                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-7-1994

Kadelski v. Sullivan
Precedential or Non-Precedential:

Docket 93-1891




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Recommended Citation
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http://digitalcommons.law.villanova.edu/thirdcircuit_1994/77


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                 UNITED STATES COURT OF APPEALS

                      FOR THE THIRD CIRCUIT

                             ____________

                            NO. 93-1891
                             ____________

                           WALTER KADELSKI,
                                              Appellant

                                  v.


                LOUIS W. SULLIVAN, Secretary
                of Health and Human Services


                             ____________

          Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                      D.C. No. 89-cv-04430
                          ____________

    Submitted Under Third Circuit LAR 34.1(a) March 24, 1994
      Before: HUTCHINSON, ROTH, and ROSENN, Circuit Judges
                     Opinion Filed July 8, l994
                           ____________

THOMAS R. YORKO, ESQ.
Bomze & Yorko, P.C.
Suite 1300
140l Arch Street
Philadelphia, PA 19102
  Attorney for Appellant

STEVEN M. ROLLINS, ESQ.
Department of Health & Human Services
3535 Market Street
Room 9100
Philadelphia, PA 19101
  Attorney for Appellee
                           ____________

                         OPINION OF THE COURT
                             ____________

ROSENN, Circuit Judge.


                                  1
          This appeal presents a procedural issue, the

determination of which has significant substantive consequences:

does a remand order to a federal administrative agency by a

United States District Court adopting the Report and

Recommendation of a magistrate judge, which constitutes a

judgment, require that it be set forth in a separate document as

provided by Federal Rule of Civil Procedure 58?    The district

court held that its order need not be stated in a separate

document and therefore denied as untimely the appellant's

application for attorney's fees under the Equal Access to Justice

Act (EAJA), 28 U.S.C. § 2412(d).    Appellant timely appealed.    We

vacate and remand.

                           I.

          In 1988, Appellant Walter Kadelski, filed an

application for disability insurance benefits under Title II of

the Social Security Act, 42 U.S.C. § 401 et seq.    After the

Secretary of Health and Human Services (the Secretary) denied his

request for benefits, Kadelski, pursuant to 42 U.S.C. § 405(g),

sought judicial review by filing suit in the United States

District Court for the Eastern District of Pennsylvania.     In

response to cross-motions for summary judgment, a magistrate

judge concluded that the administrative law judge's (ALJ)

decision was not supported by substantial evidence.    Accordingly,

the magistrate judge recommended that the case be remanded to the

Secretary for further administrative proceedings.    On March 2,

1992, the district court issued an order adopting the magistrate


                                2
judge's Report and Recommendation as the decision of the court.1

            Upon remand, the Secretary found that Kadelski was

entitled to disability insurance benefits.    Subsequently, on

January 11, 1993, Kadelski returned to the district court and

filed his application for attorney's fees and costs under the

EAJA.    The court, finding that Kadelski had failed to apply for

an EAJA Award "within 30 days of final judgment in the action",

28 U.S.C. § 2412(d)(1)(B), denied the application as untimely.

Kadelski's motion for reconsideration was also denied.      On April

5, 1993, the district court vacated its March 30, 1993 order

pending the outcome of a similar case, Shalala v. Schaefer, 113


1
    The district court's remand order reads as follows:

                                ORDER
            AND NOW, this 2nd day of March, 1992, upon
            careful consideration of the Report and
            Recommendation of United States Magistrate
            Judge Richard A. Powers, III in this action,
            and the Court concluding that [the]
            Magistrate Judge's . . . thorough analysis is
            completely persuasive, and in the absence of
            exceptions to the Report and Recommendation,
            it is hereby ORDERED that:

            1. The Report and Recommendation of February
            12, 1992 is Approved and the analysis therein
            is ADOPTED as that of the court;

            2. Plaintiff's motion for summary judgment
            is DENIED and defendant's motion for summary
            judgment is DENIED;

            3. This action shall be REMANDED to the
            Secretary for reconsideration by the
            Administrative Law Judge consistent     with
            the opinion of Magistrate Judge Powers and
            with the aid of a medical advisor in
            conformity with Social Security Rule    83-
            20.

                                  3
S. Ct. 2625 (1993).   After Schaefer was decided, the district

court once again denied Kadelski's application.    Kadelski's

subsequent motion to vacate that order was denied.    Kadelski

appealed.

                                II.

            Although determinations of attorney fee awards under

the EAJA are generally reviewed under an abuse of discretion

standard, Pierce v. Underwood, 487 U.S. 552, 562 (1988),

questions of law, such as the proper interpretation of the EAJA

and Supreme Court precedent, are subject to plenary review.

Dewalt v. Sullivan, 963 F.2d 27, 29 (3d Cir. 1992).

            The EAJA provides that the district 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 . . . 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).   As a prerequisite to an award of

fees, a claimant must file an application for fees "within thirty

days of final judgment in the action."   Id. at § 2412(d)(1)(B).

The statute defines "final judgment" as "a judgment that is final

and not appealable." Id. at § 2412(d)(2)(G).
          In reviewing final agency decisions regarding
disability insurance benefits, a district court may remand to the
Secretary for reconsideration. 42 U.S.C. § 405(g) (Supp. 1994).
In Melkonyan v. Sullivan, 111 S. Ct. 2157 (1991), the Supreme
Court explained that the two kinds of remand permitted by the
statute are the exclusive methods by which a district court may
remand a case to the Secretary. Sentence four of § 405(g)


                                 4
provides "[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).
The sixth sentence of 42 U.S.C. § 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, and shall file
          with the court any such additional and
          modified findings of fact and decision, and a
          transcript of the additional record and
          testimony upon which his action in modifying
          or affirming was based.


Id.

          In Schaefer, the Supreme Court reaffirmed its previous

holdings that a remand order pursuant to sentence four of

§405(g), as opposed to sentence six, constitutes a judgment,

which squarely falls within the term "final judgment" as used in

the EAJA, when it no longer can be appealed.   Schaefer, 113 S.Ct.
at 2629 (citations omitted).2   Thus, at the outset we must

ascertain the nature of the remand order to determine if the

2
  We note parenthetically that the Court's holding in Schaefer
that a district court cannot retain jurisdiction upon remanding a
case pursuant to sentence four, Schaefer, 113 S.Ct. at 2629-30,
and its holding that a claimant who obtains judgment under
sentence four is deemed a prevailing party for purposes of the
EAJA, id. at 2631, overrules our holdings to the contrary in
Persichetti v. Secretary, Health and Human Services, 990 F.2d 80
(3d Cir. 1993).


                                 5
district court entered final judgment in the case.    A district

court may order a sentence-six remand in only two situations:

where the Secretary requests a remand before answering the

complaint, or where new, material evidence is adduced that was

for good cause not presented before the agency.     See   §405(g)

(sentence six); Schaefer, 113 S.Ct. at 2629 n.2.     As the district

court's remand order does not fit within either situation, it was

unquestionably entered pursuant to sentence four.

          Having determined that the district court's remand

order was a fourth-sentence remand, we now proceed to determine

if Kadelski's fee application was timely filed.    As noted above,

the Court in Schaefer reiterated that a fourth-sentence remand

order constitutes a "final judgment," when it no longer is

subject to appeal.   Id. at 2929.    Rule 4(a) of the Federal Rules

of Appellate Procedure establishes that the time for appeal from

a civil case in which an officer of the United States is a party

is sixty days after entry of judgment in the district court.        A

prevailing party must then file an application for attorney's

fees within thirty days after the time for appeal has expired.

See §§ 2412(d)(1)(B), (d)(2)(G); Schaefer, 113 S.Ct. at 2632.
          Kadelski filed his application more than 90 days after

the remand order which constituted the judgment in the case.

Thus, at first blush, his application does not seem to satisfy

the requirements of the EAJA.   Nevertheless, Kadelski's claim is

not time barred because the district court did not enter a

separate document as required by Federal Rule of Civil Procedure

58.   Schaefer, 113 S.Ct. at 2632.   The Rule not only requires


                                6
that every judgment be formally set forth "on a separate

document," but that "[a] judgment is effective only when so set

forth and when entered as provided in Rule 79(a)."    Fed. R. Civ.

P. 58.   The entry of such a separate document unequivocally fixes

the effectiveness of the judgment and avoids problems such as

have arisen in this case and those cited in the following

paragraph.    See Schaefer, 113 S.Ct. at 2632 (citing United States

v. Indrelunas, 411 U.S. 216, 220 (1973) (per curiam)).

             Because the March 2 remand order was a judgment, see

Schaefer 113 S.Ct. at 2632, a separate document of judgment

should have been entered.     Here, as in Schaefer, the district

court entered the remand order but did not enter a separate Rule

58 judgment.    Thus, absent a formal judgment, the district

court's remand order remained appealable at the time Kadelski

filed his application for EAJA fees, and therefore his

application was timely under § 2412(d).    Schaefer, 113 S.Ct. at

2632; see also Newsome v. Shalala, 8 F.3d 775 (11th Cir. 1993);

Curtis v. Shalala, 12 F.3d 97, (7th Cir. 1993); Gray v. Secretary

of Health and Human Services, 3 F.3d 1584 (9th Cir. 1993);

Freeman v. Shalala, 2 F.3d 552 (5th Cir. 1993).
             The Secretary argues vigorously that, notwithstanding

Schaefer, Rule 58 was complied with in the present case.       The

Secretary cites to a number of cases that hold that an order

adopting a magistrate judge's Report and Recommendation satisfies

Rule 58.     See Mason v. Groose, 942 F.2d 515, 516 (8th Cir. 1991),

cert. denied, 112 S.Ct. 891 (1992) (order adopting Magistrate's
report and recommendation satisfies Rule 58); Laidley v. McClain,


                                  7
914 F.2d 1386, 1390 (10th Cir. 1990) (same); Alman v. Taunton

Sportswear Mfg. Corp., 857 F.2d 840, 843 (1st Cir. 1988) (same),

cert. denied, 109 S.Ct. 1173 (1989); United States v. Perez, 736

F.2d 236, 238 (5th Cir. 1984) (same).   These cases, however, were

all decided prior to the Supreme Court's decision in Schaefer,

which involved a remand order precisely similar to this case

adopting the Report and Recommendation of a magistrate judge,3

and in which the Court held that order does not satisfy Rule 58

unless a separate document of judgment is entered.   Thus, they

are no longer controlling in light of Schaefer.

          Moreover, contrary to the Secretary's contention, the

clerk of court's notation on the docket that the case was closed

is not determinative.   The clerk did not mark the case closed

pursuant to an order entered by the court; rather, the clerk

followed an internal office procedure that whenever a case is

remanded, the clerk marks the case closed on the docket sheet.

The same case closed notation also appeared on the docket sheet

in Schaefer and the court did not find the notation instructive.

                               III.

          Accordingly, we hold that a judgment of a district

court remanding a case to an administrative agency remains

appealable unless a separate document formally setting forth the

judgment is entered in accordance with Federal Rule of Civil

Procedure 58.   Therefore, the judgment of the district court

denying Kadelski's motion for attorney's fees will be vacated and

3
See Newsome, 8 F.3d 779 n.19 (quoting Sullivan v. Schaefer
Petition for Writ of Certiorari, Appendix E).


                                8
the case remanded to the district court to enter judgment in

accordance with Rule 58 and for such other proceedings as are

consistent with the opinion, including consideration whether the

Government's position was substantially justified as provided by

the EAJA.

            Costs taxed against the appellee.




                                 9
