Magray v. Sullivan

• Decision Date: 07 December 1992
• Docket Number: Civ. A. No. 90-C-152.
• Citation: 807 F. Supp. 495
• Parties: Lois MAGRAY, Plaintiff, v. Louis W. SULLIVAN, Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

807 F. Supp. 495

Lois MAGRAY, Plaintiff, v. Louis W. SULLIVAN, Secretary of Health and Human Services, Defendant.

Civ. A. No. 90-C-152.

United States District Court, E.D. Wisconsin.

December 7, 1992.

Mary Bednarik, Legal Services of Northeastern Wisconsin, Inc., Sheboygan, WI, for plaintiff.

Stephen J. Liccione, Asst. U.S. Atty., Milwaukee, WI, for defendant.

ORDER

TERENCE T. EVANS, Chief Judge.

On January 23, 1992, I reversed the Secretary's determination that Ms. Magray was not entitled to benefits and remanded the case to the Secretary for reconsideration. The Secretary concedes that my January 23 order was a "sentence four" remand under 42 U.S.C. § 405(g), which indeed it was.¹See defendant's memorandum of March 18, 1992, at 1. Ms. Magray timely filed an application for attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d).

Prevailing Party

Under the EAJA, attorney fees may be recovered against the government by a "prevailing party" if the position of the government in the litigation was not "substantially justified." 28 U.S.C. § 2412(d). The Secretary requested that I stay briefing and consideration of the fees and expenses issue until the proceedings on remand were complete, contending that until the results of the remand were determined, Ms. Magray could not be deemed a "prevailing party" under the EAJA. In an order of June 9, 1992, I denied the Secretary's request for a stay and ordered it to respond to the merits of the fee application. In that order I determined that Ms. Magray was a prevailing party because she won a sentence four remand, which is a final judgment ending this civil litigation. In his response brief, the Secretary bases the majority of his opposition again on the argument that Ms. Magray is not a prevailing party, discussing the issue "so that this Court may in its discretion reconsider its finding" of June 9.

This is now the third time I have revisited the sentence four versus sentence six issue. See, of course, Magray v. Sullivan, 807 F.Supp. 495 (E.D.Wis.1992); see also Kolman v. Sullivan, 782 F.Supp. 423 (E.D.Wis.1992). Nevertheless, the government continues to argue that although a request for attorney fees after sentence four remand must be made within 30 days because it is a "final judgment," that judgment is not so final when it comes to determining prevailing party status because it is uncertain whether Ms. Magray will receive the contested Social Security benefits. I appear to be one of the first courts within this circuit to address this prevailing party problem.² I once again repeat my view that Melkonyan v. Sullivan, ___ U.S. ___, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991), dictates that Ms. Magray is a prevailing party. The language used by lower courts in several other cases additionally supports this determination. Moreover, on the facts of this case, Ms. Magray is certainly entitled to prevailing party status.

To reiterate, in Sullivan v. Hudson, 490 U.S. 877, 886, 109 S.Ct. 2248, 2255, 104 L.Ed.2d 941 (1989), the Supreme Court seemed to suggest that on remand a party cannot prevail until the results of that remand are known:

Thus, for purposes of the EAJA, the Social Security claimant's status as a prevailing party and the final judgment in her "civil action ... for review of agency action" are often completely dependent on the successful completion of the remand proceedings before the Secretary. Moreover, the remanding court continues to retain jurisdiction over the action within the meaning of the EAJA, and may exercise that jurisdiction to determine if its legal instructions on remand have been followed by the Secretary.

In Sullivan v. Finkelstein, 496 U.S. 617, 110 S.Ct. 2658, 110 L.Ed.2d 563 (1990), however, the Court explained the difference between the "sentence four" and the "sentence six" remands for purposes of appeal. The Court concluded that sentence four remands were immediately appealable, but sentence six remands were not. The decision was not in contravention of Hudson because in Hudson the administrative proceedings on remand were "part and parcel" of the civil lawsuit — the sentence six situation. 496 U.S. at 629-31, 110 S.Ct. at 2666-67.

Then came Melkonyan, in which the Court concluded that in sentence four remand cases, the time for filing EAJA requests begins after the final judgment ("affirming, modifying, or reversing") is entered and the appeal period has run, while in sentence six cases, the filing period does not begin until after the postremand proceedings are complete, the district court enters a final judgment, and the appeal period runs. After Melkonyan, in sentence four cases, the activity for which a party may recover attorney fees and expenses under the EAJA is the district court proceeding. Melkonyan thus directs that the Hudson decision applies only to sentence six remands:

The issue in Hudson was whether, under § 2412(d), a "civil action" could include administrative proceedings so that a claimant could receive attorney's fees for work done at the administrative level following a remand by the District Court. We explained that certain administrative proceedings are "so intimately connected with judicial proceedings as to be considered part of the `civil action' for purposes of a fee award." Id. at 892, 109 S.Ct., at 2258. We defined the narrow class of qualifying administrative proceedings to be those "where `a suit has been brought in a court,' and where `a formal complaint within the jurisdiction of a court of law' remains pending and depends for its resolution upon the outcome of the administrative proceedings." Ibid. (emphasis added).... "We did not say that proceedings on remand to an agency are `part and parcel' of a civil action in federal district court for all purposes. ..." Sullivan v. Finkelstein, supra, 496 U.S., at 629, 110 S.Ct. at 2666-2667.

___ U.S. at ___, 111 S.Ct. at 2162. Other district courts have agreed that Melkonyan limits Hudson to sentence six remands. See, e.g., Lopez v. Sullivan, 780 F.Supp. 496, 501 (N.D.Ill.1991); Wilson v. Sullivan, 751 F.Supp. 1281, 1285 and n. 2 (N.D.Ill.1990). Melkonyan made it clear that a sentence four remand is a final judgment ending the civil litigation and triggering the EAJA filing period. Id. at 2165. A final judgment is just that — final; nothing further will happen to determine who wins or who loses. The prevailing party is determinable at that time.

My decision that Ms. Magray is a prevailing party does not contravene the prior case law cited by the government. Singleton v. Bowen, 841 F.2d 710 (7th Cir.1988), a case which clearly states that "a Social Security claimant does not become a `prevailing party' within the reach of the EAJA when the claimant obtains a remand from a district court," is inapplicable, as it seems to describe a sentence six situation³ and, in any event, was written at least 2 years before the sentence four versus sentence six issue ever became important through Finkelstein and Melkonyan. Since no one, including the Seventh Circuit, was omniscient enough to take the distinction into account at that time, Singleton is of no help today; it is no longer controlling. See Thomas for Brown v. Sullivan, 785 F.Supp. 788 (C.D.Ill.1992) (Singleton is no longer valid in light of Melkonyan); Boss v. Sullivan, 1991 WL 286306 (N.D.Ill.1991) (Melkonyan overruled Singleton); Lopez, 780 F.Supp. at 503 n. 8 (N.D.Ill.1991) (Melkonyan overruled the clear precedent of Singleton); Butts v. Bowen, 775 F.Supp. 1167, 1171 (N.D.Ill.1991).⁴

Chief Judge Michael M. Mihm of the Central District of Illinois discussed this very issue in dicta before finding that Melkonyan had no retroactive effect. Our positions are concurrent:

In discussing the appropriate timing for an EAJA petition, the Supreme Court in Melkonyan stated that in a sentence four remand, the plaintiff should apply for fees within 30 days of that judgment becoming final, without mentioning that such application would be premature because of the absence of prevailing party status. ___ U.S. at ___, 111 S.Ct. at 2165. It would be most difficult to imagine that the Supreme Court would prescribe a filing period of 30 days after the remand order becoming final if an application so timed would be inevitably doomed for lack of "prevailing party" status.

Indeed, if Singleton and Hendricks 847 F.2d 1255 (7th Cir.1988) were still considered to be good law after Melkonyan, a social security plaintiff who obtains a sentence four remand would almost never be able to secure EAJA fees. If the plaintiff filed for fees within 30 days of the final judgment as required by Melkonyan, the Secretary would oppose the motion on the grounds that it is premature for lack of prevailing party status. If, on the other hand, the plaintiff waited for fees until benefits were awarded on remand, the Secretary would oppose the motion on the grounds that it was filed too late in the light of the dictates of Melkonyan. For these reasons, it seems clear that the Supreme Court in Melkonyan believed that a claimant who obtains a sentence four remand is at that point a prevailing party and entitled to apply for EAJA fees.

Thomas, 785 F.Supp. at 791-92. See also Audette v. Secretary of HHS, 776 F.Supp. 84, 91 (D.R.I.1991) ("The point in Melkonyan, however, is that a sentence four remand ... does make a claimant a prevailing party. Under a sentence six remand, the traditional notion of prevailing party remains the same."); see also Sesker v. Sullivan, 779 F.Supp. 1042, 1044 (W.D.Mo. 1991) ("plaintiff is a prevailing party because he won the relief he requested, a remand").

Several other factors also point to the conclusion that in winning a sentence four remand, Ms. Magray became a prevailing party. As I noted in my June 9 order, subsection (a) of section 2412 indicates that "prevailing party" means that party prevailing in the civil action brought by or against the United States. If a final judgment has been...