Pierce v. Barnhart

• Decision Date: 14 February 2006
• Docket Number: No. 05-50242.,No. 05-50003.,05-50003.,05-50242.
• Citation: 440 F.3d 657
• Parties: Michael PIERCE, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee. Dennis E. King, Plaintiff-Appellant, v. Jo Anne B. Barnhart, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 657

440 F.3d 657

Michael PIERCE, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee.

Dennis E. King, Plaintiff-Appellant, v. Jo Anne B. Barnhart, Commissioner of Social Security, Defendant-Appellee.

No. 05-50003.

No. 05-50242.

United States Court of Appeals, Fifth Circuit.

February 14, 2006.

Mary Ellen Felps, Austin, TX, for Plaintiffs-Appellants in both cases.

Clayton R. Diedrichs, San Antonio, TX, for Barnhart in No. 05-50003.

Gregory E. White, SSA Office of Gen. Counsel, Dallas, TX, for Barnhart in both cases.

James William Jennings, Jr., Asst. U.S. Atty., San Antonio, TX, for Barnhart in No. 05-50242.

Appeals from the United States District Court for the Western District of Texas.

Before JONES, Chief Judge, and KING and DENNIS, Circuit Judges.

KING, Circuit Judge:

In this consolidated appeal, the plaintiffs-appellants appeal the district court's orders denying their applications for attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d), and under 42 U.S.C. § 406(b). We affirm the district court's orders regarding attorney's fees under the EAJA and reverse and remand the district court's orders concerning the plaintiffs' claims for attorney's fees under § 406(b).

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs Michael Pierce and Dennis King filed for disability benefits under Titles II and XVI of the Social Security Act on September 15, 1997, and May 28, 1998, respectively. After Pierce and King pursued their claims through the administrative process and were denied disability benefits, each requested a hearing before an administrative law judge ("ALJ"). Each was denied disability benefits by an ALJ, and the appeals council affirmed the ALJ's decision.

Pierce and King each filed a complaint in the United States District Court for the Western District of Texas. Mary Ellen Felps represented both plaintiffs before the district court and continues to represent them in this court. The plaintiffs consented to have the same magistrate judge decide their cases.

On April 4, 2003, in the case of Pierce, and April 2, 2003, in the case of King, the magistrate judge reversed the ALJ's decision and remanded the case to the Commissioner of Social Security ("Commissioner") for further administrative proceedings on the plaintiff's disability application.¹ In each case, the court's remand order was entered pursuant to sentence four of 42 U.S.C. § 405(g)² and did not award benefits to the plaintiff, but did specifically contemplate further proceedings before the Commissioner to determine whether the plaintiff was entitled to benefits.

Pierce and King filed their first applications for attorney's fees on May 5, 2003, and April 22, 2003, respectively. Each requested attorney's fees under the EAJA, 28 U.S.C. § 2412(d), or attorney's fees to be paid out of his past-due benefits pursuant to 42 U.S.C. § 406(b).³ On May 23, 2003, the magistrate judge denied attorney's fees to the plaintiffs without prejudice. With regard to the plaintiffs' applications for attorney's fees under the EAJA, the magistrate judge found that the Commissioner's position was substantially justified. The magistrate judge also determined that the claims for attorney's fees under § 406(b) were premature because the plaintiffs had not been found disabled or awarded benefits by an ALJ pursuant to the administrative review called for in the magistrate judge's remand orders. Neither Pierce nor King appealed the magistrate judge's denial of his fee application.

On June 2, 2003, the Commissioner timely appealed the magistrate judge's April 2003 sentence-four judgments that reversed and remanded the plaintiffs' disability applications. This court subsequently consolidated the two cases and scheduled the cases for oral argument for the week of May 3, 2004. On April 28, 2004, the Commissioner withdrew her appeals in the two consolidated cases. The Commissioner apparently withdrew the appeals after an ALJ had issued favorable decisions to the plaintiffs pursuant to the April 2003 remand orders from the magistrate judge. On April 29, 2004, this court dismissed the consolidated appeal.

On July 1, 2004, Felps, on behalf of each plaintiff, moved in the district court for entry of an order of remand. Felps admitted in her motion that she was "uncertain procedurally what steps [were] necessary to reinstate the case on the docket so as to allow Plaintiff to petition for attorney's fees under the Equal Access to Justice Act. . . ." On July 15, 2004, in the case of Pierce, and July 16, 2004, in the case of King, the magistrate judge issued an order reaffirming the court's prior decision to reverse the ALJ and remand. The magistrate judge did not issue an order of remand as requested by Felps; rather, the magistrate judge determined, with regard to both plaintiffs, that "[s]ince the Court of Appeals did not address the Court's Order[,] the Court is of the opinion that the Order remains in effect" and that Felps's requested orders were "unnecessary."

On August 16, 2004, Pierce and King each filed a second application for attorney's fees under the EAJA and § 406(b). On September 24, 2004, the magistrate judge issued orders denying the plaintiffs' second applications for attorney's fees. In these orders, the magistrate judge concluded that "[s]ince this Court has already denied a very similar motion for attorney's fees and the circumstances in the case have not changed to justify an award, Plaintiff's Motion should be denied."

Pierce and King each moved for a rehearing on the second petition for attorney's fees on October 4, 2004. In each rehearing motion, Felps asserted that the court apparently misunderstood her previous request as an application for attorney's fees only under the EAJA. According to Felps, each plaintiff was also requesting attorney's fees pursuant to § 406(b).

Although the magistrate judge responded to the motions for rehearing in separate orders (dated November 17, 2004 for Pierce and February 1, 2005 for King), the magistrate judge denied each motion for "at least four reasons." First, the magistrate judge concluded that the court had twice determined that Felps was not entitled to recover fees under the EAJA and that the circumstances in these cases had not changed to justify a different result. Second, the magistrate judge concluded that enforcement of an attorney-client contract would be improper without first viewing the contractual provisions. According to the court, Felps had not provided the court with a copy of the contract. Third, the magistrate judge found that he was unable to calculate attorney's fees under § 406(b) because Felps had not indicated whether attorney's fees had been paid or were due to other counsel for representation. Finally, the magistrate judge determined that Felps's requests for attorney's fees were "untimely" and Felps's "dilatory conduct doom[ed] her request[s]."

Pierce and King timely appealed. On July 18, 2005, this court granted the Commissioner's motion to consolidate the two cases on appeal.

II. DISCUSSION

A. Attorney's Fees Under the EAJA

The plaintiffs challenge the district court's denials of their August 16, 2004 applications for attorney's fees under the EAJA. According to the plaintiffs, they have met the statutory requirements for bringing their EAJA claims and the district court erred in concluding otherwise.

We first address whether the plaintiffs' applications for attorney's fees were timely under the EAJA. An application for attorney's fees under the EAJA shall be submitted "within thirty days of final judgment in the action." 28 U.S.C. § 2412(d)(1)(B) (2000). The EAJA defines "final judgment" as "a judgment that is final and not appealable." Id. § 2412(d)(2)(G). The Supreme Court has interpreted "final judgment" for purposes of § 2412(d)(1)(B) as "a judgment rendered by a court that terminates the civil action for which EAJA fees may be received." Melkonyan v. Sullivan, 501 U.S. 89, 96, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991). According to the Court, the thirty-day EAJA clock "begins to run after the time to appeal that `final judgment' has expired." Id.

"Because this thirty-day deadline represents a waiver of sovereign immunity, it is jurisdictional." Briseno v. Ashcroft, 291 F.3d 377, 379 (5th Cir.2002) (citing Clifton v. Heckler, 755 F.2d 1138, 1144-45 (5th Cir.1985) (holding that "the statutory time limitation, as an integral condition of the sovereign's consent to be sued, is a jurisdictional prerequisite to an award of fees under the EAJA")). Thus, "a claimant's failure to file an EAJA application within this time constraint precludes a district court from considering the merits of the fee application." Myers v. Sullivan, 916 F.2d 659, 666 (11th Cir.1990). This court reviews the jurisdiction of the district court de novo. See Briseno, 291 F.3d at 379 (citing United States v. Sims Bros. Constr., 277 F.3d 734, 741 (5th Cir. 2001)).

In the present case, Pierce filed his initial application for attorney's fees on May 5, 2003, and King filed his initial application on April 22, 2003. These initial applications were premature. See Melkonyan, 501 U.S. at 102, 111 S.Ct. 2157 ("In sentence four cases, the filing period [for fee applications under the EAJA] 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 district court denied the applications. The plaintiffs did not appeal the district court's decisions to deny these initial applications.

After the district court denied the initial fee applications, the Commissioner filed appeals challenging the district court's underlying sentence-four remand orders. The Commissioner withdrew her appeals, and on April 29, 2004, this court dismissed these appeals. Thereafter, each plaintiff filed a second application for attorney's fees on ...