Pettyjohn v. Sullivan

• Decision Date: 22 September 1992
• Docket Number: No. CIV-89-907-C.,CIV-89-907-C.
• Citation: 801 F. Supp. 503
• Parties: Steven PETTYJOHN, Plaintiff, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Western District of Oklahoma

801 F. Supp. 503

Steven PETTYJOHN, Plaintiff, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant.

No. CIV-89-907-C.

United States District Court, W.D. Oklahoma.

September 22, 1992.

Judy A. Endicott Newbold, Stillwater, Okl., for plaintiff.

Joe Heaton, Acting U.S. Atty., M. Kent Anderson, Asst. U.S. Atty., Oklahoma City, Okl., for defendant.

MEMORANDUM OPINION AND ORDER

CAUTHRON, District Judge.

At issue is plaintiff's appeal from the July 27, 1992, decision of United States Magistrate Judge Ronald L. Howland denying plaintiff's application for fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. The government opposed plaintiff's request for fees, filing a brief in opposition to the fee application, but has not responded to the instant appeal. After de novo review of the record, this Court affirms the Magistrate Judge's decision, and denies the instant "appeal."

I. Referral and Standard of Review

Plaintiff's application for fees was referred to Magistrate Judge Howland on June 25, 1992, pursuant to a standard form order used by this Court, which stated the referral was "pursuant to 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); and W.D.Okla.R. 39(B)(2)." Section 636(b)(1)(A) authorizes the district court to "designate a magistrate to hear and determine any pretrial matter" except certain dispositive motions, and provides that the resulting magistrate's order may be reconsidered only "where it has been shown to be clearly erroneous or contrary to law." (Emphasis added.) Fed.R.Civ.P. 72(a) regards referral of "pretrial matters not dispositive of a claim or defense." (Emphasis added.) Local Rule 39(B)(2) regards referral of "pretrial matters ... as authorized by 28 U.S.C. § 636(b)(1)(A)." (Emphasis added.)

A post-trial attorney fee application does not appear to be, by definition, a pretrial matter. See Paris v. United States Dep't of Housing & Urban Dev., 795 F.Supp. 513, 516 (D.R.I.1992) (attorney fee application made after conclusion of litigation "cannot be described as a pretrial matter"). Except for fee applications related to discovery disputes or rule violation matters, see Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1465 (10th Cir.1988), attorney fee questions are almost always a post-trial proceeding. See also Paris, 795 F.Supp. at 516. Whether attorney fee applications are analogous to the pretrial motions contemplated by § 636(b)(1)(A) so as to make them reviewable under the clearly erroneous standard is an unanswered question in the Tenth Circuit.

The First Circuit writes that a "pretrial matter within the magistrate's jurisdiction would ... be a matter unconnected to the issues at trial and not defined with respect to the time of the trial." United States v. Flaherty, 668 F.2d 566, 586 (1st Cir.1981) (referring to Fed.R.Crim.P. 12(b)). Although mentioned in a criminal case context, the definition appears applicable to both criminal and civil cases, and would encompass post-trial attorney fee applications. On the other hand, the district court in Paris observed that "a petition for attorneys' fees closely resembles dispositive motions because it requires an adjudication as to whether ... monetary relief should be awarded." Paris, 795 F.Supp. at 516. The Paris court's comparison of such motions to dispositive motions was necessary because the matters proper for referral to a Magistrate Judge under § 636(b)(1)(A) are generally considered nondispositive. Federal Rules of Civil Procedure Rule 72 is divided into paragraphs by dispositive and nondispositive matters. The early drafts of § 636(b)(1)(A) distinguished between dispositive and non-dispositive motions before later revisions substituted several specifically identified motions as excepted from the scope of pretrial matter referrals. See 7 — Pt. 2 James W. Moore Moore's Federal Practice ¶ 72.023 (2d ed. 1992).

It can be argued that if post-trial attorney fee applications are dispositive in nature, then they are not within the scope of motions properly referred to a Magistrate Judge under § 636(b)(1)(A). In West v. Redman, 530 F.Supp. 546, 548 (D.Del. 1982), the district court found that the determination of attorney fees was so essential to the complete resolution of the underlying action that it required de novo review under § 636(b)(1)(B). Obviously, it follows that the court did not consider the attorney fee application as a "pretrial matter" falling under the umbrella of § 636(b)(1)(A). Such a conclusion is completely logical. Post-trial attorney fee applications are dependent on the outcome of trial, and often result in the prevailing party obtaining even more monetary relief. In some cases, such as civil rights violations where only nominal damages have been awarded, the post-trial attorney fee matter is the most significant aspect of the entire case.

There is authority to the contrary, however. In Johnson v. Old World Craftsmen, Ltd., 638 F.Supp. 289, 291 (N.D.Ill. 1986), the court held that a motion for attorney fees was a pretrial matter because it was not related to the issues at trial and did not affect the parties' substantive rights.¹ Moore writes that "the logic of section 636(b)(1) is that any motion not reserved therein as requiring the recommendation procedure should be considered `nondispositive' and hence subject to final determination by a Magistrate Judge...." 7 — Pt. 2 James W. Moore et al. Moore's Federal Practice ¶ 72.023, at 72-17 (2d ed. 1992). Granted, a post-trial attorney fee motion is plainly not one "reserved" from the provisions of § 636(b)(1), and under Moore's reasoning, would be a matter proper for referral under § 636(b)(1).

After considering these conflicting authorities, this Court believes that attorney fees matters are more appropriately categorized as analogous to a dispositive motion, for essentially the reasons explained above and reiterated in Paris. Accordingly, reference of such motions to the Magistrate Judges is more appropriately accomplished pursuant to 28 U.S.C. § 636(b)(3), which provides that "a magistrate may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States."

Although § 636(b)(3) carries no statutorily defined standard of review, as do §§ 636(b)(1)(A) and (b)(1)(B), it is clear that when a Magistrate Judge's decision rendered under § 636(b)(3) is objected to, is it accorded a de novo standard of review. See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir.1991) ("de novo review is statutorily and constitutionally required when written objections" are filed); Colorado Bldg. & Constr. Trades Council v. B.B. Andersen Constr. Co., 879 F.2d 809, 811 (10th Cir.1989) (decisions rendered under § 636(b)(3) are "subject to the inherent supervisory power of the district judge and the judge retains the `ultimate responsibility for the decision making in every instance,'" (quoting Harding v. Kurco, Inc., 603 F.2d 813, 814 (10th Cir.1979)) (in turn quoting Mathews v. Weber, 423 U.S. 261, 270, 96 S.Ct. 549, 554, 46 L.Ed.2d 483 (1976)); Paris, 795 F.Supp. at 516 (attorney fees and costs are proper matter for referral to Magistrate Judge under § 636(b)(3); district court's review is de novo).

To summarize, the Court finds the referral of the attorney fee application in the instant case should have been made under § 636(b)(3). Henceforth in this Court, referrals of post-trial attorney fee applications will be pursuant to § 636(b)(3), and the Magistrate Judges' recommendations will be afforded a de novo review upon timely objection. The Court now proceeds to a de novo review of the record pursuant to the appeal lodged by plaintiff to the Magistrate Judge's denial of attorney fees.

II. EAJA Application

Plaintiff's application for social security benefits was denied by the Secretary of Health and Human Services. Plaintiff instituted this suit on May 22, 1989, challenging the Secretary's decision. On November 30, 1989, this Court entered a "Memorandum Opinion" reversing the Secretary's decision and remanding the matter to the Secretary for further consideration. Specifically, the Memorandum Opinion states:

the Court finds insubstantial evidence to support the Secretary's decision that plaintiff cannot perform his past work as a janitor or a cook's helper, although this reversal of the agency's decision does not resolve the issue regarding plaintiff's ability to perform work in the national economy.

Memorandum Opinion at 17 (Nov. 30, 1989) (emphasis added). A "judgment" was entered contemporaneously with the Memorandum Opinion.

Following remand, the Secretary ultimately awarded plaintiff benefits. The appeals council left the decision intact, and sixty days later it became a final decision as it was then unappealable. Plaintiff then filed an application for attorney fees pursuant to the EAJA, asserting the application was timely filed within thirty days of the finality of the Secretary's decision. The government objected to the application, contending it should have been filed within thirty days of the finality of the November 30, 1989, district court order. The Magistrate Judge agreed and issued an order denying the application.

In this appeal, plaintiff contends that pursuant to Melkonyan v. Sullivan, 501 U.S. ___, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991), and Gutierrez v. Sullivan, 953 F.2d 579 (10th Cir.1992), petition for cert. filed, (U.S. Aug. 26, 1992), the fee application was timely and therefore the Magistrate Judge's decision was in error. The Court disagrees.

In Melkonyan, Justice O'Connor wrote for a unanimous Court that under 42 U.S.C. § 405(g), district court remands of the Secretary's decisions are of two types — the so-called fourth sentence and sixth sentence remands.² 501 U.S. at ___, 111 S.Ct. at 2163. A fourth sentence remand authorizes the district court to "enter `a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding...