DocketNumber： 92-1066
Filed Date： 9/30/1992
Status： Precedential
Modified Date： 9/21/2015
September 30, 1992 ____________________
No. 92-1066
JOSEPH LABRIE,
Plaintiff, Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Jack Comart and Patrick Ende on brief for appellant.
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Richard S. Cohen, United States Attorney, Stuart M. Gerson,
__________________ __________________
Assistant Attorney General, William Kanter and Edward T. Swaine,
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United States Department of Justice, on brief for appellee.
____________________
____________________
Per Curiam. This case compels us to enter the fray
___________
which has arisen in the wake of Melkonyan v. Sullivan, 111 S.
_________ ________
Ct. 2157 (1991), concerning the timeliness of attorney's fees
applications in so-called "sentence four" Social Security
remands. The district court read that decision as creating a
"procedural no-man's land"--as mandating that the application
here be denied because it was not filed at an earlier time
when, under then-prevailing law, it would have been
premature. We disagree.
I.
The facts are straightforward. Joseph Labrie (claimant)
filed an application for Supplemental Security Income
benefits in December 1985. The Administrative Law Judge
(ALJ) denied the claim at step five of the sequential
evaluation, the Appeals Council denied review, and claimant
filed a timely appeal. A magistrate-judge, to whom the case
was referred, determined that the Secretary's decision was
unsupported by substantial evidence. In particular, he found
that the Secretary failed adequately to consider claimant's
subjective complaints of pain. The magistrate-judge
recommended that the case be remanded for further
proceedings. On January 9, 1990, neither party having filed
an objection, the district court entered an order adopting
the magistrate-judge's report and recommendation, vacating
-2-
the Secretary's decision, and remanding for further agency
action.
On remand, the ALJ conducted a new hearing and, on
September 17, 1991, issued a decision awarding benefits to
claimant. Following the prevailing practice, claimant then
submitted to the district court, on October 22, 1991, a
proposed final order and application for attorney's fees
under the Equal Access to Justice Act (EAJA), 28 U.S.C.
2412(d). Among the prerequisites to an EAJA award is that
the party file an application "within thirty days of final
judgment in the action." Id. 2412(d)(1)(B). Relying on
___
Melkonyan, the district court determined that its January 9,
_________
1990 remand order constituted the final judgment, such that
claimant's application needed to have been filed within
ninety days of that date.1 The application was thus denied,
on November 5, 1991, as being over eighteen months late.
Claimant thereafter filed motions for relief under Fed. R.
Civ. P. 59(e) and 60(b), which were denied on January 3,
1992. The district court acknowledged that its ruling "may
be perceived as an unfair result,"2 but considered such an
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1. As used in EAJA, final judgment "means a judgment that is
final and not appealable, and includes an order of
settlement." 28 U.S.C. 2412(d)(2)(G). Under Fed. R. App.
P. 4(a)(1), the remand order was "not appealable" after 60
days--giving claimant a total of 90 days to file for fees.
2. As the court realized, pre-Melkonyan case law in this
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circuit was to the contrary. See, e.g., Guglietti v.
___ ____ _________
Secretary of HHS, 900 F.2d 397, 400 (1st Cir. 1990) (mere
________________
-3-
outcome mandated by the intervening Melkonyan decision. This
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appeal followed.
II.
A trio of Supreme Court decisions involving claims for
disability benefits informs the analysis here. In Sullivan
________
v. Hudson, 490 U.S. 877 (1989), the Court determined that an
______
EAJA fee award could encompass work performed before the
agency on remand. Specifically, it found that such agency
proceedings may be so "intimately connected" to the judicial
proceedings as to be considered part of the "civil action"3
for which EAJA fees were available. Id. at 892. In reaching
___
this conclusion, the Court first took note of the "somewhat
unusual" judicial review provisions in 42 U.S.C. 405(g):
The detailed provisions for the transfer of
proceedings from the courts to the Secretary and
for the filing of the Secretary's subsequent
findings with the court suggest a degree of direct
interaction between a federal court and an
administrative agency alien to traditional review
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obtaining of a remand does not make claimant a prevailing
party under EAJA).
3. EAJA provides in pertinent part:
Except as otherwise specifically provided by
statute, a court shall award to a prevailing party
other than the United States fees and other
expenses ... incurred by that party in any civil
_____
action ... including proceedings for judicial
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review of agency 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.
28 U.S.C. 2412(d)(1)(A) (emphasis added).
-4-
of agency action under the Administrative Procedure
Act.
490 U.S. at 885.4 It then emphasized three points. First,
"[i]n many remand situations, the court will retain
jurisdiction over the action pending the Secretary's decision
and its filing with the court." Id. at 886.5 Second, where
___
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4. The pertinent portions of 405(g) (quoted separately,
with sentence numbers added) are as follows:
[1] Any individual, after any final decision
of the Secretary made after a hearing to which he
was a party,... may obtain a review of such
decision by a civil action ....
[4] The court shall have the power to enter,
upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the
decision of the Secretary, with or without
remanding the cause for a rehearing.
[6] The court may, on motion of the Secretary
for good cause shown before he files his answer,
remand the case to the Secretary for further action
by the Secretary, and it may at any time order
additional evidence to be taken before the
Secretary, but only upon a showing that there is
new evidence which is material and that there is
good cause for the failure to incorporate such
evidence into the record in a prior proceeding; and
the Secretary shall, after the case is remanded,
and after hearing such additional evidence if so
ordered, modify or affirm his findings of fact or
his decision, or both, and shall file with the
court any such additional and modified findings of
fact and decision, and a transcript of the
additional record and testimony upon which his
action in modifying or affirming was based.
[7] Such additional or modified findings of
fact and decision shall be reviewable only to the
extent provided for review of the original findings
of fact and decision.
42 U.S.C. 405(g).
5. The Court later elaborated somewhat on this point: "[T]he
remanding court continues to retain jurisdiction over the
action within the meaning of the EAJA, and may exercise that
jurisdiction to determine if its legal instructions on remand
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a remand for further proceedings does not dictate the receipt
of benefits, "the claimant will not normally attain
'prevailing party' status ... until after the result of the
administrative proceedings is known." Id. And third,
___
referring to EAJA's requirement that an application be filed
within thirty days of "final judgment," it noted that "[a]s
in this case, there will often be no final judgment in a
claimant's civil action for judicial review until the
administrative proceedings on remand are complete." Id. at
___
887. The Court concluded that EAJA fees for representation
on remand were available "where a court orders a remand ...
and retains continuing jurisdiction over the case pending a
decision from the Secretary which will determine the
claimant's entitlement to benefits." Id. at 892.
___
The following term, Sullivan v. Finkelstein, 496 U.S.
________ ___________
617 (1990), was decided. At issue there was whether a remand
order was immediately appealable as a "final decision" under
28 U.S.C. 1291; EAJA was not involved. An agency
regulation provided that a surviving spouse (unlike a wage
earner) was disabled only if he or she suffered from an
impairment meeting the Secretary's Listing of Impairments;
age, education and work experience were not to be considered.
The district court effectively invalidated this regulation.
It found that the claimant did not have a listed impairment,
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have been followed by the Secretary." 490 U.S. at 887-88.
-6-
but nonetheless remanded because of suggestions that claimant
was unable to engage in any gainful activity. The Secretary
sought to take an immediate appeal; the appellate court
dismissed for lack of jurisdiction.
In finding the remand order to be an appealable final
decision, the Court distinguished between remands ordered
pursuant to sentence four of 42 U.S.C. 405(g) and those
pursuant to sentence six. Claimant argued that 405(g), in
sentence seven, contemplated an appealable final judgment to
be entered by the district court following the remand
proceedings. Yet the post-remand review called for under
sentence seven, the Court held, referred only to cases that
had been remanded under sentence six. And a sentence six
remand was only "appropriate when the district court learns
of evidence not in existence or available to the claimant at
the time of the administrative proceeding that might have
changed the outcome of that proceeding." 496 U.S. at 626.
Rather, the district court's order was a sentence four
remand--"a judgment ... reversing the decision of the
Secretary, with ... remanding the cause for a rehearing."
Id. at 625 (quoting statute). The order was "unquestionably"
___
a judgment: "it terminated the civil action challenging the
Secretary's final determination that respondent was not
entitled to benefits, set aside that determination, and
finally decided that the Secretary could not follow his own
-7-
regulations in considering the disability issue." Id. And
___
"the fourth sentence directs the entry of a final, appealable
judgment even though that judgment may be accompanied by a
remand order." Id. at 629. Hudson, despite containing
___ ______
"language ... supporting" claimant's position, id. at 630,
___
was distinguishable: the concern there was with the
interpretation of the term "any civil action" in the EAJA,
not with the appealability of a remand order under 1291.
Id. at 630. The Court did reiterate its conclusions in
___
Hudson that the agency proceedings on remand should be
______
considered part of the civil action for EAJA fee purposes,
and that a claimant would not normally attain "prevailing
party" status until the result of the remand proceedings was
known. Id.
___
In Melkonyan, the issue was what event constituted a
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"final judgment" for EAJA purposes, triggering the
jurisdictional thirty-day filing period. Before the district
court, the Secretary had requested a remand for consideration
of new evidence; claimant eventually acceded to this request,
and the court remanded "for all further proceedings."
Claimant was awarded benefits on remand, and neither party
thereafter returned to district court for entry of final
judgment. Over a year later, claimant applied for EAJA fees.
The Ninth Circuit deemed the application untimely, ruling
-8-
that the Appeals Council's decision to award benefits
constituted the EAJA final judgment.
In its June 10, 1991 decision, the Supreme Court
rejected this view. Congress' use of the term "judgment" in
EAJA, it held, "refers to judgments entered by a court of law
_________________
and does not encompass decisions rendered by an
administrative agency." 111 S. Ct. at 2162. In reaching
this conclusion, the Court again distinguished Hudson,
______
indicating that that decision encompassed the "narrow class"
of cases "where the district court retains jurisdiction of
the civil action and contemplates entering a final judgment
following the completion of administrative proceedings." Id.
___
As neither party had returned to the district court for entry
of final judgment, the question then became whether either
was entitled to do so. "The answer depends on what kind of
remand the District Court contemplated." Id. at 2163. The
___
choices were only two, for the Court made clear that the
sentence four and sentence six remands identified in
Finkelstein were the "only kinds of remands permitted under
___________ ____
the statute." Id. at 2164. "[R]emand orders must either
___
accompany a final judgment affirming, modifying, or reversing
the administrative decision in accordance with sentence four,
or conform with the requirements outlined by Congress in
-9-
sentence six."6 Id. at 2165. The Court then explained when
___
the applicable EAJA filing period commenced for each category
of remand:
In sentence four cases, the filing period begins
after the final judgment ("affirming, modifying, or
reversing") is entered by the court and the appeal
period has run, so that the judgment is no longer
appealable.... In sentence six cases, the filing
period does not begin until after the postremand
proceedings are completed, the Secretary returns to
court, the court enters a final judgment, and the
appeal period runs.
Id.
___
The Court and the parties agreed that the remand order
there was not pursuant to sentence four; the district court
had sent the case back without making "any substantive
ruling" as to the correctness of the agency determination."
Id. at 2163. It was possibly a sentence six remand, since it
___
had been prompted by new evidence. If so, the parties could
return to district court for entry of final judgment. Yet,
as the Court noted, the district court had made no finding
that "good cause" had been shown for the failure to present
____________________
6. The Court also indicated that sentence four was to be
construed expansively. It quoted from a House Report stating
that a 1980 amendment to sentence six was "not to be
construed as a limitation of judicial remands currently
recognized under the law in cases [in] which the Secretary
has failed to provide a full and fair hearing, to make
explicit findings, or to have correctly apply [sic] the law
___
and regulations." 111 S. Ct. at 2165 (quoting H.R. Rep. No.
100, 96th Cong., 1st Sess. 13 (1979)). It then stated:
"Thus, under sentence four, a District Court may still remand
in conjunction with a judgment reversing in part the
Secretary's decision," 111 S. Ct. at 2165--making clear that
the listed examples are encompassed by that provision.
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the additional evidence in the prior proceeding, as sentence
six required.7 Nor had it manifested any intention to
retain jurisdiction. The Court thus inferred that the lower
court may have treated the joint request for remand as a
voluntary dismissal, in which case its jurisdiction would
have ended, claimant would not be a prevailing party, and no
fees would be warranted. Id. at 2165. The case was
___
accordingly remanded to the district court for clarification
of its order.
III.
Melkonyan appears to mandate that every sentence four
_________
remand constitutes a final judgment, depriving the district
court of jurisdiction and triggering the EAJA filing period.
So construed, the case creates a two-part quandary. First,
such a rule appears at odds with the rationale of Hudson. As
______
mentioned, the Court there specifically endorsed the
retention of jurisdiction by the district court and the entry
of final judgment following remand. If Hudson had involved a
______
sentence six remand, of course, the two decisions would
easily mesh. Yet, as the Secretary here concedes (and as we
now realize), the remand in Hudson was based on sentence
______
____________________
7. The Court added that the first clause of sentence six was
not implicated, 111 S. Ct. at 2164 n.2., since the Secretary
had filed an answer prior to its motion for remand.
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four, not sentence six.8 Second, in this as in most other
circuits, the prevailing practice prior to Melkonyan was for
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the district court in sentence four remands to retain
jurisdiction and enter final judgment following remand,
thereby triggering the EAJA filing period. To the extent
Melkonyan retroactively abrogates this practice, numerous
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prevailing parties under EAJA will be relegated to a "catch-
22" situation.
Courts have endeavored, in a variety of ways, to
reconcile Hudson and Melkonyan and/or to mitigate the
______ _________
perceived hardship stemming from the latter. The result has
been a welter of divergent, often conflicting, opinions. One
school of thought recognizes a subcategory of sentence four
remands in which a district court may retain jurisdiction and
enter final judgment following the agency decision on remand.
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8. In Trinidad v. Secretary of HHS, 935 F.2d 13 (1st Cir.
________ _________________
1991) (per curiam), which issued prior to Melkonyan, we
_________
indicated that Hudson involved a sentence six remand. Id. at
______ ___
16 n.2. It is now apparent that we were in error. In the
Hudson litigation, the Eleventh Circuit found that the
______
Secretary had failed (1) to consider the combined effects of
Hudson's impairments, as required by regulation, and (2) to
make clear the weight accorded the evidence considered. It
accordingly vacated and remanded "for further consideration
under proper legal standards." Hudson v. Heckler, 755 F.2d
______ _______
781, 783 (11th Cir. 1985) (per curiam). As Melkonyan makes
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plain, see note 6 supra, such a remand is encompassed by
___ _____
sentence four. See, e.g., Gutierrez v. Sullivan, 953 F.2d
___ ____ _________ ________
579, 584 (10th Cir. 1992) (Hudson involved sentence four
______
remand); Heredia v. Secretary of HHS, 783 F. Supp. 1550, 1556
_______ ________________
n.12 (D.P.R. 1992) (same). But see Spurlock v. Sullivan, 783
_______ ________ ________
F. Supp. 474, 479 (N.D. Cal. 1992) (suggesting Melkonyan
_________
limited application of Hudson to sentence six cases).
______
-12-
Applicable to cases where the court does not dictate an award
of benefits but merely calls for further proceedings, such a
practice is said to be consistent with Hudson, not
______
inconsistent with Melkonyan (or at least not foreclosed by
_________
what is described as dicta in that decision), and in line
with accepted notions of when a party "prevails" for EAJA
purposes. The Eighth and Tenth Circuits subscribe to this
approach,9 see Hafner v. Sullivan, ___ F.2d ___, 1992 WL
___ ______ ________
188996 (8th Cir. Aug. 11, 1992); Gutierrez v. Sullivan, 953
_________ ________
F.2d 579, 584 (10th Cir. 1992); Welter v. Sullivan, 941 F.2d
______ ________
674, 675 (8th Cir. 1991), as do a host of district
courts.10 The Fifth Circuit has rejected it, see Luna v.
___ ____
Department of HHS, 948 F.2d 169, 172-73 (5th Cir. 1991)
___________________
(applying conclusion in Frizzell v. Sullivan, 937 F.2d 254
________ ________
____________________
9. In Scanlon v. Sullivan, ___ F.2d ___, 1992 WL 171571 (9th
_______ ________
Cir. July 24, 1992), the Ninth Circuit seems to have
implicitly approved of this practice, refusing to consider
theSecretary's Melkonyan argument because not raised below.
_________
10. See, e.g., Lenz v. Secretary of HHS, ___ F. Supp. ___,
___ ____ ____ ________________
1992 WL 199838 (D.N.H. 1992); Rodriguez v. Secretary of HHS,
_________ ________________
___ F. Supp. ___, 1992 WL 171169 (D.P.R. 1992); Allbritton v.
__________
Secretary of HHS, ___ F. Supp. ___, 1992 WL 143713 (D. Mass.
________________
1992); Kling v. Secretary of HHS, 790 F. Supp. 145, 149-50
_____ _________________
(N.D. Ohio 1992); Winn v. Sullivan, 787 F. Supp. 172, 174-75
____ ________
(E.D. Mo. 1992); Sparling v. Sullivan, 785 F. Supp. 312, 317-
________ ________
18 (N.D.N.Y. 1992); Heredia v. Secretary of HHS, 783 F. Supp.
_______ ________________
1550, 1557-58 (D.P.R. 1992).
-13-
(5th Cir. 1991) (per curiam) that all sentence four remands
are final judgments), as have a handful of other courts.11
Other courts have reached the same result by an opposite
route--construing sentence four narrowly, and holding that an
order that simply vacates and remands for further proceedings
falls under sentence six.12 This view holds that,
notwithstanding the language in Melkonyan, see note 6 supra,
_________ ___ _____
such an order is not a "reversal" of the Secretary's decision
for purposes of sentence four.13
A third approach, embraced by the Fourth Circuit, see
___
Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (per
_______ ________
curiam) (table) (text available in Westlaw), and by a variety
____________________
11. See, e.g., Misciagno v. Secretary of HHS, 786 F. Supp.
___ ____ _________ ________________
1120, 1124 (E.D.N.Y. 1992); Lopez v. Sullivan, 780 F. Supp.
_____ ________
496, 500-03 (N.D. Ill. 1991); Butts v. Bowen, 775 F. Supp.
_____ _____
1167, 1170 n.4 (N.D. Ill. 1991).
12. See, e.g., Hudson v. Sullivan, 779 F. Supp. 37, 40 (W.D.
___ ____ ______ ________
Pa. 1991); Johnson v. Sullivan, 777 F. Supp. 1277, 1279
_______ ________
(D.S.C. 1991); Nelson v. Sullivan, 776 F. Supp. 360, 362
______ ________
(N.D. Ill. 1991). This approach is specifically criticized
in Misciagno v. Secretary of HHS, 786 F. Supp. 1120, 1124-25
_________ ________________
(E.D.N.Y. 1992). A number of other courts have implicitly
rejected it. See, e.g., Hafner v. Sullivan, ___ F.2d ___,
___ ____ ______ ________
1992 WL 188996, at *1 (8th Cir. 1992); Gutierrez v. Sullivan,
_________ ________
953 F.2d 579, 582 (10th Cir. 1992).
13. The Seventh Circuit embraced this narrow interpretation
of sentence four in Young v. Sullivan, ___ F.2d ___, 1992 WL
_____ ________
194847 (7th Cir. 1992), and Damato v. Sullivan, 945 F.2d 982
______ ________
(7th Cir. 1991). In both cases, it went on to proffer a
curious variant of this approach--suggesting that, because
the remand order fell under neither sentence four nor
sentence six, the district court may have lacked authority to
issue it. See Young, 1992 WL at *3 to *4; Damato, 945 F.2d
___ _____ ______
at 987 n.3. In each instance, such discussion was dicta.
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of district courts,14 holds that Melkonyan applies on a
_________
prospective basis only. A minority contingent adheres to the
opposite view.15 The Fifth Circuit in Luna adopted yet a
____
fourth alternative, finding that the EAJA filing period
should be equitably tolled because the district court had
purported to retain jurisdiction. 948 F.2d at 173.16 And
one court has rejected each of the above approaches and
embraced still another: invoking Fed. R. Civ. P. 60(b) to
vacate its earlier judgment and clarify that the remand was
pursuant to sentence six. Misciagno v. Secretary of HHS, 786
_________ ________________
F. Supp. 1120, 1126 (E.D.N.Y. 1992).
A remaining alternative, of course, is the one adopted
by the district court here--applying Melkonyan to deny the
_________
____________________
14. See, e.g., Sansano v. Sullivan, 788 F. Supp. 218, 222-25
___ ____ _______ ________
(D.N.J. 1992); Bacon v. Secretary of HHS, 786 F. Supp. 434,
_____ ________________
438-41 (D.N.J. 1992); Thomas for Brown v. Sullivan, 785 F.
_________________ ________
Supp. 788, 791-93 (C.D. Ill. 1992); Rollins v. Sullivan, 784
_______ ________
F. Supp. 253, 256-58 (E.D. Pa. 1992); Santiago v. Sullivan,
________ ________
783 F. Supp. 223, 225-26 (E.D. Pa. 1992); Lopez v. Sullivan,
_____ ________
780 F. Supp. 496, 503-04 (N.D. Ill. 1991); Sykes v. Sullivan,
_____ ________
779 F. Supp. 29, 31-33 (E.D. Pa. 1991); Butts v. Bowen, 775
_____ _____
F. Supp. 1167, 1171-72 (N.D. Ill. 1991).
15. See, e.g., Allbritton v. Secretary of HHS, ___ F. Supp.
___ ____ __________ _________________
___, 1992 WL 143713 (D. Mass. 1992); Misciagno v. Secretary
_________ _________
of HHS, 786 F. Supp. 1120, 1123-24 (E.D.N.Y. 1992); Salvador
_______ ________
v. Sullivan, 786 F. Supp. 830, 834-35 (N.D. Cal. 1992);
________
Audette v. Secretary of HHS, 776 F. Supp. 84, 89-90 (D.R.I.
_______ _________________
1991); Hudson v. Sullivan, 779 F. Supp. 37, 40 (W.D. Pa.
______ ________
1991); Fergason v. Sullivan, 771 F. Supp. 1008, 1012 (W.D.
________ ________
Mo. 1991).
16. This holding is rejected in Allbritton v. Secretary of
__________ ____________
HHS, ___ F. Supp. ___, 1992 WL 143713, at *7 (D. Mass. 1992);
___
Misciagno v. Secretary of HHS, 786 F. Supp. 1120, 1125-26
_________ _________________
(E.D.N.Y. 1992).
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EAJA application as untimely. As far as we are aware, this
result has been reached in only a handful of cases. See,
___
e.g., Salvador v. Sullivan, 786 F. Supp. 830 (N.D. Cal.
____ ________ ________
1992); Audette v. Secretary of HHS, 776 F. Supp. 84 (D.R.I.
_______ _________________
1991); Fergason v.Sullivan, 771F. Supp. 1008(W.D. Mo.1991).17
________ ________
IV.
Petitioner relies on three of the approaches described
above plus one additional basis for relief. Specifically, he
argues (1) that the "retained jurisdiction" approach of the
Eighth and Tenth Circuits should be adopted; (2) that
Melkonyan should be applied prospectively only; (3) that the
_________
district court erred in denying his motion for equitable
____________________
17. The Secretary argues that adopting this last alternative
need not be inconsistent with accepted notions of when a
claimant becomes a prevailing party. In his view, Hudson and
______
Melkonyan can be reconciled, at least in part, by (1) deeming
_________
all sentence four remands to be final judgments, triggering
the EAJA filing period, and (2) thereafter holding the EAJA
application in abeyance until it is determined whether
claimant prevails on remand.
As far as we are aware, this argument has gained no
judicial adherents. To the contrary, the proposal of holding
EAJA applications in abeyance has been specifically rejected.
See Hafner v. Sullivan, ___ F.2d ___, 1992 WL 188996, at *1
___ ______ ________
(8th Cir. 1992) (describing it as "the ultimate in laying
traps for the unwary and senselessly cluttering court
dockets"); Heredia v. Secretary of HHS, 783 F. Supp. 1550,
_______ _________________
1558 (D.P.R. 1992); Spurlock v. Sullivan, 783 F. Supp. 474,
________ ________
481 (N.D. Cal. 1992). Indeed, the Spurlock court (after
________
endorsing the first part of the Secretary's argument) held
that a claimant becomes a prevailing party simply by
obtaining a sentence four remand, regardless of whether
benefits are ultimately awarded. Id. at 482. This view has
___
been embraced by several other courts. See Gagnon v.
___ ______
Sullivan, ___ F. Supp. ___, 1992 WL 145192 (D. Me. 1992);
________
Audette v. Secretary of HHS, 776 F. Supp. 84, 91 (D.R.I.
_______ _________________
1991); Dow v. Sullivan, 774 F. Supp. 46, 48-49 (D. Me. 1991).
___ ________
-16-
relief under Fed. R. Civ. P. 60(b); and (4) that no final
judgment was ever entered here because no "separate document"
was issued under Fed. R. Civ. P. 58. As we accept his first
contention, the others need not be addressed.
In conformance with Welter, Gutierrez and Hafner, we
______ _________ ______
agree that a district court may retain jurisdiction pending a
sentence four remand and thereafter enter final judgment for
EAJA purposes.18 As mentioned, the Court in Hudson
______
specifically endorsed such a situation. Neither Finkelstein
___________
nor Melkonyan purported to overrule Hudson; to the contrary,
_________ ______
they acknowledged its continuing validity. See also
_________
Ardestani v. INS, 112 S. Ct. 515, 521 (1991). And while
_________ ___
Melkonyan contains language seemingly at odds with this
_________
position, that language was dicta: Melkonyan was not a
_________
sentence four case; Hudson was. Under these circumstances,
______
we reject the Secretary's suggestion that Melkonyan overruled
_________
Hudson in this respect sub silentio. We think Hudson
______ _____________ ______
controls.
We therefore adopt the conclusion reached in Hafner:
______
[W]hen a judicial remand order in Social Security
disability cases contemplates additional
____________________
18. Several courts adopting this position have gone on to
indicate that, by analogy to 405(g), a claimant has sixty
days following notice of a favorable administrative award to
petition the court for the entry of final judgment. See,
___
e.g., Lenz v. Secretary of HHS, ___ F. Supp. ___, 1992 WL
____ ____ _________________
199838, at *2 (D.N.H. 1992); Kling v. Secretary of HHS, 790
_____ _________________
F. Supp. 145, 149-50 (N.D. Ohio 1992). The instant case
provides no occasion to address this issue.
-17-
administrative proceedings that will determine the
merits of the claimant's application for benefits,
and thus will determine whether the claimant is a
prevailing party, the district 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
directs the Secretary to award benefits, the
claimant is a prevailing party and the remand order
is the final judgment for EAJA purposes.
___ F.2d at ___, 1992 WL 188996, at *2 (footnote
omitted).19 The Secretary argues that any standard based
on the subjective intent of the district court would prove
unworkable. Yet we think it can be presumed that the court
does intend to retain jurisdiction in such cases absent an
express indication to the contrary. See id. (Welter applies
___ ___ ______
even if sentence four remand order does not "evidence an
intent to retain jurisdiction"). The Secretary also suggests
that the court here manifested just such an intent to
relinquish jurisdiction. This contention is frivolous. Such
____________________
19. The Eighth Circuit added that a sentence four remand
order would still be immediately appealable under
Finkelstein, explaining that "[a]s a matter of statutory
___________
construction and common sense, we see no reason why an
appealable 'final judgment' under 405(g) must necessarily
be a 'final judgment' for purposes of 2412(d)(1)(B)." ___
F.2d at ___, 1992 WL 188996, at *3 n.3. While we need not
address that issue here, we note that such a distinction
finds support in Finkelstein. There, in distinguishing a
___________
remark in a congressional report that a remand under 405(g)
is not a final judgment, the Court stated: "[T]his part of
this particular committee report concerned the proper time
period for filing a petition for attorney's fees under EAJA,
not appealability." 496 U.S. at 629 n.8. Cf. Budinich v.
___ ________
Becton Dickinson & Co., 486 U.S. 196 (1988) (a decision on
_______________________
merits is appealable "final decision" under 1291 even
though recoverability or amount of attorney's fees remains to
be determined).
-18-
an intent would have been at odds with the practice
prevailing in January 1990. No final judgment was entered on
the docket at that time. No such suggestion can be inferred
from the court's subsequent orders denying the EAJA
application, since the remand had been ordered by a different
judge. And it is apparent that the court denied the
application in the belief that such a result was compelled by
Melkonyan--a belief we now find to have been misplaced.
_________
For these reasons, we conclude that no final judgment
for EAJA purposes has been issued, and that claimant is
entitled to return to district court for entry of such a
judgment and for consideration of his fees application.
Reversed and remanded for further proceedings.
______________________________________________
-19-
Jose Tapia TRINIDAD, Plaintiff, Appellant, v. SECRETARY OF ... , 935 F.2d 13 ( 1991 )
Frances GUGLIETTI, Plaintiff, Appellee, v. SECRETARY OF ... , 900 F.2d 397 ( 1990 )
Gregory Luna v. United States Department of Health and ... , 948 F.2d 169 ( 1991 )
joey-v-gutierrez-plaintiff-appellantcross-appellee-v-louis-w-sullivan , 953 F.2d 579 ( 1992 )
Spurlock v. Sullivan , 783 F. Supp. 474 ( 1992 )
Salvador v. Sullivan , 786 F. Supp. 830 ( 1992 )
Winn v. Sullivan , 787 F. Supp. 172 ( 1992 )
Nelson v. Sullivan , 776 F. Supp. 360 ( 1991 )
Dow v. Sullivan , 774 F. Supp. 46 ( 1991 )
Misciagno v. Secretary of the Department of Health & Human ... , 786 F. Supp. 1120 ( 1992 )
Bacon v. Secretary of Health and Human Services , 786 F. Supp. 434 ( 1992 )
Lopez v. Sullivan , 780 F. Supp. 496 ( 1991 )
Sansano v. Sullivan , 788 F. Supp. 218 ( 1992 )
Fergason v. Sullivan , 771 F. Supp. 1008 ( 1991 )
Hudson v. Sullivan , 779 F. Supp. 37 ( 1991 )
SYKES ON BEHALF OF SYKES v. Sullivan , 779 F. Supp. 29 ( 1991 )
Heredia v. Secretary of Health and Human Services , 783 F. Supp. 1550 ( 1992 )
Kling v. Secretary of Department of Health & Human Services ... , 790 F. Supp. 145 ( 1992 )
Santiago v. Sullivan , 783 F. Supp. 223 ( 1992 )