present" earlier. It is extremely arguable, however, that this court's July 3 remand was in fact a sentence four remand. Sentence four remands are those made in conjunction with a "judgment affirming, modifying or reversing the Secretary's decision." On July 3, this court issued a ruling which vacated the Secretary's decision. If a ruling vacating the Secretary's decision fits within the meaning of a "judgment . . . modifying or reversing the Secretary's decision," then this court's remand was a valid sentence four remand.
There is indeed ample post-Melkonyan district court authority to support the view that this court's July 3 remand was a valid fourth sentence remand. See, e.g., Courtland v. Bowen, 1991 U.S. Dist. LEXIS 14042 (S.D. Ala. 1991) (order vacating Secretary's denial of disability benefits and directing Secretary on remand to take a more careful look at the evidence was a sentence four remand); Fergason v. Sullivan, 771 F. Supp. 1008, 1991 U.S. Dist. LEXIS 12268 (W.D.Mo. 1991) (same). Moreover, the Secretary was also of the opinion that this court's remand was authorized by sentence four of § 405(g). The Secretary insisted in his brief that this court's remand was a sentence four remand:
The remand here was a fourth sentence remand. The court reviewed the merits of the agency decision and determined that the Secretary did not adequately explain his choice of onset date and that his decision was not supported by substantial evidence. . . . It was a ruling on the legal propriety of the agency's decision, a cornerstone of a fourth sentence remand.
Def. Br. at 3. Similarly, in Damato, the Secretary held the view that sentence four authorizes district courts to vacate the Secretary's decision and to remand for a more complete explanation of the reasons for the Secretary's decision. See Damato, slip. op. 90-1402 at 7; see also Welter v. Sullivan, 941 F.2d 674 (8th Cir. 1991) (Secretary arguing that district court orders vacating Secretary's decision and remanding to correct ALJ's "methodological flaws" were sentence four remands).
In Damato, however, the Seventh Circuit definitively ruled that a district court's vacating a decision of the Secretary denying disability benefits and remanding for an adequate explanation is not a "judgment . . . modifying or reversing the Secretary's decision" and is therefore not a valid sentence four remand. Accord Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (sentence four does not authorize remand on grounds that Secretary's determination was not supported by substantial evidence). Nonetheless, the Damato opinion also indicated that when the Secretary acquiesces in an order vacating and remanding the Secretary's determination, the court's remand will stand. See Damato, slip. op. 90-1402 at 8-9 n.3. In the present case, the Secretary acquiesced in the remand. Besides insisting in his brief opposing retention of jurisdiction that the remand was a valid sentence four remand, the Secretary also failed to move this court to reconsider its July 3 ruling.
A final word should also be said on the effect of the Melkonyan and Damato decisions. By reading § 405(g) so literally, the Supreme Court and the Seventh Circuit have sharply limited the ability of district courts to remand cases to the Secretary. As a result, district courts will soon begin to find themselves with many cases in which the Secretary's decision was not adequately explained or in which the Secretary made some other mistake. Before Melkonyan, district courts would have remanded such cases to the Secretary to cure the particular error. Pre-Melkonyan courts that had probed the legislative intent of § 405(g) had held that Congress did indeed intend to empower district courts to remand on grounds not explicitly spelled out in the statute. See, e.g., Garfield v. Schweiker, 732 F.2d 605, 609 n. 8 (7th Cir. 1984) (Congressional intent, though not literally recited in § 405(g), was to permit remands in accordance with traditional principles of administrative law); Aubeuf v. Schweiker, 649 F.2d 107, 115-116 (2d Cir. 1981) (Congress intended in § 405(g) to allow remands when Secretary's decision is not supported by substantial evidence or when Secretary has employed an erroneous legal standard). Under Melkonyan's and Damato's cramped reading of sentence four, however, district courts will somehow have to dispose of cases which were not ready for judicial review in the first place or which for some reason are not appropriate for final disposition.
This court is sensitive to the valid concern that district courts may often be tempted to remand cases back to the Secretary merely because of a disagreement with the outcome even though the Secretary's determination was supported by substantial evidence. See H.R. Rep. No. 96-100, 96th Cong., 1st Sess. 13 (1979), reprinted in 1980 U.S.C.C.A.N. 1277, 1336-37 (expressing perception that district courts remand social security cases too often and favoring legislative provisions, never enacted, to limit district courts' authority to remand). Accordingly, the motivation to limit the district courts' ability to remand is understood. Nonetheless, the narrow reading afforded § 405(g) by the Supreme Court and the Seventh Circuit will result in district courts being unable to remand cases that should be remanded. After Melkonyan and Damato District courts will be "stuck with" cases in which the Secretary failed to create a record permitting proper judicial review, cases in which the Secretary did not explain the grounds for his decision, cases in which the Secretary neglected to follow his own regulations and cases in which the Secretary's determination was not supported by substantial evidence but in which there is also insufficient evidence for the court to reverse.
It would assuredly be unwise to prohibit Courts of Appeals from remanding cases in which there has been incomplete fact-finding or a procedural or evidentiary blunder on the part of a district court. It is equally unwise prevent district courts from remanding social security cases that are not appropriate for final disposition.
For the foregoing reasons, this court grants plaintiff's motion for an order retaining jurisdiction over plaintiff's complaint for administrative review.