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AFANADOR v. SULLIVAN

July 10, 1992

JAMES L. AFANADOR, Plaintiff,
v.
LOUIS W. SULLIVAN, M.D. Secretary of Health and Human Services, Defendant.



The opinion of the court was delivered by: JAMES WARE

 Plaintiff seeks an award of reasonable attorney fees, pursuant to The Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d)(1)(A). The underlying case involved Plaintiff's request for judicial review, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), of Defendant Secretary's final decision denying Plaintiff disability insurance and SSI benefits under Titles II and XVI of the Social Security Act.

 I. BACKGROUND

 Plaintiff filed for disability benefits, disability insurance benefits, and supplemental security income in September, 1985, alleging disability due to complications from a stroke, and neck and back problems. An Administrative Law Judge ("ALJ") found that Plaintiff was not disabled. Plaintiff requested a review of the ALJ's decision, and on April 9, 1990, the Appeals Council upheld the ALJ's ruling. Plaintiff then sought review by this Court of the ALJ's ruling.

 On August 6, 1991, this Court denied Plaintiff's motion for summary judgment, and granted Defendant Secretary's cross motion for summary judgment. On September 29, 1991, Plaintiff filed a motion pursuant to Fed. R. Civ. P. 60(b) to vacate the Court's order and judgment in light of Bunnell v. Sullivan, 947 F.2d 341 (9th Cir. 1991)(en banc), which reaffirmed the standard articulated in Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986), requiring that before rejecting a claimant's pain testimony an ALJ must make sufficient findings to allow a reviewing district court to determine the ALJ's reasons for doing so. On May 27, 1992, this Court reversed the decision of the ALJ and remanded the case for further proceedings.

 The Court's jurisdiction to review the ALJ's decision is derived from 42 U.S.C. § 405(g). The fourth sentence of § 405(g) states: "The court shall have the 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." Such an action by a district court is referred to as a "sentence four remand." The sixth sentence of § 405(g) specifies the second type of action which a district court may take when reviewing the Secretary's decisions. A recent Supreme Court opinion characterized sentence six remands as follows:

 Melkonyan v. Sullivan, 115 L. Ed. 2d 78, 111 S. Ct. 2157, 2163 (1991).

 This Court's order of May 27, 1992, reversed the Secretary's decision and ordered a remand. Accordingly, the Court's order was within the definition of a sentence four remand.

 II. DISCUSSION

 By the instant motion, Plaintiff seeks an award of attorney fees under the EAJA, 28 U.S.C. § 2412. The EAJA states in part:

 (d)(1)(A) Except as otherwise specifically provided by a statute, a court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

 (B) 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, and the amount sought. . . . The party shall also allege that the position of the United States was not substantially justified.

 Id. at 2412. Accordingly, the Court must make the following findings in order to grant Plaintiff's motion: (1) that Plaintiff was a prevailing party in his civil action; (2) that the position of the United States was not substantially justified; (3) that the motion for attorney fees was timely filed; and (4) that the amount ...


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