68 F.3d 480
Karen DINORA on Behalf of William WHITLOW, Plaintiff - Appellant,
Donna E. SHALALA, Defendant - Appellee.
United States Court of Appeals, Ninth Circuit.
Submitted Sept. 11, 1995.*
Decided Oct. 19, 1995.
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Before: Browning and Pregerson, Circuit Judges, and Tanner** District Judge
Karen Dinora, obo William Whitlow appeals the denial by the district court of Equal Access to Justice Act ("EAJA") attorney's fees. The Secretary, although agreeing the district court had jurisdiction to consider the fee application, argues that Dinora is not entitled to fees because the Secretary's position was substantially justified.
Based upon our review of the record, we construe the March 4, 1991 order of this court and the March 21, 1991 order of the district court as orders of remand pursuant to 42 U.S.C. Sec.405(g), sentence six ("[t]he court may, on motion of the Secretary for good cause shown ... remand the case to the Secretary for further action by the Secretary, and it may at any time order additional evidence to be taken before the Secretary... ."). A sentence six remand coupled with a final judgment in favor of the plaintiff entitles a plaintiff to EAJA attorney's fees, unless the Secretary's position was substantially justified. Melkonyan v. Sullivan, 111 S.Ct. 2157, 2165 (1991). The district court is the proper forum for the initial determination of whether or not the Secretary's position was "substantially justified." Hammock v. Bowen, 879 F.2d 498, 504 (9th Cir. 1989).
Therefore, we vacate the summary judgment entered on September 5, 1990 in the Secretary's favor. We direct the district court to enter judgment in Dinora's favor and to entertain on the merits her motion for EAJA attorney's fees.
IT IS SO ORDERED.
The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34 (a) and Ninth Circuit Rule 34-4
Honorable Jack E. Tanner, Senior United States District Judge for the Western District of Washington, sitting by designation
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3