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February 14, 1992


The opinion of the court was delivered by: Mihm, Chief Judge.


Before the court is the Plaintiff's motion for entry of final judgment (# 26) and the Plaintiff's application for attorney's fees and costs under the Equal Access to Justice Act ("EAJA") (# 24). For the reasons set forth below, the motion for entry of final judgment is denied and the motion for fees and costs is granted.



I.  Type of Remand

In Melkonyan, the Supreme Court held that § 205(g) of the Social Security Act authorizes a district court to remand an action to the Secretary in two, and only two, situations. 111 S.Ct. at 2163-65. See also Sullivan v. Finkelstein, 496 U.S. 617, 110 S.Ct. 2658, 2663-65, 110 L.Ed.2d 563 (1990). The first type of remand is authorized by the fourth sentence of § 405(g). Under that provision, a court can enter an order on the merits of the appeal which affirms, modifies, or reverses the decision of the Secretary, and remand the case for further proceedings. Melkonyan, 111 S.Ct. at 2163. This remand constitutes a final decision on the merits and a final judgment, which terminates the jurisdiction of the district court, is entered at that time. Id. at 2165.

The sixth sentence of § 405(g) provides that a district court may also remand the case without addressing the merits. Under that provision, the Secretary may move (before he files an answer to the appeal) to remand for further administrative proceedings. Also, the claimant may move to remand on the ground that he or she has discovered new evidence which might change the administrative ruling. Both of these options require the movant to show "good cause" for failure to raise these new issues in the original administrative proceeding. A remand pursuant to sentence six is not a ruling on the merits, but merely a limited remand for further proceedings while the court retains jurisdiction over the appeal. The remand order is not the final judgment of the district court. The parties will return to the district court after the post-remand proceedings before the Secretary for entry of final judgment. See Melkonyan, 111 S.Ct. at 2165. If the Secretary still denies benefits, the appeal goes forward and a decision on the merits is made. If, on the other hand, the Secretary awards benefits, the court simply enters judgment in favor of the claimant on appeal. See id. In either event, the final judgment in a sentence six remand is the order of the court following the post-remand proceedings.

It is clear that the remand in this case was a sentence four remand. This court issued a lengthy opinion addressing the merits of the appeal which found that the Secretary's decision to withhold benefits was not supported by substantial evidence in the record. Thus, the Plaintiff's motion for entry of final judgment (# 26) is without merit and is denied. This court's remand order was a sentence four remand order which constituted this court's final decision on the merits of the appeal. It was not intended that the parties would return to this court for final judgment in this appeal after the post-remand proceedings were completed at the administrative level. Indeed, a final judgment was already entered by the clerk on May 22, 1990, several days after this court's remand order was entered.

II. Timeliness of EAJA Fees Petition

Plaintiff's application for fees and costs argues that, regardless of what type of remand this court entered, she is now a prevailing party and entitled to recover her fees and costs from the Secretary under the EAJA. The Secretary opposes this motion, arguing that the Plaintiff's application for fees is untimely.

A plaintiff in a social security appeal who has secured either type of remand (that is, a sentence four or a sentence six remand) from the district court is entitled to EAJA fees. However, the proper time for filing the fees petition differs depending on what type of remand order was entered. This distinction is due to the fact that an EAJA petition follows a "final judgment," see 28 U.S.C. § 2412(d)(1)(B), and that the final judgment is entered at different times in either remand situation. In a sentence four remand, the 30 day filing deadline for EAJA fee petitions begins to run when the remand order becomes final, an event which occurs 60 days later when the appeal period lapses. In a sentence six remand, on the other hand, the 30 day deadline for EAJA petitions does not begin until after the parties return to district court (after the further administrative action) and obtain a final judgment. The Supreme Court noted this procedure in Melkonyan:

  Construing remand orders in this matter
  harmonizes the remand provisions of § 405(g) with
  the EAJA requirement that a "final judgment" be
  entered in the civil action in order to trigger the
  EAJA filing period. In sentence four cases, the
  filing period begins after the final judgment
  ("affirming, modifying, or reversing") is entered
  by the court and the appeal period has run, so that
  the judgment is no longer appealable. In sentence
  six cases, the filing period does not begin until
  after the post-remand proceedings are completed,
  the secretary returns to court, the court enters a
  final judgment, and the appeal period runs.

111 S.Ct. at 2165 (citations omitted). Thus, in either case, the filing period is 30 days after final judgment. However, a final judgment is an event which occurs at different times depending upon the type of remand. In a sentence four remand case, the final judgment is that entered at the time of the remand order, whereas in a sentence six remand, the final judgment is the judgment ...

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