Edward E. GRAY, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee

SCHROEDER, Circuit Judge:

The claimant appeals from an order of the district court denying attorney’s fees under the Equal Access to Justice Act, (“EAJA”), 28 U.S.C. § 2412(d), on the ground that the government’s position was substantially justified. On appeal, the government raises for the first time a jurisdictional issue. It argues that as a result of the Supreme Court’s decision in Melkonyan v. Sullivan, — U.S. -, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991), decided after the district court’s order, the application for fees in the district court was untimely, barring the court from jurisdiction.

T…