Sargent v. Sullivan

• Decision Date: 22 August 1991
• Docket Number: No. 90-1521,90-1521
• Citation: 941 F.2d 1207
• Parties: 2 NDLR P 63 NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Carl Ray SARGENT, Plaintiff-Appellant, v. Louis W. SULLIVAN, Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1207

941 F.2d 1207

2 NDLR P 63

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Carl Ray SARGENT, Plaintiff-Appellant, v. Louis W. SULLIVAN, Secretary of Health and Human Services Defendant-Appellee.

No. 90-1521.

United States Court of Appeals, Fourth Circuit.

Argued March 5, 1991.

Decided Aug. 22, 1991.

Appeal from the United States District Court for the District of South Carolina, at Charleston. Sol Blatt, Jr., Senior District Judge. (CA-87-1084-8J)

Constantine S. Christophillis, Jr., Culbertson, Christophillis & Sauvain, Greenville, S.C., for appellant.

Ronald Lamar Paxton, Assistant Regional Counsel, Department of Health and Human Services, Atlanta, Ga., (Argued), for appellee; Bruce R. Granger, Chief Counsel, Region IV, Mack A. Davis, Deputy Chief Counsel for Social Security Litigation and Programs, Mary Ann Sloan, Principal Regional Counsel for Social Security Disability Litigation, Haila Naomi Kleinman, Supervisory Assistant Regional Counsel, Christine Bradfield, Assistant Regional Counsel, Department of Health and Human Services, Atlanta, Ga., Stuart M. Gerson, Assistant Attorney General, United States Department of Justice, Washington, D.C., E. Bart Daniel, United States Attorney, Columbia, S.C., on brief.

D.S.C., 739 F.Supp. 1067.

REVERSED AND REMANDED.

Before SPROUSE, Circuit Judge, JAMES C. HILL, Senior Circuit Judge of the United States Court of Appeals for the Eleventh Circuit, sitting by designation, and HIRAM H. WARD, Senior United States District Judge for the Middle District of North Carolina, sitting by designation.

OPINION

PER CURIAM:

Carl Ray Sargent appeals a denial of attorney's fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. Sargent filed his application for fees thirty two days after the District Court entered final judgment in the matter. It was therefore deemed to have been untimely filed. We reverse.

I.

On August 20, 1984, Appellant Carl Ray Sargent applied for social security disability and supplemental security income benefits. After lengthy administrative proceedings, the Administrative Law Judge (ALJ) denied Sargent benefits. This determination became the final decision of the Secretary of Health and Human Services by action of the Social Security Appeals Council on March 4, 1987. Sargent then initiated a civil action in the United States District Court for the District of South Carolina to obtain judicial review of the denial as provided by 42 U.S.C. §§ 405(g) and 1383(c)(3).

On May 11, 1988, the Magistrate Judge remanded the action to the Secretary for further administrative proceedings, having found a lack of substantial evidence supporting the ALJ's decision. Thereafter, on September 19, 1988, the Appeals Council issued its decision finding Sargent disabled and fully entitled to benefits as of June 30, 1982. On April 10, 1989, upon motion of Sargent and with consent of the Secretary, the District Court issued an order entering final judgment in favor of Sargent under the authority of Guthrie v. Schweiker, 718 F.2d 104 (4th Cir.1983).

On May 12, 1989, 32 days after entry of the District Court's judgment, but 30 days after his receipt of it through the mail, Sargent filed his Motion for Attorney's Fees and Costs Pursuant to the EAJA. The Secretary then filed a Motion to Dismiss Sargent's EAJA application on the grounds that it was not timely filed. Sargent responded that the order of April 10 was an appealable order, not a "final" one, giving him a total of 90 days from the date of the order to file his EAJA application. Additionally, Sargent argued that even if the April 10 judgment was not appealable, Rule 6(e) of the Federal Rules of Civil Procedure would add three additional days to the 30-day prescribed period under the EAJA to effectuate service by mail.

On December 25, 1989, the Magistrate Judge recommended that Sargent be awarded attorney's fees and costs. He held that the District Court's order of April 10, 1989, was a final judgment under the EAJA, which started the 30-day time limit for filing his petition from that date. The Magistrate Judge further held that Rule 6(e) operated to give Sargent three additional days in which to file his petition. Because Sargent filed it within 33 days after April 10, the petition was timely.

The Secretary objected to the portion of the Magistrate's recommendation which held that Rule 6(e) applied, but not to any other aspects of the recommendation, including the amount of fees awarded. ¹ On July 11, 1990, the District Court denied Sargent's EAJA application. Judge Blatt held that while the order of April 10 was indeed a final judgment, Rule 6(e) would not extend the filing time because the 30-day limit of the EAJA was to be strictly construed. Therefore, Sargent's application was untimely. Sargent appeals.

II.

The sole issue on appeal is whether Sargent's application for fees under the EAJA was timely. To support his contention that it was, Sargent makes two arguments. First, that the April 10 order was a "final judgment" within the meaning of the EAJA; and second, in the alternative, that Rule 6(e) of the Federal Rules of Civil Procedure operated to extend the 30-day limit for filing a petition for fees and costs under the EAJA.

The Supreme Court recently cleared the confusion among the Circuits concerning the meaning of a "final judgment" under the EAJA. 28 U.S.C. § 2412(d)(2)(G). In Melkonyan v. Sullivan, 59 U.S.L.W. 4612 (U.S. June 10, 1991), vacating and remanding 895 F.2d 556 (9th Cir.1990), the Court unanimously held that "a 'final judgment' for purposes of 28 U.S.C. § 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." Id. at 4614. This recognition that a "final judgment" must be issued in the court before which the civil action is pending is consistent with our holding in Guthrie v. Schweiker, 718 F.2d 104 (4th Cir.1983). A difference in Melkonyan from our holding in Guthrie, however, is that the 30-day time period begins to run only after the time to appeal the District Court's final judgment has expired.

Melkonyan further clarified the Court's holding in Sullivan v. Finkelstein, 110 L.Ed.2d 563, 110 S.Ct. 2658 (1990), by stating that under 42 U.S.C. § 405(g), only two types of remand are permitted: a sentence four remand and a sentence six remand. ² Melkonyan, 59 U.S.L.W. at 4615. In Melkonyan, the Court stated that in § 405(g) actions, such as the one currently before this Court, "remand orders must either accompany a final judgment affirming, modifying, or reversing the administrative decision in accordance with sentence four, or conform with the requirements outlined by Congress in sentence six." Id. at 4616.

This distinction is important because "[i]n sentence four cases, the filing period begins after the final judgment is entered by the court and the appeal period has run ..." and "[i]n sentence six cases, the filing period does not begin until after the post-remand proceedings are completed, the Secretary returns to court, the court enters a final judgment, and the appeal period runs." Melkonyan, 59 U.S.L.W. at 4616.

In this case, it seems clear that the initial remand to the Secretary by the Magistrate Judge on May 11, 1988 was not a sentence four remand. The Magistrate Judge's order did not affirm, modify, or reverse the Secretary's decision. Nor can the Magistrate Judge's Order of May 11, 1988 be rightly construed as a "judgment" under sentence four. Rather, the Magistrate Judge simply found that there was not substantial evidence to support the ALJ's findings, and remanded the action with instructions to consider additional evidence. In light of this, it could be argued that a sentence six remand was intended. However, Melkonyan instructs that a district court may remand under sentence six of § 405(g) "in light of additional evidence ... only if the claimant shows good cause for failing to present the evidence earlier." Id. at 4615.

In this case, as in Melkonyan, the Court below did not make a finding that Sargent had shown "good cause." Neither, apparently, did the Magistrate Judge examine new evidence. Rather, he found that the Secretary had incorrectly applied the relevant regulations and had failed to make certain evaluations based on the evidence in the record. It seems, then, that the requirements for a sentence six remand were not met. This particular remand does not fit within either of the two remands held acceptable under Finkelstein and Melkonyan.

For guidance then, we look to Myers v. Sullivan, 916 F.2d 659 (11th Cir.1990), where the Eleventh Circuit was faced with a similar remand problem. ³ Here, as in three of the four consolidated cases in Myers, the Magistrate Judge remanded to the Secretary for further consideration on the basis that there was not substantial evidence in the record to support the Secretary's decision. In Myers, the remands took place prior to the Supreme Court's decision in Finkelstein. The Eleventh Circuit, applying the three part test set out in Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), held that Finkelstein should not be applied retroactively to the cases in Myers. The Myers Court emphasized the Congressional intent that courts should "avoid an overly technical construction" of the timeliness requirement in order not to use this section "as a trap for the unwary resulting in the unwarranted denial of fees." Myers, 916 F.2d at 671 (quoting H.R.Rep. No. 120, 99th Cong., 1st Sess. 18 n. 26, reprinted in 1985 U.S.Code Cong. & Admin.News 132, 146 n. 26). Although the general rule is to apply such decisions retroactively, we find the reasoning of Myers...