(1991). There, Justice Souter, writing for a plurality of the Court, held that when the Court imposes a rule of law on the litigants, that rule should be applied to all pending cases as well. Id. at 2445. Melkonyan was applied to the litigants ( Melkonyan, 111 S. Ct. at 2165) and is therefore properly applied here.
This court's decision is not inconsistent with Butts v. Bowen, 775 F. Supp. 1167, 1991 WL 211212 (N.D.Ill. 1991). That court considered whether to apply Melkonyan retroactively only in the context of a sentence four remand.
Id., slip op. at 2-7. In fact, all arguments advanced for prospective application of Melkonyan are based on inequities in a sentence four case. Id. at 6. This case, one remanded pursuant to sentence six, does not suffer from the unfairness of retroactive application of Melkonyan as in a sentence four case. There has been no reversal of sentence six caselaw in this circuit and thus no surprise. See id. Unlike a sentence four case where the final judgment is the remand order, a sentence six final judgment is entered by the court after the Secretary returns with his final decision postremand. Thus a petition is not untimely unless well after the entire case is completed, not simply after the remand order.
The court realizes that this ruling creates a result that differs depending upon which type of remand is enforced by the District Court. However, this distinction is justified in this context since, in a sentence four remand, the decision of the A.L.J. is reversed, whereas in a sentence six decision the A.L.J. is only ordered to hear new evidence and then make his or her decision. Thus the sentence four remand nearly ends the litigation; the sentence six remand starts the entire process all over again. Therefore, differing results in the application of Melkonyan are fully understandable.
The court is not unaware of the split among other courts considering the issue. See, e.g., Sargent v. Sullivan, No. 90-1521, 1991 WL 160091 (4th Cir. Aug. 22, 1991) (unpublished decision with limited explanation refusing to apply retroactively); Mautino v. Sullivan, 941 F.2d 1207 (W.D.Mo. 1991) (prospective effect); Welter v. Sullivan, 941 F.2d 674 (8th Cir. 1991) (retroactive application); Audette v. Secretary of Health and Human Servs., 776 F. Supp. 84, 1991 Wl 216462 (D.R.I. Oct. 11, 1991) (retroactive application); Fergason v. Sullivan, 771 F. Supp. 1008, 1991 WL 165466 (W.D.Mo. Aug. 27, 1991) (retroactive application); Miller v. Sullivan, No. 90-2408, 1991 Wl 165067 (E.D.Pa. Aug. 23, 1991) (retroactive application). This court concludes that the more reasoned approach in a sentence six case is to apply Melkonyan retroactively.
B. Propriety of Fee Award
Having decided that Melkonyan is properly applied retroactively, the court now turns to decide whether an award of fees is proper. When considering whether an award of fees and costs is appropriate under the Equal Access to Justice Act, the petitioner must allege that the position of the United States in denying benefits was not substantially justified, and application must be made within thirty days after a final judgment. 28 U.S.C. § 2412(d)(1)(B). Congress intended the "final judgment" to be rendered by a court of law, not an administrative agency. Melkonyan, 111 S. Ct. at 2162 (citing McDonald, 726 F.2d at 314). "Accordingly, . . . a 'final judgment' for purposes of 28 U.S.C. § 2412(d)(1)(B) means a judgment rendered by a court that terminates the civil action for which EAJA fees may be received. The 30-day EAJA clock begins to run after the time to appeal that 'final judgment' has expired." Id.
As in Melkonyan, there has been no final judgment rendered by this court. The only court order of any substance remanded this case back to the A.L.J. for further hearing. See Woods, slip op. at 12. But this fact does not necessarily foreclose petitioner's prospects for fees.
As recent Supreme Court precedent teaches, Budlow's petition for fees turns on what type of remand this court contemplated on March 30, 1988. Melkonyan, 111 S. Ct. at 2163. There can be only two types of remands under 45 U.S.C. § 405(g)
- one pursuant to sentence four or sentence six. Melkonyan, 111 S. Ct. at 2164-65. In a sentence four case, an attorney may petition for fees after the final judgment of the District Court "affirming, modifying, or reversing" the Secretary is entered and the appeal period from that order has expired. 28 U.S.C. § 2412(d)(2)(G); Melkonyan, 111 S. Ct. at 2165; see also Sullivan v. Finkelstein, 496 U.S. 617, 110 S. Ct. 2658, 110 L. Ed. 2d 563 (1990). In the sentence six case,
the application period begins only after postremand proceedings are completed, the Secretary returns to the District Court, the court enters a final judgment, and the appeals period expires. Melkonyan, 111 S. Ct. at 2165. Thus, the court must determine which type of remand was contemplated in order to determine the timeliness of petitioner's application.
Examination of that order reveals this court intended a sentence six remand. The matter was presented on plaintiff's application for review of the A.L.J.'s decision. The basis of the motion was the presence of substantial new medical evidence not presented to the A.L.J. The District Court reviewed this evidence in painstaking detail, showing how this evidence might be relevant to a finding of disability. The court noted the absence of this material from the administrative record provided by the Secretary. Finally the court noted that plaintiff was not represented by competent counsel at the hearing and that plaintiff's neglect in not presenting the evidence was, based on the unique facts of this case, excusable. This court concluded "accordingly, this case is remanded to the Secretary so that he may receive and consider additional evidence regarding Woods' capability of performing her past work." Woods, slip op. at 12 (emphasis added) (citation omitted). This court concludes that a sentence six remand was intended.
The Secretary's assertions to the contrary are not persuasive. This court did make certain comments about the A.L.J.'s decision. However, these were generally limited in scope to those decisions that might be affected by the new evidence. Other commentary was not a substantive ruling as to the correctness of the Secretary's decision. See Melkonyan, 111 S. Ct. at 2163. The sum and substance of the order discusses the new evidence.
Having decided this was a sentence six remand, the court must now determine from which date the EAJA application was properly filed. As discussed previously, the sentence six case application period begins only after postremand proceedings are completed, the Secretary returns to the District Court, the court enters a final judgment, and the appeals period expires. In this case the court remanded the case and postremand proceedings were completed. However, the Secretary never returned to the District Court seeking entry of a final judgment. As a result, the time for filing an EAJA petition has not yet begun since the litigation in which fees are sought is not completed. Hence the application is, if anything, premature and not antiquated as contended by the Secretary. That leaves the court with the precise situation at the conclusion of Melkonyan, an application without a final judgment. Melkonyan, 111 S. Ct. at 2166. Consequently, the issue that remains is whether petitioner's application for fees is barred when the Secretary neglects to file for review of his postremand decision in the District Court.
This court must find the fee petition untimely at this point. As addressed previously, this was a sentence six remand. The Secretary's duty is to seek approval of his final decision. Until that has been done, the court cannot rule on the petition for fees because there is no "final judgment" upon which fees can be given. See 28 U.S.C. § 2412(d)(1)(B). The court is apprised of the anomaly this creates when the Secretary renders a decision that is unfavorable to himself, with control over the plaintiff's attorney's compensation in the hands of the Secretary. Nonetheless, if the Secretary refuses to seek final judgment, the petitioner may make appropriate motions before the District Court to force such a procedure to occur.
In the final analysis, Budlow's petition for fees is untimely. The Supreme Court's recent decision in Melkonyan is held to apply retroactively. This court remanded this case according to sentence six of 42 U.S.C. § 405(g). Therefore, plaintiff's attorney is entitled to fees after a final judgment has been rendered. In a sentence six case such as this, the final judgment only occurs after the Secretary seeks approval of his postremand decision and the time for appeal from that District Court order has expired. At that point the petitioner may apply for fees. As the foregoing events have not yet occurred, petitioner's application is untimely and thus denied.
IT IS SO ORDERED.