CORRECTED ORDER GRANTING PLAINTIFF'S MOTION FOR REASONABLE ATTORNEY'S FEES
WARE, District Judge.
Plaintiff seeks an award of reasonable attorney fees, pursuant to The Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d)(1)(A). The underlying case involved Plaintiff's request for judicial review, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), of Defendant Secretary's final decision denying Plaintiff disability insurance and SSI benefits under Titles II and XVI of the Social Security Act.
Plaintiff filed for disability benefits, disability insurance benefits, and supplemental security income in September, 1985, alleging disability due to complications from a stroke, and neck and back problems. An Administrative Law Judge ("ALJ") found that Plaintiff was not disabled. Plaintiff requested a review of the ALJ's decision, and on April 9, 1990, the Appeals Council upheld the ALJ's ruling. Plaintiff then sought review by this Court of the ALJ's ruling.
On August 6, 1991, this Court denied Plaintiff's motion for summary judgment, and granted Defendant Secretary's cross motion for summary judgment. On September 29, 1991, Plaintiff filed a motion pursuant to Fed.R.Civ.P. 60(b) to vacate the Court's order and judgment in light of Bunnell v. Sullivan, 947 F.2d 341 (9th Cir.1991) (en banc), which reaffirmed the standard articulated in Cotton v. Bowen, 799 F.2d 1403 (9th Cir.1986), requiring that before rejecting a claimant's pain testimony an ALJ must make sufficient findings to allow a reviewing district court to determine the ALJ's reasons for doing so. On May 27, 1992, this Court reversed the decision of the ALJ and remanded the case for further proceedings.
The Court's jurisdiction to review the ALJ's decision is derived from 42 U.S.C. § 405(g). The fourth sentence of § 405(g) states: "The court shall have the 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." Such an action by a district court is referred to as a "sentence four remand." The sixth sentence of § 405(g) specifies the second type of action which a district court may take when reviewing the Secretary's decisions. A recent Supreme Court opinion characterized sentence six remands as follows:
Melkonyan v. Sullivan, ___ U.S. ___, ___, 111 S.Ct. 2157, 2163, 115 L.Ed.2d 78 (1991).
This Court's order of May 27, 1992, reversed the Secretary's decision and ordered a remand. Accordingly, the Court's order was within the definition of a sentence four remand.
By the instant motion, Plaintiff seeks an award of attorney fees under the EAJA, 28 U.S.C. § 2412. The EAJA states in part:
Id. at 2412. Accordingly, the Court must make the following findings in order to grant Plaintiff's motion: (1) that Plaintiff was a prevailing party in his civil action; (2) that the position of the United States was not substantially justified; (3) that the motion for attorney fees was timely filed; and (4) that the amount requested is reasonable.
1. Plaintiff Was a Prevailing Party in His Civil Action Against the United States
The EAJA provides for an award of attorney fees to prevailing parties. The definition of "prevailing party" has changed significantly in light of the Supreme Court's decision in Melkonyan. Prior to Melkonyan, the Ninth Circuit had established that "securing a remand on an appeal of an administrative disability decision is insufficient to qualify a claimant as a prevailing party under the EAJA." Swenson v. Heckler, 801 F.2d 1079, 1080 (9th Cir.1986). In addition, prior to deciding Melkonyan, the Supreme Court had held in Sullivan v. Hudson, 490 U.S. 877, 109 S.Ct. 2248, 104 L.Ed.2d 941 (1989), as follows:
"The Court's holding in Melkonyan suggests that a different rule must apply when a district court orders a sentence four remand." Spurlock v. Sullivan, 783 F.Supp. 474, 479 (N.D.Cal.1992). In Spurlock, the court explained that in the case of a sentence six remand, the remand itself does not constitute a final judgment because the Secretary must return to the district court, upon completion of post-remand proceedings, for entry of final judgment. Id. at 479. "But where, as here, a plaintiff succeeds in obtaining a sentence four remand, the district court enters judgment only on the matter of remand. There will not be a judgment by the district court following the Secretary's determination on the merits, and there is no opportunity for the district court to retain jurisdiction...." Spurlock at 479.
The Spurlock court, having established that sentence four remands terminate the civil action before a district court, thereby terminating jurisdiction over the matter, concluded as follows:
Id. at 479-480.
In Melkonyan, the Supreme Court addressed the question of when a "final judgment" is entered, given a sentence four remand by a district court. The Court held:
Melkonyan, ___ U.S. at ___, 111 S.Ct. at 2162 (emphasis in original).
This Court finds, in light of the above, that Plaintiff is a prevailing party for purposes of the EAJA. Upon Plaintiff's request for review by this Court of Defendant Secretary's decision, this Court reversed the Secretary's decision and remanded the case. The Court's sentence four remand order resulted in Plaintiff attaining the status of "prevailing party," as defined by the EAJA and as clarified by the judicial opinions outlined above.
2. The Position of the United States Was Not Substantially Justified
In Pierce v. Underwood, 487 U.S. 552, 564, 108 S.Ct. 2541, 2549, 101 L.Ed.2d 490 (1988), the Supreme Court held that the term "substantially justified," for the purpose of district court review of motions for attorney fees pursuant to EAJA, should be interpreted as follows:
Id. at 565, 108 S.Ct. at 2550.
The Ninth Circuit has also defined a standard for review by district courts when considering EAJA attorney fee motions. In Cardwell v. Kurtz, 765 F.2d 776 (9th Cir.1985), the Court held:
Cardwell at 781. A more recent Ninth Circuit holding states: "In making a determination of substantial justification, the court must consider the reasonableness of both `the underlying government action at issue' and the position asserted by the government `in defending the validity of the action in court.' [citations omitted]" Bay Area Peace Navy v. U.S., 914 F.2d 1224, 1227 (9th Cir.1990).
The Court notes that Defendant Secretary fails to address the question of substantial justification. Defendant states only that because this Court granted Defendant's motion for summary judgment on August 6, 1991, then the Secretary's position with respect to affirming the ALJ's ruling was substantially justified. Def.['s] Opp'n to Pl.['s] Mot. for EAJA Att'y Fees at 3.
This argument fails to recognize this Court's subsequent order of May 27, 1992, wherein the Court vacated the August 6, 1991 order and remanded the case for further proceedings. In particular, the Court stated clearly that the basis for the order to vacate and remand was the ALJ's need to bring the administrative proceedings into conformity with a recent decision by the Ninth Circuit. The Court's order stated:
Afanador v. Sullivan, No. C-90-20346-JW, slip op. at 3 (N.D.Cal. May 27, 1992).
The legal standard applied by the ALJ was improper, as was subsequently determined by the Ninth Circuit's decision in Bunnell v. Sullivan, 947 F.2d 341 (9th Cir.1991) (en banc). The Defendant Secretary's affirmation of the ALJ's ruling, and the Secretary's argument to the Court on review, were necessarily premised on an improper legal standard as well. Because "both `the underlying agency action and the legal position of the United States during litigation'" were thus tainted by an improper legal basis, the Court finds that the Defendant Secretary's position was not substantially justified. Cardwell at 781.
3. Plaintiff's Application for Fees is Timely
As noted above, the EAJA requires that an application for attorney fees be filed "within thirty days of final judgment in the action...." 28 U.S.C. § 2412. "The requirement that the fee application be filed within 30 days of `final judgment in the action' plainly refers back to the `civil action ... in any court' in (d)(1)(A). The plain language makes clear that a `final judgment' under § 2412 can only be the judgment of a court of law." Melkonyan, ___ U.S. at ___, 111 S.Ct. at 2161.
The Court's remand order was issued on May 27, 1992. Plaintiff filed the instant motion for attorney fees on June 10, 1992. Accordingly, the motion was filed within 30 days of a final judgment, and the motion is timely.
4. The Amount of Fees Requested is Reasonable
The EAJA defines "reasonable" fees at § 2412(d)(2)(A), cited in a footnote above. Plaintiff's motion seeks a cost of living adjustment, as permitted by the EAJA. "[Applicants for fees] are entitled to an adjustment of the $75 cap to reflect inflation between October 1981 and the present as measured by the Consumer Price Index
Applying the Ramon-Sepulveda formula, the Court finds that Plaintiff is entitled to an hourly rate of $107.83 for the 22.3 hours of work performed by Plaintiff's attorney.
The Court finds that Plaintiff is a prevailing party under the EAJA; that the position of the United States was not substantially justified; that Plaintiff's application for fees was timely filed; and that the amount of fees requested is reasonable. Accordingly, Plaintiff's motion for attorney fees, pursuant to 28 U.S.C. § 2412(d) is GRANTED.
IT IS SO ORDERED.
28 U.S.C. § 2412(d)(2)(A).
[x/$75] = [CPI-U
The CPI-U in October, 1981 was 97.1. The CPI-U in April, 1992 (the most recent statistic available) was 139.6.