June 6, 2003, Mowinkel's attorney filed a Motion for Leave to File a Motion for Attorney Fees, supported by an Affidavit. (Filing Nos. 14, 15.) The motion and affidavit both state that Mowinkel's attorney, Donald A. Roberts, did not receive notice of the Judgment until May 31, 2003 and thus "could not" file a motion for attorney fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412 within thirty days of the March 5, 2003, Judgment. (Filing No. 15.) The Secretary did not object or otherwise respond to the motion for leave to file the application for attorney fees. Primarily because of the lack of any objection, the Court granted the motion for leave to file the application. (Filing No. 16.) The Court's order included the following statement: "Counsel is advised that such difficulties may be avoided by using the Court's electronic filing system. Use of the system is mandatory. Nevertheless, the unopposed motion for leave to file the fee application will be granted." (Filing No. 16.) The Court did not state its position on the merits of the potential fee application.
Plaintiff's counsel then filed a Motion for Attorney Fees and Costs and a supporting Affidavit. (Filing Nos. 18, 19.) The Secretary responded, acknowledging her failure to respond to the previously filed motion for leave to file the application for fees and costs. The Secretary objects to the lateness of the filing of the motion for fees and costs as well as to certain amounts claimed. (Filing No. 20.)
On July 9, 2003, a Deputy Clerk in the U.S. District Court Clerk's Office sent counsel a letter stating that he was not yet registered, as required, for the electronic docket system. The Clerk allowed counsel fifteen days to do so. In the absence of timely registration, the matter was to be referred to the appropriate magistrate judge for a show cause order. A show cause order has not yet issued.
DISCUSSION
The EAJA provides that one who seeks an attorney fee or cost award under the EAJA must submit an application for the fees "shall" submit the appropriate application within "thirty days of final judgment in the action." 28 U.S.C. § 2412(d)(1)(B). The Eighth Circuit Court of Appeals has determined that courts lack jurisdiction to consider fee applications submitted beyond the thirty-day time limit. Pottsmith v. Barnhart, 306 F.3d 526, 527 (8th Cir. 2002). The issue of timeliness begins with whether the remand in Mowinkel's case was pursuant to sentence four of 42 U.S.C. § 405(g). Sentence four of § 405(g) provides: "The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). The Supreme Court has concluded that in "sentence four cases," the thirty-day filing period for an EAJA application begins after the final judgment is no longer appealable. Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991). Mowinkel's case is clearly a "sentence four case" because this Court found that the Secretary's decision was not based on substantial evidence as a whole, reversing and remanding the case for administrative action, and filing a judgment on the same date of the Court's decision. Pottsmith, 306 F.3d at 528-29.
Therefore, as the judgment was filed on March 5, 2003, the last day to file an appeal was on May 5, 2003. The last day to file a fee application was, therefore, June 4, 2003. As the Eighth Circuit has firmly stated, this limited time period is jurisdictional and cannot be extended. Pottsmith, 306 F.3d at 527. Although the Court allowed Mowinkel's counsel leave to file the application in light of the absence of any objection, the Court did not express an opinion with regard to the merits or in any way imply that the fee application would be granted.
The Court also notes that it has utilized an electronic docketing system since October 2002. Numerous well-publicized training sessions have been available for local attorneys and support staff. Mowinkel's counsel was informed earlier by this Court that use of the system is mandatory, and the Clerk issued a letter stating that counsel must register to use the system. The failure to use this system is not an excuse for failing to act under court rules or the laws of the United States. Had counsel properly registered for the system, he would have received electronic notice of the March 5, 2003 Judgment on that same date. The Court cannot ignore a jurisdictional time limitation due to counsel's inaction, which resulted in the ensuing unfortunate chain of events.
CONCLUSION
For the reasons discussed, the Plaintiff's Motion for Attorney Fees and Costs (Filing No. 17) is denied.
IT IS ORDERED that the Plaintiff's Motion for Attorney Fees and Costs (Filing No. 17) is denied.