Finkelstein held that a remand based on a legal error by the Secretary was a sentence four remand. That district court remand did not specify that the claimant should get benefits; it remanded for consideration under a correct legal standard which, of course, included considering evidence as it applied to this standard. Some of the evidence to be considered on remand had not been considered originally by the Secretary because it was irrelevant to the original standard. Finkelstein, 110 S. Ct. at 2662-63. Finkelstein differs from this case, however, because in this case new evidence was taken before the Secretary which, presumably for good cause, had not been taken earlier.
Additionally, Melkonyan's impact has been softened by invoking equity. This must be done carefully, however, because Beam clearly shows that reliance on an old rule of law by a class of litigants will not save them. Therefore, the doctrine chosen must identify a reason why the particular claimant is more worthy than the general class.
This approach is taken by Lucas v. HHS, 948 F.2d 169 (5th Cir. 1991). The plaintiff had been told by the remanding district court that it was retaining jurisdiction. The Secretary was ordered to file status reports with the district court to prevent undue administrative delay. No EAJA application was filed until after the administrative proceedings. The Lucas court characterized the remand as a sentence four remand and found the EAJA petition time barred. However, it invoked equitable tolling under Bowen v. City of New York, 476 U.S. 467, 480-82, 90 L. Ed. 2d 462, 106 S. Ct. 2022 (1986). Bowen teaches that the time limitations in § 405(g) can be equitably tolled under appropriate circumstances.
This approach has several problems. The statue being tolled in Lucas is not 42 U.S.C. § 405(g). It is 28 U.S.C. § 2412(d)(1)(B). This is a jurisdictional limitation. Long Island Radio, 841 F.2d at 477. Bowen clearly states that § 405(g) can be tolled only because it is a statue of limitations, not a jurisdictional limitation. Bowen, 476 U.S. at 479 n.10.
Furthermore, since it is a waiver of sovereign immunity, section 2412(d)(1)(B) is subject to equitable relaxation only for "affirmative misconduct." Long Island Radio, 841 F.2d at 478 (citing Schweiker v. Hansen, 450 U.S. 785, 788, 67 L. Ed. 2d 685, 101 S. Ct. 1468, reh'g denied, 451 U.S. 1032, 69 L. Ed. 2d 401, 101 S. Ct. 3023 (1981)). The misstatement of the remanding court in Lucas is hard to characterize as affirmative misconduct. Even the more liberal standard which the Court in Schweiker refused to accept would not help the Lucas claimant. That standard required both a misleading government statement concerning a procedural, not a substantive, rule and some objective standard which supports an inference of misconduct by the misleading government agent. Id. at 787-88. The Lucas district court's statement was correct according to the case law of that time. Therefore, the second element cannot be met.
The Bowen rule was limited in Irwin v. Veteran's Administration, 112 L. Ed. 2d 435, 111 S. Ct. 453 (1990), reh'g denied, 112 L. Ed. 2d 865, 111 S. Ct. 805 (1991). That case created a presumption that equitable tolling would be available in suits against the government on the same basis as against individuals. Id. at 457. That case described the new rule as excusing late filings --
"in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass."
Id. at 458.
If courts allow reliance on the old rule of law to qualify as "misconduct," they both depart from the accepted meaning of the word and ignore Beam. Moreover, the Secretary's unwillingness in this case to stipulate when the motion would be timely is not misconduct. Irwin, therefore, does not help the instant plaintiff.
In addition, if § 405(g) was the statute being tolled, the Second Circuit rule requires a showing that is not met here. "Equitable tolling [of the 60 day filing requirement in § 405] has thus far been allowed only in those cases where the government has hindered a claimant's attempt to exercise her rights by acting in a misleading or clandestine way." Wong v. Bowen, 854 F.2d 630 (2d Cir. 1988) (per curiam). Without relying on the change in statutory interpretation, which seems to be barred by Beam, no such misleading or clandestine government action is present, at least in the instant case.
In summary, if the instant remand was a sentence four remand, plaintiff's fee motion is time barred.
A review of the legal developments set forth above and the facts of this case make clear, however, that plaintiff should be relieved from the April 16 judgment because of surprise, inadvertence, or excusable neglect. When that judgment was signed, neither Melkonyan, which made scope of the judgment of such importance in terms of EAJA applications, nor Beam, which rendered Melkonyan retroactive, had been decided. Had they been decided, the scope of the work to be performed on remand would have been clarified and a sentence six remand ordered. No prejudice has occurred because of plaintiff's failure to anticipate the legal developments which have occurred since on remand the Secretary in fact entertained new evidence concerning the onset date of disability.
The Supreme Court in Melkonyan remanded because the district court order was unclear. The instant order is just another in a multitude of judicial statements which did not specify a distinction that at the time of their pronouncement was unimportant. Finkelstein teaches us that the effect, not the words, of a judicial order are important. Finkelstein, 110 S. Ct. at 2664.
Accordingly, the Order of April 16, 1991, is vacated and the Clerk is directed to enter a judgment in favor of Plaintiff reflecting that the Secretary has authorized payment of $ 28,544.33 for the period December 1982 through October 1991 and monthly payments of $ 346 per month from November 1, 1991.
Plaintiff is given leave to renew his EAJA application when the judgment becomes final and nonappealable or following remand.
The Clerk is directed to mail a copy of the within to all parties.
Dated: Brooklyn, New York
March 13, 1992
Charles P. Sifton
United States District Judge
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