3 F3d 1584 Gray v. Secretary of Health and Human Services

3 F.3d 1584

42 Soc.Sec.Rep.Ser. 222

Edward E. GRAY, Plaintiff-Appellant,

No. 91-55380.

United States Court of Appeals,
Ninth Circuit.

Sept. 13, 1993.

Steven L. Whiteside, Santa Barbara, CA, for plaintiff-appellant.

Michael R. Power, Asst. Regional Counsel, Dept. of Health and Human Services, San Francisco, CA, for defendant-appellee.

Before: TANG, SCHROEDER, and BEEZER, Circuit Judges.


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Our decision on the motion for rehearing was withheld pending the decision of the United States Supreme Court in Shalala v. Schaefer, --- U.S. ----, 113 S.Ct. 2625, 125 L.Ed.2d 239 (June 24, 1993). In that case the Supreme Court held that the social security claimant should file for attorney's fees after a judgment is entered remanding a case under sentence four of 42 U.S.C. Sec. 405. However, the Court went on to rule that the attorney's fee application in that case was timely, because there had been no formal judgment entered pursuant to Federal Rule of Civil Procedure 58. The same is true in this case. Accordingly, the district court had jurisdiction of the fee request and because the position of the government was substantially justified, the district court properly denied fees.


Because the Supreme Court's opinion supersedes our own opinion, we vacate our prior opinion.


The opinion in Gray v. Secretary of Health and Human Services, 983 F.2d 954 (9th Cir.1993) is vacated. The decision of the district court is hereby affirmed.


The full court has been advised of the suggestion for rehearing en banc and no judge of the court has requested a vote on the suggestion for rehearing en banc. Fed.R.App.P. 35.


The petition for rehearing is otherwise denied and the suggestion for rehearing en banc is rejected.