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Salvador v. Donna E. Shalala Secretary

filed*fn*: January 12, 1994.

ROBERTA SALVADOR, PLAINTIFF-APPELLANT,
v.
DONNA E. SHALALA,*FN** SECRETARY, HEALTH AND HUMAN SERVICES, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Northern District of California. D.C. No. CV-87-03986-DLJ. D. Lowell Jensen, District Judge, Presiding

Before: Aldisert,*fn* Wiggins, and Brunetti, Circuit Judges

MEMORANDUM

Roberta Salvador appeals from the district court's denial of her application for attorney's fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). Salvador contends the district court erred by finding that her application for fees was untimely, thus depriving the court of jurisdiction. We have jurisdiction under 28 U.S.C. § 1291, and we reverse and remand.

Salvador originally brought an action in district court challenging the Secretary's denial of her application for disability benefits. After proceedings in the district court and this court, the district court reversed the Secretary's decision and remanded the case for reconsideration pursuant to sentence-four of 42 U.S.C. § 405(g). The district court did not enter a separate judgment document with the remand order. On remand, the ALJ found that Salvador was entitled to disability benefits and entered an order on August 30, 1991, which the government did not appeal. On September 30, 1991, Salvador filed an application for attorney's fees under the EAJA in district court.

The Supreme Court recently held that the 30-day period for filing an application for EAJA fees begins to run immediately upon the expiration of the time for appellate review of a sentence-four remand order. Shalala v. Schaefer, 125 L. Ed. 2d 239, 113 S. Ct. 2625, 2629 (1993). Under Fed. R. Civ. P. 58, the district court is required to enter a judgment on a separate document to begin the appeal period for a sentence-four remand order. Id. at 2632. A remand order is not a separate judgment within the meaning of Rule 58 and does not begin the time period for filing a fee application under the EAJA. Id. Without the benefit of Schaefer, the court denied the application as untimely on January 27, 1992. The court held that, although no separate document of judgment was filed, the remand order constituted a final judgment. The Supreme Court squarely rejected this reasoning. See id.

In light of Schaefer, we conclude that, absent the entry of the separate written judgment required by Rule 58, the district court's remand order remained appealable and therefore Salvador's fee application was timely. Accordingly, we reverse the district court's judgment and remand for the court to consider whether the government's position was substantially justified. We express no opinion regarding the merits of such decision.*fn1

REVERSED AND REMANDED.

Disposition

REVERSED AND ...


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