circumstances of the present case preclude a facile application of this mechanical rule.
On July 9, 1982, I signed an order approving and adopting the magistrate's report and recommendation. In accordance with Rule 58, this order stated, on a document separate from the report and recommendation, that "summary judgment is entered in plaintiff's favor." On the same date, the clerk entered a notation in the civil docket that "summary judgment is entered in Plff's (sic) favor." (Docket entry no. 16). Copies of the order were mailed to the parties on this date.
Ordinarily, these actions alone would render the judgment effective. However, by a clerical error, another order was issued and entered on the docket on December 23, 1982, stating that "in accordance with this order filed July 9, 1982 judgment is entered in favor of deft and against plff." (sic) Plaintiff's counsel filed their motion for attorneys' fees on January 21, 1983. The issue, therefore, is what, if any, significance should be given to this second order. I have concluded that the judgment was effective on July 9, 1982, and therefore the order entered on December 23, 1982, is a nullity.
Several factors mandate this conclusion. First, all conditions necessary to make the judgment effective occurred on July 9, 1982. On that date, I ordered judgment be entered in plaintiff's favor and the clerk entered this order on the docket. It would be inconsistent with the policy behind Rules 59 and 78 to allow the entry of a second order to vacate the finality of the initial judgment. Rather than promoting certainty for when the time for appeal would begin running, see Levin v. Wear-Ever Aluminum, Inc., supra, the appeal period would be boundless. Second, since copies of the July 9, 1982, order were mailed to all counsel, any claim of prejudice or surprise by plaintiff's attorneys is unsupportable. Finally, the December 23, 1982, order misstates the prior decision and says judgment is entered for defendant rather than plaintiff.
Plaintiff's counsel contend that the time limit for filing the fee application under the EAJA was not triggered by the initial decision because when this judgment was entered, the case was remanded to the Secretary for a calculation of benefits. Counsel assert that until these benefits are calculated, there is no final judgment. This argument is without merit. As is evident from 42 U.S.C. § 405(i), the calculation of benefits is a level of administrative action separable and distinct from the judgment the district or appellate courts may render on the merits.
In fact, where judicial review of the Secretary's decision is sought pursuant to 42 U.S.C. § 405(g), the calculation and certification of payments may be stayed pending this review. See 42 U.S.C. § 405(i). Thus, where a district court enters judgment for a claimant and remands the action to the Secretary for a calculation of benefits, this action constitutes a "final judgment" for the purpose of the 30 day limitations period under the EAJA. 28 U.S.C. § 2412(d) (1) (B).
For the foregoing reasons, I find that the judgment was effective on July 9, 1982. Because the EAJA requires that the fee petition be submitted "within thirty days of final judgment in the action," 28 U.S.C. § 2412(d) (1) (B), counsels' application, filed on January 21, 1983, is untimely.
AND NOW, this 30th day of August, 1983, for the reasons expressed in the foregoing memorandum, the petition of plaintiff's counsel for attorneys' fees is hereby denied.