                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                       PUBLISH
                                                                       August 17, 2007
                     UNITED STATES CO URT O F APPEALS               Elisabeth A. Shumaker
                                                                        Clerk of Court
                                    TENTH CIRCUIT



    ELLIE E. SH U BA RG O ,

             Plaintiff-Appellant,

     v.                                                  No. 07-7005

    M ICH AEL J. ASTRU E, *
    Commissioner, Social Security
    Administration,

             Defendant-Appellee.



           A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
               FO R TH E EASTERN DISTRICT O F O K LAH O M A
                          (D.C. No. CIV-04-08-K EW )


Submitted on the briefs: **

Richmond J. Brownson, Timothy M . W hite, Tulsa, Oklahoma, for
Plaintiff-A ppellant.

Sheldon J. Sperling, United States Attorney, Cheryl R. Triplett, Assistant United
States Attorney, Tina M . W addell, Regional Chief Counsel, M ary F. Lin, Special
Assistant United States A ttorney, Office of the G eneral Counsel, Region VI,
Social Security Administration, Dallas, Texas, for Defendant-Appellee.


*
      Pursuant to Fed. R. App. P. 43(c)(2), M ichael J. Astrue is substituted for
Linda S. M cM ahon as appellee in this appeal.
**
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Before H EN RY and A ND ER SO N, Circuit Judges, and BROR BY, Senior Circuit
Judge.


BROR BY, Senior Circuit Judge.




      Ellie E. Shubargo is appealing the order entered by the district court

denying her application for an award of attorney fees under the Equal Access to

Justice Act (EAJA). See 28 U.S.C. § 2412(d)(1)(A) (providing for an award of

attorney fees “to a prevailing party other than the United States . . . unless the

court finds that the position of the United States was substantially justified”).

The district court denied M s. Shubargo’s EAJA application based on its finding

that the application was untimely. Exercising jurisdiction under 28 U.S.C.

§ 1291, we reverse and remand for further proceedings.

      In this social security case, following the Commissioner’s denial of her

application for disability benefits and the district court’s entry of an order

affirming the denial, M s. Shubargo filed an appeal in this court. On December

13, 2005, another panel of this court entered an order and judgment reversing the

judgment of the district court and directing the court to remand this case to the

Commissioner. See Shubargo v. Barnhart, 161 F. App’x 748 (10th Cir. 2005).

      In accordance with this court’s mandate, on April 27, 2006, the district

court entered an order and a separate judgment reversing the C ommissioner’s


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denial of M s. Shubargo’s application for disability benefits and remanding this

case to the Commissioner pursuant to the fourth sentence in 42 U.S.C. § 405(g).

See Aplt. App. at 83-84. Subsequently, on July 10, 2006, M s. Shubargo filed her

EAJA application in the district court. Id. at 85-96. On November 15, 2006, the

district court entered an order and opinion denying the application as untimely,

reasoning as follow s:

      EAJA provides, in relevant part, that “[a] party seeking an award of
      fees and other expenses shall, within thirty days of final judgment in
      the action, submit to the court an application for fees and other
      expenses . . . .” 28 U.S.C. § 2412(d)(1)(B). . . .

             . . . A “final judgment in the action” is “a judgment rendered
      by a court that terminates the civil action for which EA JA fees may
      be received.” Goatcher v. Chater, 57 F.3d 980, 981 (10th Cir. 1995)
      citing M elkonyan v. Sullivan, 501 U.S. 89, 96 (1991). The judgment
      is made effective when it has been entered on a separate document in
      compliance with Fed. R. Civ. P. 58. Id. citing Shalala v. Schaefer,
      509 U.S. 292, 302-303 (1993). “The 30-day EAJA clock begins to
      run after the time to appeal that [effective] ‘final judgment’ has
      expired.” Id. quoting M elkonyan, 501 U.S. at 96. In the event of a
      decision on appeal from a circuit court, the thirty day limitations
      period commences upon the expiration of the ninety day period to
      petition the United States Supreme Court for certiorari. Singleton v.
      Apfel, 231 F.3d 853, 855 n.4 (11th Cir. 2000); FEC v. Political
      Contributions Data, Inc., 995 F.2d 383, 385-86 (2d Cir. 1993).

             In this case, the Tenth Circuit Court of Appeals issued its
      Order and Judgment remanding this case to Defendant for further
      proceedings on December 13, 2005. The non-prevailing party was
      required to seek certiorari by M arch 13, 2006. Since no petition for
      certiorari was filed, Plaintiff, as the prevailing party, was required to
      file the subject application seeking EAJA fees by April 12, 2006.
      Plaintiff did not file her application until July [10], 2006, nearly
      ninety days after the expiration of the time by which to file it. . . .
      Plaintiff’s request is untimely and must be denied. Given this

                                          -3-
      determination, this Court need not address the remaining arguments
      concerning the merits of the fee request.

Aplt. App. at 227-28 (first ellipsis in original; all other ellipses added; alteration

added to third paragraph).

      As the Commissioner has conceded in his appellate brief, the district

court’s “denial of [M s.] Shubargo’s EAJA motion as untimely is inconsistent with

a prior decision of this Court.” A plee. Br. at 4. This court has previously held

that, in social security cases such as this one where this court remands the case to

the district court for a sentence-four remand to the Commissioner under 42 U.S.C.

§ 405(g), it is the district court’s remand order, and not this court’s decision, that

confers prevailing party status on the plaintiff and triggers the time to appeal and

the plaintiff’s time to file an EAJA fee application. See Goatcher v. Chater,

57 F.3d 980, 981 (10th Cir. 1995). 1

      Consequently, the thirty-day time limit under EAJA did not begin to run in

this case until June 26, 2006, as that is the day when the sixty-day period for the



1
       In his brief, the Commissioner argues that “should this Court follow its
prior decision [in Goatcher], a finding that Shubargo’s EAJA motion is timely is
proper and the Court should remand the case to the district court for consideration
of the Commissioner’s arguments that the Commissioner w as substantially
justified and that Shubargo’s EAJA request is excessive.” Aplee. Br. at 4. To the
extent the Commissioner is suggesting that this panel has the option of not
following this court’s prior decision in Goatcher, we remind the Commissioner
that “[w]e cannot overrule the judgment of another panel of this court. W e are
bound by the precedent of prior panels absent en banc reconsideration or a
superseding contrary decision by the Supreme Court.” In re Smith, 10 F.3d 723,
724 (10th Cir. 1993).

                                           -4-
parties to appeal the district court’s April 27, 2006, remand order and judgment

expired. Id.; see also 28 U.S.C. § 2412(d)(2)(G) (providing that, for purposes of

EAJA, the term “‘final judgment’ means a judgment that is final and not

appealable”); Fed. R. App. P. 4(a)(1)(B) (providing that a judgment remains

appealable for sixty days when the U nited States or its officer or agency is a

party); Shalala v. Schaefer, 509 U .S. 292, 302 (1993) (stating that EA JA’s

thirty-day time limit begins to run at the end of the sixty-day period for filing an

appeal in a social security case). Because M s. Shubargo subsequently filed her

EAJA application within thirty days of June 26, 2006, the application was timely

(as the Commissioner has conceded in his appellate brief; see Aplee. Br. at 4, 7,

9-10), and we must therefore reverse the district court and remand this matter for

further proceedings concerning M s. Shubargo’s EAJA fee application.

      Although M s. Shubargo has requested that we simply award her “an

outright award of a reasonable attorney fee in the amount of $13,546.30 for 87.80

hours of work performed before the courts,” Aplt. Reply Br. at 5, arguing that this

court “has the required expertise and the necessary information to make the

award,” id., we decline to do so. The Commissioner has argued that the denial of

M s. Shubargo’s application for disability benefits was substantially justified and

that M s. Shubargo’s EAJA fee request is excessive, see Aplt. App. at 100-105,

and those questions should be addressed and resolved by the district court in the

first instance on remand.

                                          -5-
      The order and opinion entered by the district court on November 15, 2006,

is REVERSED and this matter is REM ANDED to the district court for further

proceedings consistent with this opinion.




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