denies the cross-motions for summary judgment and remands this case back to the Secretary for further proceedings in accordance with the Report and Recommendation." As noted above, Magistrate Bobrick recommended that the case be remanded so that defendant could take additional medical testimony regarding plaintiff's capacity to work. Furthermore, the fact that both motions for summary judgment were denied indicates that the court did not affirm, modify, or reverse the defendant's decision.
In a virtually identical Social Security/EAJA case involving a remand for additional findings, the Seventh Circuit recently held that the district court's remand order was not a "sentence four" remand, since the remand was not accompanied by an affirming, modifying, or reversing judgment. Young v. Sullivan, No. 88 C 7309, slip op. at 8 (7th Cir. Aug. 14, 1992). Consistent with Young, this court concludes that its Remand Order was not a "sentence four" remand, and hence was not a "final judgment."
Given that the Remand Order was not a "sentence four" remand, the court must determine whether the Remand Order was a "sentence six" remand instead. Sentence six of § 405(g) provides in pertinent part:
"The court may . . . . at any time order additional evidence to be taken before the Secretary, but only upon a showing that there is new which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . ."
In Melkonyan, the Supreme Court distinguished a sentence six remand from a sentence four remand as follows:
"The sixth sentence of § 405(g), as we explained in Finkelstein, 'describes an entirely different kind of remand.' Id., at , 110 S. Ct., at 2664. The District Court does not affirm, modify, or reverse the Secretary's decision; it does not rule in any way as to the correctness of the administrative determination. Rather the court remands because new evidence has come to light that was not available to the claimant at the time of the administrative proceeding and that evidence might have changed the outcome of the prior proceeding."
Melkonyan, 111 S. Ct. at 2163.
In the case at bar, the court did not remand because "new evidence had come to light." Accordingly, as in Young, the Remand Order was neither a "sentence six" nor a "sentence four" remand. Young v. Sullivan at 8.
After Melkonyan, there are only two permissible types of remands pursuant to § 405(g): "sentence four" and "sentence six" remands. Young v. Sullivan at 8. Because Melkonyan Is retroactively applied, the court's non-"sentence four" or "sentence six" remand was improper in light of Melkonyan. Id. Nevertheless, as in Young, because the defendant acquiesced in the remand, the Remand Order stands. See also, Damato v. Sullivan, 945 F.2d at 987 n. 3. What, then, is the date of "final judgment" for purposes of the fee application deadline?
In Melkonyan, the Supreme Court expressly held that only a court of law can issue a "final judgment":
"Congress' use of 'judgment' in 28 U.S.C. § 2412 refers to judgments entered by a court of law, and does not encompass decisions rendered by an administrative agency. Accordingly, we hold that a 'final judgment' for purposes of 28 U.S.C. § 2412(d)(1)(B) means a judgment rendered by a court that terminates the civil action for which EAJA fees may be received. The 30-day EAJA clock begins to run after the time to appeal that 'final Judgment' has expired."
Melkonyan v. Sullivan, 111 S. Ct. at 2162 (emphasis in original).
As this court recently explained in Carter v. Sullivan, 782 F.Supp. 1251, 1255 (N.D. Ill. 1991), a district court may retain Jurisdiction following the remand of a social security/disability claim. The retention of such jurisdiction need not be explicit, so long as the court contemplated the retention of jurisdiction at the time of remand and no suggestion was ever made that the court was not retaining jurisdiction. Id. In the case at bar, although this court did not expressly retain jurisdiction post-remand, the court did in fact retain such jurisdiction to ensure that its instructions were followed on remand, and neither the court nor the parties have ever suggested otherwise.
Accordingly, since the Remand Order was not a "final judgment" and since the court retained jurisdiction post-remand, the civil action could not have been terminated (and, hence, "final judgment" could not have been entered) prior to the date the court was satisfied that its instructions had been followed on remand. The earliest this could have happened was August 22, 1991, the date the ALJ issued his decision on remand. However, after that date, the record indicates that the earliest written or oral communication between the parties and the court was December 5, 1991, the date plaintiff was granted leave to file his amended motion for attorney's fees.
Accordingly, the court hereby affirms the ALJ's decision on remand nunc pro tunc to December 5, 1991, thereby entering "final judgment" on that date. Since plaintiff filed its original EAJA fee motion on July 3, 1991, and its amended motion on December 5, 1991, plaintiff's fee request was timely.
Plaintiff expended approximately 82.4 hours on this case. Plaintiff requests that the court grant him an hourly rate of $ 112.00 under the EAJA, representing the base hourly rate of $ 75.00, plus the cost of living adjustment allowed by statute. Defendant does not object to the requested amount of fees. Accordingly, the court grants plaintiff's fee request in full.
The court hereby affirms the August 22, 1991 decision on remand of Administrative Law Judge James Lanter nunc pro tunc to December 5, 1991, and grants plaintiff's fee application in the amount of $ 9240.00.
BRIAN BARNETT DUFF, JUDGE
UNITED STATES DISTRICT COURT
September 30, 1992