Freeman v. Shalala

IN THE UNITED STATES OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 92-4777
Summary Calendar
_____________________

ROGER FREEMAN,

Plaintiff-Appellant,

versus

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

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the
Western District of Louisiana
(CA 87 2773)
_________________________________________________________________
( August 19, 1993)

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

In December 1987, Roger Freeman sought judicial review of the

denial of his application for social security disability benefits.

The district court affirmed, and Freeman appealed. While the

appeal was pending, the Secretary of Health and Human Services

requested that the case be remanded for consideration of evidence

*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
from a vocational expert. This court rejected Freeman's

contention that the record supported an award of benefits and

remanded to the district court for remand to the administrative law

judge (ALJ) pursuant to the Secretary's request. After remanding

for further administrative proceedings, the district court closed

the case in May 1989. The court did not enter a separate judgment

dismissing the action.

On October 4, 1991, the ALJ determined that Freeman was

entitled to disability benefits retroactive to March 16, 1984. On

January 15, 1992, Freeman filed a motion in the district court

requesting that the court order the Secretary to file post-remand

findings of fact, and that the court enter judgment in favor of

Freeman. The Secretary opposed the motion on the ground that the

order of remand to the ALJ had issued under the fourth sentence of

42 U.S.C. § 405(g),1 thereby divesting the district court of

jurisdiction.

The magistrate judge determined that the May 1989 remand was

a "fourth-sentence" remand that terminated the civil action. He

recognized that the entry of a judgment2 in Freeman's favor was a

prerequisite to an award of attorneys' fees under the EAJA, and

1
"The court shall have power to enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Secretary, with or without
remanding the cause for a rehearing." 42 U.S.C. § 405(g).
2
A petition for fees and expenses under the EAJA must be
filed "within thirty days of final judgment in the action." 28
U.S.C. § 2412(d)(1)(B).

-2-
that the procedure for recovering attorneys' fees in fourth-

sentence remand cases was unclear. Nevertheless, the magistrate

judge concluded that the district court lacked jurisdiction to

enter judgment because the action had terminated with the 1989

remand to the ALJ. Freeman filed a timely objection to the

recommendation and a motion for district court attorneys' fees

under the EAJA. On the same day, he filed in this court a petition

and supporting memorandum seeking appellate attorneys' fees under

the EAJA.3 Freeman noted in his memorandum to this court that the

magistrate judge had recommended that the district court decline to

enter judgment in his favor because the May 1989 remand to the ALJ

had been the "final judgment" in the suit. Freeman urged that the

court should apply an equitable tolling analysis to find his

petition for appellate attorneys' fees timely. On May 4, 1992,

this court granted Freeman's unopposed motion for appellate

attorneys' fees in a one-sentence order.

On May 29, 1992, (apparently without the benefit of this

court's order) the magistrate judge recommended that the district

court dismiss as time-barred the petition for EAJA fees filed in

3
Freeman's simultaneous petitions for attorneys' fees in
this court and the district court were unconventional, but were
not without jurisdiction. See U.S. v. 329.73 Acres of Land,
Situated in Grenada and Yalobusha Counties, State of Miss., 704
F.2d 800, 811-812 (5th Cir. 1983) (although appellate court may
enter EAJA award,"rarely will the district court not be the
appropriate tribunal" to review an EAJA application); see also
Dole v. Phoenix Roofing, Inc., 922 F.2d 1202, 1208-09 (5th Cir.
1991) (discussing dual appellate court and agency jurisdiction
over application for EAJA fees).

-3-
that court. The magistrate judge concluded that in this Circuit,

Melkonyan v. Sullivan, 501 U.S. ___, 111 S.Ct. 2157, 115 L.Ed.2d 78

(1991) applied retroactively; that the May 1989 remand order was

therefore the "final judgment" for purposes of the EAJA

application; that principles of equitable tolling applied; but that

the petition was nevertheless untimely, because the decision in

Luna v. United States HHS, 948 F.2d 169 (5th Cir. 1991), eliminated

any uncertainty as to when the 30-day time limit began to run, and

thus any equitable considerations justifying tolling ended after

Luna was issued. In objections to the recommendation, Freeman

urged that this court's award of appellate attorneys' fees required

that the district court grant his EAJA petition. The district

court overruled the objections, adopted the magistrate judge's

recommendation, and dismissed the petition. The district court

reasoned that this court's award of attorneys' fees was not

controlling because the court had not addressed the merits of

Freeman's application.

A recent Supreme Court case makes it clear that Freeman's EAJA

petition in the district court was timely. Shalala v. Schaefer,

No. 92-311, 1993 WL 218284 (U.S. June 24, 1993). In Schaefer, the

district court remanded to the Secretary in April 1989, pursuant to

sentence four of § 405(g), and the Secretary entered an award of

benefits on April 2, 1990. Id. at *1, *3. Schaefer did not file

his EAJA application until July 1990. The Supreme Court held that

a fourth-sentence remand constitutes a "final judgment" that

-4-
triggers the filing period for an EAJA fee application. Id. at *5.

"In sentence four cases, the filing period [for an EAJA

application] begins after the final judgment (affirming, modifying,

or reversing) is entered by the court and the appeal period has

run, so that the judgment is no longer appealable . . . ." Id. at

*4, quoting Melkonyan, 111 S.Ct. at 2165 (internal quotation marks

omitted). The Court nevertheless found that Schaefer's EAJA

application was not time-barred because the district court had not

entered a separate judgment as required by Fed. R. Civ. P. 58.

Schaefer, 1993 WL 218284 at *6.

An EAJA application may be filed until "30 days after the time

for appeal has ended." Id. In suits to which a federal officer is

a party, the time for appeal does not end until 60 days after the

entry of a Rule 58 judgment. The district court should have

entered a Rule 58 judgment when it remanded to the Secretary in

April 1989. That court's failure to enter a "formal judgment"

meant that the April 1989 order remained "appealable"; therefore,

Schaefer's July 1990 petition for EAJA fees was timely.

In this case, as in Schaefer, the district court entered a

fourth-sentence remand order but did not enter a separate Rule 58

judgment. Freeman's district court petition for EAJA fees was

timely because the district court's May 1989 remand to the

Secretary was still "appealable." Schaefer, 1993 WL 218284 at *6.

Thus, the district court's order denying attorneys' fees is

-5-
VACATED, and the case is REMANDED to the district court for

reconsideration in the light of Schaefer.

VACATED and REMANDED.

-6-