The opinion of the court was delivered by: D. LOWELL JENSEN
On January 8, 1992, this Court heard plaintiff's motion for attorneys' fees. Candace C. Davenport appeared on behalf of plaintiff Roberta Salvador. Assistant United States Attorney Dennis Mulshine appeared on behalf of defendant. Having considered the papers submitted, the arguments of counsel, the applicable law, and the entire record herein, the Court DENIES plaintiff's motion.
On February 21, 1991, this Court reversed the Secretary's decision and remanded the action for a reconsideration of the opinion of plaintiff's treating physician. A separate judgment did not accompany the remand Order. On remand, in a decision dated August 30, 1991, an ALJ found that plaintiff was disabled as of August 4, 1985 and entitled to disability insurance benefits accordingly.
Plaintiff now moves for an award of attorneys' fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d). Defendant argues that the application for fees is untimely. In the alternative, defendant argues that defendant's position in the litigation was substantially justified, thus precluding recovery of fees under the EAJA.
The EAJA provides, in relevant part, that:
(A) court shall award to a prevailing party . . . fees and other expenses . . . incurred by that party in any civil action . . . including proceedings for judicial review of agency action, brought by or against the United States . . . unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A). EAJA fees may be awarded in cases seeking review of agency decisions regarding Social Security disability benefits. Wolverton v. Heckler, 726 F.2d 580, 582 (9th Cir. 1984).
A. Timeliness of plaintiff's application for EAJA fees.
A party seeking EAJA fees must submit an application to the court "within thirty days of final judgment in the action." 28 U.S.C. § 2412(d)(1)(B). "Final judgment" means a judgment that is "final and not appealable." 28 U.S.C. § 2412(d)(2)(G). The Supreme Court recently addressed whether a remand by the district court of a social security action constitutes a final judgment for purposes of the EAJA. See Melkonyan v. Sullivan, 115 L. Ed. 2d 78, 111 S. Ct. 2157 (1991) (unanimous opinion).
The Supreme Court first noted that "final judgment" under the EAJA means a judgment entered by a court of law. Id. at 2162. Thus the timing of the agency's decision is irrelevant in determining whether an EAJA application is timely filed. A "final judgment" under the EAJA also means a non appealable judgment. Thus the thirty day time period for filing an EAJA application does not commence until the time for appeal of the district court's judgment has expired. Id.
The Supreme Court next noted that there are two, and only two possible kinds of remand that the district court can make to an agency pursuant to 42 U.S.C. § 405(g): (1) remands pursuant to the fourth sentence of the statute; and (2) remands pursuant to the sixth sentence of the statute. Melkonyan, supra, at 2163. The fourth sentence of § 405(g) authorizes the court to enter "a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing." In a sixth sentence remand, the court does not rule as to the correctness of the administrative determination, but ...