Misciagno v. Secretary of DHHS, CV-90-1504.

• Decision Date: 13 March 1992
• Docket Number: No. CV-90-1504.,CV-90-1504.
• Citation: 786 F. Supp. 1120
• Parties: Philip MISCIAGNO, Plaintiff, v. SECRETARY OF the DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.
• Court: U.S. District Court — Eastern District of New York

786 F. Supp. 1120

Philip MISCIAGNO, Plaintiff, v. SECRETARY OF the DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.

No. CV-90-1504.

United States District Court, E.D. New York.

March 13, 1992.

Kathleen A. Sullivan, Brooklyn Legal Services Corp., Brooklyn, N.Y., for plaintiff.

Andrew J. Maloney, U.S. Atty., E.D.N.Y. by Hilary Firestone, Asst. U.S. Atty., Brooklyn, N.Y., for defendant.

MEMORANDUM AND ORDER

SIFTON, District Judge.

This matter is currently before the Court on plaintiff's motion pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d)(1)(B), for reasonable attorney's fees as the prevailing party in a case against the Secretary of the Department of Health and Human Services.

For the reasons discussed below, this Court finds the motion premature. Under the analysis set forth in Melkonyan v. Sullivan, ___ U.S. ___, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991), which must be applied retroactively to this case under James B. Beam Distilling Co. v. Georgia, ___ U.S. ___, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991), this case is appropriately viewed as remanded to the Secretary under sentence six of 42 U.S.C. § 405(g). The judgment entered herein on April 16, 1991, is vacated pursuant to Fed.Rules Civ.Proc.Rule 60(b) to reflect that the case was remanded to the Secretary to receive additional evidence as to onset date which the Secretary had no cause to receive earlier and, upon determining the onset date, to calculate benefits. Final judgment is directed to be entered against the Secretary and in favor of the plaintiffs in the amount of $28,544.33.

Plaintiff is given leave to refile his motion for EAJA fees following remand after any appeal of this judgment or when this judgment is no longer appealable.

The following facts, except where expressly noted, are not disputed. On May 19, 1982, Philip Misciagno filed an application for disability and Supplemental Security Income Benefits. The Secretary denied the application after a hearing before Administrative Law Judge ("ALJ") Sugarman on the ground that plaintiff was not disabled. On July 25, 1984, this Court remanded the case. A second hearing was held before ALJ Sugarman on February 6, 1985, in which plaintiff was again denied benefits on the ground that he was not disabled.

On November 30, 1987, this Court again remanded the case to the HHS. On remand the ALJ was ordered to consider a psychiatric evaluation of claimant and to apply the "treating physician rule." Schisler v. Heckler, 787 F.2d 76 (2d Cir.1986). A third hearing was held before ALJ Sugarman on January 25, 1989. The ALJ denied benefits since he found that plaintiff could perform light work as defined by the residual functional capacity guidelines. The Appeals Council denied review.

The decision of the Secretary was appealed to this Court. On April 16, 1991, this Court determined that the Secretary had again followed incorrect procedure. In view of the procedural history, this Court also stated that it was inappropriate to give the Secretary yet another chance to correct his errors. Plaintiffs Exh. B. This Court, therefore, issued a Decision and Order on April 16, 1991 ("the Order"), which stated:

"For the reasons set forth on the record in open Court this day, the decision of the Secretary of the Department of Health and Human Services is hereby reversed, and the matter is hereby remanded for the calculation of benefits."

Pl.Exh. A. That Decision and Order was not appealed.

On remand, since the onset date of plaintiff's disability had never been determined, the Secretary took evidence from the plaintiff on this subject as well as considering evidence already in the record. Based on this evidence, an onset date of December 1982 was established. On October 7, 1991, plaintiff was advised that this entitled him to approximately $23,000 in retroactive benefits. After challenge relating to the calculation, this amount was recalculated at $28,544.33.

Plaintiff argues that no "final judgment" should have been entered in this case. Defendant argues that final judgment was entered by the remand order and that the application is both time barred and without merit.

DISCUSSION

EAJA claims must be filed within 30 days of "final judgment in the action." 28 U.S.C. § 2412(d)(1)(B). A "`final judgment' means a judgment that is final and not appealable." 28 U.S.C. § 2312(d)(2)(G).

The Supreme Court parsed the provisions allowing remand of HHS cases by district courts for further administrative procedures in Sullivan v. Finkelstein, 496 U.S. 617, 110 S.Ct. 2658, 110 L.Ed.2d 563 (1990), and Melkonyan v. Sullivan, ___ U.S. ___, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991). Under these cases only two types of remands exist, those under the fourth and sixth sentences of 42 U.S.C. § 405(g). Melkonyan, 111 S.Ct. at 2164.

The language of the statute reads:

"The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. sentence four.... The court may, on motion of the Secretary made for good cause shown before he files his answer, remand the case to the Secretary for further action by the Secretary, and it may at any time order additional evidence to be taken before the Secretary, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding. sentence six."

42 U.S.C. § 405(g).

Plaintiff concedes sub silentio that the April 16, 1991 Order in this case was by its terms a sentence four remand. The order reversed the Secretary's decision. It gave the Secretary no discretion to decide if plaintiff was entitled to benefits; it did not direct the consideration of additional evidence; it merely remanded the case for benefit calculation. Id. at 2164; Finkelstein, 110 S.Ct. at 2663-66.

Under Melkonyan, such a district court order is a "final judgment" which begins the time period for motions for EAJA attorney's fees. The thirty days runs from the end of the Secretary's sixty-day period for appealing this order. Therefore, the successful plaintiff's attorney has ninety days to seek fees after the district court enters a sentence four remand. Melkonyan, 111 S.Ct. at 2165. This time limitation is jurisdictional. Long Island Radio Co. v. NLRB, 841 F.2d 474, 477 (2d Cir.1988).

Under a sentence six remand, the time to file EAJA petitions is measured from the court order entered upon the Secretary's revised final decision. Melkonyan, 111 S.Ct. at 2165.

By his reply brief, plaintiff seeks to be relieved of the April 16 judgment pursuant to Fed.Rules Civ.Proc.Rule 60(b) based on the peculiar circumstances of this case and the legal developments that have occurred since the April 16 remand. He argues that surprise concerning the legal developments which are detailed below, coupled with the absence of prejudice to the Secretary since the Secretary has proceeded as though the judgment was a sentence six remand, justifies a modification of the April 16 judgment rendering it non-final for purposes of his EAJA fee application and authorizing consideration in the future of his entitlement to an EAJA award.

This argument at the least correctly presents the problem. The central issue is the nature of the April 16 Order. If it was a sentence four remand, as it appears to be on its face, under Melkonyan the motion is time barred. The only issue becomes whether Melkonyan is retroactive. If it was or should have been a sentence six remand, the time to file under the Melkonyan rule has not yet begun.

The first issue is whether Melkonyan is retroactive. Plaintiff argues that it is not retroactive because Sullivan v. Hudson, 490 U.S. 877, 109 S.Ct. 2248, 104 L.Ed.2d 941 (1989), recognized that a remanding district court could retain jurisdiction over an HHS case. This argument was considered and rejected by the Supreme Court, Melkonyan, 111 S.Ct. at 2162, and, in any event, has nothing to do with the retroactive effect of Melkonyan.

The question is whether the rule of Melkonyan is retroactive under the general rules for deciding retroactivity. Under the Supreme Court's most recent decision on this issue, Melkonyan is retroactive. James B. Beam Distilling Co. v. Georgia, ___ U.S. ___, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991).

Several courts considering the question recently have held Melkonyan to be prospective after analyzing the factors for determining retroactivity discussed in Chevron Oil Co. v. Hudson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). See, e.g., Sargent v. Sullivan, 1991 WL 160091, 1991 U.S.App. LEXIS 19457 (4th Cir.1991) (unpublished decision) 941 F.2d 1207 (table); Rogers v. Sullivan, 1991 WL 274446 (N.D.Ill. Dec. 13, 1991); Brown v. Sullivan, 1991 WL 225012, 1991 U.S.Dist. LEXIS 1553 (E.D.Pa. Oct. 29, 1991); Miller v. Sullivan, 1991 WL 165067, 1991 U.S.Dist. LEXIS 11919 (E.D.Pa. Aug. 23, 1991). However, these cases fail to deal with Beam.

Under Beam, if, in announcing a "new" rule of law (even if this rule could qualify under Chevron for prospective application), the rule-announcing court applies the rule to the case at bar retroactively, then all cases must apply the rule retroactively unless barred by res judicata or procedural requirements. Beam, 111 S.Ct. at 2448.

Therefore, if Melkonyan both announced and used the rule making the instant motion untimely, this rule is retroactive.

Several courts have so found. Adair v. Sullivan, 1991 WL 274236 (D.N.J. Nov. 1, 1991); Audette v. Secretary, 776 F.Supp. 84 (D.R.I.1991); Fergason v. Sullivan, 771 F.Supp. 1008, (W.D.Mo.1991). At least one court has stated, however, that the language on sentence four remands was merely dicta, so that prospective application has not yet been foreclosed. Butts v. Bowen, 775 F.Supp. 1167 (N.D.Ill.1991).

The Supreme Court in Melkonyan remanded the...