
USCA1 Opinion

	




          April 16, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT        No. 92-1559                                      CATHY TYLER,                                Plaintiff, Appellant,                                          v.                              JOHN FITZSIMMONS, ET AL.,                                Defendants, Appellees.                                _____________________                                     ERRATA SHEET            The opinion  of this Court  issued April  7, 1993,  is amended  as        follows:            Cover sheet,  attorneys for  appellees  should read:   William  G.                                                                   ___________        Cole,  Attorney, Department  of Justice,  with whom Stuart  M. Gerson,        ____                                                _________________        Assistant Attorney  General, William Kanter,  Attorney, Department  of                                     ______________        Justice, and Richard S.  Cohen, United States Attorney, were  on brief                     _________________        for appellees.        April 12, 1993      UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT        No. 92-1559                                     CATHY TYLER,                                Plaintiff, Appellant,                                          v.                              JOHN FITZSIMMONS, ET AL.,                                Defendants, Appellees.                                                                                      __________________                                     ERRATA SHEET            The  opinion of this  Court issued  April 7,  1993, is  amended as        follows:            Page 7, line 12 of text, should read:  . . . March 11, 1991.            Page 7, line 14 of text, should read:  . . . February 6, 1991.        April 7, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1559                                     CATHY TYLER,                                Plaintiff, Appellant,                                          v.                              JOHN FITZSIMMONS, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                    [Hon. Gene Carter, Chief U.S. District Judge]                                       _________________________                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                             and Fust ,* District Judge.                                         ______________                                 ____________________            Robert Edmond Mittel with whom Mittel,  Asen, Eggert & Hunter  was            ____________________           ______________________________        on brief for appellant.            William  G.  Cole, Attorney,  Department  of  Justice,  with  whom            _________________        Stuart M.  Gerson, Assistant Attorney General,  William Kanter, Attor-        _________________                               ______________        ney,  Department of  Justice,  and  Richard  S. Cohen,  United  States                                            _________________        Attorney, were on brief for appellees.                                 ____________________                                    April 7, 1993                                    April 7, 1993                                 ____________________                                          3        *Of the District of Puerto Rico, sitting by designation.                    CYR, Circuit Judge.  Appellant Cathy Tyler challenges a                    CYR, Circuit Judge.                         _____________          district court  order dismissing her application for  an award of          attorney fees pursuant  to the  Equal Access to  Justice Act  ("-          EAJA")  for lack  of  jurisdiction.   We  vacate and  remand  for          further proceedings on the merits of the fee application.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    The  United States Department of Labor ("USDOL") admin-          isters a program under the  Trade Act of 1974 (the "Trade  Act"),          19  U.S.C.    2101-2495,  2291  (1993),  which authorizes  "trade          readjustment  allowance" ("TRA")  benefits  to  eligible  workers          whose employment  is discontinued  by companies certified  by the          Secretary of Labor  as having been adversely  affected by foreign          import  competition.  Id.   2271.   In May  1985, USDOL certified                                ___          plaintiff Tyler's employer, Bass Shoe Company, in connection with          its layoffs after  January 1984.  In  November 1984 and  again in          February 1985, Tyler was laid off temporarily; her employment was          terminated in July 1985.                    The Maine Department of  Labor and Bureau of Employment          Security ("MDOL") determines whether individual Maine workers are          entitled  to TRA  benefits.   In  1981,  USDOL directed  MDOL  to          utilize  a worker's  "first separation"  date in  calculating her          fifty-two  week  eligibility  period   for  basic  TRA  benefits.          Although MDOL believed that the Trade Act and USDOL's regulations          required  use of  a worker's  "last separation"  date, it  did as          directed.   Under USDOL's  "first separation" date  formula, MDOL          determined that Tyler's eligibility period for basic TRA benefits          would  run from December 1984  to December 1985.   However, Tyler          was  not eligible for TRA benefits during this period because the          Trade Act precludes TRA payments until a worker has exhausted her          state unemployment insurance benefits.   See 19 U.S.C.   2291(a)-                                                   ___          (3)(A)-(B).    Tyler,  who  remained  eligible  for  unemployment          insurance compensation throughout the December 1984-December 1985          period, took no administrative appeal from the MDOL decision.                    In  August 1986,  MDOL brought  the present  action for          declaratory relief against USDOL,  challenging its "first separa-          tion" date directive.  Tyler and  another claimant were permitted          to  intervene in the MDOL  action as plaintiffs.   On November 6,          1990, the  district court  granted declaratory relief  for plain-          tiffs against USDOL  and MDOL.1  Tyler v. United  States Dep't of                                           _____    _______________________          Labor, 752 F. Supp. 32, 45 (D. Me. 1990) (emphasis added).          _____                                        ____________________               1The  district  court declared  that:    (1) "the  [USDOL's]          policy  for  the years  1981 through  1986,  requiring use  of an          applicant's  first separation  from  employment for  purposes  of          determining  eligibility  for  TRA benefits,  was  invalid,"  (2)          "[t]he [MDOL is]  hereby ordered, consistent  with state law,  to                                            __________  ____ _____ ___          redetermine Plaintiff Tyler's . . .  entitlement to Basic TRA and          Additional TRA  weekly benefits,  based on [her]  last separation          from employment prior to application," and (3) "[i]f TRA benefits                                                          ____ ___ ________          are  granted to Plaintiff[] as a  result of such redetermination,          ___  _______ __ ___________ __ _  ______ __ ____ _______________          the [USDOL is] hereby  ordered to provide federal monies  for the          payment of the benefits."                                          3                    Tyler had also asserted an entitlement to attorney fees          under the  EAJA, which  permits a  "prevailing party"  to recover          attorney fees in "any civil action" challenging a  federal agency          decision, 28  U.S.C.    2412(d)(1)(A), but  requires  that  "[the          prevailing] party .  . , within thirty days of  final judgment in                                                          _____ ________ __          the  action, submit to the court an application for fees . . . ."          ___  ______          Id.    2412(d)(1)(B) (emphasis  added).   On  December 13,  1990,          ___          Tyler filed a motion  to extend the forty-five day  filing period          under Local  Rule 32 of the United  States District Court for the          District of Maine  until "thirty days  after final resolution  of          the plaintiffs' claims for Trade  Act benefits from the [MDOL]."2          The district court summarily granted the extension. On January 7,          1991,  USDOL appealed  and Tyler  cross-appealed from  the Novem-          ber 6, 1990 order.  The appeal and cross-appeal were dismissed by          agreement of the parties on February 6, 1991.                    As  contemplated by  the district  court remand  order,          Tyler resorted to the state administrative process for a redeter-          mination of her entitlement to TRA benefits.  In the meantime, on          June 10,  1991,  the United  States  Supreme  Court rendered  its          decision in Melkonyan v. Sullivan, ___ U.S. ___, 111 S.  Ct. 2157                      _________    ________          (1991), which  generally interpreted the EAJA  filing deadline to                                        ____________________               2As grounds for the motion, Tyler asserted (1) "[t]he plain-          tiffs  have not yet finally  prevailed in their  claims for bene-          fits," (2) "Local Rule 32  allows for such an extension  for good          cause  shown on motion filed within 45  days after entry of judg-          ment,"  (3)  the  "pending State  administrative  proceeding [in]          which  [plaintiff] is seeking  redetermination of  her benefits,"          may necessitate "considerable additional  attorney time," and (4)          any  petition for attorney  fees would be  "premature," and would          "necessitate multiple petitions and multiple hearings."                                            4          run  from the entry of a "final"  judgment by a court of law, not                                                          _____ __ ___          from  the final  decision of  an administrative  agency following          remand.  Id. at 2162.                   ___                    Tyler settled  her  administrative claim  with MDOL  in          December 1991, and promptly filed her EAJA  attorney fee applica-          tion  with the  district court.   The  district court  denied the          application as untimely, Tyler  v. Fitzsimmons, 785 F.  Supp. 10,                                   _____     ___________          12  (D. Me.  1992), holding  that Melkonyan  required retroactive                                            _________          application  of its  jurisdictional rule  to pending  cases, and,          therefore, that the thirty-day EAJA fee-application filing period          had commenced to run  on February 6, 1991, when we  dismissed the          appeal  and cross-appeal  from  the district  court's November 6,          1990  judgment,  thereby rendering  the  district court  judgment          "final" and "unappealable."  Id.;  see also 28 U.S.C.    2412(d)-                                       ___   ___ ____          (2)(G) (EAJA  term "final  judgment" means  "a  judgment that  is          final  and not appealable") (emphasis  added).  As  the EAJA fee-                 ___ ___ __________          application filing deadline is jurisdictional, and not subject to          enlargement  even  for "good  cause  shown,"  the district  court          rejected Tyler's contention that her fee application was saved by          the  district  court's  earlier  extension  of  the  "procedural"          deadline imposed by Local Rule 32. Tyler, 785 F. Supp. at 12.                                             _____                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________                    In Melkonyan,  the  Supreme Court  considered the  EAJA                       _________          filing provision  in the  specialized context of  Social Security                                          5          disability benefit determinations.  In reviewing decisions of the          Secretary  of Health  and  Human  Services ("Secretary")  denying          disability benefits, the district court has only two options when                                                      ____ ___          remanding  to the Secretary  for further  administrative proceed-          ings.  Melkonyan, 111 S. Ct. at 2164 (citing 42 U.S.C.   405(g)).                 _________          A so-called  "sentence four" remand order entered by the district          court  constitutes  a  "final judgment  affirming,  modifying, or          reversing  the administrative  decision," usually  on substantive          grounds.   Id. at 2165.   Melkonyan contains  language suggesting                     ___            _________          that a "sentence four" remand order invariably results in a final                                              __________          judgment,  for purposes of  determining the  EAJA fee-application          deadline, upon  the expiration of  the period  for appealing  the          remand  order  affirming,  modifying,  or  reversing  the  agency          decision.  Id.                     ___                    On  the  other  hand, generally  speaking  a  so-called          "sentence  six" remand does not follow a district court ruling on          the merits of  an agency  decision.  Rather,  upon the  requisite          "good  cause" showing, see 42 U.S.C.   405(g) (remand for further                                 ___          factfinding only  permissible if  new evidence is  "material" and          "there is good cause for the failure to incorporate such evidence          into  the record  in  a prior  proceeding"),  the district  court          merely remands to the  agency for further administrative proceed-          ings in  light of new evidence.   Melkonyan, 111 S.  Ct. at 2164.                                            _________          Thus, in "sentence six" remands, the district court would contem-          plate  a  retention of  jurisdiction  pending  completion of  the                    _________ __  ____________          remand  proceedings, and there  would be no  "final judgment" for                                          6          EAJA purposes  "until after  the postremand proceedings  are com-          pleted,  the Secretary returns to court, the court enters a final          judgment, and the appeal period runs."  Id. at 2165.                                                  ___                    Appellees  conceded at oral  argument that Melkonyan is                                                               _________          applicable  in  the present  case, if  at  all, only  by analogy.          Melkonyan  was  a Social  Security case,  not  a Trade  Act case.          _________          Thus, the  district court's November 6, 1990 declaratory judgment          is roughly  comparable, under  appellees' proposed analogy,  to a          "sentence four" remand, in that the district court "reversed" the          MDOL's denial  of TRA  benefits  on the  only substantive  ground          advanced by  Tyler     namely, the  invalidity of  USDOL's "first          separation" directive.   Accordingly, appellees  contend that the          EAJA filing  deadline was  March 11, 1991,  thirty days after  we          dismissed the appeals from the November 1990 judgment on February          6, 1991.  As it rests on a premise precluded by our case  law, we          reject appellees' syllogism.                    This is not the first time a claimant has complained to          us  that  the retroactive  fallout  from  Melkonyan has  unfairly                                                    _________          impaired her recovery of an EAJA fee award.  See Labrie v. Secre-                                                       ___ ______    ______          tary of  Health & Human Servs., 976 F.2d 779 (1st Cir. 1992) (per          ______________________________          curiam).   In a case  decided after the  district court dismissed          Tyler's  fee application,  we  rejected the  contention that  all                                                                        ___          post-Melkonyan  "sentence  four"  remands invariably  are  to  be               _________          considered "final judgments" for  purposes of the commencement of          the  EAJA filing period.  Labrie, 976  F.2d at 786.  Although the                                    ______          Supreme Court  scrutinized the district court  order in Melkonyan                                                                  _________                                          7          to determine whether  it was either a "sentence  six" remand or a          voluntary  dismissal under Fed. R. Civ. P. 41(a), there was never          any question but what  the district court order in  Melkonyan was                                                              _________          not a "sentence  four" remand.   Thus, Melkonyan's references  to          ___                                    _________          EAJA  deadlines in "sentence four" cases were dicta which did not          displace the  Court's earlier  statements in Sullivan  v. Hudson,                                                       ________     ______          490  U.S. 877  (1989). See Melkonyan,  111 S.  Ct. at  2162.  The                                 ___ _________          Court in Hudson, indisputably a "sentence four" remand case, held                   ______          that an EAJA application  could encompass attorney fees attribut-          able to postremand proceedings provided the remand order did  not          "dictate" that the plaintiff was to receive benefits, since "'the          claimant will not normally attain "prevailing party" status . . .          until  after  the result  of  the  administrative proceedings  is          known.'"   Labrie, 976  F.2d at 781 (quoting  Hudson, 490 U.S. at                     ______                             ______          886).  We  emphasized in  Labrie that our  reconciliation of  the                                    ______          Melkonyan  and Hudson  decisions  conformed  with the  legitimate          _________      ______          expectations of the  parties in  cases pending at  the time  Mel-                                                                       ____          konyan was decided, and with the  prevailing practice in this and          ______          other circuits.  Id. at 780 n.2 (citing Guglietti v. Secretary of                           ___                    _________    ____________          Health & Human Servs., 900 F.2d 397, 400 (1st Cir. 1990)).          _____________________                    Thus, if Melkonyan does apply by analogy to the present                             _________          case, as  appellees urge,  under our jurisprudence  the "sentence          four"  remand  standard set  out in  Labrie,  and adopted  by the                                               ______          Eighth, Ninth, and Tenth Circuits, must also apply:                    When a judicial remand order in Social Secur-                    ity disability  cases contemplates additional                    administrative  proceedings that  will deter-                                          8                    mine the merits of the claimant's application                    for benefits, and thus will determine whether                    the claimant is a  prevailing party, the dis-                    trict  court  retains discretion  to  enter a                                  _______ __________                    final  judgment for  EAJA purposes  after the                    proceedings  on  remand have  been completed.                    On the  other hand,  if the remand  order di-                                                              ___                    rects  the Secretary  to award  benefits, the                    _____                    claimant is a prevailing party and the remand                    order is the final  judgment for EAJA purpos-                    es.          Labrie,  976 F.2d  at  786 (emphasis  added)  (quoting Hafner  v.          ______                                                 ______          Sullivan, 972 F.2d 249, 250-51 (8th Cir. 1992)); see also Gray v.          ________                                         ___ ____ ____          Secretary of Health &  Human Servs., 983 F.2d 954,  960 (9th Cir.          ___________________________________          1993); Gutierrez v. Sullivan, 953 F.2d 579, 584 (10th Cir. 1992).                 _________    ________          Most importantly, if the  district court order was  an open-ended          remand, pre-Melkonyan practice (as  defined in Labrie) would give                      _________                          ______          rise to the  presumption "that  the court does  intend to  retain          jurisdiction in such  cases absent an  express indication to  the                                      ______ __  _______ __________ __  ___          contrary."  Labrie, 976 F.2d at 786 (emphasis added).3          ________    ______                    Under the Labrie rubric, there can be no  question that                              ______          the November 6, 1990 judgment "'contemplate[d] additional admini-          strative proceedings [to] determine  the merits of the claimant's          application  for benefits,  and thus  [to] determine  whether the                                        ____________________               3Of  course, the  Labrie presumption  would apply  with even                                 ______          greater force outside  the Social Security context.   When acting          outside the strictures  of the Social Security statute, a review-          ing court  normally is not  confined to two types  of remand, but                                                  ___          possesses the "inherent" authority  to condition its remand order          as  it deems  appropriate.   See Melkonyan,  111  S. Ct.  at 2165                                       ___ _________          (citing  United  States  v. Jones,  336  U.S.  641,  671 (1949)).                   ______________     _____          Absent  a Labrie-type  presumption, the  litigants would  have no                    ______          reliable criteria for determining the district court's intentions          where an ad hoc remand order was either silent or equivocal as to                   __ ___          the  status of the claimant's EAJA application, or the claimant's          status as a "prevailing party."                                          9          claimant is a prevailing  party. . . .'"  Id. (citation omitted).                                                    ___          The November 6, 1990 judgment  did not "direct" USDOL or  MDOL to          award Tyler benefits,  but conditionally  directed defendants  to                                     _____________          award benefits  in an  as-yet undetermined  amount only if  Tyler                                                             ____ __          were  found  entitled to  benefits  under  the "last  separation"          formula and  after consideration  of other applicable  state law.                  ___  _____ _____________  __ _____ __________  _____ ___          The "first separation" rule was not the final obstacle to Tyler's          claim  for TRA benefits.  As the district court recognized, Tyler          filed no  administrative appeal from  MDOL's denial of  basic TRA          benefits in 1985, and, on remand,  either USDOL or MDOL would  be          in a  position to  assert their  res judicata  and administrative          finality defenses to  bar Tyler's claim.  Tyler,  752 F. Supp. at                                                    _____          39 (citing International  Union, U.A.W. v.  Brock, 816 F.2d  761,                     ____________________________     _____          768-69 (D.C.  Cir. 1987)  (noting that claimant's  entitlement to          reconsideration by State of  her TRA benefit determination always          remains  subject to  "procedural  requirements  of state  law")).          Thus,  it was by no means  a foregone conclusion that Tyler would          ever  receive TRA benefits, or attain the status of a "prevailing          party"  under the  EAJA. Finally,  the November 6,  1990 judgment          contains  no  express  disclaimer  of  jurisdiction  which  might          conclusively rebut the Labrie presumption.                                 ______                    The district  court apparently denied Tyler's  EAJA fee          application solely on the ground that Melkonyan had interposed an                                                _________          insurmountable jurisdictional bar,  see Howitt  v. United  States                                              ___ ______     ______________          Dept.  of Commerce, 897 F.2d  583, 584 (1st  Cir.), cert. denied,          __________________                                  ____  ______          498  U.S. 895  (1990), preempting  any  exercise of  the district                                          10          court's discretion  to enter a "final" EAJA  judgment pursuant to          Tyler's postremand  settlement.   Given the  widespread confusion          prevailing among the courts at the time, see  Labrie, 976 F.2d at                                                   ___  ______          783-86,  the district court's interpretation  in this case was by          no means  without authoritative support.   Nevertheless, in light          of  the LaBrie  presumption, buttressed  by the  district court's                  ______          summary  allowance  of Tyler's  motion  for an  extension  of the          filing deadline  to "thirty  days after final  resolution of  the          plaintiffs' claims  for Trade Act  benefits from the  [MDOL]," we          find no jurisdictional bar to Tyler's EAJA fee application.                    The  order of  dismissal  is vacated  and  the case  is                    The  order of  dismissal  is vacated  and  the case  is                    _______________________________________________________          remanded for proceedings on  the merits of the EAJA  fee applica-          remanded for proceedings on  the merits of the EAJA  fee applica-          _________________________________________________________________          tion.          tion.          ____                                          11
