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OUTLAW v. CHATER

March 31, 1996

ROLAND OUTLAW, Plaintiff,
v.
SHIRLEY S. CHATER, Commissioner of the Social Security Admin., Defendant.



The opinion of the court was delivered by: RICHEY

 UNITED STATES DISTRICT JUDGE

 INTRODUCTION

 Before the Court in the above-captioned case is the Application for Interim Allowance and Payment of Attorneys' Fees, Expert Fees, Costs, and Expenses Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 ("EAJA"), filed on behalf of the plaintiff, by attorneys Angus E. Finney and William J. Hickey. Also before the Court in the above-captioned case is the Petition for Approval of Attorneys' Fees and Costs, filed by attorney Stephen H. Schwartz. *fn1" Based on the parties' pleadings, the entire record herein, and the law applicable thereto, the Court shall deny the plaintiff's EAJA application. The Court shall deny Schwartz's petition for fees and costs, but shall direct counsel for the defendant to settle an award of attorney fees for Schwartz consistent with this Memorandum Opinion in the event the plaintiff is awarded past-due benefits after the remand proceedings are concluded.

 BACKGROUND

 On September 10, 1992, the plaintiff, represented by attorneys Stephen H. Schwartz and Marvin Anderson, filed a civil action in this Court pursuant to 42 U.S.C. §§ 405(g), seeking judicial review of the Secretary of Health and Human Services' *fn2" final decision denying his applications for disability insurance benefits and granting, in part, his application for supplemental security income. On March 29, 1994, the Court issued a Memorandum Opinion and Order remanding the case to the agency because the decision of the Secretary was not supported by substantial evidence on the basis of the record as a whole. The Court did not enter a final judgment at the time of its remand.

 On August 16, 1995, the plaintiff, represented by attorneys Angus E. Finney and William J. Hickey, filed a Motion to Reopen this civil action and an application for costs and fees under the EAJA. The defendant filed a motion to dismiss the case for lack of subject matter jurisdiction because the Court's March 29, 1994 remand was ordered pursuant to "sentence four" of 42 U.S.C. § 405(g) and, according to the Supreme Court case Shalala v. Schaefer, 509 U.S. 292, 125 L. Ed. 2d 239, 113 S. Ct. 2625 (1993), a district court may not retain jurisdiction over a case remanded pursuant to sentence four of 42 U.S.C. § 405(g).

 On November 20, 1995, the Court granted the defendant's Motion to Dismiss. The Court held that its March 29, 1994 remand under sentence four of 42 U.S.C. § 405(g) had terminated its jurisdiction over the civil action. The Court retained jurisdiction for the limited purpose of hearing the plaintiff's application for attorney's fees under the EAJA.

 On December 18, 1995, attorneys Finney and Hickey filed an application for attorneys' fees, expert fees, costs, and expenses pursuant to the EAJA. On February 12, 1996, attorney Schwartz filed a petition for attorney fees and costs. On February 14, 1996, the defendant filed an Opposition. On March 19, 1996, the plaintiff filed a Reply.

 DISCUSSION

 I. THE PLAINTIFF'S EAJA APPLICATION SHALL BE DENIED.

 Pursuant to the EAJA, a Court may award "reasonable fees and expenses of attorneys, in addition to [costs], to the prevailing party in any civil action brought by or against the United States or any agency or any official of the United States acting in his or her official capacity in any court having jurisdiction of such action." 28 U.S.C. § 2412(b). "Fees and expenses" include


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