The opinion of the court was delivered by: WEINER
Presently before the court is an application of the plaintiff for attorney's fees and expenses pursuant to the provisions of 28 U.S.C. § 2412(d). The underlying action was brought by the plaintiff on June 9, 1982 alleging an unconstitutional detention and seeking to enjoin the United States Navy from returning him to Spain under military orders.
The plaintiff had been stationed at a naval base in Spain when he was involved in an off-duty accident. He was charged by Spanish authorities with involuntary manslaughter, tried by a Spanish court and convicted. The plaintiff's enlistment expired after his conviction by a Spanish Court, but while he was awaiting appellate review. The Navy involuntarily extended plaintiff's enlistment and refused to discharge him. After plaintiff's conviction was affirmed by the Spanish appellate court, plaintiff fled Spain. The Navy then listed plaintiff as a deserter. Approximately one year later, plaintiff was stopped for a traffic violation in Richmond, Virginia, at which time he was turned over by the police to naval authorities, after a routine check showed him to be a Navy deserter. The Navy transferred plaintiff to a Navy brig in Philadelphia to await transfer to Spain and surrender to Spanish authorities.
Action was then commenced in this court. On July 15, 1982, this court permanently enjoined the Navy from transferring the plaintiff to Spain, and ordered that the plaintiff be released from naval custody. On June 21, 1983 the Court of Appeals for the Third Circuit affirmed this court's judgment. 711 F.2d 1199. The government's petition for rehearing was denied by the Court of Appeals on July 21, 1983. On August 25, 1983, the plaintiff filed an application for attorney's fees.
For the reasons which follow, the application of the plaintiff for fees and expenses is denied.
The Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1)(A) provides that:
. . ., a court shall award to a prevailing party . . . fees and other expenses . . ., incurred by that party in any civil action, . . ., brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
§ 2412(d)(1)(B) provides that:
A party seeking an award of fees and other expenses shall, within 30 days of final judgment in the action, submit to the court an application for fees and other expenses . . . .
The plaintiff's application for fees was filed on August 25, 1983, which was over a year after this court's judgment on July 15, 1982; it was sixty-five days after the June 21, 1983 affirmance of the judgment by the Court of Appeals; and it was thirty-five days after the Court of Appeals denied the request for a rehearing en banc.
Nowhere in the EAJA is the phrase "final judgment" defined. However, several courts have addressed the issue of what constitutes a "final judgment," for purposes of the thirty day requirement set forth in § 2412(d)(1)(B). Action on Smoking and Health v. Civil Aeronautics Board, 233 U.S. App. D.C. 79, 724 F.2d 211 (D.C.Cir.1984); McDonald v. Schweiker, 726 F.2d 311 (7th Cir.1983); McQuiston v. Marsh, 707 F.2d 1082 (9th Cir.1983); Walton v. Lehman, 570 F. Supp. 490 (E.D.Pa.1983); Berman v. Schweiker, 531 F. Supp. 1149 (N.D.Ill.1982).
In the Action on Smoking and Health case, the court used the date of its (the Court of Appeals) final judgment as the beginning of the thirty day period. Since the application for fees had been filed forty-two days after the entry of that judgment, the court held that they were ...