-
USCA1 Opinion
April 16, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1559
CATHY TYLER,
Plaintiff, Appellant,
v.
JOHN FITZSIMMONS, ET AL.,
Defendants, Appellees.
_____________________
ERRATA SHEET
The opinion of this Court issued April 7, 1993, is amended as
follows:
Cover sheet, attorneys for appellees should read: William G.
___________
Cole, Attorney, Department of Justice, with whom Stuart M. Gerson,
____ _________________
Assistant Attorney General, William Kanter, Attorney, Department of
______________
Justice, and Richard S. Cohen, United States Attorney, were on brief
_________________
for appellees.
April 12, 1993 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1559
CATHY TYLER,
Plaintiff, Appellant,
v.
JOHN FITZSIMMONS, ET AL.,
Defendants, Appellees.
__________________
ERRATA SHEET
The opinion of this Court issued April 7, 1993, is amended as
follows:
Page 7, line 12 of text, should read: . . . March 11, 1991.
Page 7, line 14 of text, should read: . . . February 6, 1991.
April 7, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1559
CATHY TYLER,
Plaintiff, Appellant,
v.
JOHN FITZSIMMONS, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, Chief U.S. District Judge]
_________________________
____________________
Before
Cyr, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
and Fust ,* District Judge.
______________
____________________
Robert Edmond Mittel with whom Mittel, Asen, Eggert & Hunter was
____________________ ______________________________
on brief for appellant.
William G. Cole, Attorney, Department of Justice, with whom
_________________
Stuart M. Gerson, Assistant Attorney General, William Kanter, Attor-
_________________ ______________
ney, Department of Justice, and Richard S. Cohen, United States
_________________
Attorney, were on brief for appellees.
____________________
April 7, 1993
April 7, 1993
____________________
3
*Of the District of Puerto Rico, sitting by designation.
CYR, Circuit Judge. Appellant Cathy Tyler challenges a
CYR, Circuit Judge.
_____________
district court order dismissing her application for an award of
attorney fees pursuant to the Equal Access to Justice Act ("-
EAJA") for lack of jurisdiction. We vacate and remand for
further proceedings on the merits of the fee application.
I
I
BACKGROUND
BACKGROUND
__________
The United States Department of Labor ("USDOL") admin-
isters a program under the Trade Act of 1974 (the "Trade Act"),
19 U.S.C. 2101-2495, 2291 (1993), which authorizes "trade
readjustment allowance" ("TRA") benefits to eligible workers
whose employment is discontinued by companies certified by the
Secretary of Labor as having been adversely affected by foreign
import competition. Id. 2271. In May 1985, USDOL certified
___
plaintiff Tyler's employer, Bass Shoe Company, in connection with
its layoffs after January 1984. In November 1984 and again in
February 1985, Tyler was laid off temporarily; her employment was
terminated in July 1985.
The Maine Department of Labor and Bureau of Employment
Security ("MDOL") determines whether individual Maine workers are
entitled to TRA benefits. In 1981, USDOL directed MDOL to
utilize a worker's "first separation" date in calculating her
fifty-two week eligibility period for basic TRA benefits.
Although MDOL believed that the Trade Act and USDOL's regulations
required use of a worker's "last separation" date, it did as
directed. Under USDOL's "first separation" date formula, MDOL
determined that Tyler's eligibility period for basic TRA benefits
would run from December 1984 to December 1985. However, Tyler
was not eligible for TRA benefits during this period because the
Trade Act precludes TRA payments until a worker has exhausted her
state unemployment insurance benefits. See 19 U.S.C. 2291(a)-
___
(3)(A)-(B). Tyler, who remained eligible for unemployment
insurance compensation throughout the December 1984-December 1985
period, took no administrative appeal from the MDOL decision.
In August 1986, MDOL brought the present action for
declaratory relief against USDOL, challenging its "first separa-
tion" date directive. Tyler and another claimant were permitted
to intervene in the MDOL action as plaintiffs. On November 6,
1990, the district court granted declaratory relief for plain-
tiffs against USDOL and MDOL.1 Tyler v. United States Dep't of
_____ _______________________
Labor, 752 F. Supp. 32, 45 (D. Me. 1990) (emphasis added).
_____
____________________
1The district court declared that: (1) "the [USDOL's]
policy for the years 1981 through 1986, requiring use of an
applicant's first separation from employment for purposes of
determining eligibility for TRA benefits, was invalid," (2)
"[t]he [MDOL is] hereby ordered, consistent with state law, to
__________ ____ _____ ___
redetermine Plaintiff Tyler's . . . entitlement to Basic TRA and
Additional TRA weekly benefits, based on [her] last separation
from employment prior to application," and (3) "[i]f TRA benefits
____ ___ ________
are granted to Plaintiff[] as a result of such redetermination,
___ _______ __ ___________ __ _ ______ __ ____ _______________
the [USDOL is] hereby ordered to provide federal monies for the
payment of the benefits."
3
Tyler had also asserted an entitlement to attorney fees
under the EAJA, which permits a "prevailing party" to recover
attorney fees in "any civil action" challenging a federal agency
decision, 28 U.S.C. 2412(d)(1)(A), but requires that "[the
prevailing] party . . , within thirty days of final judgment in
_____ ________ __
the action, submit to the court an application for fees . . . ."
___ ______
Id. 2412(d)(1)(B) (emphasis added). On December 13, 1990,
___
Tyler filed a motion to extend the forty-five day filing period
under Local Rule 32 of the United States District Court for the
District of Maine until "thirty days after final resolution of
the plaintiffs' claims for Trade Act benefits from the [MDOL]."2
The district court summarily granted the extension. On January 7,
1991, USDOL appealed and Tyler cross-appealed from the Novem-
ber 6, 1990 order. The appeal and cross-appeal were dismissed by
agreement of the parties on February 6, 1991.
As contemplated by the district court remand order,
Tyler resorted to the state administrative process for a redeter-
mination of her entitlement to TRA benefits. In the meantime, on
June 10, 1991, the United States Supreme Court rendered its
decision in Melkonyan v. Sullivan, ___ U.S. ___, 111 S. Ct. 2157
_________ ________
(1991), which generally interpreted the EAJA filing deadline to
____________________
2As grounds for the motion, Tyler asserted (1) "[t]he plain-
tiffs have not yet finally prevailed in their claims for bene-
fits," (2) "Local Rule 32 allows for such an extension for good
cause shown on motion filed within 45 days after entry of judg-
ment," (3) the "pending State administrative proceeding [in]
which [plaintiff] is seeking redetermination of her benefits,"
may necessitate "considerable additional attorney time," and (4)
any petition for attorney fees would be "premature," and would
"necessitate multiple petitions and multiple hearings."
4
run from the entry of a "final" judgment by a court of law, not
_____ __ ___
from the final decision of an administrative agency following
remand. Id. at 2162.
___
Tyler settled her administrative claim with MDOL in
December 1991, and promptly filed her EAJA attorney fee applica-
tion with the district court. The district court denied the
application as untimely, Tyler v. Fitzsimmons, 785 F. Supp. 10,
_____ ___________
12 (D. Me. 1992), holding that Melkonyan required retroactive
_________
application of its jurisdictional rule to pending cases, and,
therefore, that the thirty-day EAJA fee-application filing period
had commenced to run on February 6, 1991, when we dismissed the
appeal and cross-appeal from the district court's November 6,
1990 judgment, thereby rendering the district court judgment
"final" and "unappealable." Id.; see also 28 U.S.C. 2412(d)-
___ ___ ____
(2)(G) (EAJA term "final judgment" means "a judgment that is
final and not appealable") (emphasis added). As the EAJA fee-
___ ___ __________
application filing deadline is jurisdictional, and not subject to
enlargement even for "good cause shown," the district court
rejected Tyler's contention that her fee application was saved by
the district court's earlier extension of the "procedural"
deadline imposed by Local Rule 32. Tyler, 785 F. Supp. at 12.
_____
II
II
DISCUSSION
DISCUSSION
__________
In Melkonyan, the Supreme Court considered the EAJA
_________
filing provision in the specialized context of Social Security
5
disability benefit determinations. In reviewing decisions of the
Secretary of Health and Human Services ("Secretary") denying
disability benefits, the district court has only two options when
____ ___
remanding to the Secretary for further administrative proceed-
ings. Melkonyan, 111 S. Ct. at 2164 (citing 42 U.S.C. 405(g)).
_________
A so-called "sentence four" remand order entered by the district
court constitutes a "final judgment affirming, modifying, or
reversing the administrative decision," usually on substantive
grounds. Id. at 2165. Melkonyan contains language suggesting
___ _________
that a "sentence four" remand order invariably results in a final
__________
judgment, for purposes of determining the EAJA fee-application
deadline, upon the expiration of the period for appealing the
remand order affirming, modifying, or reversing the agency
decision. Id.
___
On the other hand, generally speaking a so-called
"sentence six" remand does not follow a district court ruling on
the merits of an agency decision. Rather, upon the requisite
"good cause" showing, see 42 U.S.C. 405(g) (remand for further
___
factfinding only permissible if new evidence is "material" and
"there is good cause for the failure to incorporate such evidence
into the record in a prior proceeding"), the district court
merely remands to the agency for further administrative proceed-
ings in light of new evidence. Melkonyan, 111 S. Ct. at 2164.
_________
Thus, in "sentence six" remands, the district court would contem-
plate a retention of jurisdiction pending completion of the
_________ __ ____________
remand proceedings, and there would be no "final judgment" for
6
EAJA purposes "until after the postremand proceedings are com-
pleted, the Secretary returns to court, the court enters a final
judgment, and the appeal period runs." Id. at 2165.
___
Appellees conceded at oral argument that Melkonyan is
_________
applicable in the present case, if at all, only by analogy.
Melkonyan was a Social Security case, not a Trade Act case.
_________
Thus, the district court's November 6, 1990 declaratory judgment
is roughly comparable, under appellees' proposed analogy, to a
"sentence four" remand, in that the district court "reversed" the
MDOL's denial of TRA benefits on the only substantive ground
advanced by Tyler namely, the invalidity of USDOL's "first
separation" directive. Accordingly, appellees contend that the
EAJA filing deadline was March 11, 1991, thirty days after we
dismissed the appeals from the November 1990 judgment on February
6, 1991. As it rests on a premise precluded by our case law, we
reject appellees' syllogism.
This is not the first time a claimant has complained to
us that the retroactive fallout from Melkonyan has unfairly
_________
impaired her recovery of an EAJA fee award. See Labrie v. Secre-
___ ______ ______
tary of Health & Human Servs., 976 F.2d 779 (1st Cir. 1992) (per
______________________________
curiam). In a case decided after the district court dismissed
Tyler's fee application, we rejected the contention that all
___
post-Melkonyan "sentence four" remands invariably are to be
_________
considered "final judgments" for purposes of the commencement of
the EAJA filing period. Labrie, 976 F.2d at 786. Although the
______
Supreme Court scrutinized the district court order in Melkonyan
_________
7
to determine whether it was either a "sentence six" remand or a
voluntary dismissal under Fed. R. Civ. P. 41(a), there was never
any question but what the district court order in Melkonyan was
_________
not a "sentence four" remand. Thus, Melkonyan's references to
___ _________
EAJA deadlines in "sentence four" cases were dicta which did not
displace the Court's earlier statements in Sullivan v. Hudson,
________ ______
490 U.S. 877 (1989). See Melkonyan, 111 S. Ct. at 2162. The
___ _________
Court in Hudson, indisputably a "sentence four" remand case, held
______
that an EAJA application could encompass attorney fees attribut-
able to postremand proceedings provided the remand order did not
"dictate" that the plaintiff was to receive benefits, since "'the
claimant will not normally attain "prevailing party" status . . .
until after the result of the administrative proceedings is
known.'" Labrie, 976 F.2d at 781 (quoting Hudson, 490 U.S. at
______ ______
886). We emphasized in Labrie that our reconciliation of the
______
Melkonyan and Hudson decisions conformed with the legitimate
_________ ______
expectations of the parties in cases pending at the time Mel-
____
konyan was decided, and with the prevailing practice in this and
______
other circuits. Id. at 780 n.2 (citing Guglietti v. Secretary of
___ _________ ____________
Health & Human Servs., 900 F.2d 397, 400 (1st Cir. 1990)).
_____________________
Thus, if Melkonyan does apply by analogy to the present
_________
case, as appellees urge, under our jurisprudence the "sentence
four" remand standard set out in Labrie, and adopted by the
______
Eighth, Ninth, and Tenth Circuits, must also apply:
When a judicial remand order in Social Secur-
ity disability cases contemplates additional
administrative proceedings that will deter-
8
mine the merits of the claimant's application
for benefits, and thus will determine whether
the claimant is a prevailing party, the dis-
trict court retains discretion to enter a
_______ __________
final judgment for EAJA purposes after the
proceedings on remand have been completed.
On the other hand, if the remand order di-
___
rects the Secretary to award benefits, the
_____
claimant is a prevailing party and the remand
order is the final judgment for EAJA purpos-
es.
Labrie, 976 F.2d at 786 (emphasis added) (quoting Hafner v.
______ ______
Sullivan, 972 F.2d 249, 250-51 (8th Cir. 1992)); see also Gray v.
________ ___ ____ ____
Secretary of Health & Human Servs., 983 F.2d 954, 960 (9th Cir.
___________________________________
1993); Gutierrez v. Sullivan, 953 F.2d 579, 584 (10th Cir. 1992).
_________ ________
Most importantly, if the district court order was an open-ended
remand, pre-Melkonyan practice (as defined in Labrie) would give
_________ ______
rise to the presumption "that the court does intend to retain
jurisdiction in such cases absent an express indication to the
______ __ _______ __________ __ ___
contrary." Labrie, 976 F.2d at 786 (emphasis added).3
________ ______
Under the Labrie rubric, there can be no question that
______
the November 6, 1990 judgment "'contemplate[d] additional admini-
strative proceedings [to] determine the merits of the claimant's
application for benefits, and thus [to] determine whether the
____________________
3Of course, the Labrie presumption would apply with even
______
greater force outside the Social Security context. When acting
outside the strictures of the Social Security statute, a review-
ing court normally is not confined to two types of remand, but
___
possesses the "inherent" authority to condition its remand order
as it deems appropriate. See Melkonyan, 111 S. Ct. at 2165
___ _________
(citing United States v. Jones, 336 U.S. 641, 671 (1949)).
______________ _____
Absent a Labrie-type presumption, the litigants would have no
______
reliable criteria for determining the district court's intentions
where an ad hoc remand order was either silent or equivocal as to
__ ___
the status of the claimant's EAJA application, or the claimant's
status as a "prevailing party."
9
claimant is a prevailing party. . . .'" Id. (citation omitted).
___
The November 6, 1990 judgment did not "direct" USDOL or MDOL to
award Tyler benefits, but conditionally directed defendants to
_____________
award benefits in an as-yet undetermined amount only if Tyler
____ __
were found entitled to benefits under the "last separation"
formula and after consideration of other applicable state law.
___ _____ _____________ __ _____ __________ _____ ___
The "first separation" rule was not the final obstacle to Tyler's
claim for TRA benefits. As the district court recognized, Tyler
filed no administrative appeal from MDOL's denial of basic TRA
benefits in 1985, and, on remand, either USDOL or MDOL would be
in a position to assert their res judicata and administrative
finality defenses to bar Tyler's claim. Tyler, 752 F. Supp. at
_____
39 (citing International Union, U.A.W. v. Brock, 816 F.2d 761,
____________________________ _____
768-69 (D.C. Cir. 1987) (noting that claimant's entitlement to
reconsideration by State of her TRA benefit determination always
remains subject to "procedural requirements of state law")).
Thus, it was by no means a foregone conclusion that Tyler would
ever receive TRA benefits, or attain the status of a "prevailing
party" under the EAJA. Finally, the November 6, 1990 judgment
contains no express disclaimer of jurisdiction which might
conclusively rebut the Labrie presumption.
______
The district court apparently denied Tyler's EAJA fee
application solely on the ground that Melkonyan had interposed an
_________
insurmountable jurisdictional bar, see Howitt v. United States
___ ______ ______________
Dept. of Commerce, 897 F.2d 583, 584 (1st Cir.), cert. denied,
__________________ ____ ______
498 U.S. 895 (1990), preempting any exercise of the district
10
court's discretion to enter a "final" EAJA judgment pursuant to
Tyler's postremand settlement. Given the widespread confusion
prevailing among the courts at the time, see Labrie, 976 F.2d at
___ ______
783-86, the district court's interpretation in this case was by
no means without authoritative support. Nevertheless, in light
of the LaBrie presumption, buttressed by the district court's
______
summary allowance of Tyler's motion for an extension of the
filing deadline to "thirty days after final resolution of the
plaintiffs' claims for Trade Act benefits from the [MDOL]," we
find no jurisdictional bar to Tyler's EAJA fee application.
The order of dismissal is vacated and the case is
The order of dismissal is vacated and the case is
_______________________________________________________
remanded for proceedings on the merits of the EAJA fee applica-
remanded for proceedings on the merits of the EAJA fee applica-
_________________________________________________________________
tion.
tion.
____
11
Document Info
Docket Number： 92-1559
Filed Date： 4/16/1993
Precedential Status： Precedential
Modified Date： 9/21/2015