Joseph SCANLON, Plaintiff-Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant-Appellee

Joseph Scanlon appeals from the denial of his application for attorney’s fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412 (d). Scanlon contends that the district court abused its discretion in denying EAJA fees because the Secretary’s position in the litigation was not “substantially justified.” We conclude that the district court lacked jurisdiction to consider Scanlon’s fee petition. We therefore vacate the district court’s order denying Scan-lon’s fee petition and dismiss this appeal.

I.

Scanlon applied for disability insurance benefits under Title II of the Social Security Act on February 7, 1986. The administrative law judge (“AU”) denied Scanlon’s application on March 30, 1987, concluding that Scanlon was able to do his past relevant work as a newspaper circulation truck driver despite his extremely poor vision in one eye. The Appeals Council denied Scan-lon’s request for review.

Scanlon filed an action for judicial review of the Secretary’s denial of his application for benefits in district court pursuant to 42 U.S.C. § 405 (g). Both parties filed cross-motions for summary judgment. The magistrate judge issued a tentative decision denying the motions…