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November 12, 1991

LOUIS SULLIVAN, Secretary, Health and Human Services, Defendant

Paul E. Plunkett, United States District Judge.

The opinion of the court was delivered by: PLUNKETT

Since the Supreme Court issued its decision on June 10, 1991, district courts throughout the country have been grappling with the question of whether they may retain jurisdiction for the purpose of making Equal Access to Justice Act (EAJA) awards in social security cases that they remanded prior to Melkonyan. In the case before us the Plaintiff has filed a Motion for an Order Retaining Jurisdiction of Plaintiff's Complaint for Administrative Review under Sullivan v. Hudson. For the following reasons we grant Plaintiff's motion.


 Since we have already recited the underlying facts of this case in a Memorandum Opinion and Order dated April 2, 1990, *fn2" we will summarize here only those most relevant to this motion. On December 17, 1987, Plaintiff Arcadio Lopez ("Lopez") filed an application for Supplemental Security Income (SSI), alleging an inability to work due to vision problems. The claim was administratively denied. Pursuant to Lopez's request, a hearing was held before an administrative law judge (ALJ). Lopez appeared and testified, but was not represented by counsel. After the hearing, the ALJ issued a decision denying Lopez benefits. Lopez appealed this denial to the Appeals Council, which affirmed the ALJ's decision. After the Appeals Council's ruling, Lopez appealed his case the United States District Court.

 On April 2, 1990, we granted Lopez's motion for summary judgement and remanded his case back the Secretary after finding that (1) Lopez had not knowingly and intelligently waived his right to counsel at the hearing before the ALJ; (2) the lack of adequate representation affected the adequacy of the hearing; and (3), as a consequence, the record was not fully and fairly developed and could not adequately support any decision. Lopez I, Mem. Op. and Order. In our opinion, we stated that we were remanding the case to the Secretary "so that a full and fair hearing can be held." Id. at 8. The administrative proceedings on remand are still pending. Plaintiff's counsel has not yet submitted an application for attorneys fees; however, a claim for fees was included in the complaint. The Plaintiff has now filed a motion asking us to retain jurisdiction over this action so that we may entertain an EAJA application at a later date should he prevail on remand. Defendants object that we may not retain jurisdiction since the time for filing an EAJA application has already run. (Def.'s Response at 3).


 Plaintiff's motion presents us with a tricky jurisdictional issue. When an EAJA application is filed after the appropriate deadline and as a consequence is found untimely, a court does not have jurisdiction to review that application. Damato v. Sullivan, 945 F.2d 982, slip op. at 5-6 (7th Cir. Oct. 10, 1991) ("In order to invoke the subject matter jurisdiction of the district court for attorney fees under the EAJA, the party seeking fees must file its application 'within 30 days of the final judgment in the action.'" (citing 28 U.S.C. § 2412(d)(1)(B))). In this case, we are not being asked to review an application; instead, we are being asked to retain jurisdiction so that we may at some later date review such an application. Nevertheless, our inquiry is a jurisdictional one: in order to decide whether we may retain jurisdiction under Sullivan v. Hudson, 490 U.S. 877, 109 S. Ct. 2248, 104 L. Ed. 2d 941 (1989), we must first determine whether an EAJA application should have been filed after our April 2, 1990 remand order or whether it may be filed after the proceedings below. We note at the outset that it is axiomatic that we have jurisdiction to determine jurisdiction. 13A C. Wright, A. Miller and E. Cooper, Federal Practice and Procedure § 3536 (2d ed. 1984).

 Under the EAJA, a party who wishes to recover for fees and expenses must "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." 28 U.S.C.A. § 2412(d)(1)(B) (West 1991) (emphasis added). The court may make such an award unless it determines that the government's position was "substantially justified." Id. The term "final judgment" as it is employed here means a judgment for which the time to appeal has expired for all parties and for which a final order of settlement is included. 28 U.S.C.A. § 2412(d)(1)(G). The Court recently determined that "judgment" as defined in § 2412 "refers to judgments entered by a court of law, and does not encompass decisions rendered by an administrative agency." Melkonyan, 111 S. Ct. at 2162. Judicial review of Social Security decisions is conducted pursuant to 42 U.S.C. § 405(g), which specifies in pertinent part:

 [Sentence 4] 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. . . . [Sentence 6] The court may, on a motion of the Secretary made for good cause shown before he files his answer, remand the case to the Secretary for further action by the Secretary, and it may at any time order additional evidence to be taken before the Secretary, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . .

 In Sullivan v. Finkelstein, 496 U.S. 617, 110 S. Ct. 2658, 110 L. Ed. 2d 563 (1990), the Supreme Court found that a remand order made pursuant to sentence four was "a 'judgment' in the terminology of § 405(g)," id. at 2664, and held that such a judgment was final and appealable. Id. at 2666. Melkonyan v. Sullivan, 115 L. Ed. 2d 78, 111 S. Ct. 2157 (1991), took this reasoning one step farther and held that these judgments become "final" for purposes of the EAJA as soon as the time for filing an appeal has expired. Id. at 2165. Thus, an EAJA application can only be timely in sentence four cases if the application is filed within 30 days after the judgment of the district court, whether accompanied by a remand order or not, becomes unappealable.

 The EAJA, however, requires not only the timely filing after a final judgment but also that the claimant demonstrate that she was a "prevailing party." Here lies the nub of the problem. Prior to the Court's decision in Melkonyan, a Social Security claimant whose case was remanded to the Secretary was not considered a "prevailing party" for purposes of the EAJA. Singleton v. Bowen, 841 F.2d 710 (7th Cir. 1988). This position was apparently adopted by the Supreme Court in Sullivan v. Hudson, 490 U.S. 877, 109 S. Ct. 2248, 104 L. Ed. 2d 941 (1989):

 In a case such as this one, where a court's remand to the agency for further administrative proceedings does not necessarily dictate the receipt of benefits, the claimant will not normally attain "prevailing party" status within the meaning of § 2412(d)(1)(A) until after the result of the administrative proceedings is known.

 Id. at 2254-55. *fn3"

 In Hudson the district court had remanded the claimant's case back to the Secretary after the court of appeals had determined that "'the Secretary did not follow her own regulations' in making the disability determination in respondent's case." Id. 109 S. Ct. at 2252 (quoting the court of appeals). On remand the ALJ had found that respondent was disabled. The issue before the Court was whether an award under EAJA could include attorney's fees for work ...

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