The opinion of the court was delivered by: JAMES F. MCCLURE, JR.
On March 3, 1992, plaintiff filed a motion for approval of attorney's fees and reasonable expenses pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412, or alternatively for approval of attorney's fees pursuant to a contingent fee contract.
EQUAL ACCESS TO JUSTICE ACT
The Equal Access to Justice Act ("EAJA") allows the court to award reasonable fees and expenses of attorneys to a prevailing party in any civil action brought by or against an agency of the United States provided the application for fees and expenses is submitted within thirty days of final judgment in the action. 28 U.S.C. § 2412(d)(1)(B). "Final judgment" arises when the government's right to appeal has expired. Taylor v. United States, 749 F.2d 171 (3d Cir. 1984). When the United States is a party to a civil case, notice of appeal may be filed by any party within sixty days of the entry of judgment. Fed. R. App. P. 4(a)(1). Consequently, to be timely, an application for attorney fees and expenses under the EAJA must be filed within ninety days after the entry of judgment. Therefore, to ascertain whether the plaintiff's application is timely the court must first determine when final judgment was rendered in this case.
As noted above, on August 23, 1991, this court remanded the action to the Secretary due to deficiencies in the ALJ's decision which made it impossible for the court to determine whether the medical vocational grids were applied to plaintiff's disability claim or what grids were applied or should have been applied to the claim. The United States Supreme Court has held that there are only two types of remands in social security cases brought pursuant to § 405(g). Melkonyan v. Sullivan, 501 U.S. , , 115 L. Ed. 2d 78, 93, 111 S. Ct. 2157 (1991).
Under sentence four [of § 405(g)], a district court may remand in conjunction with a judgment affirming, modifying or reversing the Secretary's decision. Under sentence six [of § 405(g)], the district court may remand in light of additional evidence without making any substantive ruling as to the correctness of the Secretary's decision, but only if the claimant shows good cause for failing to present the evidence earlier.
Id. "Sentence six also authorizes the District Court to remand on motion by the Secretary made before the Secretary has filed a response in the action." Id. at , n.2, 115 L. Ed. 2d at 93 n.2.
Only remands under sentence four are considered final judgments for purposes of the EAJA. Sullivan v. Finkelstein, 496 U.S. 617, 110 L. Ed. 2d 563, 110 S. Ct. 2658 (1990). Finkelstein came to the Supreme Court after the district court sustained the Secretary's determination that the plaintiff did not suffer from an impairment that met or equaled a listed impairment, but concluded that the case must be remanded to the Secretary because the record was devoid of any findings regarding the plaintiff's inability to engage in any gainful activity even though her impairment was not equal to one of the listed impairments. The Supreme Court held that this remand constituted a judgment pursuant to sentence four of § 405(g). The Supreme Court concluded that the district court's action was essentially a judgment reversing the decision of the Secretary and remanding the case for a rehearing. Id. at , 110 L. Ed. 2d at 573. In addition, the Supreme Court stated that "the District Court's remand order was unquestionably a 'judgment', as it terminated the civil action challenging the Secretary's final determination that [plaintiff] was not entitled to benefits, [and] set aside that determination." Id. at , 110 L. Ed. 2d 573-74.
In the alternative, plaintiff's counsel has requested an award of counsel fees based upon the contingent fee agreement entered into between plaintiff and her counsel. This would be inappropriate. The only avenue for recovering any type of contingent fee in a ...