it as concerning the definition of the term "any civil action," not the appealability of the remand order. Finkelstein, 496 U.S. at 629-631.
Significant to the present matter, the Court in upholding Hudson repeated with apparent approval its statement in Hudson that a claimant is not a "prevailing party" under the EAJA until the result of the administrative proceedings is reached. Finkelstein, 496 U.S. at 630.
A year following Finkelstein, the Court announced Melkonyan. Although the Melkonyan holding will be discussed more fully below, in essence the Court concluded that sentence four remands were final judgments for purposes of filing motions for attorney fees under EAJA, while sentence six remands were not. It would appear, then, that the holding in Melkonyan with respect to sentence four remands and the holding in Hudson are in conflict to the extent that Hudson was based on the proposition that "there will often be no final judgment in a claimant's civil action for judicial review until the administrative proceedings on remand are complete." Hudson, 490 U.S. at 887. But again, the Court specifically upheld the validity of Hudson, and distinguished it in the following manner:
[In Hudson we] defined the narrow class of qualifying administrative proceedings to be those "where 'a suit has been brought in a court,' and where 'a formal complaint within the jurisdiction of a court of law' remains pending and depends on its resolution upon the outcome of the administrative proceedings. Hudson thus stands for the proposition that in those cases where the district court retains jurisdiction of the civil action and contemplates entering a final judgment following the completion of administrative proceedings, a claimant may collect EAJA fees for work done at the administrative level.
Melkonyan, U.S. , 111 S. Ct. at 2162.
In light of the continuing validity of Hudson, I can not conclude that plaintiff is a prevailing party under the EAJA simply because he succeeded in obtaining a sentence four remand. Whether plaintiff is a prevailing party will not be determined until the agency proceedings are completed, and in this sense plaintiff's application for attorney fees is premature.
B. Where to go from here
In reaching this conclusion, I find it necessary to revisit the issue of the timing of EAJA fee applications under Melkonyan.
Several months after the court issued its opinion in Melkonyan, I considered a case with facts quite similar to the present matter. Rollins v. Sullivan, 784 F. Supp. 253 (E.D. Pa. 1992). Rollins had been denied disability benefits by Health and Human Services, and I remanded the case for further proceedings under sentence four of § 405(g). While Rollins was pending at the agency, the Supreme Court announced Melkonyan. Rollins promptly submitted an application for fees, which the Secretary challenged as untimely.
Noting that the Melkonyan Court had found that all sentence four remands were final judgments, I concluded:
after Melkonyan, it is indisputable that the thirty-day period in which a petition for an attorney's fee may be filed begins to run after the district court enters a sentence four order to remand and the time from which to appeal that order expired.
Rollins, 784 F. Supp. at 256. I then declined to give Melkonyan retroactive application and ruled in favor of plaintiff with respect to the timeliness of his application.
However, the present matter involving not the timeliness of fee applications, but rather the claimant's eligibility under the EAJA to collect fees, has forced me to contemplate the logical extension of my strict interpretation of Melkonyan in Rollins. I am no longer of the opinion that "it is indisputable" that the claimant must file a petition for EAJA fees within thirty days of a sentence four remand order since, were my position in Rollins correct, one of two anomalous results would ensue.
First, it is conceivable that my strict interpretation of Melkonyan would ultimately preclude plaintiffs from collecting any EAJA fees where a sentence four remand order is issued.
See, e.g. Heredia v. Secretary of Health and Human Services, 783 F. Supp. 1550, 1557(D. Puerto Rico 1992)(recognizing this likelihood); Fergason v. Sullivan, 771 F. Supp. 1008, 1012 (W.D. Mo. 1991)(same). Under Rollins, a claimant would need to file an application for EAJA fees within thirty days of the sentence four remand order. However, it follows from Hudson and Hanrahan that a claimant is not eligible to collect EAJA fees at that time since the claimant is not yet a prevailing party.
Once the claimant has achieved prevailing party status -- after the completion of the agency proceedings on remand -- the claimant's deadline for submitting petitions for EAJA fees would have passed according to Rollins.
Moreover, it is not clear that a district court would even have jurisdiction to enter an award of attorney fees post-remand. If under Melkonyan all sentence four remands are final judgments, the court would seemingly lose jurisdiction over the matter upon entry of the remand order. See Luna v. U.S. Dept. of Health and Human Services, 948 F.2d 169, 171-72 (5th Cir. 1992). Second, let us assume that it is not the government's position that claimants in sentence four remand cases are never eligible to collect EAJA fees. The government's argument pursuant to Rollins would have to proceed as follows: (1) under Melkonyan, a claimant would file an anticipatory application for EAJA fees within thirty days of the sentence four remand order, (2) at which point the petition would be stayed pending completion of the agency proceedings. In fact, this appears to be the government's position in the present matter. See Defendant's Brief in Opposition to the Plaintiff's Application for Attorney Fees under the Equal Access to Justice Act, p. 5. However, as the First Circuit noted, no court has accepted this adaptation of the process for filing EAJA petitions. Labrie v. Secretary of Health and Human Services, 976 F.2d 779, 785 n. 17 (1st Cir. 1992). In fact, the Eighth Circuit has specifically rejected it, calling it "the ultimate in laying traps for the unwary and senselessly cluttering the court dockets." Hafner v. Sullivan, 972 F.2d 249, 251 (8th Cir. 1992). See also Heredia v. Sullivan, 783 F. Supp. 1550, 1558 (D.P.R. 1992); Spurlock v. Sullivan, 783 F. Supp. 474, 481 (N.D.Cal. 1992). Aside from the unnecessary administrative burden it would place on the courts, it simply makes no sense to require the claimant to file his petition for EAJA fees prior to the administrative proceedings since under Hudson an attorney is entitled to compensation for services post-remand. Hafner, 972 F.2d at 251; Bertrand v. Sullivan, 976 F.2d 977, 979-80 (5th Cir. 1992).
In passing the EAJA, Congress intended to counteract a plaintiff's natural hesitation to "seek review of, or defend against, unreasonable governmental action because of the expense involved in securing the vindication of [his] rights." Hudson, 490 U.S. at 883. Were claimants never eligible to collect attorney fees in the case of sentence four remands, or were claimants forced to endure a long, drawn out ordeal in order to obtain the fees, there would be less ground for confidence that claimants would challenge governmental action in sentence four cases with healthy regularity.
A number of circuit courts have accordingly declined to interpret Melkonyan as requiring claimants to file their petitions for EAJA fees within thirty days of their sentence four remand orders. See Labrie, 976 F.2d at 785-86 (1st Cir.); Hafner, 972 F.2d at 252 (8th Cir.); Scanlon v. Sullivan, 974 F.2d 107, 108 (9th Cir. 1992); Gutierrez v. Sullivan, 953 F.2d 579, 584 (10th Cir. 1992).
Rather, these courts are of the view that not all sentence four remands are "final judgments" under the EAJA. As the Eighth Circuit summarized the perspective:
We do not believe that the Court in Melkonyan intended to mandate a rigid rule as to when a sentence four remand order is a "final judgment" for EAJA purposes that would drastically shorten the lifeline thrown by Hudson and create a huge and unnecessary barrier to EAJA fee applications in remand cases.
Hafner, 972 F.2d at 252. According to these courts, "final judgment" for EAJA purposes does not occur in certain sentence four cases until the proceedings on remand are completed.
I find this reading of Melkonyan persuasive. Specifically, the Melkonyan Court's treatment of Hudson lends support to the inference of a flexible final judgment rule. The Court stated:
[In Hudson we] defined the narrow class of qualifying administrative proceedings to be those "where 'a suit has been brought in a court,' and where 'a formal complaint within the jurisdiction of a court of law' remains pending and depends for its resolution upon the outcome of the administrative proceedings." Hudson thus stands for the proposition that in those cases where the district court retains jurisdiction of the civil action and contemplates entering a final judgment following the completion of administrative proceedings, a claimant may collect EAJA fees for work done at the administrative level.
Melkonyan, U.S. , 111 S. Ct. at 2162 (citations omitted).
Notably, the remand in Hudson was under sentence four. See Labrie, 976 F.2d. at 783; Gutierrez, 953 F.2d at 584. Nevertheless, the Court in Melkonyan specifically upheld the Hudson decision. In so doing, the Court at least implicitly recognized that there exists a class of sentence four remands -- like Hudson -- in which the district court retains jurisdiction over the case throughout the administrative proceedings and intends ultimately to enter a final judgment when the proceedings are completed.
Given the anomalous results of a strict interpretation of Melkonyan, I follow the lead of the First, Eighth, Ninth, and Tenth Circuits in finding that a sentence four remand order is not a final judgment for the purposes of petitioning for EAJA fees where the district court has expressly or implicitly demonstrated an intent to retain jurisdiction.
A question remains whether the present sentence four remand fits within the Hudson subcategory of situations in which the district court has retained continuing jurisdiction. Upon review of Magistrate Judge Hall's Report and Recommendation, which I adopted entirely, I believe this court implicitly reserved jurisdiction over plaintiff's claim. The remand order specifically instructed the Administrative Law Judge to:
employ the services of the vocational expert who can render an opinion as to whether alternative employment exists, taking into consideration all of the plaintiff's exertional and nonexertional impairments.
Report and Recommendation at p. 9. The remanding court has jurisdiction over the agency proceedings to ensure that the agency adheres to such legal and factual instructions on remand. See Hudson, 490 U.S. at 887-880. Moreover, I agree with the Eighth Circuit's observation in Hafner that:
whenever a reviewing court remands a Social Security Disability case without directing payment of benefits, further judicial review is a virtual certainty. Either the Secretary will award benefits on remand, which will trigger a request to the court for EAJA fees, or the Secretary will adhere to his denial of benefits after further administrative proceedings, which will trigger further judicial review on the merits.
Hafner, 972 F.2d at 251.
Having retained jurisdiction over plaintiff's claim, my decision today denying him the right to collect attorney fees now will not forever preclude him from obtaining an EAJA fee. Should plaintiff succeed in obtaining benefits on remand, he may well be eligible to secure attorney fees at that time.
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 812 F. Supp. 534.
In accordance with the accompanying Memorandum, it is hereby ORDERED that plaintiff's Motion for the Award of Attorney's Fees Pursuant to 28 U.S.C. § 2412, The Equal Access to Justice Act ["EAJA"] is DENIED as premature. Plaintiff may reapply for attorney fees under the EAJA after the agency proceedings currently pending on remand are completed.
January 26, 1993