United States Court of Appeals,

Fifth Circuit.

No. 92–4264

Summary Calendar.

John C. BERTRAND, Plaintiff–Appellant,

v.

Louis W. SULLIVAN, M.D., Secretary, Department of Health and Human Services,

Defendant–Appellee.

Nov. 11, 1992.

Appeal from the United States District Court for the Western District of Louisiana.

Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

John Bertrand appeals the district court's denial of his application for attorney's fees following

remand to the defendant, the Secretary of Health and Human Ser vices. Agreeing with the district

court that Bertrand is not now a "prevailing party," we affirm.

I.

Bertrand filed a complaint seeking review of the Secretary's denial of his application for social

security disabilit

y benefits. The parties filed cross-motions for summary judgment. In his report to

the district court, the magistrate judge recommended that both motions be denied and that the matter

be remanded to the Secretary to make a particularized determination, by use of a vocational expert

or similar evidence, as to whether the re were sufficient jobs existing in the national economy for

which Bertrand was qualified, considering his exertional and non-exertional impairments. The court

followed the recommendation and remanded.

Wit hin thirty days of the entry of the remand, Bertrand filed his petition for attorney's fees and

litigation expenses pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. The

magistrate judge denied the petition without prejudice, reasoning that it was premature because it was

filed before the expiration of the time allowed for filing a notice of appeal from the entry of the

remand order. Several days later, the magistrate judge entered a supplemental order reject ingBertrand's arguments made in a reply brief received after entry of the original order of remand. On

Bertrand's motion, however, the district court entered an order retaining jurisdiction over the action

pending resolution of the administrative proceedings on remand.

Bertrand refiled his EAJA petition after expiration of the time for appeal on the merits. The

district court determined that the request for fees should be held in abeyance pending completion of

the post-remand administrative p ro ceedings on the merits, concluding that Bertrand was not a

"prevailing party" within the meaning of the EAJA. Specifically, the court reasoned that "the ruling

of this court provided Plaintiff with none of the benefits which he sought, but merely remanded the

matter to the Secretary for further proceedings."

Twenty days later, Bert rand filed a motion styled "motion for reconsideration" requesting

relief from the denial on the basis of a newly-decided case, Luna v. Department of Health & Human

Servs., 948 F.2d 169 (5th Cir.1991). The district court denied the motion for reconsideration.

II.

Since the motion for reconsideration was served more than ten days after entry of the order

denying the fee appl

icat io n, it must be characterized as a motion under Fed.R.Civ.P. 60(b). S ee

Harcon Barge Co. v. D & G Boat Rentals, 784 F.2d 665, 668–70 (5th Cir.) (en banc), cert. denied,

479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986). The grant or denial of a rule 60(b) motion is

reviewed for abuse of discretion. F irst Nationw ide Bank v. Summer House Joint Venture, 902 F.2d

1197, 1200 (5th Cir.1990).

III.

In Melkonyan v. Sullivan,

––– U.S.

––––, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991), the Court

distinguished between two types of remand orders in social security disabilit y cases under 42 U.S.C.

§ 405(g). So-called "fourth sentence" remand orders, i.e., those made pursuant to the fourth sentence

of section 405(g), are those that involve entry of " "a judgment affirming, mo difying, or reversing the

decision of the Secretary ....' " ––– U.S. at ––––, 111 S.Ct. at 2163 (quoting section 405(g)). A

"sixt h sentence" remand, on the other hand, is one that is precipitated by new evidence that could

change the outcome of the prior proceeding. Id.As t he instant matter does not involve new evidence, it cannot qualify as a sixth sentence

remand; the district court's remand order does not contain a finding t hat the Secretary had new

evidence and that there was good cause for failing t o introduce sufficient evidence in the initial

proceeding to the effect that Bertrand was able to perform alternative w o rk. We faced a similar

situation in Luna. There, we construed M elkonyan as holding "emphatically that fourth-sentence and

sixth-sentence remands are "the only kinds of remands permitted under the statute.' " L una, 948 F.2d

at 172 (quoting Melkonyan, ––– U.S. at ––––, 111 S.Ct. at 2164). As in Luna, "[i]t follows, then,

from Melkonyan, that the remand here can only be a fourth-sentence remand...." Id.

IV.

In Luna, which involved an EAJA petition filed after the completion of post-remand

proceedings, we held that the "final judgment" for purposes of activating the EAJA's thirty-day filing

deadline was the district court's order of remand. I d. Nothing in L una, however, addressed the

"prevailing party" issue; this issue was not before the L una panel, for, as the district court put it, the

claimant "had already been awarded b enefit s and there was no question that he was a "prevailing

party'."

Recently, in a case concerning a fourth-sentence remand followed by an EAJA fee application,

we denied the application "as premature and without prejudice." G allien v. U.S. Secretary of Health

& Human Servs., 948 F.2d 1285 (5th Cir.1992) (per curiam) (unpublished). The same result should

obtain here. By the plain meaning of "prevailing party," Bertrand does not qualify, as he has received

no award. As the district court stated, "Something is left to be done before it is known whether or

not the plaintiff will receive any benefits."

Similar reasoning was employed by a sister circuit in McGill v. Secretary of HHS, 712 F.2d

28 (2d Cir.1983), cert. denied, 465 U.S. 1068, 104 S.Ct. 1420, 79 L.Ed.2d 745 (1984):

[G]enerally speaking, a social security claimant prevails when it is determined that she

is entitled to benefits.... [T]he ultimate relief to which a social security claimant is normally

entitled is not vindication of procedural rights but an award of benefits for a claimed disabilit y.

While it is true that a favorable ruling on plaint iff's procedural claim that the [administrative

law judge] should have conducted a more thorough hearing may ultimately affect the outcom e

on the merits of plaintiff's disabilit y claim, nevertheless, her procedural claim is not a matter on which plaintiff can be said to prevail for the purpose of shifting counsel fees....The district court made no finding with respect to whether plaint iff is disabled. The

additional medical records and testimony by plaint iff's lay witness on the remand, rather than

establishing plaint iff's disabilit y, may show that she is capable of performing her former work

or some other occupation. If that is the case, plaintiff would have received the fee award

herein for a claim where "it could not s erio usly be contended that the [plaintiff] had

prevailed."

Id. at 32 (citing and quoting Hanrahan v. Hampton, 446 U.S. 754, 759, 100 S.Ct. 1987, 1990, 64

L.Ed.2d 670 (1980) (per curiam)) (final brackets in McGill ). We find this reasoning persuasive.

Thus, the district court was correct, as a matter of law, in declining to entertain a fee award

at this time. Even if this were not so, given the deferential review accorded a rule 60(b) order, we

cannot say that the district court abused its discretion in so concluding. With this in mind, the order

entered January 28, 1992, denying Bertrand's motion for reconsideration, bei ng t he only matter

appealed from, is AFFIRMED.