The opinion of the court was delivered by: JAMES B. MORAN
Plaintiff John Harper (Harper) files two motions against the Secretary of Health and Human Services (Secretary). The first requests this court to retain jurisdiction of plaintiff's administrative action against the Secretary so that a final judgment may be entered. The second requests attorney fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, for legal work done in connection with the administrative action. For reasons hereinafter set forth, we grant both motions and now enter a final judgment.
This case originated on January 28, 1987, when Harper filed an application with the Secretary for supplemental security income (SSI), pursuant to 42 U.S.C. § 1383, for disabling alcoholism. After two initial denials plaintiff's application was reviewed by an administrative law judge (ALJ) on September 15, 1988. The ALJ determined, pursuant to 20 C.F.R. § 416.1481, that plaintiff was not disabled or, alternatively, that any existing impairment did not impede plaintiff from performing work-related activities. The Appeals Council refused Harper's request for review. Thereafter, pursuant to 42 U.S.C. § 405, plaintiff sought judicial review in this court. On November 8, 1990, finding a lack of substantial evidence to support the Secretary's denial, we remanded the case for further consideration. See Harder v. Sullivan, No. 89 C 4374 (slip op., Nov. 8, 1990).
On July 16, 1991, some eight months after our remand and while the administrative proceedings were still pending, plaintiff filed a motion asking us to retain jurisdiction in light of the recent United States Supreme Court decision in Melkonyan v. Sullivan, 115 L. Ed. 2d 78, 111 S. Ct. 2157 (1991).
While this motion was being considered plaintiff prevailed in his administrative proceeding. He now urges this court to enter a final judgment and award attorney fees in the amount of $ 6,361.20.
The EAJA provides, in pertinent part:
(A) Except as otherwise specifically provided by 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 . . . .
28 U.S.C. § 2412(d)(1)(A),(B) (emphasis added).
Whether Harper can recover attorney fees under the above provision must be viewed in light of Melkonyan, supra. In Melkonyan, the petitioner was denied SSI disability benefits by the Secretary. As in the instant case, Melkonyan sought judicial review pursuant to 42 U.S.C. § 405(g). Prior to filing his complaint, Melkonyan filed a second application with the Secretary that included new evidence of his disability. The second application was approved. Thereafter, both Melkonyan and the Secretary moved for summary judgment on the initial application. Three months later, at the behest of both parties, the case was remanded for further consideration, without a ruling on either summary judgment motion. One month after the remand, the Secretary granted Melkonyan all the relief he had originally requested. One year later, Melkonyan applied for attorney fees under EAJA. The district court denied relief, based on its view that the Secretary's initial position was "substantially justified."
The Court of Appeals for the Ninth Circuit vacated the district court's judgment but denied Melkonyan relief on other grounds. The appellate court reasoned that a "final judgment," for purposes of triggering EAJA, was not when the district court remanded the case to the Secretary but, instead, was when the Secretary awarded Melkonyan all his requested relief. Since more than 30 days had expired since the Secretary's final decision, Melkonyan was denied attorney fees. See Melkonyan v. Heckler, 895 F.2d 556 (9th Cir. 1990).
The Supreme Court rejected the appellate court's interpretation of "final judgment" by scrutinizing the language of § 2412. The Court held that "'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." Melkonyan, 111 S. Ct. at 2162.
The Court then considered whether a final judgment had been entered when the district court remanded Melkonyan's SSI claim to the Secretary. The Court made clear that there were only two types of remands under § 405(g). The first, which must accompany a final judgment, is ...