United States Court of Appeals,
Fifth Circuit.
No. 92–4264
Summary Calendar.
John C. BERTRAND, Plaintiff–Appellant,
v.
Louis W. SULLIVAN, M.D., Secretary, Department of Health and Human Services,
Defendant–Appellee.
Nov. 11, 1992.
Appeal from the United States District Court for the Western District of Louisiana.
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
John Bertrand appeals the district court's denial of his application for attorney's fees following
remand to the defendant, the Secretary of Health and Human Services. Agreeing with the district
court that Bertrand is not now a "prevailing party," we affirm.
I.
Bertrand filed a complaint seeking review of the Secretary's denial of his application for social
security disability benefits. The parties filed cross-motions for summary judgment. In his report to
the district court, the magistrate judge recommended that both motions be denied and that the matter
be remanded to the Secretary to make a particularized determination, by use of a vocational expert
or similar evidence, as to whether there were sufficient jobs existing in the national economy for
which Bertrand was qualified, considering his exertional and non-exertional impairments. The court
followed the recommendation and remanded.
Within thirty days of the entry of the remand, Bertrand filed his petition for attorney's fees and
litigation expenses pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. The
magistrate judge denied the petition without prejudice, reasoning that it was premature because it was
filed before the expiration of the time allowed for filing a notice of appeal from the entry of the
remand order. Several days later, the magistrate judge entered a supplemental order rejecting
Bertrand's arguments made in a reply brief received after entry of the original order of remand. On
Bertrand's motion, however, the district court entered an order retaining jurisdiction over the action
pending resolution of the administrative proceedings on remand.
Bertrand refiled his EAJA petition after expiration of the time for appeal on the merits. The
district court determined that the request for fees should be held in abeyance pending completion of
the post-remand administrative proceedings on the merits, concluding that Bertrand was not a
"prevailing party" within the meaning of the EAJA. Specifically, the court reasoned that "the ruling
of this court provided Plaintiff with none of the benefits which he sought, but merely remanded the
matter to the Secretary for further proceedings."
Twenty days later, Bertrand filed a motion styled "motion for reconsideration" requesting
relief from the denial on the basis of a newly-decided case, Luna v. Department of Health & Human
Servs., 948 F.2d 169 (5th Cir.1991). The district court denied the motion for reconsideration.
II.
Since the motion for reconsideration was served more than ten days after entry of the order
denying the fee application, it must be characterized as a motion under Fed.R.Civ.P. 60(b). See
Harcon Barge Co. v. D & G Boat Rentals, 784 F.2d 665, 668–70 (5th Cir.) (en banc), cert. denied,
479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986). The grant or denial of a rule 60(b) motion is
reviewed for abuse of discretion. First Nationwide Bank v. Summer House Joint Venture, 902 F.2d
1197, 1200 (5th Cir.1990).
III.
In Melkonyan v. Sullivan, ––– U.S. ––––, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991), the Court
distinguished between two types of remand orders in social security disability cases under 42 U.S.C.
§ 405(g). So-called "fourth sentence" remand orders, i.e., those made pursuant to the fourth sentence
of section 405(g), are those that involve entry of " "a judgment affirming, modifying, or reversing the
decision of the Secretary....' " ––– U.S. at ––––, 111 S.Ct. at 2163 (quoting section 405(g)). A
"sixth sentence" remand, on the other hand, is one that is precipitated by new evidence that could
change the outcome of the prior proceeding. Id.
As the instant matter does not involve new evidence, it cannot qualify as a sixth sentence
remand; the district court's remand order does not contain a finding that the Secretary had new
evidence and that there was good cause for failing to introduce sufficient evidence in the initial
proceeding to the effect that Bertrand was able to perform alternative work. We faced a similar
situation in Luna. There, we construed Melkonyan as holding "emphatically that fourth-sentence and
sixth-sentence remands are "the only kinds of remands permitted under the statute.' " Luna, 948 F.2d
at 172 (quoting Melkonyan, ––– U.S. at ––––, 111 S.Ct. at 2164). As in Luna, "[i]t follows, then,
from Melkonyan, that the remand here can only be a fourth-sentence remand...." Id.
IV.
In Luna, which involved an EAJA petition filed after the completion of post-remand
proceedings, we held that the "final judgment" for purposes of activating the EAJA's thirty-day filing
deadline was the district court's order of remand. Id. Nothing in Luna, however, addressed the
"prevailing party" issue; this issue was not before the Luna panel, for, as the district court put it, the
claimant "had already been awarded benefits and there was no question that he was a "prevailing
party'."
Recently, in a case concerning a fourth-sentence remand followed by an EAJA fee application,
we denied the application "as premature and without prejudice." Gallien v. U.S. Secretary of Health
& Human Servs., 948 F.2d 1285 (5th Cir.1992) (per curiam) (unpublished). The same result should
obtain here. By the plain meaning of "prevailing party," Bertrand does not qualify, as he has received
no award. As the district court stated, "Something is left to be done before it is known whether or
not the plaintiff will receive any benefits."
Similar reasoning was employed by a sister circuit in McGill v. Secretary of HHS, 712 F.2d
28 (2d Cir.1983), cert. denied, 465 U.S. 1068, 104 S.Ct. 1420, 79 L.Ed.2d 745 (1984):
[G]enerally speaking, a social security claimant prevails when it is determined that she
is entitled to benefits.... [T]he ultimate relief to which a social security claimant is normally
entitled is not vindication of procedural rights but an award of benefits for a claimed disability.
While it is true that a favorable ruling on plaintiff's procedural claim that the [administrative
law judge] should have conducted a more thorough hearing may ultimately affect the outcome
on the merits of plaintiff's disability claim, nevertheless, her procedural claim is not a matter
on which plaintiff can be said to prevail for the purpose of shifting counsel fees....
The district court made no finding with respect to whether plaintiff is disabled. The
additional medical records and testimony by plaintiff's lay witness on the remand, rather than
establishing plaintiff's disability, may show that she is capable of performing her former work
or some other occupation. If that is the case, plaintiff would have received the fee award
herein for a claim where "it could not seriously be contended that the [plaintiff] had
prevailed."
Id. at 32 (citing and quoting Hanrahan v. Hampton, 446 U.S. 754, 759, 100 S.Ct. 1987, 1990, 64
L.Ed.2d 670 (1980) (per curiam)) (final brackets in McGill ). We find this reasoning persuasive.
Thus, the district court was correct, as a matter of law, in declining to entertain a fee award
at this time. Even if this were not so, given the deferential review accorded a rule 60(b) order, we
cannot say that the district court abused its discretion in so concluding. With this in mind, the order
entered January 28, 1992, denying Bertrand's motion for reconsideration, being the only matter
appealed from, is AFFIRMED.