Patrick Breaux, Ssn: Sdw-Um-Wkqt v. United States Department of Health and Human Services

20 F.3d 1324

44 Soc.Sec.Rep.Ser. 213

Patrick BREAUX, SSN: ozk-xb-hgxp Plaintiff-Appellant,
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Defendant-Appellee.

No. 92-4947.

United States Court of Appeals,
Fifth Circuit.

Jan. 5, 1994.

Lonnie R. Smith, Southwest La. Legal Services Soc., Inc., Lake Charles, LA, for appellant.

Joseph B. Liken, Sr. Sup. Lead Atty., DHHS-Office of Gen. Counsel, Dallas TX, Joseph S. Cage, Jr., U.S. Atty., Shreveport, LA, for appellee.

Appeal from the United States District Court for the Western District of Louisiana.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before POLITZ, Chief Judge, HIGGINBOTHAM, and DeMOSS, Circuit Judges.

PER CURIAM:

1

After the district court remanded this case to the ALJ for further findings, it denied Breaux's application for attorneys fees under the Equal Access to Justice Act. This court affirmed in an unpublished opinion, finding the case controlled by Bertrand v. Sullivan, 976 F.2d 977, 979-80 (5th Cir.1992). Breaux v. Secretary, 1 F.3d 1237 (5th Cir.1993) (per curiam). The Supreme Court vacated and remanded for further proceedings in light of its later decision in Shalala v. Schaefer, --- U.S. ----, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993). Breaux v. Shalala, --- U.S. ----, 114 S.Ct. 297, 126 L.Ed.2d 245 (1993).

2

Shalala v. Schaefer holds that a party who obtains a remand pursuant to the fourth sentence of 42 U.S.C. Sec. 405(g) qualifies as a prevailing party for purposes of attorneys fees under the EAJA. --- U.S. at ---- - ----, 113 S.Ct. at 2631-32. Schaefer overruled Part IV of Bertrand v. Sullivan, 976 F.2d at 979-80, which stated that a fee application by a plaintiff who has obtained a remand order should be denied "as premature and without prejudice."

3

The district court's denial of Breaux's application is REVERSED and REMANDED to allow the district court to award reasonable attorney fees.