of the principle established by Melkonyan will not be retarded by a finding of nonretroactivity, whereas the purpose of the EAJA would thwarted by retroactive application; and (3) applying Melkonyan retroactively in this case would work a substantial injustice since Plaintiff could not have filed an acceptable EAJA application 30 days after our April 2, 1990 order became unappealable since the law at that time held that such an application could only be maintained after the termination of the administrative proceedings on remand.
Based on these findings, we decline to apply Melkonyan retroactively to the case before us. We agree with Judge Hart's reasoning in Butts v. Bowen, No. 88C4618, Mem. Op. and Order (N.D. Ill. Oct. 4, 1991), in which he stated:
If Melkonyan is applied retroactively, virtually no social security claimant who succeeded after a pre-Melkonyan remand from the district court would be able to file a timely fee petition. Unless the Secretary acted expeditiously, the claimant would not be a prevailing party within 30 days of there being a nonappealable judgment and therefore any petition filed would have been denied as premature if brought before the claimant prevailed in administrative proceedings or would now be denied as untimely in light of Melkonyan if filed after succeeding in administrative proceedings.
Id. at 8-9 (footnotes omitted). We agree with Judge Hart that "Congress could not have intended that social security claimants would have no means of filing a timely EAJA petition, which is essentially what would happen if Melkonyan were applied retroactively." Id. at 9.
Since we find for the Plaintiff on the second ground that he asserts, we need not address his third, namely whether the principles of equitable tolling, waiver, and estoppel enumerated by the Supreme Court in Irwin v. Veterans 's Administration, 112 L. Ed. 2d 435, 111 S. Ct. 453 (1990), require us to determine that the period has not yet expired.
Although Melkonyan v. Sullivan, 115 L. Ed. 2d 78, 111 S. Ct. 2157 (1991), precludes the retention of jurisdiction by the district court in Social Security cases after the court has remanded the action to the Secretary pursuant to sentence four of § 405(g), we decline to apply Melkonyan retroactively to the facts of this case and, for the aforementioned reasons, grant Plaintiff's motion to retain jurisdiction for the purpose of later reviewing an EAJA application.