Patrick Breaux, Ssn: Sdw-Um-Wkqt v. United States Department of Health and Human Services

20 F.3d 1324, 1994 U.S. App. LEXIS 10582, 1994 WL 175745

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 5, 1994
• Docket: 92-4947
• Status: Published

Opinion

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before POLITZ, Chief Judge, HIGGINBOTHAM, and DeMOSS, Circuit Judges.

PER CURIAM:

After the district court remanded this case to the ALJ for further findings, it denied Breaux’s application for attorneys fees under the Equal Access to Justice Act. This court affirmed in an unpublished opinion, finding the case controlled by Bertrand v. Sullivan, 976 F.2d 977, 979-80 (5th Cir.1992). Breaux v. Secretary, 1 F.3d 1237 (5th Cir.1993) (per curiam). The Supreme Court vacated and remanded for further proceedings in light of its later decision in Shalala v. Schaefer, — U.S.-, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993). Breaux v. Shalala, — U.S. -, 114 S.Ct. 297, 126 L.Ed.2d 245 (1993).

Shalala v. Schaefer holds that a party who obtains a remand pursuant to the fourth sentence of 42 U.S.C. § 405(g) qualifies as a prevailing party for purposes of attorneys fees under the EAJA. -U.S. at- -, 113 S.Ct. at 2631-32. Schaefer overruled Part IV of Bertrand v. Sullivan, 976 F.2d at 979-80, which stated that a fee application by a plaintiff who has obtained a remand order should be denied “as premature and without prejudice.”

The district court’s denial of Breaux’s application is REVERSED and REMANDED to allow the district court to award reasonable attorney fees.