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KOWALICK v. SULLIVAN

January 26, 1993

JOSEPH KOWALICK
v.
LOUIS W. SULLIVAN, M.D., Secretary of Health and Human Services



The opinion of the court was delivered by: LOUIS H. POLLAK

 On August 5, 1987, plaintiff Joseph Kowalick filed a claim with Health and Human Services seeking disability insurance benefits. Upon having his application denied, plaintiff sought judicial review of the agency's determination pursuant to 42 U.S.C. § 405(g). On February 15, 1991, this court approved and adopted the recommendation of Magistrate Judge William F. Hall that plaintiff's claim for benefits be remanded to defendant Secretary Sullivan for reconsideration and for further development of the record.

 Counsel for plaintiff seeks attorney fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C.A. § 2412 for his representation of plaintiff. Defendant asks that the court stay plaintiff's request for attorney fees pending resolution of the remand.

 I. Procedural History Post-remand

 Prior to filing this petition for EAJA fees, plaintiff moved this court on July 10, 1991 for a protective order with respect to his right to file the petition. Plaintiff was concerned that his right to apply for fees under the EAJA was threatened by the Supreme Court decision in Melkonyan v. Sullivan, U.S. , 115 L. Ed. 2d 78, 111 S. Ct. 2157(1991) announced while plaintiff's remand was pending.

 Under the EAJA, a party has thirty days from the date of the entry of final judgment in which to file for attorney fees. 28 U.S.C. § 2412 (d)(1)(B). *fn1" At the time of plaintiff's remand, the Third Circuit did not consider a remand order to be a final judgment. Brown v. Secretary of Health and Human Services, 747 F.2d 878 (3d Cir. 1984). Thus, there was no need for plaintiff to file his petition for EAJA fees upon the remand order -- such an application would have been premature.

 However, on June 10, 1991, while plaintiff's claim was pending with Health and Human Services, the Supreme Court issued Melkonyan holding that some remand orders pursuant to § 405(g) were in fact final judgments. In Melkonyan, the Supreme Court stated that there were only two types of remand orders under § 405(g): a sentence four remand *fn2" and a sentence six remand. *fn3" Id. at 2164-65. As for the timing of EAJA applications in light of this definition of remand orders, the Court explained:

 in sentence four cases, the filing period begins after the final judgment ("affirming, modifying, or reversing") is entered by the court and the appeal period has run. In sentence six cases, the filing period does not begin until after the postremand proceedings are completed, the Secretary returns to court, the court enters final judgment, and the appeal period runs.

 Id. at 2165.

 The parties in this case agree that the February 15, 1991 remand was a sentence four remand. Under Melkonyan, then, the remand order would appear to have been a final judgment and, accordingly, it would seem that plaintiff should have filed his motion for fees thirty days following the remand. By the time Melkonyan was announced, though, it had been four months since the remand.

 Plaintiff therefore filed the July 10, 1991 motion with this court for an order protecting his right to claim attorney fees under the EAJA despite the rule announced in Melkonyan. Citing my reasoning in Rollins v. Sullivan, Secretary of Health and Human Services, 784 F. Supp. 253 (E.D. Pa. 1992), I declined to give Melkonyan retroactive application and I granted plaintiff's motion. See August 20, 1992 Order. In that plaintiff's request for attorney fees was still viable, I instructed plaintiff to file with the court an application showing that he was entitled to fees pursuant to EAJA. Plaintiff's application is the present matter before the court. While raising no objections to the timeliness of plaintiff's motion for attorney fees, defendant does contend that plaintiff is not yet eligible to collect compensation under the EAJA.

 II. Discussion

 The EAJA states in relevant part:

 Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action . . . including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds the position of the United States was substantially justified or that special circumstances make an award unjust.

 28 U.S.C. § 2412(d)(1)(A). An attorney seeking fees is entitled to fees therefore if (1) he is a prevailing party and (2) the government was not substantially justified in taking the position it did. In that plaintiff's motion may be resolved upon consideration of the first element alone, and because defendant has only raised arguments with respect to that element, I will only consider whether plaintiff is a "prevailing party" under the EAJA.

 A. Prevailing Party Status

 In recommending a remand of this case to the agency, Magistrate Hall found that "the record [was] not complete," and that further proceedings were required. Defendant argues that this does not make plaintiff a "prevailing party." To have "prevailing party" status within the meaning of EAJA, defendant explains, it is not enough that plaintiff successfully attained a remand, but rather plaintiff must succeed on the merits of the underlying claim. *fn4"

  In support of his argument, defendant cites Sullivan v. Hudson, 490 U.S. 877, 104 L. Ed. 2d 941, 109 S. Ct. 2248 (1989), in which the Court considered whether an attorney seeking fees pursuant to EAJA was entitled to compensation for services performed post-remand. Finding that the administrative proceedings and the judicial proceedings in claims for disability benefits were interdependent, the court concluded that the agency proceedings should be considered "part and parcel" of the "civil action" as that term is used in the EAJA. Hudson, 490 U.S. at 888, 889-90. Therefore, the Court decided, attorneys are entitled to compensation for their services on remand. Id. at 890. ...


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