Edward E. GRAY, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee

dissenting:

I am compelled to apply United States Supreme Court precedent concerning the district court’s jurisdiction to entertain an application for Equal Access to Justice Act *959 (EAJA) attorney fees. See 28 U.S.C. § 2412 . The Supreme Court quite clearly explains the jurisdictional framework surrounding SSI disability benefit attorney fee applications. Melkonyan v. Sullivan, — U.S. -, 111 S.Ct. 2157 , 115 L.Ed.2d 78 (1991). Because I conclude that the district court lacked jurisdiction to consider Gray’s application, I would vacate the district court’s order denying fees and remand for dismissal of Gray’s application.

I

A district court’s jurisdiction over an SSI attorney fee application depends on the finality of the order the court files in the merits action. The Supreme Court identifies three routes by which an SSI disability benefits case can return to the Secretary after judicial review has been sought. First, a district court may affirm, modify, or reverse a decision of the Secretary, with or without remanding. 42 U.S.C. § 405 (g) (a “sentence four” remand). Second, a district court may forgo a substantive ruling and remand for the taking of additional evidence, for…

The claimant appeals from an order of the district court denying attorney’s fees under the Equal Access to Justice Act, (“EAJA”), 28 U.S.C. § 2412 (d), on the ground that the government’s position was substantially justified. On appeal, the government raises for the first time a jurisdictional issue. It argues that as a result of the Supreme Court’s decision in Melkonyan v. Sullivan, — U.S. -, 111 S.Ct. 2157 , 115 L.Ed.2d 78 (1991), decided after the district court’s order, the application for fees in the district court was untimely, barring the court from jurisdiction.

The procedural history of this case is important to the resolution of this jurisdictional issue. The claimant, Edward E. Gray, applied for disability benefits under the Social Security Act, 42 U.S.C. § 401 et seq., in August of 1985. An Administrative Law Judge denied the application. The claimant then filed an action in district court seeking review of the denial of disability benefits. The district court affirmed in March of 1988. Gray then successfully appealed to this court, which held, in a divided, unpublished decision, that the Secretary had committed legal errors in reviewing the claimant’s application.…

983 F.2d 954 39 Soc.Sec.Rep.Ser. 703, Unempl.Ins.Rep. (CCH) P 17258A Edward E. GRAY, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee. No. 91-55380. United States Court of Appeals, Ninth Circuit. Submitted May 7, 1992. * Decided Jan. 15, 1993. Steven L. Whiteside, Santa Barbara, CA, for plaintiff-appellant. Michael R. Power, Asst. Regional Counsel, Dept. of Health and Human Services, San Francisco, CA, for defendant-appellee. Appeal from the United States District Court for the Central District of California. Before: TANG, SCHROEDER, and BEEZER, Circuit Judges. SCHROEDER, Circuit Judge: 1 The claimant appeals from an order of the district court denying attorney's fees under the Equal Access to Justice Act, ("EAJA"), 28 U.S.C. § 2412 (d), on the ground that the government's position was substantially justified. On appeal, the government raises for the first time a jurisdictional issue. It argues that as a result of the Supreme Court's decision in Melkonyan v. Sullivan, --- U.S. ----, 111 S.Ct. 2157 , 115 L.Ed.2d 78 (1991), decided after the district court's order, the application for fees in the district court was untimely, barring the court…