Amicus Curiae Brief — Shalala v. Schaefer
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Suprame Court, UD
FILED
FE3 18 1993
tat te to
No. 92-311
In The
Supreme Court of the United
October Term, 1992
SJ
LOUIS W. SULLIVAN, SECRETARY OF
HEALTH AND HUMAN SERVICES,
Petitioner,
j* THE CLERK
V.
RICHARD H. SCHAEFER,
Respondent.
e
On Writ Of Certiorari To The
United States Court Of Appeals
For The Eighth Circuit
¢
BRIEF OF AMICI CURIAE LEGAL SERVICES OF
NORTHERN CALIFORNIA, INC., AND NATIONAL
SENIOR CITIZENS LAW CENTER
IN SUPPORT OF RESPONDENT
¢
Gary F. SmitH
(Counsel of Record)
Legal Services of Northern
California, Inc.
619 North Street
Woodland, California 95695
(916) 662-1065
Gitt DeFrorp
National Senior Citizens
Law Center
1052 W. 6th Street, Suite 700
Los Angeles, California 90017
(213) 482-3550
Attcrneys for Amici Curiae
Legal Services of Northern
California, Inc.
National Senior Citizens
Law Center
February 17, 1993
COCKLE LAW BRIEF PRINTING CO, bo} 225-6964
OR CALL COLLECT (402) 342-283
TABLE OF CONTENTS
TABLE OF AUTHORITIES
BRIEF OF AMICI CURIAE LEGAL SERVICES OF
NORTHERN CALIFORNIA, INC. AND
NATIONAL SENIOR CITIZENS LAW CENTER IN
SUPPORT OF RESPONDENTS
INTERESTS OF AMICI
STATEMENT OF THE ISSUE
SUMMARY OF ARGUMENT
ARGUMENT:
I. RESPONDENT’S APPLICATION FOR ATTOR-
NEY’S FEES UNDER THE EQUAL ACCESS TO
JUSTICE ACT WAS TIMELY FILED
A.
The EAJA filing period may only be trig-
gered by a district court judgment entered
after the claimant has won entitlement to
benefits
The Court’s decisions in Finkelstein and
Melkonyan do not require abandonment of
the procedure approved in Hudson
The Secretary’s proposed EAJA application
procedure in fourth sentence remand cases is
contrary to the statutory prescription for the
application, and will needlessly waste vast
resources of disability claimants and the
courts
EVEN IF THE SECRETARY’S INTERPRETATION
OF THE APPROPRIATE PERIOD FOR EAJA
APPLICATIONS IN CASES INVOLVING
FOURTH SENTENCE REMANDS IS CORRECT,
THE COURT’S HOLDING IN HUDSON CAN-
NOT BE LIMITED TO SIXTH SENTENCE
DE 6b es nscecrceees ieshababndaoeedaeesk
CONCLUSION
15
22
TABLE OF AUTHORITIES
Page
CASES
Audette v. Sec’y of HHS, 776 F.Supp. 84 (D.R.1.
Pere fer rrr rr rr ere rr errr TT re 21
Bowen v. Galbreath, 485 U.S. 74 (1988)........ 20, 28, 29
Brown v. Sec’y of HHS, 747 F.2d 878 (3d Cir. 1984) ....14
Butts v. Bowen, 775 F.Supp. 1167 (N.D.IIl. 1991),
reaff'd, 778 F.Supp. 453 (N.D.II. 1991)............. 25
Carrillo v. Bowen, 636 F.Supp. 99 (D.Ariz. 1985)...... 26
Commissioner, INS v. Jean, 446 U.S. 154 (1990)........ 28
Defrancesco v. Sullivan, 803 F.Supp. 1132 (N.D.IIL
ee ne eae a oe ee 25, 28
Desrouchers v. Heckler, 701 F.Supp. 753 (D.Nev
RRR Ate at phere TeMClee ry Cc 24
Dow v. Sullivan, 774 F.Supp. 46 (D.Me. 1991)........ 21
Fergason v. Sullivan, 771 F.Supp. 1008 (W.D.Mo.
CRE as Aarne 16
Frizzell v. Sullivan, 937 F.2d 254 (5th Cir. 1991)...... 26
Gagnon v. Sullivan, 792 F.Supp. 873 (D.Me. 1991) .... 21
Hafner v. Sullivan, 972 F.2d 249 (8th Cir. 1992).6, 17, 19
Hawkins v. Sullivan, 608 F.Supp. 1201 (D.Kan. 1985) ... . 25
Key v. Sullivan, 925 F.2d 1056 (7th Cir. 1991)........ 26
Labrie v. Sec’y of HHS, 976 F.2d 779 (1st Cir. 1992)
neces ucenyenduenniensssesenens 6, 17, 20, 22
Lindner v. Sullivan, 799 F.Supp. 888 (N.D.IIl. 1992) .... 25
Lopez v. Sullivan, 780 F.Supp. 496 (N.D.IIl. 1992)..... 21
in
TABLE OF AUTHORITIES — Continued
Melkonyan v. Sulltvan, 111 S Ct. 2157 (1991)... ... passim
Mills v. Sultvan, 782 F.Supp. 1347 (W.D.Mo. 1992) .... 21
Misciagno v. Sec’y of HHS, 786 F.Supp. 1120
(B-GAG.V. COUR). oc cccsccscedscsecdauueeeenkeeeenen 25
Myers v. Sullivan, 916 F.2d 659 (11th Cir 1991)... . 30
Parsons v. Sullivan, 140 FR.D. 352 (S.D.Ohio 1992) 19, 21
Phayboun v. Sullivan, No. S-909-225 EJG/PAN
(E.D. Cal. Sept. 4, 1992) (unpublished). .......... 6, 7
Pierce v. Heckler, 620 FSupp. 320 (D.Ariz. 1985) .. 26
Prasad v. Sullivan, No. C-90-1435 SC (N.D Cal Nov
21, 1991) (unpublished)... a | 17
Reeves v. Bowen, 841 F.2d 383 (11th Cir. 1988), reh'g
denied, 860 F.2d 1009 (11th Cir 1988)... a
Rivera-Sanchez v. Sec’y of HHS, 786 —— 147
(DD. Funetm Gee Fee sc coceccunsvencncaaer ra 24
Rodriguez v. Sec’y of HHS, 794 F Supp. 58 (D.Puerto
OCD GOO cc occcevccssennstcebeneeeeel Pere
Rosado v. Bowen, 823 F.2d 40 (2d Cir. 1987).. _.. 24
Rollins v. Sullivan, 784 FSupp. 253 (E.D.Pa. 1992)... 21
Russell v. Sullivan, 930 F.2d 1443 (9th Cir. 1991)... 20
Sansano v. Sullivan, 788 F Supp. 218 (D.NJ. 1992)... . 29
Schweiker v. Wilson, 450 U.S. 221 (1981)...... | 25
Sesker v. Sullivan, 779 F Supp. 1042 (W.D.Mo. 1991)... . 21
Spurlock v. Sullivan, 783 F.Supp. 474 (N.D.Cal.
1992), reaff'd, 790 FSupp. 979 (N.D.Cal. 1992). 21, 23
iv
TABLE OF AUTHORITIES — Continued
Page
Sullivan v. Finkelstein, 496 U.S. 617 (1990) ....... passim
Sullivan v. Hudson, 490 U.S. 877 (1989).......... passim
Sullivan v. Sullivan, 738 F.Supp. 332 (W.D.Mo.
DE Dodge sean eREMGdSGhKEsbewsncedesedecesecevcs: 25
Taylor v. Heckler, 608 F.Supp. 1255 (D.N.J. 1985) ..... 20
Thomas for Brown v. Sullivan, 785 F.Supp. 788 (C.D.
i cGcenchahdGubtdeSbcenecuepasecccecoccecs 21
Wilson v. Heckler, 610 F.Supp. 120 (W.D.Mo. 1985) .... 27
Xiong v. Sullivan, No. CIV-S-91-0860 DFL GRH
(E.D.Cal. Feb. 2, 1993) (unpublished).............. 21
STATUTES
Pub.L.No. 99-80, § 3 (1988), 99 Stat. 186 (28 U.S.C.
A cc ces beasekbeeknest<ccecevecces 20
The Equal Access to Justice Act, 28 U.S.C.
chu suudentsénecsseedeunesecvees 12
ee ede caen chbssdhidbseensesecedsy 18
28 U.S.C. § 2412(d)(1)(A) .......... 4, 12, 13, 15, 19, 24
i oc cnuviccteesecsuceedens 10, 14
CTT TTT TET CTTET ITE 19
The Social Security Act, Title Il, 42 U.S.C. § 401 et
BE a Sec coccesesccccnscccccncccsensccccccoeccccecs 28
i ES dads ginscacdssnthenseanecsess passim
Mecca sbubseniehedentecucens 20, 29
The Social Security Act, Title XVI, 42 U.S.C. § 1381
PRE Pererr error rT TTT TTT ITT TTT TTT eee 28
Vv
TABLE OF AUTHORITIES - Continued
Page
RULES AND REGULATIONS
EE MU Ohba bb nOdécchenschesscdsnsscaseeecons 19
ee ey OP ID, oo iccccccscccccecccccoss 29
ee Se Se sp ccbncsédvecveosccscdeccsuseeus 23
ED Caan cdavedsdsccussiecedcessdnewet 29
Pe EL SG c ckGhdsdundedeswastncescuceuevedas 2
ay Tee.meae, GSGD ct. Z7, BIGPE) ... nc ccccccccccces 29
54 Fed.Reg. 37,789, 37,791 (1989)............. ance 14
MISCELLANEOUS
H.R.Rep. No. 120, 99th Cong., Ist Sess. 18 n.26
reprinted in 1985 U.S. Code Cong. & Admin.
Ee Ce IN 5c cass vaodeesuelsvasecascsvede 5
Dep ee. SEES P. S (UTS)... ccccscccccses: 12, 24
Social Security Administration, Annual Report to
rn orion ovidenccachecteucencaess 20
No. 92-311
s
In The
Supreme Court of the United States
October Term, 1992
.
LOUIS W. SULLIVAN, SECRETARY OF
HEALTH AND HUMAN SERVICES,
Petitioner,
RICHARD H. SCHAEFER,
Respondent.
*
On Writ Of Certiorari
To The United States Court Of Appeals
For The Eighth Circuit
¢
BRIEF OF AMICI CURIAE LEGAL SERVICES OF
NORTHERN CALIFORNIA, INC., AND NATIONAL
SENIOR CITIZENS LAW CENTER
IN SUPPORT OF RESPONDENT
«
INTERESTS OF AMICI
This brief is filed, with the consent of the parties, on
behalf of Legal Services of Northern California, Inc.
(LSNC) and the National Senior Citizens Law Center
(NSCLC). Legal Services of Northern California, Inc. is a
non-profit agency providing free civil legal services to
low income residents of northern California in the areas
of civil rights, health, housing, and public benefits.
National Senior Citizens Law Center is a non-profit
agency specializing in legal issues affecting the elderly
]
2
poor. NSCLC practices law in support of legal services
programs on behalf of elderly poor clients and client
groups. As a nationwide support center, NSCLC assists
attorneys in field programs funded by the Legal Services
Corporation or the Administration on Aging. Substantive
areas of practice include Social Security and Supplemen-
tal Security Income, Medicare, Medicaid, nursing home
and home care issues, pensions, and age discrimination.
Over the years LSNC and NSCLC have represented
thousands of poor persons, and have appeared a number
of times before this Court, with respect to a wide variety
of issues arising under Titles II and XVI of the Social
Security Act. In addition, both LSNC and NSCLC provide
counselling and assistance to members of the private bar
who represent low-income persons in disability appeals.
LSNC, in particular, refers numerous low-income claim-
ants for disability benefits to members of the private
disability bar for representation, pursuant to its obliga-
tion as a legal services organization to encourage private
bar involvement in the provision of legal assistance to
low-income persons. See 45 C.F.R. § 1614.2. Often the only
potential source of adequate compensation for these
advocates, especially where the claim for benefits arises
under the Supplemental Security Income program, is
through the Equal Access to Justice Act (EAJA).' The
radical interpretation urged by the Secretary of Health
1 LSNC and NSCLC also have developed considerable
expertise in litigating EAJA issues, particularly in the context of
cases arising under the Social Security Act. Counsel for amici
have lodged an extensive amicus brief in the case of Engelbrite v.
Sullivan, No. 91-16920 (9th Cir.), which the Secretary has identi-
fied as raising the same issues as are presented in this case. Pet.
Br. at 20 n.13.
3
and Human Services of this Court's recent series of deci-
sions implicating the availability of EAJA fees under the
Social Security Act would drastically limit a disability
claimant's entitlement to EAJA fees in most cases, and
would significantly impair the ability of amici to assist
poor, often destitute clients seeking to challenge the
wrongful denial of disability benefits.
The Secretary’s position in this case calls into ques-
tion the ability of hundreds of non-profit legal services
Organizations like amici to recover EAJA fees for the
extensive post-litigation administrative advocacy neces-
sary to successfully resolve the vast majority of disability
appeals now remanded by the district courts. Equally
significant would be the impact of the Secretary’s posi-
tion upon the efforts of amict and similar organizations to
assist thousands of needy disabled clients through refer-
rals to private attorneys who, until recently, were willing
to undertake such representation primarily because of the
potential for eventual compensation under the EAJA.
Amici therefore are filing this brief to present the issues
from the perspective of those individuals most in need of
the level playing field Congress intended the EAJA to
create for claimants compelled to vindicate meritorious
applications for disability benefits through litigation
against the federal government.
STATEMENT OF THE ISSUE
Less than four years ago this Court, in the context of
a typical disability benefits appeal remanded by the dis-
trict court pursuant to 42 U.S.C. § 405(g) for correction of
legal errors committed by the Secretary, made the undis-
puted observation that jurisdiction routinely is retained
4
over such a case, pending conclusion of the administra-
tive proceedings on remand, in order to entertain a post-
remand application for attorney’s fees under the Equal
Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A). The Court
went on to hold that in such an application the plaintiff
may seek compensation for counsel’s time incurred in
both the litigation and the administrative proceedings on
remand. Sullivan v. Hudson, 490 U.S. 877, 885-90 (1989).
This holding made eminent sense in light of the Court’s
recognition that, as a general matter, a disability claimant
who obtains a judicial remand for further proceedings
does not qualify as a “prevailing party,” for purposes of
EAJA entitlement under 28 U.S.C. § 2412(d)(1)(A), until
after he or she has won a final administrative award of
benefits. Id. at 886-87.
A year later, in distinguishing between the “finality”
of remands ordered pursuant to the fourth and sixth
sentences of § 405(g) for purposes of the Secretary’s abil-
ity to obtain immediate appellate review, the Court reaf-
firmed its conclusion in Hudson that
[t]he purpose of the EAJA [is] to counterbalance
the financiai disincentives to vindicating rights
against the Government through litigation;
given this purpose, we could not believe that
Congress would “throw the Social Security
claimant a lifeline it knew was a foot short” by
denying her attorney’s fees for the mandatory
proceedings on remand.
Sullivan v. Finkelstein, 496 U.S. 617, 630 (1990), quoting
Hudson, 490 U.S. at 890.
Finally, just eighteen months ago, in determining that
the “final judgment” triggering the thirty day limitations
period for EAJA fee applications in § 405(g) cases must be
a judgment entered by a court, and not an administrative
5
decision, the Court emphasized that “[o]ur decision in
Sullivan v. Hudson is not to the contrary.” Melkonyan v.
Sullivan, 111 S.Ct. 2157, 2162 (1991). However, the Court
then moved beyond its narrow holding on the statutory
definition of “final judgment,” and included a discussion
which at least implied that in so-called “sentence four”
remands (i.e., those remands ordered for correction of
legal error, such as the one at issue in Hudson), the EAJA
filing period may begin to run ninety days after issuance
of the remand order, long before the administrative pro-
ceedings on remand are completed. Id. at 2165.
Wielding this single dictum in a nation-wide effort to
bar, as untimely, the post-remand EAJA applications sub-
mitted by the hundreds of disabled claimants who
obtained fourth sentence remands prior to the Melkonyan
decision, the Secretary has touched off an unprecedented
avalanche of fee litigation in the lower federal courts. Yet
these courts, which review disability claims and atten-
dant EAJA applications virtually on a daily basis, from a
unique perspective informed by their extraordinary
degree of “direct interaction” with the administrative
agency (Hudson, 490 U.S. at 885), have rejected the Secre-
tary’s position in overwhelming numbers. In so doing
they have heeded the admonition of Congress not to
construe the procedural requirements of the EAJA in an
“overly technical” manner, so as to spring “a trap for the
unwary resulting in the unwarranted denial of fees.”
H.R.Rep. No. 120, 99th Cong., Ist Sess. 18 n.26, reprinted
in 1985 U.S. Code Cong. & Admin. News 132, 146 n.26.?
2 As far as amici are aware, every Court of Appeals to
consider the issue has rejected the Secretary's Melkonyan-related
effort to bar, as untimely, the post-remand EAJA application of a
6
The torrent of EAJA litigation unleashed by the Sec-
retary’s largely unavailing efforts to persuade the courts
that an EAJA application must be filed within ninety days
of an unappealed fourth sentence remand order, notwith-
standing the plaintiff's inability at that time to demon-
strate the requisite “prevailing party” status for EAJA
entitlement, thus far has arisen primarily in the context of
cases such as this one, where the remand was ordered
prior to the decision in Melkonyan. In these cases the
Secretary’s singular lack of success in denying disability
claimants their attorney’s fees, simply because prior to
Melkonyan they faithfully and timely adhered to the pre-
vailing rules governing the timing of EAJA applications
in fourth sentence remand contexts, is no doubt driven in
part by the judiciary’s simple refusal to countenance such
a patently unjust result.? This nearly universal rejection
of the Secretary’s positions rests, as one district judge put
it, “on the largely unspoken assumption that [in Melko-
nyan| the Supreme Court could not have intended the
result it apparently dictated, particularly since this result
frustrates the very purpose of [the] EAJA.”4
disability plaintiff whose case was remanded prior to Melko-
nyan. See infra App. la (listing cases). For two particularly tho-
rough discussions, see Labrie v. Sec’y of HHS, 976 F.2d 779 (lst
Cir. 1992), and Hafner v. Sullivan, 972 F.2d 249 (8th Cir. 1992).
3 Set forth infra App. 2a-4a are forty-nine published deci-
sions of the district courts, arranged according to the various
analyses they have employed in rejecting the Secretary’s Melko-
nyan-related arguments raised in connection with plaintiff's
entitlement to attorney’s fees under the EAJA. The four pub-
lished contrary decisions (of which amici are aware) adopting
the Secretary’s position are listed at infra App. 5a.
4 Phayboun v. Sullivan, No. S-90-225 EJG/PAN (E.D.Cai.
Sept. 4, 1992) (unpublished), at 15. The unpublished decisions of
7
The raw unfairness resulting from the Secretary’s
effort to retroactively impose his calculation of the appro-
priate EAJA filing period upon cases involving pre-Melko-
nyan fourth sentence remands has thus far focussed
judicial attention upon that category of cases. However,
the Secretary correctly recognizes that “the number of
such [cases] will diminish rapidly in the near future,” as
the last of the pre-Melkonyan cases meander their way
through the inexorable internal processes of the Social
Security Administration. Pet. Br. at 30 n.18. Accordingly,
the Secretary asserts that his interpretation of Finkelstein
and Melkonyan, which requires the filing of an EAJA
application within ninety days of all unappealed fourth
sentence remands, will provide a “clear rule” to benefit
not only the district courts but the “thousands of liti-
gants” who will encounter this timeliness issue in the
future. Pet. Br. at 30.
Notwithstanding the Secretary’s professed concern
for these “thousands” of disabled persons whose claims
he will wrongly deny, he certainly has not initiated litiga-
tion over this issue across the nation simply to establish a
bright line governing the timing of EAJA applications,
particularly since the line drawn by the Court in Hudson
is perfectly clear, and has the added benefit of directing a
result which comports with common sense. The Secre-
tary’s true interest in this case is in fact far more tangible
{
the district courts rejecting the Secretary's timeliness arguments
are legion, and certainly no less extensive (or creative) in their
analyses than their published counterparts. For example, the
unpublished memorandum decision in Phayboun v. Sullivan was
forty-three pages in length. Copies of all unpublished decisions
referenced in this brief have been lodged with the Clerk and
served on the parties.
8
than the establishment of a definitive EAJA application
procedure. Although that interest lies, for the most part,
obscured within his measured arguments, it surfaces
unadorned in this single sentence within his brief: “In
short, Finkelstein and Melkonyan necessarily limit Hudson
to cases remanded pursuant to sentence six.” Pet. Br. at
25.
This single sentence reveals what the Secretary's
position in this case is really about: money. If this Court's
holding in Hudson allowing EAJA compensation for time
expended in post-remand administrative proceedings is
limited to sentence six remands, then Hudson will become
an empty shell, and no more than a handful of the thou-
sands of disabled persons who annually overturn the
wrongful denial of their claims, with the assistance of a
remand from the federal court, may possibly hope to
recover EAJA fees for the substantial time incurred in the
laborious post-remand proceedings. Indeed, the accep-
tance of the Secretary’s position will foreclose EAJA
entitlement in the very cases where fee awards are most
appropriate, i.e., in those not infrequent cases where,
following an initial fourth sentence remand, the unrea-
sonable and often obdurate conduct of the agency neces-
sitates years of multiple post-remand hearings, re-
hearings, and subsequent litigation in which the claimant
is bounced between various administrative and judicial
review levels as if, in the words of one district court, the
agency was engaged in a “ping-pong” match.°
Finally, and most disturbing, this Court’s endorse-
ment of the Secretary’s position would undoubtedly
5 Rodriguez v. Secretary of HHS, 794 F.Supp. 58, 59 (D.Puerto
Rico 1992); see infra at 25 & n.19.
9
cause a significant reduction in the number of attorneys
willing to undertake federai court representation of dis-
ability claimants, in light of counsel's inability to obtain
EAJA compensation for the extensive proceedings on
remand which almost invariably are required to secure a
final award of benefits. Even worse is the fact that those
persons most in need of competent representation to
vindicate their disability claims under Title XVI of the
Social Security Act (the SSI program), who by definition
are needy and seeking only a subsistence level income,
will suffer the most if the Secretary’s agenda for vitiating
Hudson is adopted, because those (already few) attorneys
willing to represent such claimants have no effective
incentive to do so apart from the possibility of EAJA fees.
The Secretary has seized the opportunity arising
from the confusion generated by Melkonyan’s discussion
of EAJA procedure to try and score a stunning substantive
EAJA victory, through a decision which would excise the
very heart of this Court’s holding in Hudson. The Secre-
tary’s invitation to nullify Hudson would turn the EAJA
on its head, and should be resoundingly refused.
SUMMARY OF ARGUMENT
a. The extended analysis of this Court in Sullivan v.
Hudson, 490 U.S. 877 (1989), sensibly recognized that in
cases remanded pursuant to 42 U.S.C. § 405(g) for correc-
tion of legal error committed by the Secretary in evaluat-
ing plaintiff's claim, the “final judgment” triggering the
filing period for a fee application under the EAJA cannot
be entered until after the administrative proceedings on
remand have been completed. This must be so because
the standard described in Hudson for qualification as a
10
“prevailing party” under the EAJA, to which the Secre-
tary still adheres, cannot be met until after the adminis-
trative proceedings on remand have been completed.
Respondent in this case complied with the procedure
approved in Hudson, and which had been endorsed by
the Secretary both in litigation and regulatory comment,
by returning to the district court for entry of a post-
remand judgment to confirm his entitlement to benefits.
b. This Court’s decisions in Finkelstein v. Sullivan,
496 US. 617 (1990), and Melkonyan v. Sullivan, 111 S.Ct.
2157 (1991), were not intended, as the Secretary now
argues, to severely limit the substantive scope of the
EAJA, and to effectively nullify the substantive holding
in Hudson, by requiring claimants in the vast majority of
cases remanded under § 405(g) to file fee applications
before their threshold qualifications for EAJA entitlement
are established. Reaffirmation of the EAJA filing period
delineated in Hudson will disturb neither the Court’s
holding in Finkelstein, which simply permitted the Secre-
tary to immediately appeal an order remanding the case
for correction of legal and factual errors, nor the Court's
holding in Melkonyan, which established that the EAJA
“final judgment” described in 28 U.S.C. § 2412(d)(1)(B)
requires a judgment filed by the court, and not the
administrative agency.
c. The EAJA filing procedure suggested by the Sec-
retary is grossly inefficient and would needlessly waste
the resources of litigants and courts alike. its principle
intent is to substantively vitiate the Court’s decision in
Hudson, which construed the EAJA to permit attorney’s
fees awards for the considerable time required of counse!
11
in the mandatory post-remand administrative proceed-
ings which are necessary to establish the entitlement to
benefits. Even if the Secretary's interpretation of the
appropriate timeframe for the filing of an EAJA applica-
tion following a fourth sentence remand order is correct,
the scope of the Court's substantive holding in Hudson is
undiminished. Acceptance of the Secretary’s invitation to
nullify Hudson will turn the EAJA on its head, and ensure
that many needy and disabled persons, whose applica-
tions for benefits are wrongly denied by the Secretary,
will never be able to vindicate their claims.
ARGUMENT
I. RESPONDENT’S APPLICATION FOR ATTOR-
NEY’S FEES UNDER THE EQUAL ACCESS TO JUS-
TICE ACT WAS TIMELY FILED
A. The EAJA filing period may only be triggered
by a district court judgment entered after the
claimant has won entitlement to benefits
In Sullivan v. Hudson, 490 U.S. 877 (1989), the Court
had before it a typical claim arising under 42 U.S.C.
§ 405(g) for judicial review of the administrative denial of
disability benefits. In that case the district court had
affirmed the Secretary’s denial of benefits, but the Court
of Appeals reversed the decision of the district court,
vacated the Secretary’s administrative denial, and
instructed the lower court to remand the claim for further
administrative proceedings necessary to correct a number
of legal errors committed by the Secretary in evaluating
plaintiff's claim. Id. at 880-81. Pursuant to the district
court’s retnand order, the Secretary re-evaluated plain-
tiff’s claim under the standards required by law, and
granted the application for benefits. Jd. at 881.
12
Following issuance of the final administrative deci-
sion awarding benefits on remand, the Secretary advised
the district court of plaintiff's final administrative victory
on remand, and obtained an order dismissing plaintiff's
claim for judicial review. Id. at 882. Notwithstanding its
dismissal order, the district court, as this Court noted,
“retained jurisdiction over the action for the limited pur-
pose of considering any petition for the award of attor-
ney’s fees.” Hudson, 490 U.S. at 882.
The plaintiff then filed a petition for attorney’s fees
under the Equal Access to Justice Act, 28 U.S.C. § 2412(d),
which the district court denied because in its view the
Secretary's position had been “substantially justified”
within the meaning of § 2412(d)(1)(A). Id. at 882. How-
ever, the Court of Appeals reversed the district court’s
substantial justification ruling, and held in addition that
the EAJA permits an award of fees for time incurred in
the post-remand administrative proceedings as well as in
the litigation itself. See 490 U.S. at 882-83. It was with
respect to this latter holding that the Court granted the
Secretary’s petition for certiorari. 490 U.S. at 883.
The task before this Court in Hudson was to deter-
mine “the most reasonable interpretation of the [EAJA] in
light of its manifest intent.” 490 U.S. at 889. That intent,
held the Court, is “to diminish the deterrent effect of
seeking review of, or defending against, governmental!
action,” 490 U.S. at 890 (citation omitted), and to reduce
the number of persons who, due to the prohibitive costs
of litigation against the government, are forced “to
endure an injustice [rather] than to contest it.” 490 U.S. at
883, quoting S.Rep. No. 96-253, p. 5 (1979).
In interpreting whether the post-remand administra-
tive proceedings were to be considered part of the civil
“action” for EAJA purposes under 28 U.S.C.
§ 2412(d)(1)(A), the Court necessarily engaged in a
detailed examination of the “somewhat unusual” judicial
review provisions under § 405(g), which provide “a
degree of direct interaction between a federal court and
an administrative agency alien to traditional review of
agency action under the Administrative Procedure Act.”
490 U.S. at 885. In particular, in cases like Hudson itself,
where “the Secretary has committed a legal or factual
error in evaluating a particular claim,” the district court's
remand order will often instruct the Secretary to address
“complex legal issues” on remand. Ibid. The Court
observed tnat “[djeviation from the court’s remand order
in the subsequent administrative proceedings is itself
legal error, subject to reversal on further judicial review,”
and accordingly the district court retains jurisdiction over
such cases “to assure that its prior mandate is effectu-
ated.” Id. at 886.
After laying the foundation of these universally
acknowledged jurisdictional principles applicable to a
disability claim remanded for legal error under § 405(g),
replete with numerous circuit court citations dating to
1967, this Court then highlighted the “[t]wo points
important to the application of the EAJA” in § 405(g)
cases:
First, in a case such as this one, where a court's
remand to the agency for further administrative
proceedings does not necessarily dictate the
receipt of benefits, the claimant will not nor-
mally attain ‘prevailing party status’ within the
meaning of § 2412(d)(1)(A) until after the results
14
of the administrative proceedings on remand
are known.
490 U.S. at 886°
Second, because “the remanding court continues to
retain jurisdiction over the action within the meaning of
the EAJA and may exercise that jurisdiction to determine
if its legal instructions on remand have been followed by
the Secretary,” there often will be no “final judgment”
triggering the day EAJA application period, 28 U.S.C.
2412(d)(1)(B), “until the administrative proceedings on
remand are complete.” 490 U.S. at 887-88.
Significantly, for purposes of evaluating the Secre-
tary’s current position on these matters, it bears emphasis
that none of the above-described propositions set forth in
Hudson were disputed by the Secretary. Indeed, as this
Court specifically noted, “[t}he Secretary concedes that a
remand order from the district court to the agency is not
a final determination of the civil action and that the
district court retains jurisdiction to review any deter-
mination rendered on remand.” 490 U.S. at 887 (quotation
frem Secretary’s brief omitted).”
Finally turning to the specific question presented in
Hudson, the Court observed that
® The Court noted that the prerequisite of an administrative
award of benefits for qualification as an EAJA “prevailing
party” in a § 405(g) case was in accord with “the vast majority”
of the circuit court holdings on the issue. 490 U.S. at 887.
7 The Secretary’s return to the district court to obtain a final
dispositive order following the post-remand award of benefits
in Hudson was simply consistent with the procedure he had
agreed was appropriate in all remanded cases, including those
remanded for the correction of legal error. See Brown v. Secretary
of HHS, 747 F.2d 878, 884 (3d Cir. 1984); 54 Fed.Reg. 37,789,
37,791 (1989).
15
[gliven the “mandatory” nature of the adminis-
trative proceedings at issue here, and their close
relation in law and fact to the issues before the
district court on judicial review, we find it diffi-
cult to ascribe to Congress an intent to throw the
Social Security claimant a lifeline it knew was a
foot short . . . Given the anomaious nature of
this result, and its frustration of the very pur-
poses behind the EAJA, Congress cannot lightly
be assumed to have intended it.
490 U.S. at 889-90 (citations omitted). Accordingly, the
Court held that the administrative proceedings on
remand in a § 405(g) case constitute a sufficient part of
the civil “action” described in 28 U.S.C. § 2412(d)(1)(A) to
permit an award of EAJA fees for services performed on
remand before the Social Security Administration. Id. at
890.
B. The Court's decisions in Finkelstein and Melko-
nyan do not require abandonment of the pre-
cedure approved in Hudson
7
In Hudson neither this Court nor the Secretary had
any doubt whatsoever that, in a routine case remanded
under § 405(g) for correction of legal or factual errors
committed by the Secretary, claimant's petition for EAJA
fees could not be filed or entertained until after (1) receipt
of an administrative award of benefits on remand, and (2)
entry of a “final judgment” acknowledging the favorable
administrative decision. Yet in his eagerness to overturn
Hudson's ruling on the substantive scope of the EAJA, the
Secretary has no qualms in abandoning these fundamen-
tal principles of EAJA procedure he had endorsed without
question in Hudson. This Court's recent decisions in Sul-
livan v. Finkelstein, 496 U.S. 617 (1990) and Melkonyan v.
16
Sullivan, 111 S.Ct. 2157 (1991) have prompted the Secre-
tary to discard the post-remand EAJA filing period delin-
eated by Hudson, notwithstanding express language in
both opinions disavowing inconsistency with Hudson. See
Finkelstein, 496 U.S. at 629-30; Melkunyan, 111 S.Ct. at
2162.
The Secretary’s most current reading of these deci-
sions leads him to contend that a claimant whose disabil-
ity case is remanded for correction of legal errors must
file his or her EAJA application for attorney’s fees within
thirty days of the expiration of the period for appeal of
the remand order. Pet. Br. at 26. However, at that point
such a claimant will not yet have obtained a final admin-
istrative award of benefits on remand, and thus cannot
satisfy the “prevailing party” criterion described in Hud-
son. Since the “prevailing party” analysis is the one
aspect of Hudson which the Secretary cannot afford to
jettison, see infra at 21, he responds to this dilemma with a
non-sequitur: the claimant must allege that he is a pre-
vailing party before the “definitive determination” of
“full prevailing party status” can be made. Pet. Br. at
26-27. Although in the Secretary’s novel scheme this two-
step prevailing party inquiry necessarily cannot be com-
pleted until “later,” Pet. Br. at 27, the precise details of the
procedure are left unexplained.”
® See Fergason v. Sullivan, 771 F.Supp. 1008, 1013 (W.D.Mo.
1991), citing Socia! Security Administration statistics indicating
that it takes an average of 10.1 months to secure an Administra-
tive Law Judge’s decision following a rehearing held pursuant
to a court-ordered remand.
® The Secretary's initial strategy in response to claimants
who, after Melkonyan, protectively filed EAJA applications
within ninety days of a fourth sentence remand order, was to
oppose the application for inability to demonstrate prevailing
17
For the reasons explained at length by respondent,
amici fully agree that the only sensible way to harmonize
this Court’s precedent with the structure and intent of
both the EAJA and § 405(g) is to identify the triggering
event for the EAJA filing period as the dispositive district
court judgment entered subsequent to a final administra-
tive award of benefits obtained following a remand for
the correction of legal or factual error. See, e.g., Labrie v.
Sec’y of HHS, 976 F.2d 779, 785-86 (1st Cir. 1992), Hafner v.
Sullivan, 972 F.2d 249, 250-51 (8th Cir. 1992).
With respect to the Secretary’s insistence that Finkels-
tein and Melkonyan foreclose such a result, amici will
make only a few brief points. First, the issue in Melkonyan
was merely whether the triggering EAJA “judgment” is a
document issued by a court or by the Social Security
Administration. 111 S.Ct. at 2159. Melkonyan did not
involve, as Hudson did, a remand ordered for the correc-
tion of legal error (a so-called fourth sentence remand),
and there is no indication that the substantive ramifica-
tions of the Court’s discussion, in dicta, of the appropriate
EAJA filing period in such cases were raised or consid-
ered by the Court.
Second, it should be emphasized that the Court's
decision in Finkelstein, which first drew the distinction
party status at that time. If that opposition proved successful,
and the claimant subsequently filed an EAJA application fol-
lowing a favorable administrative decision on remand, the Sec-
retary would oppose that application as untimely. The district
courts did not, by and large, find this strategy acceptable. See,
e.g., Prasad v. Sullivan, No. C-90-1435 SC (N.D.Cal.Nov. 21, 1991)
(unpublished), at 3 (“The Secretary is engaging in petty games
which needlessly drain its own, and this court's, resour-
ces .. . The logical result of the Secretary’s position . . . Is
contrary to the EAJA itself, and the Congressional intent which
underlies it.”)
18
between sixth sentence “new evidence” remands and
fourth sentence “legal error” remands, carefully distin-
guished its analysis of the “finality” of a fourth sentence
remand order for purposes of appellate jurisdiction under
28 U.S.C. § 1291, from any interpretation of “finality” for
EAJA purposes. 456 U.S. at 629 n.8. Furthermore, the
Court did not decide whether a fourth sentence remand
order constituted a final and appealable decision for the
claimant: “The question before us is whether orders of the
type entered by the District Court in this case are imme-
diately appealable by the Secretary.” See 496 U.S. at 673 &
n.3 (emphasis supplied). If a fourth sentence remand does
not constitute a “final decision” under § 1291 from which
the claimant may take an appeal, it obviously cannot
constitute a “final judgment” for EAJA purposes as well.
The Court’s primary concern in Finkelstein was thus to
assure the Secretary of an opportunity for immediate
review of an adverse decision which, like the decision at
issue therein, effectively invalidated regulatory or statu-
tory provisions of general applicability in disability cases.
See 496 U.S. at 623.
Amici submit that the policies underlying the hold-
ings of both Finkelstein and Melkonyan will be undis-
turbed by reaffirming the propriety of the EAJA filing
period described in Hudson for cases remanded for the
correction of legal error committed by the Secretary. The
respondent's application for EAJA attorney’s fees in this
case was timely filed.
19
C. The Secretary’s proposed EAJA application pro-
cedure in fourth sentence remand cases is con-
trary to the statutory prescription for the
application, and will needlessly waste vast
resources of disability claimants and the courts
As set forth supra at 16 & n.9, the Secretary has, after
some initial experimentation, decided that in cases
remanded for the correction of iegal error, the claimant
must file an EAJA application within ninety days of the
remand order, long before she or he (1) qualifies as a
“prevailing party” under the standard set forth in Hud-
son, and (2) can fully assess whether or not the position of
the Secretary has been “substantially justified” within the
meaning of 28 U.S.C. § 2412(d)(1)(A). Pet. Br. at 25-26.
However, § 2412()(2)(B) requires that all * 4JA applica-
tions “show” that the party seeking fees is a prevailing
party and “allege” that the position of the United States
was not substantially justified. In prescribing these
requirements, Congress could not have intended that liti-
gants seeking EAJA fees attest to entitlement precondi-
tions which in fact have not been met. See Parsons v.
Sullivan, 140 F.R.D. 352, 358 (S.D.Ohio 1992) (Secretary’s
proposal “would require a party to file a petition which
could not possibly comply with the statutory man-
date.”).!°
In addition, the Secretary’s procedure will needlessly
waste vast litigation resources and “senselessly clutter[]
court dockets” with protective fee “applications” filed in
thousands of cases which the plaintiff does not even win.
See Hafner v. Sullivan, 972 F.2d at 249-50. For example, in
10 The execution of such an application arguabiy would
constitute a violation of counsel’s warranty that the representa-
tions contained therein were “well grounded in fact” pursuant
to Fed.R.Civ.P. 11.
20
38% of the 4343 cases remanded by the district courts for
further administrative proceedings in 1990, the claimant
failed to obtain a favorable decision on remand. Social
Security Administration, Annual Report to Congress 38
(Apr. 1992). Amici estimate that well over 90% of all
§ 405(g) remands must be characterized as fourth sen-
tence remands. See infra at 23. Since ethical counsel must
apply for EAJA fees in order to minimize their client's
attorney fee costs, the Secretary’s regime will cause thou-
sands of fee applications to be filed by claimants who
obtain fourth sentence remands but never are awarded
benefits.'' Even for those claimants who do obtain a
favorable decision on remand, the Secretary’s procedure
will require ~dditional, as yet undescribed post-remand
filings to confirm the achievement of “full prevailing
party status”, Pet. Br. at 28, and to claim additional com-
pensation for time incurred in the administrative pro-
ceedings on remand.
In short, the procedure outlined by the Secretary is
absurd, which may explain why, as the First Circuit has
observed, it “has gained no judicial adherents.” Labrie,
1! 42 U.S.C. § 406(b) permits an award of fees to be with-
held directly from a claimant's disability insurance benefits, not
to exceed 25% of the past due amount, in order to effectuate an
appropriate contractual agreement between the claimant and
counsel. See Bowen v. Galbreath, 485 U.S. 74 (1988). If fees are also
awarded under the EAJA, counsel must refund the lesser of the
two awards to the claimant, in order to minimize the claimant's
out-of-pocket fees costs. See Pub. L. No. 99-80, § 3 (1988), 99 Stat.
186 (28 U.S.C. § 2412 note); Russell v. Sullivan, 930 F.2d 1443,
1446 (9th Cir. 1991). It has been held that counsel who intend to
apply for fees under § 406 must first seek EAJA fees, or provide
detailed notice to their clients and the court of the reasons for
not filing an EAJA application. Taylor v. Heckler, 608 F.Supp.
1255, 1259-61 (D.N.J. 1985).
21
976 F.2d at 785 n.17 (further citations omitted).!? Its
unworkable awkwardness derives from the Secretary’s
desire to use the procedural discussion in Melkonyan to
preclude EAJA compensation for the administrative pro-
ceedings which necessarily follow a fourth sentence
remand, but to avoid at all costs the logical corollary to
his theory, which is that in light of Melkonyan the issuance
of a fourth sentence remand alone is sufficient to confer
prevailing party status under the EAJA.'* Thus the Secre-
tary’s agenda for substantive EAJA limitation has yielded
a counterintuitive and grossly inefficient theory of EAJA
procedure, which Congress could not possibly have
intended in fashioning this statute.
12 Judicial hostility to the Secretary’s scheme can hardly be
exaggerated. See, e.g., Parsons, 140 F.R.D. at 358. Amici are aware
of cases where the claimant and Secretary have stipulated that a
fee petition filed pursuant to the Secretary’s timeline in a fourth
sentence remand should be held in abeyance, pending conclu-
sion of the proceedings on remand, and the court has refused to
honor the stipulation. See Xiong v. Sullivan, No. CIV-S-91-0860
DFL GGH (E.D.Cal. Feb. 2, 1993) (Magistrate Judge’s recom-
mendation) (unpublished) at 3-4.
13 A growing number of district courts have so held. See,
e.g., Gagnon v. Sullivan, 792 F.Supp. 873, 874 (D.Me. 1992);
Thomas for Brown v. Sullivan, 785 F.Supp. 788, 792 (C.D.II1. 1992);
Rollins v. Sullivan, 784 F.Supp. 253, 254, 258 (E.D.Pa. 1992); Spur-
lock v. Sullivan, 783 F.Supp. 474, 479 (N.D.Cal. 1992); Mills v.
Sullivan, 782 F.Supp. 1347, 1349 (W.D.Mo. 1992); Lopez v. Sul-
livan, 780 F.Supp. 496, 502 (N.D.III. 1991); Sesker v. Sullivan, 779
F.Supp. 1042, 1044 (W.D.Mo. 1991); Audette v. Sec’y of HHS, 776
F.Supp. 84, 91 (D.R.I. 1991); Dow v. Sullivan, 774 F.Supp. 46,
48-49 (D.Me. 1991).
22
Il. EVEN IF THE SECRETARY’S INTERPRETATION
OF THE APPROPRIATE FILING PERIOD FOR
EAJA APPLICATIONS IN CASES INVOLVING
FOURTH SENTENCE REMANDS IS CORRECT,
THE COURT’S HOLDING IN HUDSON CANNOT
BE LIMITED TO SIXTH SENTENCE REMANDS
The two types of remand orders authorized by
§ 405(g) are those in which the court rules in some way
“as to the correctness of the administrative determina-
tion” (i.e., a “fourth sentence” remand), and those in
which the court does not make any substantive ruling,
but rather “remands because new evidence has come to
light that was not available to the claimant at the time of
the administrative proceeding and that evidence may
have changed the outcome of the prior proceeding” (i.e.,
a “sixth sentence” remand). Melkonyan, 111 S.Ct. at
2163.'4 It is undisputed that Hudson involved a fourth
sentence remand ordered to correct legal errors commit-
ted by the Secretary in evaluating plaintiff’s disability
claim. 490 U.S. at 880-81; Labrie, 976 F.2d at 783 n.8; Pet.
Br. at 24.
Neither the specific holding interpreting the underly-
ing intent of the EAJA in Hudson, nor any of its support-
ing analysis, make any sense whatsoever outside the
context of a case remanded because the Secretary has
wrongly evaluated and denied a disability claim. All of
Hudson’s (undisputed) observations regarding the district
court’s continuing oversight of the post-remand adminis-
trative proceedings, and of counsel’s necessary role in
14 A “subcategory” of sentence six permits a remand “on
motion of the Secretary for good cause shown before he files his
answer.” Melkonyan, 111 S.Ct. at 2163, quoting § 405(g). No
substantive ruling presumably would be issued by the Court in
conjunction with such a remand.
23
those proceedings “both to ensure compliance with the
district court’s order . . . and to prepare for any further
proceedings before the district court to verify such com-
pliance,” assumed a predicate finding “that the Secretary
has committed a legal or factual error in evaluating a
particular claim.” 490 U.S. at 889, 887.
Although he does not highlight the consequences of
his contention that “Finkelstein and Melkonyan necessarily
limit Hudson to cases remanded pursuant to sentence
six,” Pet. Br. at 25, it presumably has not been lost on the
Secretary that such a “limitation” would in fact reduce
the number of claimants who would qualify for post-
remand attorney’s fees to nearly zero, for two reasons.
First, in amici’s experience, the percentage of
remands which comply with the “good cause” and
“material new evidence” standards of sentence six is
extremely small, and certainly less than 10%.'5 In addi-
tion, in amici’s experience the Secretary rarely exercises
his independent prerogative under sentence six to seek a
remand, for good cause, prior to the filing of his answer,
as required by § 405(g).'©
1S The regulations themselves provide ample opportunity
for the submission or obtaining of “new and material” evidence
prior to issuance of the Secretary’s final administrative decision.
See, e.g., 20 C.F.R. § 404.976(b). Common sense suggests that the
number of cases in which more “new” evidence (relating back in
time to the period of disability alleged by the claimant) is dis-
covered after the final administrative denial, must be extremely
small.
16 To the contrary, the Secretary has represented in litiga-
tion that typically his counsel are unable to consider the propri-
ety of a remand until after the administrative record, which must
be filed in cczjunction with the Secretary’s answer pursuant to
§ 405(g), is compiled and reviewed. Spurlock v. Sullivan, 790
F.Supp. 779, 982 (N.D.Cal. 1992).
24
Second, although the entire universe of true sentence
six remands is thus a tiny one, its subset of cases in which
a claimant might actually be awarded EAJA fees is infi-
nitely smaller still.'7 It is difficult to imagine how a
claimant who obtains a post-remand award of benefits,
based on evidence which by definition was not available
at the time of the initial decision, will ever be able to
demonstrate that the Secretary’s position in originally
denying the claim was “not substantially justified” within
the meaning of § 2412(d)(1)(A). The lower courts typically
have refused to find an initial administrative denial to be
without substantial justification, where the subsequent
favorable decision on remand relied on evidence or
claims not raised by the plaintiff in the original proceed-
ing.'8
As Hudson acknowledged, the EAJA was intended to
encourage judicial review of governmental action which
has caused “injustice.” 490 U.S. at 883, quoting S.Rep. No.
96-253, p. 5 (1979). In the disability context, such injus-
tices arise not in the context of the few exceptional cases
which qualify for sixth sentence remands, but in those
17 In the wake of Melkonyan, a number of district courts
sought to avoid the unjust result dictated by the Secretary’s
timeliness arguments by construing the pre-Melkonyan remand
order as a “sixth sentence” remand. See infra App. 3a. Although
in fact few if any of those orders actually met the prerequisites
for a sentence six remand, some of the linguistic endeavors of
those courts which held to the contrary were truly heroic. See,
e.g., Rivera-Sanchez v. Sec’y of HHS, 786 F.Supp. 147, 148-149
(D.Puerto Rico 1992) (“plausible to view the Secretary’s motion
to remand as a hybrid sentence six remand/request sentence six
subcategory request”).
18 See, e.g., Reeves v. Bowen, 841 F.2d 383, 385 (11th Cir.
1988); Rosado v. Bowen, 823 F.2d 40, 43 (2d Cir. 1987); Desrouchers
v. Heckier, 701 F.Supp. 753, 757 (D.Nev. 1988).
25
numerous claims, all too familiar to the district courts
which review them, where the Secretary’s unreasonable
and unlawful conduct has required years of multiple
administrative and judicial proceedings to finally estab-
lish that in fact the claimant had been disabled and
entitled to benefits all along.'? In his attempt to evade
liability for the substantial litigation costs incurred by
hundreds of such disabled claimants as a direct result of
his unreasonable denial of their benefit application, the
Secretary now seeks to effectively sever the EAJA “life-
line” which Congress extended in the hope that at least
some of these wrongs will be remedied by competent
representation in an action for federal court review under
§ 405(g).
19 See, e.g., Defrancesco v. Sullivan, 803 F.Supp. 1332, 1337
(N.D.IIl. 1992) (two district court decisions, one circuit court
decision, and various administrative appeals, all caused by
position of Secretary which was “inconsistent, illogical, unten-
able, and contrary to regulations and Social Security Rulings”);
Lindner v. Sullivan, 799 F.Supp. 888, 892 (N.D.III. 1992) (multiple
rounds of judicial and administrative appeals; Secretary did not
contend that his conduct in opposing plaintiff's claim was sub-
stantially justified); Misciagno v. Sec’y of HHS, 786 F.Supp. 1120,
1122 (E.D.N.Y. 1992) (after two district court remands, and three
successive unfavorable decisions by the same ALJ, district court
ordered payment of benefits); Butts v. Bowen, 775 F.Supp. 1167,
1168 (N.D.II. 1991) (ten years of litigation and administrative
hearings required before Secretary agreed that plaintiff had
been disabled since 1980; “clear legal errors” of the ALJ ren-
dered Secretary’s position without substantial justification);
Sullivan v. Sullivan, 738 F.Supp. 332, 333 (W.D.Mo. 1990) (two
district court remands and administrative decisions required
because Secretary “repeatedly ignore[d]” applicable circuit pre-
cedent governing evaluation of claim); Hawkins v. Heckler, 608
F.Supp. 1201, 1204-05 (D.Kan. 1985) (action of Appeals Council
in disregarding remand order was “contemptuous” and an
“outrageous example of the abuse of governmental authority”).
26
In addition, although it is not fully spelled out in his
opening brief, the Secretary’s agenda for eliminating his
exposure for claimants’ post-remand attorney’s fees pre-
sumably includes an argument that, after Finkelstein, a
claimant who desires judicial review of an unfavorable
administrative decision following a fourth sentence
remand must file a new complaint with the district court.
See Pet Br. at 13-14. Although the Court in Finkelstein
indicated only that such a decision would be reviewable
by “a separate piece of litigation,” 496 U.S. at 625, one
court has read that language to require the filing of an
entirely new complaint. Frizzell v. Sullivan, 937 F.2d 254,
256-57 (Sth Cir. 1991).
Since Finkelstein did not decide that a fourth sentence
remand order was a final and appealable decision as to
the claimant, 496 U.S. at 623 n.3, the “new piece of litiga-
tion” needed to obtain review over the administrative
decision on remand is not necessarily a new complaint.
As Hudson explained, the unusual relationship between
the courts and the agency engendered by the review
provisions of § 405(g) permits the courts to retain juris-
diction over remanded cases in order to “ensure compli-
ance with the district court’s order in the administrative
proceedings themselves and to prepare for any further
proceedings before the district court .. . ” Hudson, 490
U.S. at 889.2° The Secretary expressly agreed with this
20 District court intervention prior to a final administrative
decision on remand is not infrequently required simply to
enforce compliance with its order. See, e.g., Carrillo v. Bowen, 636
F.Supp. 97,99 (D.Ariz. 1986) (order directing Appeals Council to
either affirm or reverse the ALJ's decision); Pierce v. Heckler, 620
F.Supp. 320, 323 (D.Ariz. 1985) (order directing Appeals Council
to terminate “[t}he constant remanding and re-remanding” of
the ALJ's favorable decision); compare Key v. Sullivan, 925 F.2d
27
proposition, id. at 887, and he generally has acquiesced in
the process by which claimants frequently have returned,
sometimes more than once, to the district court (through
the procedural mechanisms of motions to reopen, or
renewed motions for summary judgment, or motions for
leave to file a supplemental complaint), in order to obtain
review of the Secretary’s decision on remand.?!
The Secretary cannot seriously dispute that the filing
of a new complaint in all such actions will entail a signifi-
cant amount of wasted paperwork, require the consolida-
tion of files and duplication of administrative transcripts,
and give rise to various motions for judicial reassignment
in order to prevent a second judge from needlessly
attempting to discern the intent of his or her colleague’s
original remand order. However, this remarkably ineffi-
cient procedure will enable the Secretary to argue that,
should he eventually lose after the second (or third) time
around in district court, the claimant cannot claim EAJA
fees for any time incurred either in the prior civil actions
1056, 1061, 1063 (7th Cir. 1991) (“after so many years of hear-
ings, rehearings, and appeals,” the claimant “should receive,
and receive immediately, the benefits to which she long has
been entitled,” particularly where “[t]he Secretary clearly
exceeded the scope of the remand order”).
21 In Wilson v. Heckler, 609 F.Supp. 120, 124 (W.D.Mo. 1985),
the Secretary successfully persuaded the district court that
plaintiff's filing of a new complaint to challenge the adverse
administrative decision on remand was needlessly “duplica-
tive,” and the court determined that, although a remanded
Social Security case may be “administratively closed,” it will be
“reopened” upon request of either party, and “[njeither a new
file number, nor a new judge, is assigned.” See also the various
procedural histories recounted in the cases cited supra n.19.
28
or in the intervening administrative proceedings.?? Such a
position utterly defeats the intent of the EAJA to encour-
age counsel to continue their representation of plaintiffs
through the interminable processes often necessary to
finally establish entitlement to benefits. Hudson, 490 U.S.
at 889-90.
Finally, and most troubling, is that the nullification of
Hudson will cause the greatest injury to those claimants
most in need of the relief which Congress extended
through the EAJA. Thousands of claims for disability
benefits annually arise under Title XVI of the Social Secu-
rity Act, 42 U.S.C. § 1381 et seq. (the Supplemental Secu-
rity Income program), which was established to
“provide[] a subsistence allowance, under federal stan-
dards, to the nation’s needy aged, blind, and disabled.”
Schweiker v. Wilson, 450 U.S. 221, 223 (1981). Unlike the
disability insurance program established under Title II of
the Act, 42 U.S.C. § 401 et seq., the SSI program is a
“welfare program” whose beneficiaries are, by definition,
in “extreme financial need.” Bowen v. Galbreath, 485 U.S.
74, 75, 77 (1988).
Little incentive exists for counsel to represent claim-
ants seeking SSI benefits. First, in contrast to the sizeable
monthly payments often awarded under Title II, the max-
imum monthly SSI benefit is meager, thus reducing the
22 Presumably, the Secretary is not unaware that EAJA fee
awards in such cases are necessarily substantial. See, e.g.,
Defrancesca, 803 F.Supp. at 1338 ($26,421 awarded); Butts, 775
F.Supp. at 1173 ($13,836 awarded); compare Commissioner, INS v.
Jean, 496 U.S. 154, 161 n.9 (1990) (average EAJA award in 1989
was $4,482).
29
amount of any potential retroactive award.?> Second, any
eventual SSI award is retroactive only to the date of
application; under Title Il, the award may include the
twelve month period prior to application.24 Third, in
contrast to Title II cases, counsel cannot obtain prompt
and full payment on a contingency contract with an SSI
claimant through the Secretary’s withholding of a portion
of the retroactive award, since the withholding provisions
of 42 U.S.C. § 406(b)(1) are inapplicable to SSI cases.
Bowen v. Galbreath, 485 U.S. at 79. Fourth, and most
important, is the fact that SSI disability claims often are
inherently more difficult to win on the merits. Desper-
ately poor persons cannot afford health care, and typ-
ically there exists scant medical documentation needed to
prove the claim. The cost to counsel of obtaining expert
examinations often is not worth the risk of non-
reimbursement.
For all of these reasons, the prospect of compensation
under the EAJA provides the only inducement for repre-
sentation of SSI claimants, and certainly is a primary
incentive for the undertaking of Title II cases as well. See
Sansano v. Sullivan, 788 F.Supp. 218, 219 (D.N.J. 1992)
(“Without the prospect of an award of attorney’s fees, it is
unlikely that the wrongful denial of Social Security bene-
fits would ever be vindicated.”). Therefore, this Court
must not accept the Secretary's invitation to “snatch away
a lifeline it [has] previously dangled within the Social
Security claimant’s grasp,” and to “pierce the heart of the
intent of the EAJA.” Sansano, 788 F.Supp. at 224. Even if
23 Currently the federal SSI monthly benefit rate for a single
person is $434. 57 Fed.Reg. 48619 (Oct. 27, 1992).
24 Compare 20 C.F.R. § 404.621(a)(1)(ii) with 20 C.F.R.
§ 416.335.
30
the Secretary’s interpretation of the appropriate filing
period in a fourth sentence remand is correct, no reason
exists to deny compensation for time incurred in the
post-remand administrative proceedings.2> The Court
should explicitly reject the Secretary’s request to render
Hudson meaningless by limiting its holding to sixth sen-
tence remands, and confirm that respondent’s EAJA
application was timely filed.
CONCLUSION
The judgment of the court of appeals should be
affirmed.
Respectfully submitted,
Gary F. SmitH Gut Derorp
(Counsel of Record) National Senior Citizens
Legal Services of Law Center
Northern California, 1052 West 6th Street,
Inc. Suite 700
619 North Street Los Angeles, California
Woodland, California 90017
95695 (213) 482-3550
(916) 662-1065 Attorneys for Amici Curiae
Legal Services of Northern
California and National
Senior Citizens Law Center
25 Since under the Secretary’: theory the district court must
hold in abeyance the claimant’s EAJA application until after the
administrative proceedings are concluded, Pet. Br. at 26-27, the
district court certainly could permit amendment of the applica-
tion to include a claim for time incurred subsequent to the
remand. Myers v. Sullivan, 916 F.2d 659, 679 n. 20 (11th Cir. 1990).
la
I. COURT OF APPEALS DECISIONS REJECTING
THE SECRETARY’S MELKONYAN-RELATED
EFFORT TO BAR, AS UNTIMELY, A PLAINTIFF’S
POST-REMAND APPLICATION FOR ATTORNEY'S
FEES UNDER THE EAJA
Gray v. Sullivan, __F.2d__, No. 91-55380 (9th Cir. Jan. 15,
1993);
Carter v. Sullivan, 976 F.2d 1197 (8th Cir. 1992);
Labrie v. Secretary of HHS, 976 F.2d 779 (ist Cir. 1992);
Scas!on v. Sullivan, 974 F.2d 107 (9th Cir. 1992);
Young v. Sullivan, 972 F.2d 830 (7th Cir. 1992);
Hafner v. Sullivan, 972 F.2d 249 (8th Cir. 1992);
Baker on behalf of Baker v. Sullivan, 956 F.2d 234 (11th Cir.
1992);
Gutierrez v. Sullivan, 953 F.2d 579 (10th Cir. 1992), cert.
pending, No. 92-361;
Richard v. Sullivan, 955 F.2d 354 (Sth Cir. 1992);
Cummings v. Sullivan, 955 F.2d (7th Cir. 1991);
Luna v. U.S. Dept. of HHS, 948 F.2d 169 (5th Cir. 1991);
Damato v. Sullivan, 945 F.2d 982 (7th Cir. 1991);
Sargent v. Sullivan, No. 90-1521 (4th Cir. Aug. 22, 1991)
(unpublished).
2a
Il. DISTRICT COURT DECISIONS REJECTING THE
SECRETARY’S MELKONYAN-RELATED ARGU-
MENTS RAISED IN CONNECTION WITH PLAIN-
TIFF’S ENTITLEMENT TO ATTORNEY’S FEES
UNDER THE EAJA
1. Cases holding that the court retains jurisdiction
to entertain EAJA application filed subsequent
to conclusion of post-fourth sentence remand
administrative proceedings
Ryder v. Sullivan, 804 F.Supp. 1365 (D.Colo. 1992)
Bodner v. Sullivan, 804 F.Supp. 23 (N.D.Cal. 1992)
Baker v. Sec'y of HHS, 799 F.Supp. 232 (D.N.H. 1992)
Lenz v. Sec'y of HHS, 798 F.Supp. 69 (D.N.H. 1992)
Rodriguez v. Sec’y of HHS, 794 F.Supp. 58 (D.Puerto Rico
1992)
Mendez v. Sullivan, 792 F.Supp. 375 (E.D.Pa. 1992)
Kling v. Sec’y of HHS, 790 F.Supp. 145 (N.D.Ohio 1992)
Van Tassell v. Sullivan, 789 F.Supp. 1108 (D.Colo. 1992)
Winn v. Sullivan, 787 F.Supp. 172 (E.D.Mo. 1992)
Sparling v. Sullivan, 785 F.Supp. 312 (N.D.N.Y. 1992)
Heredia v. Sullivan, 783 F.Supp. 1550 (D.Puerto Rico 1992)
Carter v. Sullivan, 782 F.Supp. 1251 (N.D.II1. 1991)
Muniz v. Sullivan, 780 F.Supp. 743 (D.Colo. 1992)
Linkins v. Sullivan, 779 F.Supp. 1324 (M.D.Fla. 1991)
Thomas v. Sullivan, 778 F.Supp. 473 (W.D.Mo. 1992)
Merryman v. Sullivan, 778 F.Supp. 475 (W.D.Mo. 1991)
Lineberry v. Sullivan, 778 F.Supp. 1087 (W.D.Mo. 1992)
Parsons v. Sullivan, 140 F.R.D. 352 (S.D.Ohio 1992)
3a
2. Cases in which courts declined to apply Melko-
nyan’s fourth sentence remand timeliness dis-
cussion retroactively
Defrancesco v. Sullivan, 803 F.Supp. 1332 (N.D.IIl. 1992)
Carrol v. Sullivan, 802 F.Supp. 295 (C.D.Cal. 1992)
Lindner v. Sullivan, 799 F.Supp. 888 (N.D.IIl. 1992)
Sansano v. Sullivan, 788 F.Supp. 218 (D.N.J. 1992)
Green v. Sullivan, 788 F.Supp. 275 (W.D.Va. 1992)
Bacon v. Sec’v of HHS, 786 F.Supp. 434 (D.N.J. 1992)
Thomas for Brown v. Sullivan, 785 F.Supp. 788 (C.D.III.
1992)
Rollins v. Sullivan, 784 F.Supp. 253 (E.D.Pa. 1992)
Santiago v. Sullivan, 783 F.Supp. 223 (E.D.Pa. 1992)
Lopez v. Sullivan, 780 F.Supp. 496 (N.D.III. 1991)
Sykes v. Sullivan, 779 F.Supp. 29 (E.D.Pa. 1991)
Butts v. Bowen, 775 F.Supp. 1167 (N.D.III. 1991), reaff'd, 778
F.Supp. 453 (N.D.IIl. 1991)
3. Cases in which courts construed the remand at
issue as a “sentence six” remand
Rivera-Sanchez v. Sec’'y of HHS, 786 F.Supp. 147 (D.Puerto
Rico 1992)
Robinson v. Sullivan, 783 F.Supp. 245 (E.D.N.C. 1991)
Kolman v. Sullivan, 782 F.Supp. 423 (E.D.Wis. 1992)
Burr v. Sullivan, 782 F.Supp. 1285 (N.D.III. 1992)
Hudson v. Sullivan, 779 F.Supp. 37 (W.D.Pa. i991)
Johnson v. Sullivan, 779 F.Supp. 1277 (D.S.C. 1991)
Thomas v. Sullivan, 778 F.Supp. 473 (W.D.Mo. 1992)
Woods v. Sullivan, 778 F.Supp. 976 (N.D.III. 1991)
4a
4. Cases in which courts have held that the claim-
ant qualifies as a “prevailing party” simply by
virtue of obtaining a “fourth sentence” remand
order
Gagnon v. Sullivan, 792 F.Supp. 873 (D.Me. 1992)
Spurlock v. Sullivan, 783 F.Supp. 474 (N.D.Cal. 1992),
reaff'd, 790 F.Supp. 979 (N.D.Cal. 1992)
Mills v. Sullivan, 782 F.Supp. 1347 (W.D.Mo. 1992)
Sesker v. Sullivan, 779 F.Supp. 1042 (W.D.Mo. 1991)
Dow v. Sullivan, 774 F.Supp. 46 (D.Me. 1991)
5. Cases in which courts retained jurisdiction fol-
lowing a remand order which was characterized
as neither “fourth” nor “sixth” sentence in char-
acter
Petrie v. Sullivan, 800 F.Supp. 632 (N.D.III. 1992)
Ground v. Sullivan, 785 F.Supp. 557 (S.D.Cal. 1992)
6. Cases in which courts have equitably tolled the
EAJA statute of limitations
Boronat v. Sullivan, 788 F.Supp. 557 (S.D.Fla. 1992)
Goldbach v. Sullivan, 779 F.Supp. 9 (N.D.N.Y. 1991)
7. Cases in which courts have reopened the judg-
ment under Fed.R.Civ.P. 60(b)
Misciagno v. Sec’'y of HHS, 786 F.Supp. 1120 (E.D.N.Y.
1992)
5a
Il. DISTRICT COURT DECISIONS ADOPTING THE
SECRETARY'S MELKONYAN-RELATED ARGU-
MENTS TO BAR AN APPLICATION FOR
ATTORNEY’S FEES UNDER THE EAJA AS
UNTIMELY
Pettyjohn v. Sullivan, 801 F.Supp. 503 (W.D.Okla. 1992)
Salvador v. Sullivan, 786 F.Supp. 830 (N.D.Cal. 1992)
Audette v. Sec’y of HHS, 776 F.Supp. 84 (D.R.I. 1991)
Fergason v. Sullivan, 771 F.Supp. 1008 (W.D.Mo. 1991)
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.