IN THE UNITED STATES OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 92-4777 Summary Calendar _____________________
ROGER FREEMAN,
Plaintiff-Appellant,
versus
LOUIS W. SULLIVAN, M.D., Secretary of Health and Human Services,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the Western District of Louisiana (CA 87 2773) _________________________________________________________________ ( August 19, 1993)
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
In December 1987, Roger Freeman sought judicial review of the
denial of his application for social security disability benefits.
The district court affirmed, and Freeman appealed. While the
appeal was pending, the Secretary of Health and Human Services
requested that the case be remanded for consideration of evidence
* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the court has determined that this opinion should not be published. from a vocational expert. This court rejected Freeman's
contention that the record supported an award of benefits and
remanded to the district court for remand to the administrative law
judge (ALJ) pursuant to the Secretary's request. After remanding
for further administrative proceedings, the district court closed
the case in May 1989. The court did not enter a separate judgment
dismissing the action.
On October 4, 1991, the ALJ determined that Freeman was
entitled to disability benefits retroactive to March 16, 1984. On
January 15, 1992, Freeman filed a motion in the district court
requesting that the court order the Secretary to file post-remand
findings of fact, and that the court enter judgment in favor of
Freeman. The Secretary opposed the motion on the ground that the
order of remand to the ALJ had issued under the fourth sentence of
42 U.S.C. § 405(g),1 thereby divesting the district court of
jurisdiction.
The magistrate judge determined that the May 1989 remand was
a "fourth-sentence" remand that terminated the civil action. He
recognized that the entry of a judgment2 in Freeman's favor was a
prerequisite to an award of attorneys' fees under the EAJA, and
1 "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." 42 U.S.C. § 405(g). 2 A petition for fees and expenses under the EAJA must be filed "within thirty days of final judgment in the action." 28 U.S.C. § 2412(d)(1)(B).
-2- that the procedure for recovering attorneys' fees in fourth-
sentence remand cases was unclear. Nevertheless, the magistrate
judge concluded that the district court lacked jurisdiction to
enter judgment because the action had terminated with the 1989
remand to the ALJ. Freeman filed a timely objection to the
recommendation and a motion for district court attorneys' fees
under the EAJA. On the same day, he filed in this court a petition
and supporting memorandum seeking appellate attorneys' fees under
the EAJA.3 Freeman noted in his memorandum to this court that the
magistrate judge had recommended that the district court decline to
enter judgment in his favor because the May 1989 remand to the ALJ
had been the "final judgment" in the suit. Freeman urged that the
court should apply an equitable tolling analysis to find his
petition for appellate attorneys' fees timely. On May 4, 1992,
this court granted Freeman's unopposed motion for appellate
attorneys' fees in a one-sentence order.
On May 29, 1992, (apparently without the benefit of this
court's order) the magistrate judge recommended that the district
court dismiss as time-barred the petition for EAJA fees filed in
3 Freeman's simultaneous petitions for attorneys' fees in this court and the district court were unconventional, but were not without jurisdiction. See U.S. v. 329.73 Acres of Land, Situated in Grenada and Yalobusha Counties, State of Miss., 704 F.2d 800, 811-812 (5th Cir. 1983) (although appellate court may enter EAJA award,"rarely will the district court not be the appropriate tribunal" to review an EAJA application); see also Dole v. Phoenix Roofing, Inc., 922 F.2d 1202, 1208-09 (5th Cir. 1991) (discussing dual appellate court and agency jurisdiction over application for EAJA fees).
-3- that court. The magistrate judge concluded that in this Circuit,
Melkonyan v. Sullivan, 501 U.S. ___, 111 S.Ct. 2157, 115 L.Ed.2d 78
(1991) applied retroactively; that the May 1989 remand order was
therefore the "final judgment" for purposes of the EAJA
application; that principles of equitable tolling applied; but that
the petition was nevertheless untimely, because the decision in
Luna v. United States HHS, 948 F.2d 169 (5th Cir. 1991), eliminated
any uncertainty as to when the 30-day time limit began to run, and
thus any equitable considerations justifying tolling ended after
Luna was issued. In objections to the recommendation, Freeman
urged that this court's award of appellate attorneys' fees required
that the district court grant his EAJA petition. The district
court overruled the objections, adopted the magistrate judge's
recommendation, and dismissed the petition. The district court
reasoned that this court's award of attorneys' fees was not
controlling because the court had not addressed the merits of
Freeman's application.
A recent Supreme Court case makes it clear that Freeman's EAJA
petition in the district court was timely. Shalala v. Schaefer,
No. 92-311, 1993 WL 218284 (U.S. June 24, 1993). In Schaefer, the
district court remanded to the Secretary in April 1989, pursuant to
sentence four of § 405(g), and the Secretary entered an award of
benefits on April 2, 1990. Id. at *1, *3. Schaefer did not file
his EAJA application until July 1990. The Supreme Court held that
a fourth-sentence remand constitutes a "final judgment" that
-4- triggers the filing period for an EAJA fee application. Id. at *5.
"In sentence four cases, the filing period [for an EAJA
application] begins after the final judgment (affirming, modifying,
or reversing) is entered by the court and the appeal period has
run, so that the judgment is no longer appealable . . . ." Id. at
*4, quoting Melkonyan, 111 S.Ct. at 2165 (internal quotation marks
omitted). The Court nevertheless found that Schaefer's EAJA
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE UNITED STATES OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 92-4777 Summary Calendar _____________________
ROGER FREEMAN,
Plaintiff-Appellant,
versus
LOUIS W. SULLIVAN, M.D., Secretary of Health and Human Services,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the Western District of Louisiana (CA 87 2773) _________________________________________________________________ ( August 19, 1993)
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
In December 1987, Roger Freeman sought judicial review of the
denial of his application for social security disability benefits.
The district court affirmed, and Freeman appealed. While the
appeal was pending, the Secretary of Health and Human Services
requested that the case be remanded for consideration of evidence
* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the court has determined that this opinion should not be published. from a vocational expert. This court rejected Freeman's
contention that the record supported an award of benefits and
remanded to the district court for remand to the administrative law
judge (ALJ) pursuant to the Secretary's request. After remanding
for further administrative proceedings, the district court closed
the case in May 1989. The court did not enter a separate judgment
dismissing the action.
On October 4, 1991, the ALJ determined that Freeman was
entitled to disability benefits retroactive to March 16, 1984. On
January 15, 1992, Freeman filed a motion in the district court
requesting that the court order the Secretary to file post-remand
findings of fact, and that the court enter judgment in favor of
Freeman. The Secretary opposed the motion on the ground that the
order of remand to the ALJ had issued under the fourth sentence of
42 U.S.C. § 405(g),1 thereby divesting the district court of
jurisdiction.
The magistrate judge determined that the May 1989 remand was
a "fourth-sentence" remand that terminated the civil action. He
recognized that the entry of a judgment2 in Freeman's favor was a
prerequisite to an award of attorneys' fees under the EAJA, and
1 "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." 42 U.S.C. § 405(g). 2 A petition for fees and expenses under the EAJA must be filed "within thirty days of final judgment in the action." 28 U.S.C. § 2412(d)(1)(B).
-2- that the procedure for recovering attorneys' fees in fourth-
sentence remand cases was unclear. Nevertheless, the magistrate
judge concluded that the district court lacked jurisdiction to
enter judgment because the action had terminated with the 1989
remand to the ALJ. Freeman filed a timely objection to the
recommendation and a motion for district court attorneys' fees
under the EAJA. On the same day, he filed in this court a petition
and supporting memorandum seeking appellate attorneys' fees under
the EAJA.3 Freeman noted in his memorandum to this court that the
magistrate judge had recommended that the district court decline to
enter judgment in his favor because the May 1989 remand to the ALJ
had been the "final judgment" in the suit. Freeman urged that the
court should apply an equitable tolling analysis to find his
petition for appellate attorneys' fees timely. On May 4, 1992,
this court granted Freeman's unopposed motion for appellate
attorneys' fees in a one-sentence order.
On May 29, 1992, (apparently without the benefit of this
court's order) the magistrate judge recommended that the district
court dismiss as time-barred the petition for EAJA fees filed in
3 Freeman's simultaneous petitions for attorneys' fees in this court and the district court were unconventional, but were not without jurisdiction. See U.S. v. 329.73 Acres of Land, Situated in Grenada and Yalobusha Counties, State of Miss., 704 F.2d 800, 811-812 (5th Cir. 1983) (although appellate court may enter EAJA award,"rarely will the district court not be the appropriate tribunal" to review an EAJA application); see also Dole v. Phoenix Roofing, Inc., 922 F.2d 1202, 1208-09 (5th Cir. 1991) (discussing dual appellate court and agency jurisdiction over application for EAJA fees).
-3- that court. The magistrate judge concluded that in this Circuit,
Melkonyan v. Sullivan, 501 U.S. ___, 111 S.Ct. 2157, 115 L.Ed.2d 78
(1991) applied retroactively; that the May 1989 remand order was
therefore the "final judgment" for purposes of the EAJA
application; that principles of equitable tolling applied; but that
the petition was nevertheless untimely, because the decision in
Luna v. United States HHS, 948 F.2d 169 (5th Cir. 1991), eliminated
any uncertainty as to when the 30-day time limit began to run, and
thus any equitable considerations justifying tolling ended after
Luna was issued. In objections to the recommendation, Freeman
urged that this court's award of appellate attorneys' fees required
that the district court grant his EAJA petition. The district
court overruled the objections, adopted the magistrate judge's
recommendation, and dismissed the petition. The district court
reasoned that this court's award of attorneys' fees was not
controlling because the court had not addressed the merits of
Freeman's application.
A recent Supreme Court case makes it clear that Freeman's EAJA
petition in the district court was timely. Shalala v. Schaefer,
No. 92-311, 1993 WL 218284 (U.S. June 24, 1993). In Schaefer, the
district court remanded to the Secretary in April 1989, pursuant to
sentence four of § 405(g), and the Secretary entered an award of
benefits on April 2, 1990. Id. at *1, *3. Schaefer did not file
his EAJA application until July 1990. The Supreme Court held that
a fourth-sentence remand constitutes a "final judgment" that
-4- triggers the filing period for an EAJA fee application. Id. at *5.
"In sentence four cases, the filing period [for an EAJA
application] begins after the final judgment (affirming, modifying,
or reversing) is entered by the court and the appeal period has
run, so that the judgment is no longer appealable . . . ." Id. at
*4, quoting Melkonyan, 111 S.Ct. at 2165 (internal quotation marks
omitted). The Court nevertheless found that Schaefer's EAJA
application was not time-barred because the district court had not
entered a separate judgment as required by Fed. R. Civ. P. 58.
Schaefer, 1993 WL 218284 at *6.
An EAJA application may be filed until "30 days after the time
for appeal has ended." Id. In suits to which a federal officer is
a party, the time for appeal does not end until 60 days after the
entry of a Rule 58 judgment. The district court should have
entered a Rule 58 judgment when it remanded to the Secretary in
April 1989. That court's failure to enter a "formal judgment"
meant that the April 1989 order remained "appealable"; therefore,
Schaefer's July 1990 petition for EAJA fees was timely.
In this case, as in Schaefer, the district court entered a
fourth-sentence remand order but did not enter a separate Rule 58
judgment. Freeman's district court petition for EAJA fees was
timely because the district court's May 1989 remand to the
Secretary was still "appealable." Schaefer, 1993 WL 218284 at *6.
Thus, the district court's order denying attorneys' fees is
-5- VACATED, and the case is REMANDED to the district court for
reconsideration in the light of Schaefer.
VACATED and REMANDED.
-6-