The opinion of the court was delivered by: Ziegler, District Judge.
Pending before the court are plaintiff's motion for the
entry of judgment for widow's disability benefits and a
petition by plaintiff's counsel for approval of attorney's
fees,*fn1 pursuant to the Equal Access to Justice Act
("EAJA"), 28 U.S.C. § 2412(d), and response of defendant. For
the reasons set forth below, we will grant the motion and
On June 7, 1983, plaintiff, Marian Hudson, filed an
application for widow's disability benefits based on the
earnings record of her deceased spouse. In a decision dated
March 25, 1985, the administrative law judge found that Hudson
did not have an impairment or combination of impairments equal
or medically equivalent to a listed impairment and denied
Hudson's claim for disability benefits. On September 5, 1985,
the Appeals Council denied review. Hudson filed suit in this
court and alleged that the Secretary's regulations and rulings
for determining such benefits violated the Social Security
Act, due process, and established law in this jurisdiction.
Hudson sought nationwide class certification.
In Hudson v. Sullivan, 717 F. Supp. 340, 351 (W.D.Pa. 1989),
we denied plaintiff's request for class certification. However,
we held that Social Security Ruling 83-19 ("SSR 83-19")
violated the Social Security Act and prohibited the Secretary
from considering Hudson's functional limitations when
determining whether her impairments were equivalent to the
requirements of impairments listed in 20 C.F.R. Appendix 1 to
Subpart P. We remanded to the Secretary to consider Hudson's
functional limitations when determining whether her impairments
met or equalled the requirements of listed impairments when
without applying the invalidated provision of SSR 83-19.
The Secretary considered, via the ALJ, additional material
evidence pertaining to Hudson's functional limitations and
impairments through the testimony of Richard M. Klein, M.D.
Dr. Klein testified that Hudson suffered from cervical
spondylosis and pain. The ALJ found that these impairments met
the severity requirements of listed impairments. Record at
435. On July 17, 1990, the ALJ awarded disabled widow's
benefits to Hudson, effective August 26, 1983, under § 202(e)
of the Social Security Act, 42 U.S.C. § 402(e). R. at 438.
However, the ALJ found that Hudson's impairments and all
resulting functional limitations did not meet or equal the
listed impairments before that date. R. at 437.
On April 10, 1991, almost nine months after the decision,
Hudson moved for the entry of judgment and her counsel filed
a petition for attorney's fees. On June 19, 1991, the
Secretary filed a supplemental transcript of proceedings on
remand which included the testimony of Dr. Klein, the new
findings of fact, and a decision.
The issues raised by the parties are (1) whether this court
entered final judgment on May 31, 1989, and therefore
counsel's EAJA petition was time barred after August 29,
1989;*fn2 (2) whether the equitable doctrines of tolling and
estoppel bar the Secretary's defense that the EAJA petition
was untimely;*fn3 (3) whether Hudson was a prevailing party
under the EAJA; and (4) whether the Secretary's position under
the EAJA was substantially justified.
The EAJA provides that "[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. . . ."
28 U.S.C. § 2412(d)(1)(A). Therefore, we must determine whether our
remand in Hudson constituted a final judgment under the EAJA.
Only two types of remands are permitted for actions under
42 U.S.C. § 405(g). "[R]emand orders must either accompany a final
judgment affirming, modifying, or reversing the administrative
decision in accordance with sentence four, or conform with the
requirements outlined by Congress in sentence six." Melkonyan
v. Sullivan, ___ U.S. ___, 111 S.Ct. 2157, 2165, 115 L.Ed.2d 78
Prior to Melkonyan, case law in this jurisdiction did not
require a plaintiff to file a fee petition until thirty days
after a district court entered final judgment and the appeal
period expired. In the present case, the Secretary argues that
Melkonyan must be applied retroactively and that our remand in
Hudson accompanied a final judgment pursuant to sentence four.
Conversely, Hudson contends that this court did not enter final
judgment because sentence six governed the remand, or in the
alternative, that Melkonyan must be applied prospectively.
Sentence four of § 405(g) provides that "[t]he court shall
have power to enter . . . a judgment affirming, modifying, or
reversing the decision of the Secretary, with or without
remanding the cause for a rehearing." 42 U.S.C. § 405(g). In
sentence four cases, the filing period begins after final
judgment is entered by the court and the appeal ...