United States Court of Appeals,
Eleventh Circuit.
No. 95-8784.
Donald B. JACKSON, Plaintiff-Appellant,
v.
Shirley CHATER, Commissioner of Social Security, Defendant- Appellee.
Nov. 20, 1996.
Appeal from the United States District Court for the Northern District of Georgia. (No. 1:92-CV-1645-JTC), Jack T. Camp, Judge.
Before BIRCH and CARNES, Circuit Judges, and MICHAEL*, Senior District Judge.
CARNES, Circuit Judge:
This appeal by the claimant in a social security disability
benefits case is not about the claim itself; the claimant has
already prevailed on his claim. This appeal concerns the
claimant's attempt to have the district court enter judgment in his
favor after the completion of an administrative remand ordered by
the district court. The district court refused to reopen the case
and enter judgment for the claimant following the remand. Although
that refusal did not affect the claimant's entitlement to benefits,
it did prevent the claimant from filing a timely application for
attorney's fees pursuant to the Equal Access to Justice Act, 28
U.S.C. § 2412 ("EAJA").
As will be explained in more detail later, there are two
types of social security case remands under 42 U.S.C. § 405(g). In
a remand pursuant to the fourth sentence of that provision, called
* Honorable James H. Michael, Senior U.S. District Judge for the Western District of Virginia, sitting by designation. a "sentence-four remand," the district court enters judgment
immediately, and an EAJA application should be filed then, because
the court loses jurisdiction over the case after entry of a
sentence-four remand judgment. The other type of § 405(g) remand
is pursuant to the sixth sentence of that provision. With a
"sentence-six remand" the district court retains jurisdiction and
enters judgment after the remand proceedings are completed. The
time for filing an EAJA application, in a sentence-six remand, runs
from that postremand judgment entry date in the district court.
Donald Jackson, the disability benefits claimant in this case,
appeals the district court's denial of his motion to reopen his
case in the district court following a remand to the Commissioner.
He contends that the district court erred in holding that its
remand had been only a sentence-four remand.
For the reasons that follow, we agree with Jackson that the
district court's remand was both a sentence-four and sentence-six
remand, and we hold that such a dual basis remand is permissible.
We also hold that where the remand is pursuant to both provisions
and the claimant prevails at least in part for sentence-six
reasons, he is entitled to reopen the case in the district court
and have judgment entered there in his favor. The time for filing
an EAJA application runs from that later date, instead of from the
date on which the judgment remanding the matter was entered. I. BACKGROUND AND PROCEDURAL HISTORY
Jackson filed his first application for disability benefits 1 with the Commissioner of Social Security in 1990. The
Commissioner denied his application in 1991. Upon receiving the
adverse decision, Jackson requested and was granted a hearing
before an administrative law judge ("ALJ"). Jackson appeared pro
se before the ALJ, who agreed with the Commissioner's decision to
deny benefits. Thereafter, Jackson filed a civil action in the
district court, seeking judicial review of the Commissioner's
denial of benefits.
Jackson's case was heard initially by a magistrate judge. The
magistrate judge issued a report and recommendation to the district
court, suggesting that Jackson's case be remanded to the
Commissioner for reconsideration. The magistrate judge identified
two statutory grounds for a remand. First, the ALJ had failed to
perform his legal duty to develop a full and fair record at
Jackson's hearing. The magistrate judge stated that the ALJ's
failure to develop a full and fair record was exemplified by his
finding that Jackson possessed residual functional capacity,
despite evidence to the contrary. The failure to develop a full
and fair record was a sentence-four basis for remand. Second, the
magistrate judge recommended that Jackson's case also should be
1 At the time Jackson began seeking social security disability benefits, administrative authority to grant or deny benefits rested with Secretary of the Department of Health and Human Services. See 42 U.S.C. § 405 (West 1991) (amended 1994). Today, this authority is bestowed on the Commissioner of Social Security. See 42 U.S.C. § 405 (West Supp.1996). The Commissioner is the appellee in this case, and the Secretary is not in any way involved in this appeal. Therefore, to avoid confusion, we treat the initial benefits decisions made in Jackson's case—which were made by the Secretary—as if they were made by the Commissioner. Also, where the case law discusses actions taken by and arguments made by "the Secretary," we substitute "the Commissioner" for clarity and consistency. remanded because Jackson had new and noncumulative material
evidence of deterioration of his back condition, which is a §
405(g) sentence-six reason for remanding a case. The magistrate
judge found Jackson had shown good cause for not submitting this
evidence in the administrative proceedings, because the evidence of
further deterioration did not exist at the time of Jackson's
hearing.
On May 5, 1993 the district court issued an order and opinion
adopting the magistrate judge's report and recommendation in its
entirety, stating that it was "correct in all respects." The
court's order specifically mentioned the two grounds for remand
suggested by the magistrate judge: the failure to develop the
record, and the existence of new evidence. Based on the magistrate
judge's recommendations, the district court remanded Jackson's case
to the Commissioner. A judgment was entered on the district
court's docket the next day, May 6, 1993, reflecting that the court
adopted the report and recommendation of the magistrate judge, and
that the action was remanded.2
On remand, an ALJ reviewed the evidence presented at Jackson's
first ALJ hearing, as well as new evidence from medical
examinations conducted after the first hearing. Relying upon all
the information before him, the ALJ found Jackson did not possess
2 No entry was made on the docket showing service of the judgment to Jackson, and Jackson contends that he never received service. Jackson argues that because he never received actual notice of the judgment, it would be inequitable to use the date judgment was entered to bar his EAJA attorney's fees application. But see, Fed.R.Civ.P. 77(d); Tucker v. Commonwealth Land Title Ins. Co., 800 F.2d 1054, 1056 (11th Cir.1986). Because we hold for other reasons that the entry of judgment does not bar Jackson's application, we need not resolve this question. the residual functional capacity to pursue more than sedentary
work. Based on this finding and findings regarding Jackson's
skills, experience, and education, the ALJ determined Jackson was
disabled and awarded Jackson benefits for the entire period
requested in his application.
After winning his disability benefits on remand, Jackson filed
a motion to reopen his case in the district court. Jackson wanted
to reopen his case so that the court could enter a judgment in his
favor, paving the way for Jackson to file an application for
attorney's fees under the EAJA. The Commissioner objected to
Jackson's motion, contending that the May 6, 1993 judgment of
remand was a final judgment. As a final judgment, it triggered the
start of the filing period for an EAJA fee application, and, the
Commissioner contended, Jackson had missed his one opportunity to
file a fee application. According to the Commissioner, after
entering the remand order, the district court lost jurisdiction
over Jackson's case.
Jackson responded by pointing out language in the remand order
indicating that the case was remanded on a sentence-six ground as
well as a sentence-four ground. Jackson contended that because a
remand based upon sentence six of § 405(g) does not terminate
district court jurisdiction, he was entitled to have the district
court reopen his case and enter final judgment in his favor. Once
that judgment was entered, Jackson could file his EAJA fee
application.
Jackson's motion to reopen his case in district court was
denied in an order dated June 1, 1995. In that order, the district court acknowledged that the 1993 remand order "was arguably made
pursuant to both sentence four and sentence six" of 42 U.S.C. §
405(g). Nevertheless, the court held that in reality the remand
order had been issued on a sentence-four ground only. The district
court reasoned that the entry of judgment immediately after the
remand order indicated "that the Court did not contemplate the
parties returning to court...." The district court citedMelkonyan
v. Sullivan, 501 U.S. 89, 102, 111 S.Ct. 2157, 2165, 115 L.Ed.2d 78
(1991) in support of that proposition. Next, the court stated that
the entry of judgment would normally indicate that the remand order
was a final, appealable order. The court did not explain how the
fact that the order was appealable led to a conclusion that the
remand order was pursuant to sentence four only, instead of both
sentence four and sentence six. Finally, the court noted that the
order was partially based on the incorrectness of the ALJ's
determination, and for that reason, should be construed as a
sentence-four remand. For this proposition, the district court
also cited the "language of Melkonyan."
Once the district court held that the 1993 remand order had
been made pursuant to sentence four only, the court was required to
hold that it no longer had jurisdiction over Jackson's case. It
was also required to reject Jackson's EAJA application for
attorney's fees as untimely, which it did. II. DISCUSSION
Jackson's case is governed by 42 U.S.C. § 405(g), which
provides for judicial review of final decisions of the
Commissioner. That section also specifies the actions that the district court may take with a claimant's case. One action is to
remand the case for reconsideration by the Commissioner, or by an
ALJ, if the Commissioner chooses to delegate benefits decisions, as
she has. According to subsection (g), the district court can
remand a case for only two reasons. See Melkonyan, 501 U.S. at 99-
100, 111 S.Ct. at 2164 (holding that a district court may not use
inherent power to remand in a disability benefits case). One of
those reasons is found in sentence four of § 405(g), which
provides:
The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.
42 U.S.C.A. § 405(g) (West Supp.1996). To remand under that
provision, sentence four, the district court must either find that
the decision is not supported by substantial evidence, or that the
Commissioner (or the ALJ) incorrectly applied the law relevant to
the disability claim.
The second reason for remanding a case under § 405(g) is found
in sentence six of that subsection. Sentence six authorizes a
district court to remand a case:
upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.
42 U.S.C.A. § 405(g) (West Supp.1996).
In this appeal, we must decide whether the district court
erred when it held that Jackson's case had been remanded only on a
sentence-four basis. Our consideration of that issue leads us to
discuss the Commissioner's contention that the district court
lacked authority to remand Jackson's case pursuant to both sentence four and sentence six of 405(g). These issues present questions of
law over which this Court has de novo review. See Panama City
Medical Diagnostic Ltd. v. Williams, 13 F.3d 1541, 1545 (11th
Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 93, 130 L.Ed.2d 44
(1994); see also United States v. Hurtado, 779 F.2d 1467, 1472
(11th Cir.1985).
A. THE DISTRICT COURT'S INTERPRETATION OF THE REMAND ORDER
The district court never explicitly held whether a district
court is authorized to issue a remand on both sentence-four and
sentence-six grounds. Instead, the court held that it had remanded
Jackson's case on sentence-four grounds only. In reaching that
conclusion, the district court noted that an entry of judgment had
been made the day after the remand order was issued. The court
then cited the following language from Shalala v. Schaefer:
Immediate entry of judgment (as opposed to entry of judgment after postremand agency proceedings have been completed and their results filed with the court) is in fact the principal feature that distinguishes a sentence-four remand from a sentence-six remand.
509 U.S. 292, 297, 113 S.Ct. 2625, 2629, 125 L.Ed.2d 239 (1993)
(citing Melkonyan, 501 U.S. at 99-101, 111 S.Ct. at 2164-65). The
district court's reliance upon that passage is misplaced. In
Schaefer, the claimant conceded that the district court had
remanded his case pursuant to sentence four of § 405(g); the
claimant had no basis in the facts of that case for contending that
the remand was made on other or additional grounds. After holding
that a sentence-four remand cannot be treated as a sentence-six
remand for jurisdictional purposes, the Schaefer Court discussed
how to tell one type of remand from the other. In Schaefer and Melkonyan the Court was not presented with, and did not speak to,
the question of whether an entry of judgment requires that a case
remanded on both sentence-four and sentence-six grounds be treated
solely as a remand on one ground or the other, instead of as a dual
basis remand.
It is clear from the record that the district court remanded
Jackson's case to the Commissioner on both sentence-four and
sentence-six grounds. The remand order states:
The Magistrate concluded that the ALJ failed to comply with his special duty to develop a full and fair record. Further, because plaintiff has produced new evidence which was noncumulative and material the case should be remanded. Thus, the Magistrate recommended that this case should be remanded to the [Commissioner] so that the record may be further developed and the new evidence may be considered.
Order of May 5, 1993, at 2. The remand to develop a full and fair
record in accordance with law is a sentence-four remand. The
remand to the ALJ to consider new evidence is a sentence-six
remand. Thus, the district court remanded for both reasons.
Even though the remand order contains both grounds, the
Commissioner contends the district court's 1993 remand order should
be treated as a sentence-four remand only. According to the
Commissioner, any remand based partially upon the correctness of
the decision by the Commissioner or the ALJ should be treated
solely as a sentence-four remand. The district court relied in
part on this proposition when it denied Jackson's motion to reopen
his district court case. The district court cited Flores v.
Shalala, 49 F.3d 562, 569 (9th Cir.1995), Faucher v. Secretary of
Health and Human Servs., 17 F.3d 171, 174-75 (6th Cir.1994), and
Pettyjohn v. Shalala, 23 F.3d 1572, 1574-75 (10th Cir.1994) (per curiam), as persuasive authority. We conclude that the decisions
in Flores, Faucher, and Pettyjohn are not persuasive as to this
appeal, because those cases did not involve dual basis remands.
In Flores, the district court had issued a sentence-four
remand that it "improperly ... treated" as a sentence-six remand,
by failing to enter judgment. 49 F.3d at 569 (citingSchaefer, 509
U.S. at 298-99, 113 S.Ct. at 2630). Unlike the present case,
Flores was not a dual basis remand case; the district court in
Flores merely failed to follow the commands of Schaefer to enter
judgment after a sentence-four remand. Therefore, the Ninth
Circuit's reasoning in Flores is inapplicable in this case, which
clearly involves a dual basis remand.
The Sixth Circuit's Faucher case is more analogous to this
case, but it is also distinguishable. In Faucher, a claimant who
had been denied benefits requested that the district court reverse
the Commissioner's decision or remand his case on sentence-four
(insufficient evidence in the record) and sentence-six (new
evidence) grounds. The district court determined that there was
insufficient evidence in the record to support the Commissioner's
decision and reversed the Commissioner's denial of benefits. It
also found that the claimant did not have good cause for his
failure to present new evidence regarding his disability at the
administrative hearing. The district court concluded that the
remand would require the taking of new and additional evidence, but
because the claimant could not show good cause for his failure to
present the evidence at his first hearing, the district court
refused to remand the case to the Commissioner. Instead, the court awarded the claimant benefits. Faucher, 17 F.3d at 173.
The Sixth Circuit affirmed the district court's reversal of
the Commissioner's decision in Faucher, but it reversed the
district court's grant of benefits. The Court held that the
ability of a district court to remand with instructions to hear new
evidence does not depend upon the claimant demonstrating good cause
for his failure to produce new evidence earlier, so long as a
sentence-four ground for remand also exists. The sentence-four
ground is enough to send the case back to the Commissioner, and the Commissioner can be required to hear new evidence once the case is
remanded, even in the absence of any good cause for not presenting
that evidence the first time the case was before the Commissioner.
Id. at 175.3
3 Faucher might be seen as a way out of the jurisdictional problem created by dual basis remands. If Faucher is correct, the district court could have remanded Jackson's case under sentence four, while also instructing the Commissioner to hear Jackson's new evidence while the case is on remand. The Faucher procedure seems to allow the same result as the dual basis remand in this case: the Commissioner is required to correct the substantive error and to hear new evidence. Yet, Faucher 's approach is problematic.
The Faucher Court held that a district court may order the Commissioner to hear new evidence on remand, even though the sentence-six requirements are not met, so long as the court's remand order contains a valid sentence-four ground for remand. We are not sure that Congress intended for claimants to be able to bring in new evidence without good cause, merely because the Commissioner (or the ALJ) committed an error in the first hearing. Congress provided for the Commissioner to hear new evidence only under sentence six, which states explicitly that a district court may only order additional evidence to be heard if the claimant demonstrates good cause for failing to produce the evidence earlier. See 42 U.S.C. § 405(g). Thus, Faucher may give claimants more opportunities to bring in new evidence than Congress intended. Maybe not.
At the same time, the Faucher approach also takes away In Faucher, a sentence-six remand was not entered, because the
claimant could not meet the good cause standard. Thus, the Sixth
Circuit was not presented with a dual basis remand situation.
Although the Court did hold that the district court's ruling on the
correctness of the Commissioner's decision showed that a
sentence-four remand was appropriate, instead of a sentence-six
remand, the Court did not address or consider whether a district
court could issue a dual basis remand. Faucher does not hold that,
where both bases for a remand exist, the district court should ignore either one. Therefore, Faucher does not persuade us to
"interpret" the 1993 remand order in this case as a sentence-four
remand only.
In Pettyjohn, the Tenth Circuit held that the district court's
remand was based on the correctness of the Commissioner's decision,
and, therefore, the remand was made pursuant to sentence four. 23
F.3d at 1575. The Commissioner asks us to construe Pettyjohn to
from claimants (such as Jackson) who can show good cause, some of the benefits of a sentence-six remand. A sentence-six remand requires the parties to return to the district court following the remand proceedings, so that the court may review the agency's additional or modified findings of fact and enter judgment in favor of one party. See 42 U.S.C. § 405(g); Melkonyan, 501 U.S. at 98, 111 S.Ct. at 2163. The requisite filing of the findings of fact in the district court is important for two reasons: (1) it acts as an additional check on the Commissioner, and (2) it produces another judgment by a court, which is relevant for determining the filing window for an EAJA attorney's fees application. The Faucher approach apparently fails to require the parties to return to court after the Commissioner hears new evidence, as the statute requires.
In any event, we need not decide whether to adopt the Faucher approach, because in this case—in contrast to the facts of Faucher—the district court clearly entered a dual basis remand. hold that any remand based partly upon the correctness of the
Commissioner's decision must be construed solely as a sentence-four
remand. We interpret the Pettyjohn decision to say something less
remarkable. Pettyjohn merely holds that because the Commissioner's
error was the only basis for remand in that case, the district
court could only have remanded under sentence four. See Melkonyan,
501 U.S. at 99-101, 111 S.Ct. at 2163-65. We know that the holding
in Pettyjohn is not any broader than that, because the district
court in Pettyjohn only remanded the claimant's case on the
sentence-four ground. See Pettyjohn v. Sullivan, 801 F.Supp. 503,
507 (W.D.Okl.1992) (holding that new evidence had been "absent from
the issues being resolved" in the action for judicial review).
Because the Tenth Circuit in Pettyjohn was not presented with
anything more than a simple sentence-four remand, it could not have
held that any remand based partly on the correctness of the
Commissioner's decision (such as a dual basis remand) must be
construed solely as a sentence-four remand. Pettyjohn 's actual
holding presents no obstacle to Jackson's argument that his remand
should be understood as both a sentence-four and a sentence-six
remand.
In sum, we are not convinced that a § 405(g) remand on both
sentence-four and sentence-six grounds should be treated as
anything other than what it is, a dual basis remand, unless the
statute or binding precedent forbids a remand on both bases. We
turn now to that question.
B. THE POSSIBILITY FOR DUAL BASIS REMANDS UNDER 42 U.S.C. § 405(g)
The Commissioner contends that the Supreme Court's decisions in Melkonyan and Schaefer, and our decision in Newsome v. Shalala,
8 F.3d 775 (11th Cir.1993), forbid a district court from remanding
a case under both sentence four and sentence six of § 405(g). As
the Commissioner demonstrates in her brief, those three decisions
differentiate between sentence-four and sentence-six remands both
as to the requirements for a remand and as to the running of the
EAJA attorney's fees application deadline. Those decisions also
state that a sentence-four remand terminates district court
jurisdiction over a case, while a sentence-six remand continues
jurisdiction in the district court. Based on that distinction, the
Commissioner asserts that logically a court cannot remand a single
case on both bases.
Insofar as the Commissioner argues that sentence four and
sentence six of § 405(g) provide for remands with different
purposes and different jurisdictional effects, she is correct. In
essence, a sentence-four remand is based upon a determination that
the Commissioner erred in some respect in reaching the decision to
deny benefits. A sentence-four remand has been construed to be a
final and appealable order. See Sullivan v. Finkelstein, 496 U.S.
617, 625-26, 110 S.Ct. 2658, 2664, 110 L.Ed.2d 563 (1990). A
judgment of remand on sentence-four grounds is a final judgment
under the EAJA, and it usually starts the EAJA attorney's fees
application filing period running.4 Melkonyan, 501 U.S. at 102,
4 According to the EAJA, the application must be filed within thirty days of the time the judgment is final and no longer appealable. 28 U.S.C. §§ 2412(d)(1)(B), (d)(2)(G). A judgment against a federal officer is appealable by that officer for sixty days after entry of the judgment. See Fed.R.App.P. 4(a)(1). Thus, an EAJA applicant seeking fees incurred after the wrongful denial of disability benefits has ninety days (sixty plus thirty) 111 S.Ct. at 2165. By the same token, the district court's entry
of judgment after a sentence-four remand terminates district court
jurisdiction over the claimant's case. See Schaefer, 509 U.S. at
299, 113 S.Ct. at 2630 (holding that a district court may not
retain jurisdiction over a case remanded pursuant to sentence
four).
A sentence-six remand differs from a sentence-four remand in
both purpose and jurisdictional effect. A sentence-six remand does
not result from any error by the Commissioner. A sentence-six
remand is warranted even in the absence of any error by the
Commissioner if new, material evidence becomes available to a
claimant, and the claimant could not have presented that evidence
at his original hearing. See § 405(g). In a sentence-six remand,
the statutory provision itself specifically requires the
Commissioner to return to district court to file additional or
modified findings of fact after the new evidence is heard.
Melkonyan, 501 U.S. at 98, 111 S.Ct. at 2163. Because the parties
must return to district court after the remand proceedings to file
the Commissioner's findings of fact, the district court retains
jurisdiction over the case throughout the remand proceedings. Id.
at 98-99, 111 S.Ct. at 2163-64. Thus, unlike a sentence-four
remand, a sentence-six remand is not a final judgment under the
EAJA, and the window for filing an EAJA fee application does not
open until judgment is entered in the district court following
completion of the remand proceedings. Id. at 102, 111 S.Ct. at
to file his application, if the Commissioner does not appeal the district court's judgment. 2165.
The Commissioner contends that the differences between the two
types of remands, especially the different times at which district
court jurisdiction is terminated, prevent a district court from
simultaneously ordering both types of remand. She argues that the
district court must choose between remanding under sentence four
which terminates its jurisdiction over the case, and remanding
under sentence six which continues its jurisdiction. By contrast,
it is the position of claimant Jackson that the district court was
not required to choose between a sentence-four remand and a
sentence-six remand. Instead, where both grounds for remand exist,
as they did in this case, the district court properly could rely on
both grounds.
If the statute forbade a dual basis remand, we would follow
that direction. But nothing in the statute indicates that a court
cannot remand the same case for both statutory reasons at one and
the same time. Not only does the statute not forbid a dual basis
remand, the Commissioner has not put forward a good policy reason
for doing so, either. Policy justifications actually point the
other way. Suppose the ALJ clearly commits an error in the course
of considering the evidence presented, and just as clearly there is
also some new evidence that the claimant is entitled to have
presented and considered, apart from any error by the ALJ. Why is
the district court required to correct only half of the problem?
Why should the district court not remand for both purposes, in
order to get everything right in one proceeding, instead of having
two remand proceedings? The answer, according to the Commissioner, is that the case law makes a dual basis remand impossible. We
disagree.
The Commissioner relies upon the Supreme Court's decision in
Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157, 115 L.Ed.2d 78
(1991). In that case, the Supreme Court did discuss the two types
of remand permitted under § 405(g), but the Court did not hold that
a district court must choose between a sentence-four or a
sentence-six remand. When the Court stated in Melkonyan that
"these [sentence-four and sentence-six] remands were the only kinds
of remands permitted under the statute", 501 U.S. at 99, 111 S.Ct.
at 2163, the Court was not forbidding a dual basis remand.
Instead, the Court was rejecting the assertion that § 405(g) did
not limit the inherent power of the district court to remand cases
to the agency. The Supreme Court explained that Congress wanted to
curtail district court power to remand social security cases.
Therefore, it amended § 405(g) to restrict remand grounds to those
listed in the statute. 501 U.S. at 99-100, 111 S.Ct. at 2163-64.
What the Melkonyan decision holds is that where Congress amends a
statute to provide for a remand on grounds A and B, a court may not
remand on ground C. But that does not mean that a court cannot
simultaneously remand for both grounds A and B. Melkonyan does not
forbid dual basis remands.
The Commissioner also argues that dual basis remands are
forbidden, or at least illogical, under Shalala v. Schaefer, 509
U.S. at 292, 113 S.Ct. at 2625, and Newsome v. Shalala, 8 F.3d 775
(11th Cir.1993). Although the Schaefer Court did not address the
effect a dual basis remand would have on a district court's jurisdiction, the Commissioner contends that Schaefer nonetheless
determines the result of the present case. She reasons that
Schaefer is a clear command that entry of the judgment remanding
the case cuts off jurisdiction, and that no exception may be made
to this rule. The Commissioner also contends it would be illogical
to allow dual basis remands after Schaefer, because a district
court cannot both retain jurisdiction and terminate jurisdiction at
the same time. We disagree.
In Schaefer, the Supreme Court addressed the interaction
between § 405(g) and the EAJA in the context of a pure
sentence-four remand case. The district court in Schaefer had
remanded the claimant's case pursuant to sentence-four only, but
the court had failed to enter judgment following the remand. The
claimant argued that the remand order did not constitute a "final
judgment" from which the EAJA application period could be measured.
The claimant further contended that the district court was not
required to enter judgment following the remand. See Schaefer, 509
U.S. at 296-97, 113 S.Ct. at 2629.
The Supreme Court rejected the claimant's arguments and held
that the district court must enter judgment after ordering a
sentence-four remand, because the text of § 405(g) requires that a
judgment be entered at that time. See id.; see also 42 U.S.C. §
405(g). The Schaefer court also held that, where a district court
orders a sentence-four remand and enters judgment, the judgment
remanding the case must be considered the "final judgment" from
which the EAJA application period is measured. 509 U.S. at 297-98,
113 S.Ct. at 2629. An EAJA application must be filed "within thirty days of final judgment in the action." 28 U.S.C. §
2412(d)(1)(B) (West 1994). A "judgment" may only be entered by a
court. Melkonyan, 501 U.S. at 96, 111 S.Ct. at 2162. Thus, in a
sentence-four remand case, the judgment remanding the case must be
considered the "final judgment" for EAJA purposes. If the judgment
remanding the case were not the "final judgment," EAJA fees might
not be awarded for any part of a sentence-four remand, because it
may turn out that no other judgment by a court will be entered in
the case. Schaefer, 509 U.S. at 297-98, 113 S.Ct. at 2628-29.
That is the situation Schaefer addressed. We applied the rules of
Schaefer to a sentence-four remand case in Newsome. See 8 F.3d at
779-80.
A different situation is presented in a dual basis remand
case. In such a case, jurisdiction continues despite the entry of
judgment remanding the case, because the sentence-six part of the
remand requires the parties to return to district court. See
Melkonyan, 501 U.S. at 102, 111 S.Ct. at 2165. Moreover, the
judgment remanding the case need not constitute the final judgment
for EAJA purposes, because after the remand proceedings the parties
must return to court, and the court must enter another judgment
terminating the case insofar as it concerns the sentence-six remand
grounds. Those distinctions make a dual basis remand materially
different from a remand based on sentence-four grounds alone.
Therefore, Schaefer 's analysis of sentence-four remands does not
foreclose remands based upon both sentence-four and sentence-six
grounds.
The Commissioner contends that a dual basis remand would be illogical under Schaefer, even if that decision does not expressly
forbid such a remand, as we hold it does not. Once again, we
disagree with the Commissioner. It is true that a district court
cannot simultaneously terminate and retain jurisdiction over a
case, but what happens with a dual basis remand is that the
district court retains jurisdiction over the case pursuant to
sentence six of § 405(g). The statute provides that a district
court must retain jurisdiction over a case remanded for
consideration of additional evidence. The entry of judgment
remanding the case does not end the jurisdiction of the district
court, so long as a sentence-six ground for remand is included in
the remand order. The entry of judgment at the time the case has
been remanded reflects the fact that the case has been remanded on
sentence-four grounds as well. Schaefer 's holding—that
jurisdiction ends in district court after a remand based on
sentence-four grounds alone—does not make the district court's
retention of jurisdiction in a dual basis remand case illogical or
improper.
C. APPLYING FOR EAJA FEES IN A DUAL REMAND CASE
The Commissioner argues that a dual basis remand cannot
exist, because it is unworkable under the EAJA framework laid out
by the Supreme Court in Melkonyan and Schaefer. We disagree. In
a dual basis remand case, the entry of judgment pursuant to
sentence four in conjunction with the remand order constitutes a
final judgment, i.e., a judgment which is a final order of the district court. See Melkonyan, 501 U.S. at 96, 111 S.Ct. at 2162.5
Furthermore, the claimant is a prevailing party entitled to seek
fees under the EAJA; the claimant prevails by obtaining a remand
for reconsideration of his case by the Commissioner (or the ALJ).
Schaefer, 509 U.S. at 300-01, 113 S.Ct. at 2631. Because the entry
of judgment remanding the case on dual grounds is a final judgment,
a claimant who achieves such a remand can file an EAJA application
for fees within thirty days of the time the entry of judgment of
remand is final and no longer appealable. See 28 U.S.C. § 2412(d).
Jackson is not barred from filing his EAJA application,
however, even though he did not file it soon after the entry of the
judgment remanding the case. We hold that in a dual basis remand
case, where the award of benefits on remand is not based solely
upon sentence-four reasons, the claimant may file his EAJA
application after the judgment is entered in his favor following
the remand proceedings. The claimant can do that, because the
second entry of judgment constitutes a final judgment from which
the opening and closing of the EAJA filing period may be measured.
The EAJA also requires the applicant to be a prevailing party.
Because Jackson succeeded on remand, at least in part on
sentence-six grounds, judgment must be entered in his favor by the
district court, and Jackson will be a prevailing party under that
5 Because the entry of judgment is a final order of the district court, the district court's determination that the Commissioner committed a substantive error may be immediately appealed to this Court. Sullivan v. Finkelstein, 496 U.S. 617, 625-26, 110 S.Ct. 2658, 2664, 110 L.Ed.2d 563 (1990). Where the Commissioner does appeal, the remand should be stayed until the completion of that appeal, so that piecemeal litigation may be avoided. judgment. Jackson may file his EAJA application for attorney's
fees within the prescribed time period after his case is reopened
and judgment is entered in his favor.6
6 It follows from what we have held that in a dual basis remand case, the claimant would be wise to file an EAJA application at the time of remand to cover any fees earned and costs incurred up to that point in obtaining the sentence-four part of the remand. If the claimant prevails on remand in part due to the sentence-six reason for the remand, any fees and costs to which the claimant might be entitled as a result of those proceedings could be covered by an amendment to the EAJA application filed after the case returns to the district court following remand.
During oral argument, counsel for the claimant informed us of a practice, apparently common in some courts. Under that practice, an EAJA application, filed after a sentence-four remand order is entered, is held in abeyance and subject to amendment. After the completion of the sentence-four remand proceedings, if the claimant is successful, he is allowed to amend the earlier EAJA application to cover fees and costs of the remand proceedings. This practice is forbidden by Supreme Court precedent in cases involving only a sentence-four remand. The Supreme Court has held that the expiration of the time to appeal a judgment remanding a case under sentence four starts the EAJA application period, and district court jurisdiction over an EAJA application terminates when the filing period concludes. See Schaefer, 509 U.S. at 298-99 & n. 4, 113 S.Ct. at 2631 & n. 4. Thus, the district court has no jurisdiction to act on the EAJA application after the sentence-four remand proceedings are finished. But a different situation is presented in a sentence-six remand case. Schaefer appears to tolerate the practice of amending EAJA applications in sentence-six remand cases, because the court must retain jurisdiction over the case during remand proceedings, anyway. See id. Because a dual basis remand contains a sentence-six prong, which continues district court jurisdiction during the remand proceedings, we see no reason why a claimant could not file an EAJA application soon after a dual basis remand order is entered, and then amend it after the remand proceedings are completed and the case returns to district court.
However, we reiterate that Jackson was not required to follow that practice here in order to meet the requirements of the EAJA, because he succeeded on remand in regard to the sentence-six prong. Jackson prevailed on remand in part due to the ALJ's consideration of new evidence, and Jackson was entitled to have the district court enter a final judgment III. CONCLUSION
To summarize, after reviewing § 405(g) and the applicable case
law, we agree with Jackson that if both sentence-four and
sentence-six grounds for remand exist in a disability case, the
case may be remanded on both grounds. District court jurisdiction
over the case continues after the entry of the remand judgment as
a result of the sentence-six prong of the remand. If a claimant
achieves a remand on both sentence-four and sentence-six grounds,
and thereafter succeeds on remand in part due to the sentence-six
ground, the claimant may return to district court to request entry
of judgment after remand proceedings have been completed. In such
a case, the claimant may wait until the postremand judgment is
entered before filing his EAJA application.
We VACATE the district court's order denying Jackson's motion
to reopen his case. We REMAND this case with instructions for the
district court to reopen Jackson's case, enter judgment in his
favor, and allow him to file an application for attorney's fees and
costs if he does so in a timely fashion after the entry of that
judgment.
in his favor after remand proceedings, as in any sentence-six remand case. Once the district court enters judgment in Jackson's favor, Jackson will be a prevailing party under the EAJA. Thus, Jackson will be allowed to file his EAJA application for all fees and costs incurred in challenging the Commissioner's denial of benefits. Of course, any award under EAJA is subject to the proviso that there will be no award where "the court finds that the position of the United States was substantially justified...." 28 U.S.C.A. § 2412(d)(1)(A) (West 1994).