Clifton v. Heckler, 84-3558

• Decision Date: 25 March 1985
• Docket Number: No. 84-3558,84-3558
• Citation: 755 F.2d 1138
• Parties: , Unempl.Ins.Rep. CCH 16,016 Pauline CLIFTON, in behalf of herself and her minor children, Lawrence, Ursula, Jerome and Vincent, Plaintiffs-Appellants, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1138

755 F.2d 1138

9 Soc.Sec.Rep.Ser. 11, Unempl.Ins.Rep. CCH 16,016

Pauline CLIFTON, in behalf of herself and her minor children, Lawrence, Ursula, Jerome and Vincent Plaintiffs-Appellants, v. Margaret M. HECKLER, Secretary of Health and Human Services Defendant-Appellee.

No. 84-3558

Summary Calendar.

United States Court of Appeals Fifth Circuit.

March 25, 1985.

Gustafson, Rudloff, Colbert & Parr, Leon Rudloff, New Orleans, La., for plaintiffs-appellants.

John Volz, U.S. Atty., Nancy A. Nungesser, New Orleans, La., for defendant-appellee.

Karen J. Behner, Dallas, Tex., for defendant-appellee Margaret M. Heckler.

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

Before RUBIN, RANDALL and TATE, Circuit Judges.

RANDALL, Circuit Judge:

In this appeal, we review the district court's denial of the plaintiffs' application for attorney's fees under the Equal Access to Justice Act. Because we hold that the plaintiffs' application was untimely, we affirm.

I. FACTS AND PROCEEDINGS BELOW

On November 14, 1972, Pauline Clifton (Clifton) applied for mother's insurance benefits on her own behalf and for child's insurance benefits on behalf of her four minor children, alleging that her husband, Herbert Clifton, disappeared in 1965, deserting her and the children. The Social Security Administration denied the applications, and Clifton requested a de novo hearing on the claims before an administrative law judge (ALJ). After the hearing, on February 21, 1975, the ALJ awarded the benefits. The Appeals Council, on its own motion, reversed the ALJ's decision, prompting Clifton, individually and on behalf of her minor children (the plaintiffs are hereinafter collectively referred to as Clifton), to file the instant action on November 18, 1975, in the United States District Court for the Eastern District of Louisiana for judicial review of the Appeals Council's decision pursuant to Sec. 205(g) of the Social Security Act, 42 U.S.C. Sec. 405(g). ¹ The district court remanded the case to the Secretary of Health, Education and Welfare (now Health and Human Services) for a second de novo hearing because the tape recording of the original hearing was inaudible.

After the second hearing, on June 23, 1976, the ALJ determined that Clifton was entitled to benefits from March 31, 1967--the date on which the wage earner, Herbert Clifton, was presumed to have died. On September 30, 1976, the Appeals Council modified the ALJ's decision, indicating that the wage earner's presumed date of death was properly March 8, 1974, seven years from the date of his last known employment.

In January 1977, on the Secretary's motion, the case was reopened in the district court, and the Secretary answered Clifton's original complaint. Clifton maintained that she and her children were entitled to benefits from March 31, 1967. The September 30, 1976 decision of the Secretary was filed in the district court, and, in April 1977, the parties filed cross-motions for summary judgment. In view of Clifton's allegations that the administrative record was incomplete, however, the district court, on July 19, 1977, remanded the case to the Secretary for a supplemental hearing to gather evidence regarding the disappearance of the wage earner.

On March 31, 1980, following the supplemental hearing, the ALJ found that the wage earner's presumed date of death was March 8, 1974. The Appeals Council affirmed the ALJ's decision, and, with the filing of the transcript of the supplemental hearing, the case was again reopened in the district court. In September 1980, a hearing was held before a magistrate on the Secretary's motion for summary judgment. The magistrate found that the Secretary's decision was supported by substantial evidence and recommended that the Secretary's motion for summary judgment be granted. On April 20, 1981, the district court granted the Secretary's motion and entered judgment dismissing Clifton's suit. On July 23, 1981, more than ninety days after the judgment was entered, Clifton filed a motion to enlarge the time to appeal from the judgment. The district court denied the motion holding that it could not extend the time for appeal because Rule 4(a)(1) of the Federal Rules of Appellate Procedure is mandatory and jurisdictional. ² The district court suggested, however, that Clifton file a motion to vacate the April 20, 1981 judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure and present evidence that would support her claim for relief. Clifton responded on August 4, 1981, by filing a Rule 60(b) motion to vacate. The district court denied this motion on August 26. Clifton then filed several additional motions to enlarge the time for noticing an appeal, all of which were denied by the district court. Clifton appealed the denials of her motions to extend the time for noticing an appeal and her motion to vacate the April 20, 1981 judgment. In Clifton v. Heckler, 732 F.2d 939 (5th Cir.1984) (unpublished), we held that Clifton's tardiness in filing the Rule 4(a)(5) motions to vacate required dismissal of the appeal and that the district court's denial of the Rule 60(b) motion was not an abuse of discretion.

On May 23, 1984, thirty days after we dismissed her appeal of the denials of the various motions, Clifton filed in the district court an application for attorney's fees under the Equal Access to Justice Act (EAJA), Pub.L. No. 96-481, tit. 2, 94 Stat. 2325 (1980) (the pertinent provisions of which are codified at 5 U.S.C. Sec. 504 and 28 U.S.C. Sec. 2412) ³ seeking fees for work done in connection with the filing of the original complaint in district court on November 18, 1975, through September 30, 1976, the date on which the Appeals Council decision awarding benefits was filed in the district court. The application was referred to a magistrate, who recommended that it be denied on the alternative grounds that 42 U.S.C. Sec. 406(b)(1), not 5 U.S.C. Sec. 504 or 28 U.S.C. Sec. 2412, controlled the award of attorney's fees in social security cases and that, in any event, Clifton was not a prevailing party. On July 11, 1984, the district court adopted the magistrate's recommendation and denied the application, holding that Clifton was not a prevailing party. This appeal followed.

II. DISCUSSION

On appeal, Clifton makes the following contentions: (1) at this stage of the proceedings, the district court was without jurisdiction to consider her application for attorney's fees under the EAJA because 5 U.S.C. Sec. 504 provides that the agency, here the Social Security Administration, will initially pass upon the application before judicial review of a final agency decision regarding an award may be obtained; and (2) Clifton was a prevailing party because her November 1975 suit forced the Social Security Administration to substantiate its original denial of benefits, which eventually led to a remand for a second de novo hearing and a decision at least partially favorable to her. Although we find that the district court would have been the proper forum to entertain Clifton's application for attorney's fees in the instant case, we hold that the district court lacked subject matter jurisdiction to consider the application. We need not address the issue whether Clifton was a prevailing party.

A. Consideration by the Social Security Administration or the District Court?

Clifton first contends that the district court had no jurisdiction to consider her application for attorney's fees under the EAJA, relying on 5 U.S.C. Sec. 504 and the administrative regulations promulgated thereunder. ⁴ Clifton argues that, because 5 U.S.C. Sec. 504 governs the award of attorney's fees to parties who prevail against the federal government in administrative proceedings and that section indicates that the adjudicative officer of the agency will first consider the application before a party may seek judicial review of the agency's decision, the district court was without authority in the instant action to entertain Clifton's application in the absence of prior agency adjudication of the claim and a grant of a petition for leave to appeal the agency's decision. Clifton explains that her application was filed in the district court in conformance with 45 C.F.R. Sec. 13.21, requiring that "[a]ll pleadings, including applications for an award of fees, ... shall be pled in the same manner as other pleadings in the proceeding and served on all other parties and participants." Because the case was then in the district court, Clifton filed her application there but in no wise intended that the district court pass upon the application before the Social Security Administration did so. Thus, because the Social Security Administration did not first consider her application for attorney's fees, Clifton concludes, the district court in denying the application improperly interposed itself as the sole arbiter of her claim. Clifton's contention is without merit, however, largely because the statutory and regulatory tapestry she weaves is incomplete.

We begin by examining the EAJA and its legislative history. The EAJA was enacted to lessen the likelihood that challenges to bureaucratic action would be determined by the high cost of litigating against the government. EAJA, supra, Sec. 202(c)(1), 94 Stat. at 2325; H.R.Rep. No. 1418, 96th Cong., 2d Sess. 9-10, reprinted in 1980 U.S.Code Cong. & Ad.News 4984, 4984-88. ⁵ Federal agencies, under 5 U.S.C. Sec. 504(a)(1), and courts, under 28 U.S.C. Sec. 2412(d)(1)(A), are authorized to award attorney's fees to parties who prevail against the federal government in "adversary adjudications" unless the government's position was "substantially justified" or there are special circumstances which make a fee award unjust. An "adversary adjudication" is defined as a determination "on the record after opportunity for an agency hearing," with certain inapplicable exceptions, see 5 U.S.C. Sec....