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Persichetti v. Secretary

filed: March 31, 1993; As Corrected April 12, 1993. Second Correction August 5, 1993.

DAVID PERSICHETTI, APPELLANT
v.
SECRETARY, HEALTH & HUMAN SERVICES, APPELLEE



On Appeal From the United States District Court For the Western District of Pennsylvania. D.C. Civ. No. 90-01831.

Before: Becker, and Greenberg, Circuit Judges, and Robinson, District Judge*fn*

Author: Per Curiam

Per Curiam.

This is another in a series of cases arising in the wake of Melkonyan v. Sullivan, 111 S. Ct. 215 (1991), concerning the timeliness of applications for attorney's fees following "sentence four" Social Security disability case remands. 42 U.S.C.A. § 405(g) (West 1991) § 405(g) (fourth sentence).

Appellant David Persichetti, having lost his case for disability benefits at the administrative level, and having sought review in the district court, was the beneficiary of an August 12, 1991 order of the district court vacating the administrative finding of non-disability and remanding the case to the administrative agency for further proceedings consistent with the court's instructions.*fn1 On February 10, 1992, following the remand, an Administrative Law Judge issued a decision favorable to Persichetti ordering that he receive disability benefits.

On May 7, 1992, Persichetti filed an application for attorney's fees under the Equal Access to Justice Act ("EAJA"). 28 U.S.C.A. § 2412(d) (West Supp. 1992). The Secretary responded that the August, 1991 remand was ordered pursuant to § 405(g) sentence four and had been a final order, so that the attorney's fee application filed some six months later (in May, 1992) was untimely. Persichetti rejoined that the August, 1991 decision and order was rendered under the sixth sentence of 42 U.S.C.A. § 405(g), that it was therefore not final, and hence that his EAJA application was timely filed. The district court, however, agreed with the Secretary and denied Persichetti's application for fees under the EAJA as being untimely. Persichetti then sought an order establishing a new final order date (so as to validate his appeal). The district court denied the motion, reiterating that the August 12, 1991 decision and order was a remand under the fourth sentence of 42 U.S.C.A. § 405(g) and was, therefore, a final order.

The determination whether Persichetti's EAJA application was properly dismissed by the district court turns on an examination of the fourth and sixth sentences of 42 U.S.C.A. § 405(g), as well as EAJA, 28 U.S.C.A. § 2412. The fourth sentence of 42 U.S.C.A. § 405(g) provides:

The court shall have power to enter, upon the pleadings and transcript of 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.A. § 405(g). The sixth sentence of 42 U.S.C.A. § 405(g) provides:

The court may, on motion of the Secretary, made for good cause shown before he files his answer, remand the case to the Secretary for further action by the Secretary, and it may at any time order additional evidence to be taken before the Secretary, 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; and the Secretary shall, after the case is remanded, and after hearing such additional evidence if so ordered, modify or affirm his findings of fact or his decision, or both . . . .

42 U.S.C.A. § 405(g).

The EAJA provides in pertinent part:

[A] court shall award to a prevailing party other than the United States fees and other expenses . . . unless the court finds that the position of the United States was substantially justified ...


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