Opinion
Civil Action No. 97-11492-MBB, No. 95-10976-DPW.
August 26, 2005
MEMORANDUM AND ORDER
Pro se plaintiff Francis J. Sampson has filed a motion for reimbursement of legal fees arising out of administrative proceedings surrounding his application for benefits under Title II of the Social Security Act.
I. Background
On May 10, 1995, plaintiff filed a complaint in this court seeking review of the Social Security Administration's ("SSA") decision denying disability payments. On August 18 of that year, the Commissioner filed an answer. After a few extensions of the time for filing of dispositive motions, the Commissioner filed an assented to motion for an order reversing the decision of the Commissioner and remanding the cause for rehearing, pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). On November 30, 1995, I allowed that assented to motion and ordered the case remanded. That same day, the case was closed.
Upon rehearing before an Administrative Law Judge ("ALJ"), plaintiff again was displeased with the outcome and filed a new suit on July 2, 1997. The SSA answered that complaint on October 15, 1997. The Commissioner filed a motion seeking affirmation of the ALJ's opinion and plaintiff sought a remand. On June 23, 1999, Magistrate Judge Bowler granted the motion to remand and the case was closed on August 19 of that year.
On remand, plaintiff prevailed in a decision by ALJ Reeves dated April 1, 2000. ALJ Reeves then authorized plaintiff's counsel to collect attorney's fees, first in the amount of $1,960.00 as stated in a June 12, 2000 letter and then, in a November 13, 2002 letter, $2,913.75. Plaintiff claims that, beginning on August 8, 2000, he has sought those fees on several occasions. He now seeks an order of this court granting those fees pursuant to the Equal Access to Judgment Act ("EAJA"), 28 U.S.C. § 2412(d).
II. Discussion
This case arises at the intersection between the district court's authority, pursuant to 42 U.S.C. § 405(g), to review denials of Social Security benefits and the EAJA's allowance for a prevailing party to collect fees under certain circumstances. See 28 U.S.C. § 2412(d)(1)(B).
The former provides two methods by which a court may remand a case — as provided in sentences four and six of the section — and "are two distinct grants of remand power, which apply in two distinct situations." Seavey v. Barnhart, 276 F.3d 1, 12 (1st Cir. 2001). Sentence four provides that "[t]he district 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). And, sentence six instructs in pertinent part that
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 . . . for further action . . . 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. . . .Id.
Moreover, the EAJA provides that
[e]xcept as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, 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).
Here, plaintiff seeks fees for costs incurred before the administrative agency. Both of the remand orders in this case occurred after the Commissioner had answered the complaints. Neither ordered that new evidence be taken "upon a showing that [it] is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." Consequently, the remand orders were pursuant to sentence four and, accordingly, constituted final judgments. See Shalala v. Schaefer, 509 U.S. 292, 302 (1993). As such, they do not entitle plaintiff to recovery of costs pursuant to the EAJA incurred during the administrative proceedings which followed each order because this court did not retain jurisdiction over the matters upon remand. Cf. Freeman v. Barnhart, 274 F.3d 606, 610 (1st Cir. 2001) ("We could order a remand for further proceedings under either sentence. In order to preserve [plaintiff's] rights if he is ultimately a prevailing party, we will treat this as a sentence six remand, under which the district court retains jurisdiction until the remand proceedings are complete and the Commissioner files modified findings of fact and a modified decision. If [the plaintiff] is then a prevailing party, the court may consider any properly filed application for fees under the [EAJA]."); Zatterstrom v. Sullivan, 793 F. Supp. 923, 924-25 (D. Ariz. 1992).
Therefore, the only fees plaintiff could potentially seek under the EAJA would be those incurred while in the district court seeking review of the agency decisions. Plaintiff, however, has not sought those fees. Nor has he, in any event, abided by the EAJA's requirements that he include an "itemized statement from any attorney or expert witness stating the actual time expended and the rate at which fees and other expenses were computed" and "allege that the position of the United States was not substantially justified." 28 U.S.C. § 2412(d)(1)(B).
In addition, there would appear to be a timeliness bar even if plaintiff had raised an EAJA claim appropriately:
An EAJA application may be filed until 30 days after a judgment becomes "not appealable" — i.e., 30 days after the time for appeal has ended. Rule 4(a) of the Federal Rules of Appellate Procedure established that, in a civil case to which a federal officer is a party, the time for appeal does not end until 60 days after `entry of judgment,' and that a judgment is considered entered for purposes of the Rule only if it has been entered in compliance with Rule 58 . . . of the Federal Rules of Civil Procedure." Rule 58, in turn, requires a district court to set forth every judgment "on a separate document" and provides that "[a] judgment is effective only when so set forth."Shalala v. Schaefer, 509 U.S. 292, 302-03 (1993) (citations omitted).
Defendant concedes that plaintiff might be able to assert that the EAJA filing clock did not begin running because the remand orders were not accompanied by a separate entry of judgment as required by Rule 58. However, Rule 58 has an alternative method for judgment to enter — "when 150 days have run from the entry in the civil docket under Rule 79(a)" — in the event a judgment is not "set forth on a separate document." Fed.R.Civ.P. 58. That alternative would appear applicable here, ultimately to bar any EAJA claim.
While plaintiff's basic complaint appears to be focused on an alleged failure by the Commissioner to award attorney's fees to which he believes he is entitled, the letters he submits to the court are addressed to his attorney and explain the maximum fees the attorney may charge. It appears that plaintiff may misapprehend the implication of the letters, believing they state an additional amount he is owed as opposed to simply quoting an authorized fee his attorney may charge.
Cf. Power v. Barnhart, 292 F.3d 781, 783 (D.C. Cir. 2002) (citations and footnote omitted):
In 1990, Congress amended § 406(a), adding a new subsection, § 406(a)(2). That subsection authorizes an attorney who assists a claimant with an administrative claim to receive compensation pursuant to a "fee agreement" entered into with the claimant. Such an agreement must satisfy three prerequisites: (i) it must be submitted to the Commissioner in writing prior to the time the Commissioner makes a determination on the claim; (ii) it must specify a fee that does not exceed the lesser of 25% of the past-due benefits awarded or $4,000; and (iii) the Commissioner must make a determination favorable to the claimant. If these requirements are satisfied, "then the Commissioner of Social Security shall approve that agreement at the time of the favorable determination, and . . . the fee specified in the agreement shall be the maximum fee." As with fee petitions, when a fee agreement is approved, the SSA certifies the fee for payment out of the past-due benefits owed to the claimant.
Neither party addresses the details of the payments made to plaintiff and the provisions, apart from the letters to plaintiff's attorney, made for attorney's fees. While it appears likely that plaintiff has no claim directly against the Commissioner for fees, there is arguably one circumstance under which he may have such a claim: if the SSA paid him a reduced amount of past-due benefits, having reduced the amount by the calculated fee; and then the SSA erroneously authorized plaintiff's attorney to seek that fee directly from plaintiff. But, what the remedy might be, the extent of this court's jurisdiction over the question, the timeliness of a request for judicial review, whether a fee agreement was submitted to the SSA prior to each action, cf. 42 U.S.C. § 406(a)(2)(A), or a fee was waived, and the details of any appointment of representative and acceptance of representative form in each action are all issues that cannot be resolved on the present record. Moreover, it is not apparent whether 42 U.S.C. § 406(b), which provides for fees incurred in representing successful claimants before a court, is implicated in any way by plaintiff's motion, a question not addressed by defendant in her opposition.
In short, plaintiff has no valid claim for fees under the EAJA, and the sparse record precludes a determination whether the fee provisions of the SSA were complied with by the Commissioner.
III. Conclusion
For the foregoing reasons, plaintiff's instant motion for reimbursement of attorney's fees under the EAJA is DENIED. If plaintiff believes that he — rather than his attorney — has a valid claim for fees under either §§ 406(a) or 406(b), he must bring a new action making and fully supporting such a claim.