Ball v. Social Security Administration

Filing 25

ORDER AND REASONS DENYING 18 Motion for Attorney Fees. Signed by Judge Jane Triche Milazzo on 12/20/2019. (am)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PATRICIA BALL

CIVIL ACTION

VERSUS

NO: 18-4750

SOCIAL SECURITY ADMINISTRATION

SECTION “H”

ORDER AND REASONS
Before the Court is Plaintiff Patricia Ball’s Motion for Fees under the
Equal Access to Justice Act (Doc. 18). For the following reasons, the Motion is
DENIED.
BACKGROUND
On May 9, 2018, Plaintiff, Patricia Ball, filed a complaint against
Defendant, the Social Security Administration (“SSA”), seeking judicial review
of the termination of her disability benefits. 1 The matter was referred to the
Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rule 73.2E(B). On
February 27, 2019, the Magistrate issued a Report and Recommendation that
Plaintiff’s appeal be granted and her complaint remanded to the SSA with
instructions to vacate the Commissioner’s decision to terminate her benefits
and conduct further proceedings. 2 The Magistrate found that Plaintiff’s

1
2

Doc. 1.
Doc. 15.

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benefits were wrongly terminated by the SSA by using improper legal
standards to find that Plaintiff experienced medical improvement. 3 The SSA
filed no objection to the Report and Recommendation, and, on May 10, 2019,
this Court issued an Order adopting the Report and Recommendation in its
entirety. 4 On the same day, the Court entered a Judgment in favor of Plaintiff
and against the SSA. 5
Following the Court’s entry of Judgment in favor of Plaintiff, Plaintiff
filed the instant Motion for Attorney’s Fees. 6 Plaintiff argues that, under 42
U.S.C. § 405(g) and 28 U.S.C. § 2412(d), she is entitled to an award of attorney’s
fees. The SSA opposes.
LEGAL STANDARD
Under the Equal Access to Justice Act (“EAJA”), attorney’s fees and costs
may be awarded to a plaintiff who prevails in a civil action against the United
States. 7 The EAJA provides that
a court shall award to a prevailing party other than the United
States fees and other expenses . . . 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. 8
The EAJA further requires that a party seeking an award of fees must file an
application for the fees “within thirty days of final judgment in the action.” 9 A
Id.
Doc. 16.
5 Doc. 17.
6 Doc. 18.
7 28 U.S.C. § 2412.
8 Id. § 2412(d)(1)(A).
9 Id. § 2412 (d)(1)(B).
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final judgment is defined in the EAJA as one “that is final and not
appealable.” 10
LAW AND ANALYSIS
The SSA argues that Plaintiff’s Motion for Attorney’s Fees is untimely.
The Court agrees. The timeliness of Plaintiff’s Motion hinges on whether the
Magistrate’s remand was pursuant to sentence four or sentence six of 42 U.S.C.
§ 405(g).
“In cases reviewing final agency decisions on Social Security benefits, the
exclusive methods by which district courts may remand to the Secretary are
set forth in sentence four and sentence six of [42 U.S.C.] § 405(g).” 11 Sentence
four of 42 U.S.C. § 405(g) provides that “[t]he court shall have power 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.” 12 Sentence six provides
that
[t]he 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 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, in any case in which the Commissioner has not made
a decision fully favorable to the individual, a transcript of the

Id. § 2412(d)(2)(G).
Shalala v. Schaefer, 509 U.S. 292, 296 (1993).
12 42 U.S.C. § 405(g).
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additional record and testimony upon which the Commissioner’s
action in modifying or affirming was based. 13
A sentence four remand is a final judgment. 14 It “gives a claimant ‘prevailing
party’ status by terminating the litigation in the claimant’s favor.” 15 In
contrast, a sentence six remand functions as an interlocutory order. 16 It allows
the district court to retain jurisdiction over the action and monitor the
remand. 17 The EAJA requires that a party apply for an award of fees “within
thirty days of final judgment in the action.” 18 Thus, the issuance of a sentence
four remand marks the commencement of the thirty-day period to apply for
attorney’s fees, whereas the issuance of a sentence six remand does not. When
the time period to apply for attorney’s fees lapses following a sentence four
remand, district courts lack jurisdiction to entertain claims for attorney’s fees
under the EAJA. 19
The Magistrate’s Report and Recommendation does not identify whether
the remand falls under sentence four or sentence six. It is clear, however, that
the remand was ordered under sentence four.

First, the Court entered

Judgment in the record of this matter following the Order adopting the Report
and Recommendation. If the Court issued a sentence six remand, there would
be no entry of Judgment and the Court would still retain jurisdiction over the
matter. Second, nothing in the language of the Report and Recommendation
indicates that the case should or will be returned to the district court. To the

Id.
Murkeldove v. Astrue, 635 F.3d 784, 792 (5th Cir. 2011).
15 Perkins v. Astrue, 568 F. Supp. 2d 102, 104 (D. Mass. 2008).
16 Id. (citing Krishnan v. Barnhart, 328 F.3d 685, 691 (D.C. Cir. 2003)).
17 See Chapa v. Astrue, 814 F. Supp. 2d 957, 961 n. 5 (C.D. Cal. 2011); see also Peters v. Sec’y
of Health & Human Servs., 934 F.2d 693, 695 (6th Cir. 1991).
18 Id.§ 2412 (d)(1)(B) (emphasis added).
19 Peters, 934. F.2d at 695; see also Rivera Baez v. Sec’y of Health & Human Servs., 832 F.
Supp. 28, 29 (“[O]nce a district court remands a case pursuant to sentence four of § 405(g),
the same may not retain jurisdiction over the case.”).
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contrary, the Report and Recommendation requires that, upon remand, the
SSA reconstruct Plaintiff’s evidentiary file, if possible, in order to properly
conduct the continuing disability review, and if not possible, to continue the
benefits. 20 Indeed, the fact that Plaintiff received a favorable outcome in her
continuing disability review upon remand—without any additional filings
being made in the record of this Court to date—bolsters the Court’s finding
that the Judgment issued on May 10, 2019 was a final judgment.
Accordingly, the Judgment entered on May 10, 2019 began the
countdown. The thirty-day clock to apply for attorney’s fees “begins to run after
the time to appeal that final judgment has expired.” 21 “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 [Federal Rule of Civil Procedure] 58 judgment.” 22 Thus, when
the Court entered its final Judgment on May 10, 2019, the parties had sixty
days to file an appeal—up until July 9, 2019. Neither Plaintiff nor Defendant
filed an appeal, and so the thirty-day clock to apply for attorney’s fees began to
run on July 9, 2019 and closed on August 8, 2019. Plaintiff filed her Motion for
Attorney’s Fees on October 18, 2019, missing the window to timely apply for
attorney’s fees. While this Court would ordinarily be able to exercise its
discretion in awarding attorney’s fees, the lapse of the thirty-day clock
following the Magistrate’s sentence four remand under § 405(g) stripped this
Court of jurisdiction to award fees. Therefore, the Court must deny Plaintiff’s
Motion.

Doc. 15 at 18–19.
Melkonyan v. Sullivan, 501 U.S. 89, 96 (1991).
22 Murkeldove, 635 F.3d at 792 (quoting Freeman v. Shalala, 2 F.3d 552, 554 (5th Cir. 1993))
(brackets in original).
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21

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CONCLUSION
For the foregoing reasons, Plaintiff Patricia Ball’s Motion for Attorney’s
Fees and Costs under 28 U.S.C. § 2412(d) and 42 U.S.C. § 405(g) is DENIED.

New Orleans, Louisiana this 20th day of December, 2019.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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