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GROUND v. SULLIVAN

March 16, 1992

JOAN K. GROUND Plaintiff,
v.
LOUIS W. SULLIVAN, Secretary of Health and Human Services, Defendant.



The opinion of the court was delivered by: RUDI M. BREWSTER

ORDER NUNC PRO TUNC GRANTING PLAINTIFF COUNSEL'S MOTION FOR ATTORNEY'S FEES AND COSTS IN THE AMOUNT OF $ 10,518.20

 The above captioned matter came on regularly for hearing on February 18, 1992, before the Honorable Rudi M. Brewster. Daniel Weber, Esq., appeared for Plaintiff Joan K. Ground and Assistant United States Attorney Richard Tolles, Esq., appeared for Defendant Louis Sullivan. Upon consideration of the moving and responding papers, and oral argument thereon, the Honorable Rudi M. Brewster finds as follows:

 Background

 Petitioner Ground is a former telephone operator who sought disability benefits pursuant the Social Security Act, 42 U.S.C. § 1381 et seq. On July 1, 1991, the ALJ concluded that Ms. Ground was not disabled within the meaning of the Act between the period of November 21, 1987 and May 31, 1989. Plaintiff then filed a complaint in this court under 42 U.S.C. § 405(g) to review the Secretary's decision.

 This court's Order of January 2, 1991, took the cross-motions for summary judgment off calendar and remanded the case to the Administrative Law Judge (ALJ) for clarification of an inconsistency in the ALJ's ruling. On remand, the ALJ again recommended a finding of no disability. However, on November 22, 1991, the Appeals Council rejected the ALJ's recommended decision and found that plaintiff had in fact been disabled since November 21, 1987.

 Plaintiff's counsel filed this motion as the prevailing party on December 4, 1991, seeking an award of attorney fees at a rate of $ 109.28 per hour *fn1" for 96.25 hours of attorney work and costs of $ 130.40 under the Equal Access to Justice Act.

 Equal Access to Justice Act

 A party that prevails against the United States in a civil action is entitled, in certain circumstances, to an award of attorneys's fees, court costs, and other expenses. Equal Access to Justice Act, Title 28 U.S.C. § 2412. Among other requirements, the prevailing party must submit to the court an application of fees and expenses "within thirty days of final judgment in the action." § 2412(d)(1)(B).

 A. Final Judgment

 The recent Supreme Court case of Melkonyan v. Sullivan, 115 L. Ed. 2d 78, 111 S. Ct. 2157, 2161 (1991) holds that a "final judgment in the action" for which EAJA fees may be awarded "refers to judgments entered by of a court of law, and does not encompass decisions rendered by a administrative agency." Id. at 2162 (emphasis in original). Therefore, "the 30-day EAJA clock begins to run after the time to appeal that 'final judgment' has expired Id.

 On remand from this court, the Appeals Council awarded Ms. Ground the disability benefits she sought despite the ALJ's recommendation that disability benefits be denied. Despite the fact that the Appeals Council's decision is not "final" for purposes of the EAJA, neither the claimant nor the Secretary formally requested the entry of a final judgment from this court. Whether either party is entitled to do so depends on the type of remand ordered by this court on January 2, 1991. Melkonyan, supra, at 2163.

 The Supreme Court identified two kinds of remands under 42 U.S.C. § 405(g): (1) remands pursuant to the fourth sentence and (2) remands pursuant to the sixth sentence. Melkonyan, supra, 111 S. Ct. at 2163; citing Sullivan v. Finkelstein, 496 U.S. 617, 110 S. Ct. 2658, 2663-2665, 110 L. Ed. 2d 563 . The fourth sentence of § 405(g) authorizes a 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, however, the court does not rule in any way as to the correctness of the administrative determination. Rather, the sixth sentence requires that there be new, material evidence and that there was good cause for failing to present the additional evidence in the prior proceeding. Melkonyan, supra at 2163. Sixth sentence remands require, by definition, that the court retain jurisdiction.

 The remand ordered by this court was not prompted by a showing that "there was new evidence which was material and that there was good cause for the failure to incorporate such evidence into the record in a prior proceeding." § 405(g). Nor did this court's remand amount to a fourth sentence reversal or modification of the ALJ's decision. This court did not intend for its order of remand to be a final judgment in the case. Indeed, the court expected that the parties would return for a ruling upon the ALJ's clarification. This court's remand merely requested clarification for what seemed to be an internal inconsistency. The remand was not accompanied by a judgment.

 Clearly, this court's Order Remanding Case does not, nor was it intended to, fall within either the sentence four remand or the sentence six remand provided for in section 405(g). *fn2" Rather, this court was remanding to the ALJ pursuant to its inherent power to remand cases. See United States v. Jones, 336 U.S. 641, 671, 93 L. Ed. 938, 69 S. Ct. 787 (1949). That inherent ...


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