Yang v. Shalala

• Decision Date: 18 April 1994
• Docket Number: No. 93-16161,93-16161
• Citation: 22 F.3d 213
• Parties: , 44 Soc.Sec.Rep.Ser. 337, Unempl.Ins.Rep. (CCH) P 17840A Lia YANG, Plaintiff-Appellant, v. Donna E. SHALALA, HHS, Secretary, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 213

22 F.3d 213

28 Fed.R.Serv.3d 1186, 44 Soc.Sec.Rep.Ser. 337,

Unempl.Ins.Rep. (CCH) P 17840A

Lia YANG, Plaintiff-Appellant, v. Donna E. SHALALA, HHS, Secretary, Defendant-Appellee.

No. 93-16161.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 10, 1994.

Decided April 18, 1994.

Tom Weathered, San Francisco, CA, and Judith A. Sanders, Fresno, CA, for plaintiff-appellant.

Frank W. Hunger, Asst. Atty. Gen., Richard K. Waterman and Jerry J. Bassett, U.S Appeal from the United States District Court for the Eastern District of California.

Dept. of Health and Human Services, San Francisco, CA, for defendant-appellee.

Before: ALDISERT ^*, WIGGINS, and BRUNETTI, Circuit Judges.

WIGGINS, Circuit Judge:

Lia Yang moved for attorneys' fees under the Equal Access to Justice Act (EAJA). The district court denied her motion, finding that the position of the Secretary of Health and Human Services (Secretary) was substantially justified. Yang appeals. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We reverse and remand.

I.

Yang was born in Laos, apparently on September 24, 1919. She is a member of the Hmong tribe, an ethnic and language minority indigenous to remote areas within Laos. No birth certificate was prepared at the time of her birth. According to Yang, a birth record was prepared for her in 1962 pursuant to a law passed by the Laotian government in 1955. This birth record shows a September 24, 1919 date of birth.

Yang fled Laos after the Vietnamese invaded. In the process of fleeing, she left behind all of her possessions, including the birth record prepared in 1962. She entered a refugee camp in Thailand where her year of birth was recorded as 1929.

Yang was granted entry into the United States and arrived in December of 1979. Her original immigration papers recorded her year of birth as 1929. Her initial Social Security Number application apparently also marked her year of birth as 1929. This initial Social Security Number application is not in the administrative record, nor has it ever been produced by the Social Security Administration (SSA). Later, her son mailed to her the Laotian birth record prepared in 1962. Yang had her immigration papers and Social Security record amended to reflect her apparently correct year of birth, 1919.

On September 10, 1984, Yang applied for supplemental security income (SSI) benefits based on age under Title XVI of the Social Security Act (the Act). Her claim for SSI benefits was granted and she began receiving payments. Yang then moved from Washington to California, and applied for a replacement social security card. Questioning her Laotian birth record, the California office sent it with a translation request to the SSA's Central Translation Services office. The translation was completed and returned, and made no note of any irregularity. Nevertheless, the California office rejected the Laotian birth record. Yang's SSI benefits were terminated because the SSA decided that she was not yet 65 years of age.

Yang moved for reconsideration, which was denied. Yang requested de novo review by an administrative law judge (ALJ). She offered five forms of evidence in support of her 1919 birth date: (1) her Laotian birth record prepared in 1962; (2) an order of the California Superior Court establishing her date of birth as September 14, 1919; (3) the declaration of a former Laotian judge supporting the authenticity of the Laotian birth record; (4) her own testimony that she arrived in the United States as a refugee, having left behind all of her possessions, including her Laotian birth record, when she fled Laos during the Vietnamese invasion; and (5) testimony from two of her sons corroborating her testimony. Nonetheless, the ALJ affirmed. The ALJ held that the evidence that she was born in 1919 was insufficient to offset the evidence that she was born in 1929. Specifically, the ALJ found that the initial Social Security Number application was determinative. The Appeals Council denied Yang's request for review of the ALJ's decision. The ALJ's ruling became the final decision of the Secretary.

Yang challenged the Secretary's decision in the district court. The district court referred to Magistrate Christensen the cross-motions for summary judgment. The magistrate On remand, the ALJ determined that there was no evidence to rebut the presumption that Yang's year of birth is 1919. The Appeals Council agreed that her SSI benefits should be reinstated. On May 11, 1989, the district court adopted the Appeals Council decision and entered judgment in Yang's favor. ¹

                issued his recommendation that the case be remanded for further proceedings.  The magistrate concluded that the ALJ should have given "full faith and credit" to the state court order.  The magistrate explained, "While such state court order is not binding and does not preclude the Secretary from an independent weighing of the evidence, the Secretary, however, must start the weighing process by presuming that claimant was born on September 14, 1919."   The magistrate found that the ALJ further erred by placing so much weight on the initial Social Security Number application because it did not appear in the administrative record.  The district court adopted the magistrate's recommendation on July 25, 1988
                

On June 9, 1989, Yang filed her application for attorneys' fees under the EAJA, 28 U.S.C. Sec. 2412(d)(1)(A). ² The Secretary opposed the EAJA application on the ground that the Secretary's position was substantially justified. On July 28, 1989, the district court denied Yang's application for attorneys' fees on the ground that the motion was not timely filed. ³

Yang filed a motion for reconsideration under Fed.R.Civ.P. 59(e). The district court stayed the matter until final disposition of Melkonyan v. Sullivan, then pending and now reported at 501 U.S. 89, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991). When the stay was lifted, Magistrate Beck issued his recommendation that the application for attorneys' fees be denied. The magistrate concluded that although the application was timely filed, the Secretary's position was substantially justified. The district court adopted the magistrate's recommendation. Yang filed a timely notice of appeal.

II.

A. Was Yang's Application for EAJA attorneys' fees timely filed?

The district court's statutory construction of the EAJA is reviewed de novo. United States v. 50.50 Acres of Land, 931 F.2d 1349, 1356 (9th Cir.1991).

The Secretary contends that Yang's application for EAJA attorneys' fees was not timely filed. ⁴ On July 25, 1988, the district court issued its order reversing the ALJ's decision and remanding for further proceedings. This remand order was a final judgment. Melkonyan, 501 U.S. at 99-103, 111 S.Ct. at 2164-65. Thus, the Secretary had until September 25, 1988 to file an appeal. See Fed.R.App.P. 4(a)(1). Because the Secretary did not file an appeal, Yang had until October 25, 1988 to apply for EAJA attorneys' fees. See 28 U.S.C. Secs. 2412(d)(1)(B) Yang does not dispute that the district court's July 25, 1988 remand order should have started the 60-day appeal clock running, ultimately triggering the 30-day period for applying for EAJA attorneys' fees. Yang contends, however, that the July 25, 1988 remand order did not start the appeal clock running, and thus never triggered the 30-day period for applying for EAJA attorneys' fees, because the remand order was never set forth on a separate document. See Fed.R.Civ.P. 58. She argues that the remand order remains appealable. Schaefer, --- U.S. at ----, 113 S.Ct. at 2632. Consequently, the end of the period for appeal could not have been reached. In Schaefer, the Court explained, "EAJA's 30-day time limit runs from the end of the period for appeal, not the beginning. Absent a formal judgment, [the district court's remand order] remained 'appealable' at the time that [claimant] filed his application for EAJA fees, and thus the application was timely under Sec. 2412(d)(1)." Id. Thus, Yang concludes, her application for EAJA attorneys' fees was timely.

2412(d)(2)(G) (the 30-day period for applying for EAJA attorneys' fees runs from the date judgment is final and not appealable); Shalala v. Schaefer, --- U.S. ----, ----, 113 S.Ct. 2625, 2629, 125 L.Ed.2d 239 (1993) ("[W]hen the time for seeking appellate review has run, the sentence-four judgment fits squarely within the term 'final judgment' as used in Sec. 2412(d)...."); Melkonyan, 501 U.S. at 102, 111 S.Ct. at 2165 ("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.").

The Secretary counters that Yang's otherwise untimely application for attorneys' fees cannot be rendered timely by Rule 58. The Secretary asserts that Schaefer is distinguishable. Specifically, the Secretary argues that Rule 58 was satisfied in the instant case. The district court's remand order which adopted the magistrate's recommendation was the separate document. See Mason v. Groose, 942 F.2d 515, 516 (8th Cir.1991) (finding that an "order" which simply adopts a magistrate's report and recommendation by reference is a separate document for Rule 58 purposes), cert. denied, --- U.S. ----, 112 S.Ct. 891, 116 L.Ed.2d 794 (1992); Laidley v. McClain, 914 F.2d 1386, 1390 (10th Cir.1990); United States v. Perez, 736 F.2d 236, 238 (5th Cir.1984) (per curiam). In support of this analysis, the Secretary stresses that the district court's July 25, 1988 order was a "terse, pro forma document that did not contain any analysis of the issues, but merely adopted the magistrate's recommendation of remand." And, it was entered in compliance with Fed.R.Civ.P. 79(a). Thus, the Secretary concludes, the district court's July 25, 1988 remand order constituted a Rule 58 separate document.

The issue before the court then is...