The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.
CHARLES R. NORGLE, SR., District Judge:
Before the court is plaintiff Bervin Allen's ("Allen") motion to vacate pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, the motion is granted.
On October 14, 1992, the Court of Appeals for the Seventh Circuit held that the Secretary of Health and Human Services' ("Secretary") denial of Supplemental Security Income ("SSI") benefits to Allen was not supported by substantial evidence and remanded the case to the Secretary for further proceedings.
Allen v. Sullivan, 977 F.2d 385 (7th Cir. 1992). The Seventh Circuit remanded the case without awarding any SSI benefits to Allen. On November 6, 1992, this court vacated its judgment affirming the Secretary's decision and remanded the case to the Secretary in accordance with the Seventh Circuit's mandate.
On February 4, 1993, Allen filed a "protective" application for attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. The court, however, dismissed the application without prejudice pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure as premature, on the basis that Allen was not yet a "prevailing party," as required by § 2412(d)(1)(B) of the EAJA. Allen v. Shalala, 820 F. Supp. 363, 364 (N.D. Ill. 1993). The court dismissed the application without prejudice to provide Allen the opportunity to resubmit his application for fees after prevailing in the administrative proceedings. At the time of the court's April 15, 1993 order, the Seventh Circuit's construction of § 2412 of the EAJA was that a mere remand order without an award for SSI benefits did not confer the status of "prevailing party" on Allen for purposes of seeking attorney's fees under the EAJA. Jabaay v. Sullivan, 920 F.2d 472, 475 (7th Cir. 1990); Hendricks v. Bowen, 847 F.2d 1255, 1258 (7th Cir. 1988); Singleton v. Bowen, 841 F.2d 710, 711 (7th Cir. 1988).
On June 24, 1993, the United States Supreme Court defined the scope of the term "prevailing party" to include those individuals who successfully seek a sentence-four remand order.
Shalala v. Schaefer, 125 L. Ed. 2d 239, 113 S. Ct. 2625, 2631-32 (1993). In light of the Schaefer Court's opinion, Allen filed the instant motion to vacate the April 15, 1993 order dismissing the application for fees without prejudice.
Under Rule 60(b) of the Federal Rules of Civil Procedure, "on motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding for" the reasons specified in subsections (1) through (5).
Fed. R. Civ. P. Rule 60(b)(1)-(5); see also Margoles v. Johns, 798 F.2d 1069, 1072
(7th Cir. 1986). In addition to the five specified reasons, Rule 60(b)(6) provides a catchall provision for relief from final judgment or order. Reinsurance Co. v. Administrative Asigurarilor, 902 F.2d 1275, 1277 (7th Cir. 1990). The catchall provision allows the court to grant a Rule 60(b) motion for "any other reason justifying relief from the operation of the judgment." Fed. R. Civ. P. 60(b)(6).
In addressing a motion to vacate an earlier order, the court has broad discretion to grant Rule 60(b) relief. Lee v. Village of River Forest, 936 F.2d 976, 979 (7th Cir. 1991). It is important to note, however, that relief from a final judgment or order under Rule 60(b) is an extraordinary remedy and is granted only in exceptional circumstances. C.K.S. Engineers v. White Mountain Gypsum, 726 F.2d 1202, 1204-05 (7th Cir. 1984). The moving party must demonstrate that the exceptional circumstances create a substantial danger that the underlying judgment or order is unjust. Lee, 936 F.2d at 978.
Furthermore, if a moving party asserts a mistake of law committed by the district court as the basis to establish the exceptional circumstances, the proper form of redress is an appeal rather than a Rule 60(b) motion, especially when the motion is filed after the time for appeal has expired. Parke-Chapley Const. Co. v. Cherrington, 865 F.2d 907, 915 (7th Cir. 1989). The purpose of Rule 60(b) is not to extend the applicable period of time for appeal or to provide a shelter from the consequences of failing to timely appeal the district court's decision. Id. If a party is allowed to file a Rule 60(b) motion and raise the same questions that could have been raised on appeal, that party would be able to circumvent the required filing period under Rule 4(a)(1) of the Federal Rules of Appellate Procedure.
Allen does not contend that the court made an error as to the application of the law. Rather, Allen asserts that the change in the law, as outlined in the Schaefer opinion, is the basis for his motion to vacate. A Rule 60(b) motion is the proper pleading to remedy Allen's predicament in the instant case. An appeal of the April 15, 1993 order was not an available avenue for Allen. An order dismissing a complaint without prejudice is not final and thus not appealable. Peters v. Welsh Development Agency, 920 F.2d 438, 439 (7th Cir. 1990). The appellate court lacks jurisdiction to hear a case where the district court contemplates further proceedings in the action. Id. at 440; see also Rosser v. Chrysler Corp., 864 F.2d 1299, 1304 (7th Cir. 1988). The April 15, 1993 order dismissed Allen's "protective" application for attorney's fee without prejudice, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Additionally, the court contemplated a subsequent request for fees if Allen prevailed in the administrative proceeding on remand. Hence, Allen could not have appealed the decision of April 15, 1993 to challenge the order of dismissal.