On October 19, 1987, Allen, then fifty-three years old, filed an application for Supplemental Security Income alleging that he was disabled due to hypertension, arthritis, a bad back, and tuberculosis. The Secretary of Health and Human Services (the "Secretary") denied Allen's application, and Allen requested an administrative hearing. After a hearing, the administrative law judge concluded that Allen could perform a full range of light work, and Allen's requested review of the administrative law judge's determination was denied by the Secretary's Appeals Council.
Allen sought judicial review of the Secretary's decision in this court, which found that the Secretary's decision was supported by substantial evidence. Allen appealed the district court's decision, and on October 14, 1992, the 7th Circuit United States Court of Appeals issued an opinion finding that the Secretary's denial of benefits was not supported by substantial evidence, vacated the district court opinion, and remanded the case to the Secretary for further proceedings.
Allen has filed the instant petition for attorney's fees under the EAJA, which provides that a court may award reasonable attorney fees and expenses to the prevailing party in a civil action brought by or against any agency or any official of the United States. Although Allen has not prevailed in his suit against the Secretary, he has nevertheless filed a petition for attorney's fees. Allen's anticipatory petition appears to be filed in response to the relatively recent Supreme Court case Melkonyan v. Sullivan, 115 L. Ed. 2d 78, 111 S. Ct. 2157 (1991) and the EAJA requirement that a party seeking fees file its application "within 30 days of the final judgment in the action . . . ." 28 U.S.C. § 2412(d)(1)(B).
In Melkonyan, the Supreme Court stated that final judgment for EAJA purposes means a judgment rendered by a court of law that terminates the civil action for which EAJA fees may be received. 111 S. Ct. at 2162. The Supreme Court went on to discuss when the EAJA filing period begins in cases in which a court reverses an administrative decision and remands the action for further proceedings. In such cases, which fall under the fourth sentence of 42 U.S.C. 405(g), the Melkonyan court held that "the filing period begins after the final judgment ('affirming, modifying, or reversing') is entered by the court and the appeal period has run, so that the judgment is no longer appealable." 111 S. Ct. at 2165, citing 28 U.S.C. § 2412(d)(2)(G). Fearing that the Seventh Circuit order reversing the Secretary's decision and remanding the case for further proceedings constituted the "final judgment" for EAJA purposes, Allen has filed the present motion.
The obvious problem with Allen's position is that the Seventh Circuit order did not award any benefits to Allen on his disability claim, and accordingly, Allen is not yet a prevailing party entitled to an EAJA award. 28 U.S.C. § 2412 (d)(1)(A) (prevailing party status prerequisite to award of EAJA fees); see also Sullivan v. Hudson, 490 U.S. 877, 886, 104 L. Ed. 2d 941, 109 S. Ct. 2248 (1989) ("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"). Allowing a district court discretion to enter a final judgment for EAJA purposes, after proceedings on remand have been completed, solves the dilemma of whether to file an anticipatory EAJA application at a time when is must either be denied or indefinitely suspended or whether to wait and risk the finding that a remand order began the tolling of the 30-day limitation period. This interpretation of § 2412(d)(1)(B) was recently adopted by the Eight Circuit. Hafner v. Sullivan, 972 F.2d 249 (8th Cir. 1992). In Hafner, the Eight Circuit held that:
when a judicial remand order in Social Security disability cases contemplates additional administrative proceedings that will determine the merits of the claimant's application for benefits, and thus will determine whether the claimant is a prevailing party, the district court retains discretion to enter a final judgment for EAJA purposes after the proceedings on remand have been completed. On the other hand, if the remand order directs the Secretary to award benefits, the claimant is a prevailing party and the remand order is the final judgment for EAJA purposes.