Brown (Willadsen) v. Shalala
| Decision Date | 13 July 1994 |
| Docket Number | No. CV-F-88-285 OWW.,CV-F-88-285 OWW. |
| Citation | 859 F. Supp. 1304 |
| Court | U.S. District Court — Eastern District of California |
| Parties | Kathy BROWN (WILLADSEN) (S.S. # XXX-XX-XXXX), Plaintiff, v. Donna SHALALA, Secretary of Health and Human Services, Defendant. |
Bobby J. Neal, Turlock, CA, for plaintiff.
Daniel Bensing, Fresno, CA, for defendant.
This matter comes before the Court on petitioner's motion for attorney's fees under the Equal Access to Justice Act ("EAJA"). 28 U.S.C. § 2412(d)(1)(A). The Magistrate Judge issued a Report and Recommendation April 6, 1994, that attorneys' fees be denied as untimely. No objection has been filed. The Magistrate's report and recommendation has been reviewed pursuant to 28 U.S.C. § 631(b)(1).
On September 22, 1986, plaintiff applied for supplemental security income (SSI) benefits, alleging inability to work due to back injuries. The Secretary denied her application, and in June, 1988, plaintiff sought judicial review of the Secretary's decision pursuant to 42 U.S.C. § 405(g). On December 23, 1988, the parties stipulated to remand the case to the Secretary for further administrative proceedings.
On remand, plaintiff's claim was again denied. Plaintiff sought relief here. In adopting the Magistrate's Report and Recommendation of November 10, 1992, the matter was once more remanded pursuant to sentence four of § 405(g).1 A separate judgment was filed January 25, 1993.
On July 13, 1993, the case was re-referred to the Magistrate Judge for a further report in light of Shalala v. Schaefer, ___ U.S. ___, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993). The Magistrate Judge issued a Supplemental Report and Recommendation on July 21, 1993, proposing to delete language in the January 21, 1993 order which retained jurisdiction over the case. The Supplemental Report and Recommendation also notified plaintiff, "If the plaintiff seeks attorneys' fees pursuant to the Equal Access to Justice Act at a future date, she may wish to seek relief from the prior judgment pursuant to Fed.R.Civ. Pro. 60(b)." No objections were filed. This Court adopted that Recommendation in a separate signed Order filed August 9, 1993, and served on the parties. The August 9, 1993, order was entered in the court's docket.
Over six months later, on February 17, 1994, Plaintiff filed the instant motion seeking attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. Plaintiff did not file a motion for relief under Fed.R.Civ.Pro. 60(b).
Plaintiff argues that her petition for attorney's fees should be considered timely, because under Federal Rule of Civil Procedure 58, a separate document modifying the original judgment terminates the reservation of jurisdiction. Plaintiff contends that she relied on the retention of jurisdiction to extend the time for filing a motion seeking attorney's fees until 30 days after the administrative proceedings on remand were complete. When jurisdiction was terminated, she argues, a new and separate judgment should have been entered.
Plaintiff frames the issue in this case as jurisdictional. She claims the August 3, 1993 order terminating reservation of jurisdiction, required the entry of a separate document to modify judgment in accordance with Fed. R.Civ.Proc. 58.
The Magistrate Judge found that the August 9, 1993, order terminating the prior reservation of jurisdiction did not disturb the final order entered on January 25, 1993, and that even if it did, the 90 day period for filing for EAJA fees expired November 8, 1993, a date more than three months before when the plaintiff actually filed. Moreover, the Magistrate Judge opined, however unclear the law may have been before Shalala v. Schaefer, once decided, the law regarding finality of judgments in social security remands was clearly established, as recognized by the August 9, 1993, order.
The issue has not been previously decided in this circuit.
The Equal Access to Justice Act provides, in relevant part:
A court shall award to a prevailing party ... fees and other expenses ... incurred by that party in any civil action ... including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A). EAJA fees may be awarded in cases involving judicial review of agency action under the Social Security Act. Wolverton v. Heckler, 726 F.2d 580, 582 (9th Cir.1984). Among other requirements, a petition for attorney's fees under EAJA must be filed within 30 days after a district court's judgment becomes final. 28 U.S.C. §§ 2412(d)(1)(B). A "final judgment" is one that is no longer appealable. 28 U.S.C. § 2412(d)(2)(G); see also, Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991). A judgment is no longer appealable sixty days after the court enters it on a separate document. Federal Rule of Appellate Procedure 4(a); Federal Rule of Civil Procedure 58. Thus, a plaintiff has 90 days from the date of a properly entered judgment in which to file for EAJA fees. See Melkonyan, 501 U.S. at 101-03, 111 S.Ct. at 2165.
Final Judgment In Sentence Four Remands.
In Sullivan v. Hudson, 490 U.S. 877, 109 S.Ct. 2248, 104 L.Ed.2d 941 (1989), the Supreme Court held that, in sentence four remand cases, where the district court retains jurisdiction over a matter pending administrative review, the judgment is not final until the administrative body issues its decision and the district court enters a judgment on the administrative ruling. Since the original remand was not a final judgment, nothing precluded a claimant from collecting EAJA fees for work performed during the period of administrative review after the district court entered final judgment. Hudson, 490 U.S. at 891-93, 109 S.Ct. at 2258. Hudson reasoned that Congress could not have intended to "to throw the Social Security claimant a lifeline that it knew was a foot short," and because the administrative adjudication was necessary to the completion of the civil action, a claimant's application after the administrative remand was proper.
In Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991), the Supreme Court held that, when a district court remands a matter to the Secretary, it necessarily does so pursuant either to sentence four or to sentence six of 42 U.S.C. § 405(g). Id. at 99-101, 111 S.Ct. at 2164, affirming Sullivan v. Finkelstein, 496 U.S. 617, 110 S.Ct. 2658, 110 L.Ed.2d 563 (1990). A "sentence four" remand must accompany an order either affirming, modifying or reversing an administrative decision and itself constitutes a "judgment" for EAJA, a judgment that becomes final once the period to appeal has run. Melkonyan, 501 U.S. at 101-03, 111 S.Ct. at 2165. A "sentence six" remand, on the other hand, does not attach to any substantive ruling but merely remands the matter for further review in light of newly discovered evidence which is to be considered by the administrative law judge and therefore does not constitute a "judgment" from which appeal can be taken. Id., at 97-99, 111 S.Ct. at 2163. The Melkonyan Court did not disapprove Sullivan v. Hudson, 490 U.S. 877, 109 S.Ct. 2248, 104 L.Ed.2d 941 (1989).
In Shalala v. Schaefer, the Supreme Court resolved the conflicting approaches taken in Melkonyan and Hudson. See Labrie v. Secretary of HHS, 976 F.2d 779, 784 (1st Cir. 1992) (). Schaefer affirmed the Melkonyan rule that a § 405(g) sentence four remand is a "final judgment," and that requests for EAJA fees must be made within 30 days after the 60-day appeal period has elapsed. Schaefer, ___ U.S. at ___, 113 S.Ct. at 2629. Any petition for attorney's fees must be made no later than 90 days after a district court § 405(g) sentence four remand. Schaefer unequivocally rejected the practice of retained jurisdiction in a sentence four remand. Id. Schaefer reasoned that if a sentence four remand were not a "final judgment" there would never be any final judgment in cases reversed and remanded for further agency proceedings, quoting sentence eight of § 405(g) which makes a sentence four judgment is the only judgment authorized by § 405(g), which "shall be final...."
Prior to Schaefer, the Ninth Circuit (and other circuits) had interpreted Hudson as permitting district courts to retain jurisdiction after entering a sentence four remand order. See, Gray v. Secretary of HHS, 983 F.2d 954 (9th Cir.1993), vacated, 3 F.3d 1584 (9th Cir.1993); see also Labrie, 976 F.2d at 783. Schaefer terminated this practice, holding that retention of jurisdiction is inconsistent with the plain language of sentence four. Schaefer, ___ U.S. at ___, 113 S.Ct. at 2629. Schaefer does not explicitly overrule Hudson; the Court treated Hudson as "a hybrid: a sentence four remand that the District Court had improperly ... treated like a sentence six remand." Schaefer, ___ U.S. at ___, 113 S.Ct. at 2630 (footnote omitted). Post-Schaefer, an immediate entry of judgment is the chief way of distinguishing sentence four from sentence six remands. Id., at ___, 113 S.Ct. at 2629.
Schaefer held that since a sentence four remand constitutes a judgment which becomes final upon expiration of the time for appeal, in order to start the time for appeal running, a district court must comply with Federal Rule of Civil Procedure 58. Id., at ___, 113 S.Ct. at 2632. Rule 58 provides in relevant part:
"......
To continue reading
Request your trial