3d 1436
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
(B) A party seeking an award of fees and other expenses shall, within thirty
days of final judgment in the action, submit to the court an application for fees
and other expenses which shows that the party is a prevailing party and is
eligible to receive an award under this subsection....
Claimant did not become a prevailing party within the meaning of the EAJA
upon the district court's remand for further proceedings. See Sullivan v.
Hudson, 490 U.S. 877, 887 (1989)(a social security claimant does not become
prevailing party merely because the district court remands for further agency
action).4 It is clear that claimant's application for fees at that time would have
been unavailing. The Supreme Court has held that a "final judgment" for
purposes of fee applications under EAJA must be " 'entered by a court of law' "
and not an administrative agency. Schaefer, 113 S.Ct. at 2628 (quoting
The judgment of the United States District Court for the Eastern District of
Oklahoma is REVERSED and the case is REMANDED, directing the district
court to vacate its April 7, 1993, order and to enter final judgment consistent
with this order and judgment.
**
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of the court's General
Order filed November 29, 1993. 151 F.R.D. 470
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.
3
Because of our decision that the remand in this case is not pursuant to sentence
four, we do not address the effect of the recent Supreme Court decision in
Schaefer on this court's decision in Gutierrez v. Sullivan, 953 F.2d 579 (10th
Cir.1992), cert. denied, 113 S.Ct. 3064 (1993)
The decision in Hudson was called into question in Schaefer, 113 S.Ct. at 263033. The Court reaffirmed Hudson as being "good law as applied to remands
ordered pursuant to sentence six." 113 S.Ct. at 2631 n. 4