Audette v. Secretary of Health and Human Services, Civ. A. No. 84-0467 P.

• Citation: 776 F. Supp. 84
• Decision Date: 11 October 1991
• Docket Number: Civ. A. No. 84-0467 P.
• Parties: Brenda AUDETTE v. SECRETARY OF HEALTH AND HUMAN SERVICES.
• Court: U.S. District Court — District of Rhode Island

776 F. Supp. 84

Brenda AUDETTE v. SECRETARY OF HEALTH AND HUMAN SERVICES.

Civ. A. No. 84-0467 P.

United States District Court, D. Rhode Island.

October 11, 1991.

David Green, Providence, R.I., for plaintiff.

Michael Iannotti, Asst. U.S. Atty., Providence, R.I., for defendant.

MEMORANDUM AND ORDER

PETTINE, Senior District Judge.

Plaintiff commenced this action in 1984, challenging the denial of disability benefits by the Secretary. After a seven year history, plaintiff moves for Entry of Final Judgment in this action. While the entry of such a judgment may at first seem academic, this Court realizes plaintiff's ability to recover attorney's fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 depends on this motion. However, based on the reasons set forth below, the Motion for Entry of Final Judgment is denied.

I

Brenda Audette was first hospitalized in October 1981 for back pain and pain radiating down her left leg. In the next two years, Ms. Audette twice underwent hip and back surgery to alleviate the pain. In March of 1983, she applied for disability insurance benefits, claiming that pain and numbness in her leg and back prevented her from sitting or standing for more than three hours at a time.

The Administrative Law Judge (ALJ) found her condition to be "severe impairment" under the Social Security regulations. Nevertheless, he concluded that she could sit for the eight hours required for performance of her previous jobs; the ALJ ruled that Ms. Audette was not disabled.

The Appeals Council declined review and adopted the ALJ's decision as the final decision of the Secretary. The United States District Court for the District of Rhode Island affirmed. The Court of Appeals for the First Circuit found that the Secretary's decision was not supported by substantial evidence and vacated the judgment of the district court.

Although the next steps in this litigation are primarily procedural, they are dispositive of the Motion for Entry of Final Judgment. The First Circuit ordered: "Accordingly, we remand the case with the understanding that the Secretary will either find disability or reopen the proceeding to take additional evidence. The Judgment of the district court is vacated, and the case is remanded with instructions to remand to the Secretary for further proceedings." Audette v. Secretary of Health and Human Services, No. 86-1015, slip. op. at 6 (1st Cir. Sept. 22, 1986) 802 F.2d 442 (table).

In accordance with that order, on October 22, 1986, the district court remanded the action "to the Secretary for further proceedings in accordance with the Opinion issued by the United States Court of Appeals for the First Circuit." Audette v. Heckler, No. 84-0467P (D.C.R.I. October 22, 1986).

On December 8, 1986, the Appeals Council vacated its denial of the claimant's request for review and remanded the case to an ALJ for further proceedings consistent with the Order of the Court. A hearing was held on June 16, 1987; the ALJ issued a recommended decision on September 16, 1987, finding Ms. Audette entitled to a closed period of disability. Ms. Audette had returned to work in the fall of 1984, and the ALJ determined her period of disability from October 1, 1981 until December 1984. The Appeals Council adopted the recommended decision on January 21, 1988, making it the final decision of the Secretary.

II

Ms. Audette appealed the Secretary's decision under 42 U.S.C. § 1383(c)(3), which incorporates 42 U.S.C. § 405(g). 42 U.S.C. § 405(g) elaborates judicial review procedures for decisions of the Secretary of Health and Human Services.¹

The U.S. Supreme Court in Sullivan v. Finkelstein, ___ U.S. ___, 110 S.Ct. 2658, 110 L.Ed.2d 563 (1990) closely examined § 405(g) and found it authorized only two types of remands: remands pursuant to the fourth sentence and remands pursuant to the sixth sentence. The fourth sentence authorizes a court to enter "a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for rehearing." This type of remand contemplates no independent action by the Secretary; if the case is in fact remanded, the Secretary must follow the order of the district court.

The sixth sentence of § 405(g) describes remands where new, material evidence has come to light and there is good cause for claimant's initial failure to incorporate such evidence into the record. After a sentence six remand and a further hearing at the administrative level, the Secretary must return to the district court with a transcript of the proceeding below and a new or modified finding of fact and decision. Under a sentence six remand, only then can the district court enter a final judgment in the case.

It is important to remember the timing in this case. The First Circuit rendered its remand opinion on September 22, 1986. The Secretary's award of benefits to Ms. Audette became final on January 21, 1988. Since that time, the U.S. Supreme Court has spoken directly and precisely concerning § 405(g) remands.

A. Civil Actions May Include Administrative Proceedings

In Sullivan v. Hudson, 490 U.S. 877, 109 S.Ct. 2248, 104 L.Ed.2d 941 (1989), the U.S. Supreme Court addressed the issue of § 405(g) remands and the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. EAJA permits the award of attorney's fees to a party prevailing against the United States "in any civil action ... in any court," 28 U.S.C. § 2412(d)(1)(A), upon an application made within thirty days of "final judgment in the action." 28 U.S.C. § 2412(d)(1)(B).

In Hudson, the Supreme Court held that EAJA allowed the award of attorney's fees for legal representation during administrative proceedings held pursuant to a district court remand order. The Court concluded that these types of administrative proceedings —held at the command of the district court—were actually part of the civil action. "Where administrative proceedings are intimately tied to the resolution of the judicial action ... they should be considered part and parcel of the action for which fees may be awarded." Hudson, 490 U.S. at 888, 109 S.Ct. at 2255. Thus, agency proceedings following a sentence four or a sentence six remand under § 405(g) can qualify for an EAJA award.

B. Termination of the Civil Action

In 1990, the Supreme Court again addressed § 405(g) remand orders. Sullivan v. Finkelstein, ___ U.S. ___, 110 S.Ct. 2658, 110 L.Ed.2d 563 (1990) held that a remand order for rehearing under the fourth sentence of § 405(g) was a final judgment subject to immediate appeal under 28 U.S.C. § 1291. Such a final judgment "terminated the civil action" that challenged the initial denial of benefits. Id. 110 S.Ct. at 2664. The Finkelstein court also painstakingly parsed the eight sentences of § 405(g). Id. at 2663-65. Again, the Supreme Court concluded that a remand to the Secretary could only be made pursuant to sentence four or sentence six.

Hudson showed that a civil action under § 405(g) extends for EAJA purposes to the administrative proceedings on remand. Finkelstein refined that holding. Hudson and Finkelstein, read together, contemplate that a civil action under § 405(g) sentence four remand extends for EAJA purposes to include ancillary administrative proceedings on remand, but that the civil action, so extended, terminates once a decision has been rendered by the Secretary. Under a sentence four remand, the decision of the Secretary is not appealable by either party. Sentence four remands direct the Secretary to rule in the manner ordered by the district court. Because a sentence four remand contemplates no independent action by the Secretary, an appeal would be pointless and is therefore not allowed. Of course, both parties were entitled to appeal at the previous stage, when the district court ordered a remand under sentence four.

C. § 405(g) Remands under Sentence Four and Sentence Six

Most recently, the Supreme Court considered Melkonyan v. Sullivan, ___ U.S. ___, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991). Again, the Supreme Court was concerned with remand orders under § 405(g) and EAJA attorney fees awards. The award of EAJA fees requires a "final judgment" entered by a court. The Melkonyan opinion delineates the key difference between a sentence four and sentence six remand.

In light of the foregoing, we conclude that in § 405(g) actions, remand 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 sentence six. Construing remand orders in this manner harmonizes the remand provisions of § 405(g) with the EAJA requirement that a "final judgment" be entered in the civil action in order to trigger the EAJA filing period. 28 U.S.C. § 2412(d)(1)(B). 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. See § 2412(c)(2)(G). 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. 111 S.Ct. at 2165 (emphasis added).

Only sentence six remands contemplate retention of jurisdiction by the district court. "For a sentence six remand the district court does not affirm, modify, or reverse the Secretary's decision; it does not rule in any way as to the correctness of the administrative determination. Rather, the court remands because new evidence has come to light that was not available to the claimant at the time of the administrative proceeding and that evidence might have changed the outcome of the prior proceeding." Id. at 2163.

A remand order not promulgated under sentence four is not necessarily a sentence six remand. In Melkonyan, a remand had been sought specifically...