Fergason v. Sullivan

• Decision Date: 27 August 1991
• Docket Number: No. 88-0643-CV-W-1.,88-0643-CV-W-1.
• Citation: 771 F. Supp. 1008
• Parties: Dolores J. FERGASON, (S.S.N. XXX-XX-XXXX), Plaintiff, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Western District of Missouri

771 F. Supp. 1008

Dolores J. FERGASON, (S.S.N. XXX-XX-XXXX), Plaintiff, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant.

No. 88-0643-CV-W-1.

United States District Court, W.D. Missouri, W.D.

August 27, 1991.

Susan J. Fershee and Dennis W. Jennings, Kansas City, Mo., for plaintiff.

Judith M. Strong, Asst. U.S. Atty., Kansas City, Mo., for defendant.

ORDER

WHIPPLE, District Judge.

Before this court is plaintiff's Motion for Attorney's Fees, filed June 13, 1991, pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. The motion has been fully briefed by the parties. For the reasons set forth below, plaintiff's motion will be denied.

I. BACKGROUND

On September 8, 1986, plaintiff Dolores J. Fergason ("Fergason") filed an application for a period of disability and disability insurance benefits, pursuant to 42 U.S.C. § 423. Fergason's application was denied initially and on reconsideration. She subsequently requested, and received, a hearing before an Administrative Law Judge ("ALJ"). On October 29, 1987, the ALJ issued his decision, finding in part for and in part against Fergason. The ALJ held that Fergason was entitled to a period of disability and disability benefits commencing May 1, 1986 and not commencing October 1984, as Fergason had claimed. Fergason sought review of the ALJ's finding that the period of disability did not commence until May of 1986. The Appeals Council denied Fergason's request for review of the ALJ's decision. On July 18, 1988, Fergason appealed from the final decision of the Secretary, pursuant to 42 U.S.C. § 405(g).

On appeal, Fergason raised two grounds for review of the Secretary's decision: 1) the Secretary's conclusion that Fergason could perform "light work" prior to May 1, 1986 was not supported by substantial evidence; and 2) the Secretary failed to meet his burden of proof by establishing that there were jobs Fergason could perform between October 1984 and May 1986. As to the second ground, Fergason argued that the Secretary erred when he failed to elicit testimony from a vocational expert pertaining to Fergason's ability to perform other work in the economy, once it was determined she was unable to perform a full range of light work as of October 1984. Instead, the Secretary erroneously relied on the vocational guidelines, or grids, to meet his burden of proof that Fergason could perform other work. Memorandum in Support of Motion for Judgment at 22-24.

In lieu of filing an answer to Fergason's motion for judgment, the Secretary filed a motion to remand. In support of his motion, the Secretary acknowledged that an error had been committed. The Secretary requested that the case be remanded so that he could obtain the testimony of a vocational expert.¹ The Secretary offered the following explanation for his failure to elicit pertinent testimony from the vocational expert:

The Secretary continues to make every effort to insure that his decision complies with Eighth Circuit law. The circumstances that make remand necessary were not discovered until the case reached legal counsel for briefing. Remand in this situation is appropriate.

Defendant's Motion to Remand at 1. Fergason objected to the Secretary's request for remand. She contended that a remand in this case was not necessary "because the case as a whole establishes the claimant's eligibility for those benefits and should result in an outright reversal."² Memorandum in Opposition to Defendant's Motion for Remand at 3.

In an Order dated March 15, 1989, the court granted the Secretary's motion to remand. The court explained its basis for remanding the case to the Secretary:

Upon review of the record in this case, the court finds that remand is proper. Unless the case is one in which the outcome would be clear regardless of who bears the burden of proof or in cases where a hearing would simply delay receipt of benefits should the court reverse and award benefits outright....

Given the record, the court cannot find as a matter of law that the outcome would be clear, despite taking all reasonable inferences in favor of the plaintiff. ... Therefore, this case must be remanded to the Secretary for further administrative action required to bring the decision of the ALJ within the parameters of established law.

Accordingly, it is

ORDERED that defendant's motion to remand is granted and this case is remanded to the Secretary for further hearings consistent with this order. Upon remand, the Secretary shall elicit expert vocational testimony concerning the extent and nature of plaintiff's ability to do "nearly a complete range of light work" (Tr. 26) during the relevant period of time, October 1984 through May 1, 1986.

Order of March 15, 1989 at 3-4 (citations omitted).

Following entry of the order, the Appeals Council vacated its denial of Fergason's request for review, as well as the decision of the ALJ, and remanded the case to the ALJ for further proceedings consistent with the order. Appeals Council Order of April 21, 1989. The case was heard by the ALJ on October 24, 1989. The ALJ subsequently issued an unfavorable decision. Upon review by the Appeals Council, the case again was remanded to the ALJ to obtain further evidence. Additional evidence was taken by the ALJ on December 13, 1990. On April 25, 1991, the ALJ issued a favorable decision for Fergason. The ALJ concluded that Fergason had been disabled from October 1984 through April 30, 1986 decision. On June 13, 1991, Fergason filed her request for attorney's fee under the EAJA.

In opposition to Fergason's request for attorney's fees, the Secretary argues that her motion is untimely filed in light of the United States Supreme Court's recent decision in Melkonyan v. Sullivan, 501 U.S. ___, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991). Under the EAJA, a party seeking an award of fees is directed to submit an application for fees within thirty days of "final judgment in the action." 28 U.S.C. § 2412(d)(1)(B). This thirty-day time limit has been held to be jurisdictional in nature. See Olson v. Norman, 830 F.2d 811, 821 (8th Cir.1987). In Melkonyan, the Supreme Court held that a "final judgment" for purposes of § 2412(d)(1)(B) "means a judgment rendered by a court that terminates the civil action for which EAJA fees may be received. The 30-day EAJA clock begins to run after the time to appeal that `final judgment' has expired." Melkonyan, 501 U.S. at ___, 111 S.Ct. at 2162, 115 L.Ed.2d at 91. A "final judgment" does not encompass decisions rendered by an administrative agency, as some courts have held. See, e.g., Buck v. Secretary of Health & Human Services, 923 F.2d 1200, 1204 (6th Cir.1991); Jabaay v. Sullivan, 920 F.2d 472, 475-6 (7th Cir.1990); Melkonyan v. Heckler, 895 F.2d 556, 558-59 (9th Cir.1990).

The Supreme Court also announced in Melkonyan that only two types of remands are permitted under 42 U.S.C. § 405(g). The Court identified these as a sentence four³ and a sentence six⁴ remands. This holding is significant for two reasons. First, the Supreme Court had never before indicated that district courts were limited to two means of remanding social security cases under § 405(g).⁵ Second, in light of the Supreme Court's construction of "final judgment," the type of remand utilized directly controls when the thirty-day jurisdictional limit starts to run. Under a sentence four remand, where a district court may remand a case in conjunction with a (final) judgment "affirming, modifying, or reversing" the Secretary's decision, the Supreme Court held that the period for filing an application for fees begins after the judgment is entered and the appeal period has run, such that the judgment of the district court is no longer appealable. Melkonyan, 501 U.S. at ___, 111 S.Ct. at 2165, 115 L.Ed.2d at 94. Under a sentence six remand, where a district court remands a case to the Secretary without rendering a substantive ruling on the merits of his decision, the Supreme Court held that the period for filing 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."

Based upon the Supreme Court's dual holding in Melkonyan, the Secretary argues that a "final judgment" was entered in this matter on March 15, 1989, when the court remanded the case to the Secretary for further proceedings pursuant to a sentence four remand. That being the case, Fergason had ninety days from March 15, 1989 to file her application for fees under the EAJA. Having waited until June 13, 1991 to file her application, the Secretary contends that Fergason's application should be dismissed as untimely.

In response to the Secretary's argument, Fergason argues that the Supreme Court's decision in Melkonyan should not be applied retroactively to this case. Plaintiff's Reply at 2. In support of her position, Fergason relies on the three-part analysis adopted by the Supreme Court for the purpose of determining whether a new principle of law should be given retroactive or prospective effect. Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355, 30 L.Ed.2d 296, 306 (1971). Fergason notes that one court in the Western District of Missouri has already held, applying the Chevron Oil analysis, that the Melkonyan holding should be given prospective effect. See Mautino v. Sullivan, No. 86-0780-CV-W-6, slip op. at 3, n. 1 (W.D.Mo. July 1, 1991).

The Secretary contends that Supreme Court's recent opinion in James B. Beam Distilling Co. v. Georgia, 501 U.S. ___, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991) requires that this court apply the ruling in Melkonyan to the present case. In a plurality opinion, the Supreme Court held that it is an "error to refuse to apply a rule of federal law retroactively after the case announcing the rule has already done so.... principles of equality and stare decisis here prevail over any claim based on a Chevron Oil analysis."...