                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                November 9, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    CLIFFORD L. CLAUSEN,

                Plaintiff-Appellee,
                                                         No. 09-8001
    v.                                          (D.C. No. 2:98-CV-00030-ABJ)
                                                           (D. Wyo.)
    MICHAEL J. ASTRUE,
    Commissioner of Social Security,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, ANDERSON, and EBEL, Circuit Judges.



         The Commissioner of Social Security appeals from district court orders that

(1) awarded attorney fees to Clifford L. Clausen under the Equal Access to Justice

Act (EAJA), 28 U.S.C. § 2412, and (2) denied the Commissioner’s motion for

reconsideration of the fees award. Exercising jurisdiction under 28 U.S.C.

§ 1291, we vacate and remand for further proceedings.


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                  B ACKGROUND

      In 1997, the Commissioner denied Mr. Clausen’s application for disability

insurance benefits and supplemental security income. In 1998, the district court

remanded the matter to the agency, citing agency errors and the need for further

record development. But the district court did not indicate whether the remand

was pursuant to sentence four or sentence six of 42 U.S.C. § 405(g), 1 nor did it

enter a separate judgment. On remand, Mr. Clausen was determined to be

disabled.

      In 2003, the Commissioner returned to the district court and filed a motion

for entry of judgment in favor of Mr. Clausen. While the motion was pending,

Mr. Clausen died. In 2007, unaware of Mr. Clausen’s death, the district court

granted the motion and entered judgment “in accordance with the Court’s . . .

1998 Order Remanding for Further Proceedings, and not pursuant to the

subsequent proceedings.” Aplt. App. at 62.

      Mr. Clausen’s attorney, Berthenia Crocker, filed a motion for EAJA fees,

which included the time spent representing Mr. Clausen on remand to the agency.

The Commissioner opposed the motion. In 2008, the district court ruled that its

1998 remand order originated under sentence four, but it nevertheless authorized

fees for attorney Crocker’s post-remand work. The district court’s reasoning for

1
      EAJA fees for an attorney’s representation on remand are available only in
sentence six remands, where the district court retains jurisdiction during the
agency proceedings. See Shalala v. Schaefer, 509 U.S. 292, 299-300 (1993).

                                         -2-
doing so is not clear, but it did comment on “the horridly confused state of the

record.” Clausen v. Astrue, No. 98-CV-30-J, at 14 (D. Wyo. Sept. 30, 2008).

      Thereafter, the Commissioner filed a motion for reconsideration, arguing

that attorney fees are not available for sentence-four remand work. The district

court construed the motion as seeking relief under Fed. R. Civ. P. 60(b), and

denied relief.

      The Commissioner timely appealed from the order awarding EAJA fees and

the order denying reconsideration. Attorney Crocker has filed a motion for

substitution of herself as the appellee in place of Mr. Clausen. The Commissioner

has filed a cross-motion, seeking either to have Mr. Clausen’s adult children (who

have not been served with a copy of the cross-motion) substituted as appellees or

to have the appeal proceed as if Mr. Clausen had not died.

                                    D ISCUSSION

      The district court’s order awarding EAJA fees is internally inconsistent.

On the one hand, it finds that the 1998 remand was pursuant to sentence four, but

on the other hand, it awards fees as if the remand was pursuant to sentence six.

Consequently, clarification by the district court is necessary.

      Further, there is no appellee before this court, and the proposals for filling

that vacancy on appeal are insufficient. See Fed. R. App. P. 43(a).




                                         -3-
                                    C ONCLUSION

      Accordingly, we VACATE the district court’s 2008 orders awarding

Mr. Clausen EAJA fees and denying the Commissioner’s motion for

reconsideration, and we REMAND this matter for further proceedings to clarify

the district court’s intent with respect to EAJA fees. 2

      On remand, the district court shall also determine the proper party to be

substituted as the plaintiff in the action, and effectuate that substitution pursuant

to the provisions of Fed. R. Civ. P. 25(a).

      Finally, attorney Crocker’s motion for substitution and the Commissioner’s

cross-motion are DENIED.



                                                     Entered for the Court


                                                     David M. Ebel
                                                     Circuit Judge




2
     By remanding this matter, we do not intend to suggest any particular
outcome with respect to Mr. Clausen’s application for EAJA fees.

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