IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-4947
______________________________
PATRICK BREAUX,
Plaintiff-Appellant,
versus
UNITED STATES DEPARTMENT OF HEALTH
AND HUMAN SERVICES,
Defendant-Appellee.
_____________________
Appeal from the United States District Court
for the Western District of Louisiana
(91-CV-184)
______________________
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
(January 5, 1994)
Before POLITZ, Chief Judge, HIGGINBOTHAM, and DeMOSS, Circuit
Judges.
PER CURIAM:
After the district court remanded this case to the ALJ for
further findings, it denied Breaux's application for attorneys fees
under the Equal Access to Justice Act. This court affirmed in an
unpublished opinion, finding the case controlled by Bertrand v.
Sullivan, 976 F.2d 977, 979-80 (5th Cir. 1992). Breaux v.
Secretary, No. 92-4947, 1993 U.S. App. LEXIS 12009 (5th Cir. May 6,
1993) (per curiam). The Supreme Court vacated and remanded for
further proceedings in light of its later decision in Shalala v.
Schaefer, 113 S.Ct. 2625 (1993). Breaux v. Shalala, 114 S.Ct. 297
(1993).
Shalala v. Schaefer holds that a party who obtains a remand
pursuant to the fourth sentence of 42 U.S.C. § 405(g) qualifies as
a prevailing party for purposes of attorneys fees under the EAJA.
113 S.Ct. at 2631-32. Schaefer overruled Part IV of Bertrand v.
Sullivan, 976 F.2d at 979-80, which stated that a fee application
by a plaintiff who has obtained a remand order should be denied "as
premature and without prejudice."
The district court's denial of Breaux's application is
REVERSED and REMANDED to allow the district court to award
reasonable attorney fees.