Kling v. SECRETARY OF DHHS, C87-2649.

• Decision Date: 20 April 1992
• Docket Number: No. C87-2649.,C87-2649.
• Citation: 790 F. Supp. 145
• Court: U.S. District Court — Northern District of Ohio
• Parties: Charles F. KLING, Plaintiff, v. SECRETARY OF DEPARTMENT OF HEALTH & HUMAN SERVICES OF the UNITED STATES, Defendant.

790 F. Supp. 145

Charles F. KLING, Plaintiff, v. SECRETARY OF DEPARTMENT OF HEALTH & HUMAN SERVICES OF the UNITED STATES, Defendant.

No. C87-2649.

United States District Court, N.D.Ohio, E.D.

April 20, 1992.

COPYRIGHT MATERIAL OMITTED

Kirk B. Roose, Oberlin, Ohio, for plaintiff.

Michael Ann Johnson, Asst. U.S. Atty., Cleveland, Ohio, for defendant.

MEMORANDUM OF OPINION AND ORDER AFFIRMING SECRETARY'S DECISION AND AWARDING ATTORNEY'S FEES

KRENZLER, Senior District Judge.

This case is before this Court on plaintiff's application for attorney's fees and expenses under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d).

PROCEDURAL BACKGROUND

Plaintiff originally applied for disability insurance benefits and supplemental security income claiming that he had become disabled on July 15, 1982. The Secretary found that plaintiff suffered from chronic obstructive pulmonary disease, degenerative disc disease, and a psychiatric disorder. However, the Secretary found that the plaintiff could perform his past relevant work as a security guard. Alternatively, the Secretary applied the medical-vocational guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2, Rule 203.11, and found that plaintiff could perform a full range of medium work, although he had a number of non-exertional limitations.

Plaintiff filed a complaint in this Court in forma pauperis for judicial review of the Secretary's decision. This Court found that there was insufficient evidence to determine whether the plaintiff could perform his past relevant work as a security guard. The Court also found that there was insufficient evidence to determine whether the Secretary's medical-vocational guidelines could be applied in light of plaintiff's non-exertional limitations. Therefore, the Court remanded the case to the Secretary to obtain additional evidence on these issues.

On remand, the Secretary determined that plaintiff had become disabled beginning on September 26, 1984. Plaintiff filed his petition for attorney's fees and expenses under the EAJA within one month after the Secretary's decision on remand.

TIMELINESS OF PLAINTIFF'S APPLICATION FOR FEES

The Secretary contends that plaintiff's application for an award of fees is not timely. A party seeking an award of fees under the EAJA must submit his or her application for fees "within thirty days of the final judgment in the action." 28 U.S.C. § 2412(d)(1)(B) (emphasis added).¹ The question whether plaintiff's application is timely must be addressed first, because the time limitation for filing an application for EAJA fees is a jurisdictional prerequisite to government liability. Allen v. Secretary, 781 F.2d 92, 94 (6th Cir.1986).

The United States Supreme Court has held that the "final judgment" which triggers the thirty-day filing period for an application for EAJA fees is "a judgment rendered by a court that terminates the civil action for which EAJA fees may be received"; the term "final judgment" "does not encompass decisions rendered by an administrative agency." Melkonyan v. Sullivan, 501 U.S. ___, ___, 111 S.Ct. 2157, 2162, 115 L.Ed.2d 78, 91 (1991) (emphasis added). Therefore, the timeliness of plaintiff's application for fees is not measured from the date of the Secretary's decision on remand, but must be measured from the date of a court judgment.²

The Secretary argues that § 2412(d)(1)(B) required plaintiff to file his application for fees when the Court entered its order remanding the case to the Secretary. Since plaintiff filed his application more than two years after the order of remand, the Secretary claims that the application is not timely. Plaintiff asserts that his application for fees is timely because the Court did not enter final judgment when it remanded the case to the Secretary, and should enter its final judgment now. Both parties contend that the Supreme Court decision in Melkonyan supports their position.

In Melkonyan, the plaintiff filed a complaint with the district court for judicial review of the Secretary's decision to deny the plaintiff's application for supplemental security income benefits. Thereafter, the Secretary moved the court to remand the case so that the plaintiff's application could be reconsidered in light of new evidence; plaintiff joined this motion for remand. The district court granted the motion and remanded the case to the Secretary. On remand, the Secretary found that the plaintiff was disabled and granted him all of the relief that he had originally requested. Over a year later, the plaintiff applied to the district court for an award of attorney's fees under the EAJA.

The question presented to the Supreme Court in Melkonyan was whether the plaintiff's application for fees was timely. As noted above, the Court first held that the "final judgment" from which the 30-day filing period for EAJA fees is measured must be the judgment of a court. The Court then went on to address the question whether a final court judgment had been entered in the case. In this connection, the Court closely examined the types of remands available under 42 U.S.C. § 405(g) to determine whether the district court's remand order constituted the final judgment for EAJA purposes. The Court held that § 405(g) provides for two, and only two, types of remands, remands pursuant to sentence four and remands pursuant to sentence six. Because this case also involves an order of remand under § 405(g), this Court will discuss each of these types of remands below.

1. Sentence Four Remands.

Under sentence four of § 405(g), a district court has the power to enter "a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g) (emphasis added). The Supreme Court in Melkonyan held that, under this sentence, a "final judgment" is entered at the time of remand, so that "the filing period for EAJA fees 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." Melkonyan, 501 U.S. at ___, 111 S.Ct. at 2165, 115 L.Ed.2d at 94; cf. Sullivan v. Finkelstein, 496 U.S. 617, 110 S.Ct. 2658, 110 L.Ed.2d 563 (1990) (order remanding Social Security case was an appealable final decision). Thus, if a case is reversed and remanded to the Secretary for further proceedings, the thirty-day time period to apply for EAJA fees begins to run when the remand order is entered and the time for appeal of that order has run.

However, to hold that the remand order is the only possible final judgment in such a case would be inconsistent with the Supreme Court's decision in Sullivan v. Hudson, 490 U.S. 877, 109 S.Ct. 2248, 104 L.Ed.2d 941 (1989), which held that a district court has discretion to award EAJA fees for services performed during proceedings on remand before the Social Security Administration. Id., at 890, 109 S.Ct. at 2256. A plaintiff could not obtain attorney's fees for representation in a proceeding on remand if the only time he could apply for such fees was immediately after the remand order was entered. Furthermore, a plaintiff will not usually be entitled to fees immediately after an order of remand, because the plaintiff "will not normally attain `prevailing party' status ... until after the result of the administrative proceedings is known." Hudson, 490 U.S. at 886, 109 S.Ct. at 2255.

In Eschelbacher v. Sullivan, 746 F.Supp. 691 (N.D.Ohio 1990), this Court established a procedure which would resolve the apparent inconsistency between Melkonyan and Hudson by providing a method for triggering a court judgment after a favorable decision by the Secretary on remand. This court judgment would start the thirty-day filing period for the EAJA fees permitted by Hudson, even though the remand order itself was a final order under Melkonyan:

Since § 405(g) provides sixty days for bringing an appeal of an unfavorable decision of the Secretary, by analogy it could be read to provide the same amount of time in which to petition the court to enter judgment on a favorable decision of the Secretary. Thus, upon receiving notice of the Secretary's decision to award or reinstate benefits, the plaintiff has sixty days within which to petition the district court to enter judgment in his favor. Once the district court has entered judgment for the plaintiff, the plaintiff has thirty days in which to file a motion for attorney's fees under EAJA. If the plaintiff fails to follow this two-step procedure within the time limits, he waives his right to EAJA fees.

Id. at 695.

2. Sentence Six Remands.

Under sentence six of § 405(g), the court may either (1) remand the case on the motion of the Secretary "for good cause shown" before the Secretary files an answer, or (2) remand the case at any time in order to take material new evidence, if there is good cause for the failure to incorporate the evidence into the record in the prior proceeding. In either case, the Secretary is required to file the record of the supplemental proceedings for the Court's review.

Because sentence six contemplates that the case will be returned to the court after the Secretary's proceedings on remand, the Supreme Court in Melkonyan held that the final judgment is not entered for EAJA purposes until after the court has entered its judgment following the remand. Thus, "the filing period for EAJA fees in a sentence six case 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." Melkonyan, 501 U.S. at ___, 111 S.Ct. at 2165, 115 L.Ed.2d at 94.

3. Application to Present Case.

In order to assess the timeliness of plaintiff's application for fees, this Court must first determine whether its remand order was a final judgment under sentence four, or a nonfinal order under sentence six of § 405(g). In its remand order, this...