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OSWALT v. COLVIN, 1:13CV196-NBB-DAS. (2015)

Court: District Court, N.D. Mississippi Number: infdco20150618971 Visitors: 14
Filed: Jun. 17, 2015
Latest Update: Jun. 17, 2015
Summary: ORDER DAVID A. SANDERS , Magistrate Judge . This matter is before the court on plaintiff's motion (#15) and seeks an award of attorney's fees under the Equal Access to Justice Act, 28 U.S.C. 2412 ("EAJA"). Plaintiff filed the present motion on the heels of the Commissioner's Unopposed Motion for Remand Pursuant to Sentence Six (#12), which was granted by the district court judge assigned to this case (#14). Since the district court judge remanded her case, plaintiff argues that she is en
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ORDER

This matter is before the court on plaintiff's motion (#15) and seeks an award of attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 ("EAJA"). Plaintiff filed the present motion on the heels of the Commissioner's Unopposed Motion for Remand Pursuant to Sentence Six (#12), which was granted by the district court judge assigned to this case (#14). Since the district court judge remanded her case, plaintiff argues that she is entitled to an EAJA award because: 1) she was the "prevailing party," and (2) the Commissioner's position was not "substantially justified."

Under the EAJA, "[a] party seeking an award of fees and other expenses shall, within 30 days of final judgment in the action, submit to the court an application for fees and other expenses ..." 28 U.S.C. § 2412(d)(1)(B) (emphasis added). Unlike a sentence four remand, sentence six remands do not become final until the Commissioner returns to court after the postremand proceedings. Stewart v. Sullivan, 1993 WL 309737, at *2 (5th Cir. 1993) (citing Melkonyan v. Sullivan, 501 U.S. 89, 101-02 (1991)).

In the present case, the Commissioner filed an unopposed motion for a sentence six remand because significant portions of the recording of the administrative hearing were inaudible. On remand, the Administrative Law Judge will conduct a de novo hearing of plaintiff's case. This hearing is currently scheduled for July of 2015. Because this case has not yet reached a final judgment and is still in post-remand proceedings, plaintiff's motion for an EAJA award is premature.

IT IS, THEREFORE, ORDERED THAT plaintiff's motion for attorney's fees under the EAJA is hereby denied.

SO ORDERED.

Source:  Leagle

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