Unpublished Disposition, 923 F.2d 863 (9th Cir. 1990)

MEMORANDUM^** 

Appellant Virginia A. Sanders appeals the district court's denial of her motion for attorneys' fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d). Sanders claims that the Secretary's position in opposing her application for disability benefits was not substantially justified. The Secretary contends on appeal that the court lacked jurisdiction to consider Sanders' motion for fees.

A party seeking attorneys' fees pursuant to the EAJA must submit an application within thirty days of final judgment in the matter. 28 U.S.C. § 2412(d) (1) (B). The thirty-day time limit is jurisdictional. Melkonyan v. Heckler, 895 F.2d 556, 557 (9th Cir. 1990), petition for cert. filed, --- U.S.L.W. ---- (U.S. Aug. 23, 1990) (No. 90-5538). In Melkonyan v. Heckler, we held that when the Secretary determines that the claimant was disabled as of the date alleged in her original application, the thirty-day period begins to run immediately upon the decision of the Appeals Council. Id. at 558. Here, the Appeals Council's decision was filed on January 5, 1989. Sanders, however, did not file her motion until April 12, 1989, well past the thirty-day deadline. Thus the district court lacked jurisdiction to consider her motion. We therefore vacate the district court's judgment and remand the matter to the district court for dismissal.

Because there may be some question regarding the retroactivity of the Melkonyan decision, and because a petition for certiorari is pending, we have also considered the merits of Sanders' motion for attorneys' fees. Even had Sanders timely filed her application for attorneys' fees, we would conclude that the Secretary's position in denying Sanders' disability claims was substantially justified. The Supreme Court has held that substantial justification means "justified in substance or in the main," that is, "justified to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, ----, 108 S. Ct. 2541, 2550 (1988). Here, there was testimony from both examining and treating physicians that contradicted Sanders' claims of disability and supported the ALJ's initial denial of benefits. Moreover, the ALJ could reasonably conclude that the record did not contain sufficient probative evidence to call in a medical advisor. Thus the district court did not err in denying Sanders' motion.

The judgment of the district court is VACATED and REMANDED for dismissal.