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LINDNER v. SULLIVAN

August 19, 1992

JEAN ADAMS LINDNER, Plaintiff,
v.
LOUIS W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant.



The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.

 ORDER

 Before the court is plaintiff Jean Adams Lindner's ("Lindner") application for attorney's fees. For reasons that follow, Lindner is awarded $ 32,787.50 in fees, $ 1,713 in expenses and $ 60 in costs.

 BACKGROUND

 This case involves lengthy administrative and court proceedings over Lindner's claim for social security disability benefits for which Lindner now seeks attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. After her benefit claim was initially rejected by defendant Secretary of Health and Human Services' (the "Secretary"), Lindner filed a complaint for judicial review on November 29, 1983. She claimed that she became totally disabled due to severe, chronic back pain and other ailments on June 22, 1981, when, at age 50, she completed a 16-year career as a factory worker at Western Electric.

 District Judge Thomas R. McMillen, adopting a magistrate's recommendation, remanded the case to the Secretary on January 31, 1985 because an administrative law judge ("ALJ") failed to consider various pieces of medical evidence. On remand, the same ALJ again denied Lindner's benefits claim outright on May 30, 1985. The Secretary's Appeals Council remanded the case on February 10, 1986 for a new hearing before a different ALJ. The new ALJ, on January 26, 1987, found that Lindner was disabled as of December 6, 1985, her 55th birthday. The Appeals Council upheld that ruling on September 16, 1987.

 Lindner then sought review in this court, which ruled on March 14, 1989 that Lindner became disabled on June 3, 1985, the day her third husband died. The Seventh Circuit, however, vacated that ruling and remanded the case on May 24, 1990 to the Secretary to determine whether Lindner had become physically disabled prior to June 3, 1985. Lindner v. Sullivan, 902 F.2d 1263 (7th Cir. 1990). Lindner then sought an interim attorney's fee award under the EAJA on October 2, 1990. This court denied the request on January 17, 1991, stating that it would consider the fees issue after the Secretary issued a final decision on the second remand.

 Thereafter, on June 10, 1991, the Supreme Court clarified the law regarding final judgments in social security disability cases which trigger the 30-day period for filing EAJA attorney's fee petitions under 28 U.S.C. § 2412(d)(1)(B). Melkonyan v. Sullivan, 115 L. Ed. 2d 78, 111 S. Ct. 2157 (1991). A remand to the Secretary under sentence four *fn1" of 42 U.S.C. § 405(g) becomes a final judgment for this purpose when the appeal period has run, but a remand under sentence six *fn2" of § 405(g) cannot be a final judgment. Id. at 2165. Following a sentence six remand, the Secretary files additional or modified findings with the court, and the court then enters a final judgment. § 405(g), sentence six; Melkonyan, 111 S. Ct. at 2165. Melkonyan overruled Seventh Circuit precedent which had provided that when a court remands a social security disability claim, "prevailing party" status, a prerequisite to an EAJA award, could not be achieved until post-remand proceedings before the Secretary were complete. Singleton v. Bowen, 841 F.2d 710, 711 (7th Cir. 1988). Melkonyan also overruled the Seventh Circuit's holding that a "final judgment" triggering the EAJA filing period could be rendered by an administrative body, such as the Secretary's Appeals Council, rather than a court. Jabaay v. Sullivan, 920 F.2d 472, 475 (7th Cir. 1990), vacated, 946 F.2d 897 (7th Cir. 1991); see Cummings v. Sullivan, 950 F.2d 492, 495 n.4 (7th Cir. 1991) (noting effect of Melkonyan on Jabaay).

 Lindner responded to Melkonyan by moving this court, on July 22, 1991, to retain jurisdiction of the case so that if she were to succeed in the post-remand proceedings before the Secretary, the court could award her EAJA fees. That motion remains pending.

 The post-remand proceedings concluded on January 23, 1992 with an ALJ's decision finding that Lindner became disabled on June 22, 1981, her claimed onset date. Lindner then filed the instant motion for EAJA fees on March 26, 1992, seeking a total of $ 53,831.25 in attorney's fees along with $ 1,713.00 in expenses and $ 60.00 in costs.

 The Secretary is opposing the fee motion in total as untimely under Melkonyan, while alternatively contending that the rates and hours requested are excessive.

 DISCUSSION

 Before awarding fees under the EAJA, a court must find that (1) the claimant is a "prevailing party," (2) the Secretary's position was not "substantially justified," (3) no "special circumstances" exist in the case that would make a fee award unjust, and (4) the fee petition was filed within 30 days of final judgment and included an itemized statement detailing the hours spent and rates claimed as required by 28 U.S.C. § 2412(d)(1)(B). Cummings, 950 F.2d at 494-95 (citing Commissioner, INS v. Jean, 496 U.S. 154, 110 S. Ct. 2316, 2319, 110 L. Ed. 2d 134 (1990)).

 Initially, the court must determine whether the two remands to the Secretary in this case -- Judge McMillen's in January 1985, and the Seventh Circuit's in May 1990 -- were under sentence four or sentence six of § 405(g) The Secretary contends that both remands were under sentence four, and that the EAJA filing period expired from both remands, making Lindner's current fee motion untimely under Melkonyan and depriving the court of jurisdiction to consider the matter. Lindner claims that the remands were both under sentence six, allowing her under Melkonyan to return here for EAJA fees now that she has prevailed on her entire claim in the post-remand proceedings. Alternatively, Lindner asserts that even if the remands were under sentence four, Melkonyan should not ...


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