Opinion
Civ. No. 98-1261 (DRD)
November 10, 1998
William R. Stanley, Esq., Jersey City, New Jersey, for Plaintiff.
Faith Hochberg, Esq., United States Attorney, By: Anthony J. LaBruna Jr., Esq., Assistant U.S. Attorney, Newark, New Jersey, for Defendant.
OPINION
Plaintiff moves pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412, for an award of attorney's fees based on an action brought against the Commissioner of the Social Security Administration (the "Commissioner"). The Commissioner does not oppose the motion. For the reasons set forth below, plaintiff's motion will be denied as premature.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff applied for Supplemental Security Income ("SSI") benefits on July 28, 1995 and for Social Security Disability Insurance ("SSD") benefits on September 15, 1995. Plaintiff's claims and her request for reconsideration were denied. Plaintiff requested a hearing before an Administrative Law Judge and on March 11, 1997 a hearing took place before ALJ Frank Borda. On April 21, 1997 the ALJ issued a decision affirming the Commissioner's denial of plaintiff's applications. The ALJ's decision became the Commissioner's final decision on January 24, 1998 when the Appeals Council denied plaintiff's request for review.
On March 19, 1998 plaintiff commenced this action appealing the Commissioner's decision. On September 21, 1998 this Court signed, and on September 23, 1998 entered, a consent order remanding the matter to the Commissioner for further administrative action (the "Consent Remand Order"). Plaintiff now applies for an award of attorney's fees under the EAJA.
DISCUSSION
The EAJA provides in part that when a party prevails in a civil action against the United States challenging administrative actions, the court "shall award to a prevailing party" its fees and other expenses "unless the court finds that 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). Such an award is payable upon an application made within 30 days of final judgment in the action. 28 U.S.C. § 2412(d)(1)(B). The EAJA defines a final judgment as one which is "final and not appealable." 28 U.S.C. § 2412(d)(2)(G).
District court review of a final decision of the Commissioner is governed by 42 U.S.C. § 405(g). The fourth and sixth sentences of § 405(g) provide the "exclusive methods by which district courts may remand to the [Commissioner.]" Shalala v. Schaefer, 509 U.S. 292, 296 (1993).
The fourth sentence of § 405(g) authorizes a court to "enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). The sixth sentence of § 405(g) provides:
The court may, on motion of the Commissioner of Social Security made for good cause shown before the Commissioner files the Commissioner's answer, remand the case to the Commissioner of Social Security for further action by the Commissioner of Social Security, and it may at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding; and the Commissioner of Social Security shall, after the case is remanded, and after hearing such additional evidence if so ordered, modify or affirm the Commissioner's findings of fact or the Commissioner's decision, or both, and shall file with the court any such additional and modified findings of fact and decision, and a transcript of the additional record and testimony upon which the Commissioner's action in modifying or affirming was based.Id. As the Third Circuit has noted, a district court's authority to remand to the Commissioner without entering a judgment affirming, modifying or reversing the decision of the Commissioner is limited:
A district court may order a sentence-six remand in only two situations: where the [Commissioner] requests a remand before answering the complaint, or where new, material evidence is adduced that was for good cause not presented before the agency.Kadelski v. Sullivan, 30 F.3d 399, 401 (3d Cir. 1994).
A sentence four remand is made when "the court makes a ruling as to the correctness of the administrative determination, either by affirming, modifying or reversing the [Commissioner]'s decision, but nonetheless remands the matter for further proceedings." Wilsey v. Secretary of Health and Human Services, No. 93-CV-1418, 1995 WL 274499 at *1 (N.D.N.Y. May 2, 1995). A remand order pursuant to sentence four "constitutes a judgment, which squarely falls within the term `final judgment' as used in the EAJA, when it no longer can be appealed." Kadelski, 30 F.3d at 401. "[A] party who wins a sentence-four remand order is a prevailing party" for EAJA fee application purposes and the court does not retain jurisdiction of the matter after a sentence four remand. Schaefer, 509 U.S. at 302.
In contrast, in a sentence six remand the court does not affirm, modify, or reverse the Commissioner's decision; it does not rule in any way as to the correctness of the administrative determination. Following a sentence six remand the Commissioner must return to the district court to "file with the court any such additional or modified findings of fact and decision, and a transcript of the additional record and testimony upon which his action in modifying or affirming was based." 42 U.S.C. § 405(g). Thus, a sentence six remand order does not constitute a "final judgment" and the 30 day period in which to file an application for fees under the EAJA does not start to run until a judgment entered by the court after the Commissioner makes the required post-remand filing can no longer be appealed. As the Supreme Court has observed:
Immediate entry of judgment (as opposed to entry of judgment after post[-]remand agency proceedings have been completed and their results filed with the court) is in fact the principal feature that distinguishes a sentence-four remand from a sentence-six remand.Schaefer, 509 U.S. at 297.
In the present action, plaintiff's contention that the Consent Remand Order was a sentence four remand, and that as a result she is a "prevailing party" for EAJA purposes, is mistaken. The Consent Remand Order was entered before the Commissioner answered the Complaint, one of the two situations in which a district court may order a sentence six remand. See 42 U.S.C. § 405(g); Kadelski, 30 F.3d at 401. Indeed, the Consent Remand Order itself states that the remand "to the defendant for further administrative action [was] pursuant to sentence 6 of 42 U.S.C. § 405(g) ." Consent Remand Order at p. 1 (emphasis added).
Regardless of how the Consent Remand Order is labeled, the fact that the Court did not make any substantive ruling "affirming, modifying or reversing" the Commissioner's decision is the most critical. "Prevailing party status is a threshold requirement to recovery under the EAJA, and to obtain that status, a plaintiff must have `succeeded on any significant issue in litigation which achieve[d] some of the benefit . . . sought in bringing suit.'" Hartter v. Apfel, 145 F.3d 1345 (Table), No. 97-3115, 1998 WL 208871, at *4 (10th Cir. Apr. 29, 1998) (quotingSchaefer, 509 U.S. at 302). A plaintiff "does not satisfy the threshold prevailing party requirement of the EAJA when the district court only remands the case and makes no substantive ruling on the Commissioner's decision." Id. In this case, as inHartter, the plaintiff "achieved only another bite at the apple."Id.
It is important to note that denial of plaintiff's application is proper even in the absence of any opposition from the Commissioner. "The EAJA is a waiver of sovereign immunity and therefore must be strictly construed." Estate of Smith v. O'Halloran, 930 F.2d 1496, 1501 (10th Cir. 1991). Prevailing party status is a prerequisite to that waiver. Heeren v. City of Jamestown, 39 F.3d 628, 631 (6th Cir. 1994). "Allowing the Commissioner to `waive' the prevailing party requirement would be tantamount to allowing him to expand the waiver of sovereign immunity, which he cannot do." Hartter, 1998 WL 208871, at *4. See United States v. New York Rayon Importing Co., 329 U.S. 654, 660 (1947) ("[O]fficers of the United States possess no power through their actions to waive an immunity of the United States or to confer jurisdiction on a court in the absence of some express provision of Congress.")
Thus, plaintiff's motion for fees is premature. The action will be administratively terminated, and plaintiff may move to reopen it and apply for attorney's fees and costs at the appropriate time.
CONCLUSION
For the reasons stated above, plaintiff's motion will be denied as premature with leave to refile at the appropriate time and the Clerk of the Court will be directed to administratively terminate the action with the right for any party to reopen it for good cause shown. An appropriate order follows.