Curtis v . HHS CV-92-476-JD 04/26/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Susan Curtis
v. Civil N o . 91-476-JD
Secretary, Health & Human Services
O R D E R
The plaintiff, Susan Curtis, moves the court for an award of attorney's fees and costs (document n o . 19) under the Equal Access to Justice Act (EAJA), codified at 5 U.S.C. § 5 0 4 , 28 U.S.C. § 2412, in the amount of $9,231.141 plus $166.00 in filing fees and marshal's service costs incurred in the filing of her appeal from the denial of her social security disability claim by the defendant, the Secretary of Health and Human Services ("Secretary"). The Secretary requests the court to deny the plaintiff's motion to the extent the plaintiff seeks an award of attorney's fees for services rendered in administrative proceedings following the sentence four remand. Defendant's Memorandum in Opposition to Plaintiff's Motion for EAJA Fees ("Defendant's Memorandum") at 2-8. Specifically, the Secretary
1 This amount represents 78.23 hours counsel has expended representing Mrs. Curtis in her federal court appeal and remand proceedings at a rate of $118 per hour. contends the plaintiff's award should be limited to $4,8382 in
attorney's fees plus $166 in costs. Defendant's Memorandum at 8 .
Background
In its order of November 3 0 , 1992 (document n o . 9 ) , the court remanded the plaintiff's social security disability claim to the Secretary for further administrative proceedings pursuant to sentence four of section 205(g) of the Social Security Act, codified at 42 U.S.C. § 405(g). On December 1 1 , 1992, the defendant moved for reconsideration of the November 3 0 , 1992, order. Defendant's Motion for Reconsideration of the Court's November 3 0 , 1992 Order (document n o . 1 2 ) . The court denied this motion in its order of January 6, 1993 (document n o . 1 4 ) . Following a further hearing before the administrative law judge (ALJ) responsible for the initial decision, the ALJ reaffirmed his previous denial of the plaintiff's claim on August 1 2 , 1993. Subsequently, the plaintiff filed an appeal with the Appeals Council which issued a favorable decision for the plaintiff on August 8 , 1994.
On December 1 2 , 1994, the court granted the plaintiff's requests (1) "that the Secretary be ordered to prepare a
2 This amount represents 30.75 hours of service between August 1 2 , 1991, and December 2 , 1992, the date plaintiff's counsel received the court's order of November 3 0 , 1992, plus 10.25 hours spent on the preparation of the fee petition, at a rate of $118 per hour.
2 supplemental transcript with all proceedings copied and
transcribed which have occurred since the Appeals Council
decision of August 8 , 1994," Motion to Reopen (document n o . 16)
at 3 , and (2) that the court "[i]ssue a final judgment pursuant
to 42 U.S.C. § 405(g), fourth sentence so all appropriate fee
motions under 42 U.S.C. § 406(b) and Equal Access to Justice Act
may be filed." Id. On December 1 3 , 1994, the clerk entered
judgment in accordance with the court's December 1 2 , 1994, order.
The plaintiff's motion for EAJA fees followed on January 1 1 ,
1995.
Discussion
The plaintiff contends that under Sullivan v . Hudson, 490
U.S. 877 (1989), she is entitled to fees incurred during the
post-remand administrative proceedings. Plaintiff's Motion for
EAJA Fees ("Plaintiff's Motion") at 3-6. The defendant argues
that under Shalala v . Schaefer, 113 S . C t . 2625 (1993) (decided
on June 2 4 , 1993) the plaintiff cannot be awarded EAJA fees for
services rendered in administrative proceedings. Defendant's
Memorandum at 2-8. In response, the plaintiff argues that the
court "should not apply Schaefer retroactively because it would
be inequitable to the Plaintiff." Plaintiff's Motion, ¶ 2 4 .
Because the court finds that Shalala v . Schaefer does not alter
the plaintiff's rights with respect to fees incurred during the
post-remand administrative proceedings, the court does not
address the retroactivity issue.
3 The EAJA provides in pertinent part that [a] party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive an award under this subsection . . . .
28 U.S.C. § 2412(d)(1)(B).
In Sullivan v . Hudson, 490 U.S. 8 7 7 , the Court acknowledged
that under the EAJA certain "administrative proceedings may be so
intimately connected with judicial proceedings as to be
considered part of the 'civil action' for purposes of a fee
award." Id., 490 U.S. at 892. The Court further stated,
where a court orders a remand to the Secretary in a benefits litigation and retains continuing jurisdiction over the case pending a decision from the Secretary which will determine the claimant's entitlement to benefits, the proceedings on remand are an integral part of the 'civil action' for judicial review, and thus attorney's fees for representation on remand are available subject to the other limitations of the EAJA.
Hudson, 490 U.S. at 892.
In Shalala v . Schaefer the Court held that a sentence four
remand constitutes a final judgment under section 2412(d), 113 S . C t . at 2628, and that a claimant who obtains a favorable judgment
under sentence four is a prevailing party under section 2412(d),
id. at 2631-32. The Court also held that when a district court
remands a case pursuant to sentence four, the court must enter
judgment immediately rather than retaining jurisdiction and
entering judgment following post-remand administrative
4 proceedings. Id. at 2629. However, the Court determined that
when a district court fails to enter judgment upon ordering a
sentence four remand, the 30-day time period does not begin to
run until a formal judgment is entered in compliance with Fed. R.
Civ. P. 58 which "requires a district court to set forth every
judgment 'on a separate document' and provides that '[a] judgment
is effective only when so set forth.'" Id. at 2632 (quoting Fed.
R. Civ. P. 5 8 ) .
Additionally, with regard to Sullivan v . Hudson, 490 U.S.
877, the Court in Schaefer observed, We specifically noted in Melkonyan [v. Sullivan, 501 U.S. 89 (1991)] that Hudson was limited to a "narrow class of qualifying administrative proceedings" where "the district court retains jurisdiction of the civil action" pending the completion of the administrative proceedings. . . . 111 S . Ct., at 2162.
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Curtis v . HHS CV-92-476-JD 04/26/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Susan Curtis
v. Civil N o . 91-476-JD
Secretary, Health & Human Services
O R D E R
The plaintiff, Susan Curtis, moves the court for an award of attorney's fees and costs (document n o . 19) under the Equal Access to Justice Act (EAJA), codified at 5 U.S.C. § 5 0 4 , 28 U.S.C. § 2412, in the amount of $9,231.141 plus $166.00 in filing fees and marshal's service costs incurred in the filing of her appeal from the denial of her social security disability claim by the defendant, the Secretary of Health and Human Services ("Secretary"). The Secretary requests the court to deny the plaintiff's motion to the extent the plaintiff seeks an award of attorney's fees for services rendered in administrative proceedings following the sentence four remand. Defendant's Memorandum in Opposition to Plaintiff's Motion for EAJA Fees ("Defendant's Memorandum") at 2-8. Specifically, the Secretary
1 This amount represents 78.23 hours counsel has expended representing Mrs. Curtis in her federal court appeal and remand proceedings at a rate of $118 per hour. contends the plaintiff's award should be limited to $4,8382 in
attorney's fees plus $166 in costs. Defendant's Memorandum at 8 .
Background
In its order of November 3 0 , 1992 (document n o . 9 ) , the court remanded the plaintiff's social security disability claim to the Secretary for further administrative proceedings pursuant to sentence four of section 205(g) of the Social Security Act, codified at 42 U.S.C. § 405(g). On December 1 1 , 1992, the defendant moved for reconsideration of the November 3 0 , 1992, order. Defendant's Motion for Reconsideration of the Court's November 3 0 , 1992 Order (document n o . 1 2 ) . The court denied this motion in its order of January 6, 1993 (document n o . 1 4 ) . Following a further hearing before the administrative law judge (ALJ) responsible for the initial decision, the ALJ reaffirmed his previous denial of the plaintiff's claim on August 1 2 , 1993. Subsequently, the plaintiff filed an appeal with the Appeals Council which issued a favorable decision for the plaintiff on August 8 , 1994.
On December 1 2 , 1994, the court granted the plaintiff's requests (1) "that the Secretary be ordered to prepare a
2 This amount represents 30.75 hours of service between August 1 2 , 1991, and December 2 , 1992, the date plaintiff's counsel received the court's order of November 3 0 , 1992, plus 10.25 hours spent on the preparation of the fee petition, at a rate of $118 per hour.
2 supplemental transcript with all proceedings copied and
transcribed which have occurred since the Appeals Council
decision of August 8 , 1994," Motion to Reopen (document n o . 16)
at 3 , and (2) that the court "[i]ssue a final judgment pursuant
to 42 U.S.C. § 405(g), fourth sentence so all appropriate fee
motions under 42 U.S.C. § 406(b) and Equal Access to Justice Act
may be filed." Id. On December 1 3 , 1994, the clerk entered
judgment in accordance with the court's December 1 2 , 1994, order.
The plaintiff's motion for EAJA fees followed on January 1 1 ,
1995.
Discussion
The plaintiff contends that under Sullivan v . Hudson, 490
U.S. 877 (1989), she is entitled to fees incurred during the
post-remand administrative proceedings. Plaintiff's Motion for
EAJA Fees ("Plaintiff's Motion") at 3-6. The defendant argues
that under Shalala v . Schaefer, 113 S . C t . 2625 (1993) (decided
on June 2 4 , 1993) the plaintiff cannot be awarded EAJA fees for
services rendered in administrative proceedings. Defendant's
Memorandum at 2-8. In response, the plaintiff argues that the
court "should not apply Schaefer retroactively because it would
be inequitable to the Plaintiff." Plaintiff's Motion, ¶ 2 4 .
Because the court finds that Shalala v . Schaefer does not alter
the plaintiff's rights with respect to fees incurred during the
post-remand administrative proceedings, the court does not
address the retroactivity issue.
3 The EAJA provides in pertinent part that [a] party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive an award under this subsection . . . .
28 U.S.C. § 2412(d)(1)(B).
In Sullivan v . Hudson, 490 U.S. 8 7 7 , the Court acknowledged
that under the EAJA certain "administrative proceedings may be so
intimately connected with judicial proceedings as to be
considered part of the 'civil action' for purposes of a fee
award." Id., 490 U.S. at 892. The Court further stated,
where a court orders a remand to the Secretary in a benefits litigation and retains continuing jurisdiction over the case pending a decision from the Secretary which will determine the claimant's entitlement to benefits, the proceedings on remand are an integral part of the 'civil action' for judicial review, and thus attorney's fees for representation on remand are available subject to the other limitations of the EAJA.
Hudson, 490 U.S. at 892.
In Shalala v . Schaefer the Court held that a sentence four
remand constitutes a final judgment under section 2412(d), 113 S . C t . at 2628, and that a claimant who obtains a favorable judgment
under sentence four is a prevailing party under section 2412(d),
id. at 2631-32. The Court also held that when a district court
remands a case pursuant to sentence four, the court must enter
judgment immediately rather than retaining jurisdiction and
entering judgment following post-remand administrative
4 proceedings. Id. at 2629. However, the Court determined that
when a district court fails to enter judgment upon ordering a
sentence four remand, the 30-day time period does not begin to
run until a formal judgment is entered in compliance with Fed. R.
Civ. P. 58 which "requires a district court to set forth every
judgment 'on a separate document' and provides that '[a] judgment
is effective only when so set forth.'" Id. at 2632 (quoting Fed.
R. Civ. P. 5 8 ) .
Additionally, with regard to Sullivan v . Hudson, 490 U.S.
877, the Court in Schaefer observed, We specifically noted in Melkonyan [v. Sullivan, 501 U.S. 89 (1991)] that Hudson was limited to a "narrow class of qualifying administrative proceedings" where "the district court retains jurisdiction of the civil action" pending the completion of the administrative proceedings. . . . 111 S . Ct., at 2162. We therefore do not consider the holding of Hudson binding as to sentence-four remands that are ordered (as they should be) without retention of jurisdiction, or that are ordered with retention of jurisdiction that is challenged.
Shalala v . Schaefer, 113 S . C t . at 2630-31.
"Ordinarily, claimants whose cases are remanded under sentence four may not recover attorney's fees for post-remand
administrative proceedings. There is an exception to this
general rule, however, where the district court fails to enter an
order of final judgment upon remand and neither party challenges
this omission." Flores v . Shalala, 1995 U.S. App. LEXIS 4590, at
*27 (9th Cir. March 9, 1995). In Flores, the Ninth Circuit held,
"[b]ecause the district court in this case failed to enter an
5 order of final judgment at the time of remand, and neither party
objected, [the claimant] is entitled to recover post-remand
attorney's fees." Id.
Here, the court did not enter an order of final judgment at
the time of remand and neither party objected. Accordingly, the
court finds that the plaintiff is entitled to recover post-remand
attorney's fees.
Conclusion
The court grants the plaintiff's motion for an award of
attorney's fees and costs (document n o . 19) against the defendant
in the amount of $9,231.14 for attorney's fees and $166.00 in
filing fees and marshal's service costs.
SO ORDERED.
Joseph A . DiClerico, J r . Chief Judge April 2 6 , 1995
cc: Raymond J. Kelly, Esquire Elaine Marzetta Lacy, Esquire