PER CURIAM.
This case compels us to enter the fray which has arisen in the wake of
Melkonyan v. Sullivan,
— U.S.-, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991), concerning the timeliness of attorney’s fees applications in so-called “sentence four” Social Security remands. The district court read that decision as creating a “procedural no-man’s land” — as mandating that the application here be denied because it was not filed at an earlier time when, under then-prevailing law, it would have been premature. We disagree.
I.
The facts are straightforward. Joseph Labrie (claimant) filed an application for Supplemental Security Income benefits in December 1985. The Administrative Law Judge (ALJ) denied the claim at step five of the sequential evaluation, the Appeals Council denied review, and claimant filed a timely appeal. A magistrate-judge, to whom the case was referred, determined that the Secretary’s decision was unsupported by substantial evidence. In particular, he found that the Secretary failed adequately to consider claimant’s subjective complaints of pain. The magistrate-judge recommended that the case be remanded for further proceedings. On January 9, 1990, neither party having filed an objection, the district court entered an order adopting the magistrate-judge’s report and recommendation, vacating the Secretary’s decision, and remanding for further agency action.
On remand, the AU conducted a new hearing and, on September 17, 1991, issued a decision awarding benefits to claimant. Following the prevailing practice, claimant then submitted to the district court, on October 22, 1991, a proposed final order and application for attorney’s fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). Among the prerequisites to an EAJA award is that the party file an application “within thirty days of final judgment in the action.”
Id.
§ 2412(d)(1)(B). Relying on
Melkonyan,
the district court determined that its January 9, 1990 remand order constituted the final judgment, such that claimant’s application needed to have been filed within ninety days of that date.
The application was thus denied, on November 5, 1991, as being over eighteen months late. Claimant thereafter filed motions for relief under Fed.R.Civ.P. 59(e) and 60(b), which were denied on January 3, 1992. The district court acknowledged that its ruling “may be perceived as an unfair result,”
but considered such an outcome mandated by the intervening
Melkonyan
decision. This appeal followed.
II.
A trio of Supreme Court decisions involving claims for disability benefits informs the analysis here. In
Sullivan v. Hudson,
490 U.S. 877, 109 S.Ct. 2248, 104 L.Ed.2d 941 (1989), the Court determined that an EAJA fee award could encompass work
performed before the agency on remand. Specifically, it found that such agency proceedings may be so “intimately connected” to the judicial proceedings as to be considered part of the “civil action”
for which EAJA fees were available.
Id.
at 892, 109 S.Ct. at 2257. In reaching this conclusion, the Court first took note of the “somewhat unusual” judicial review provisions in 42 U.S.C. § 405(g):
The detailed provisions for the transfer of proceedings from the courts to the Secretary and for the filing of the Secretary’s subsequent findings with the court suggest a degree of direct interaction between a federal court and an administrative agency alien to traditional review of agency action under the Administrative Procedure Act.
490 U.S. at 885, 109 S.Ct. at 2254.
It then emphasized three points. First, “[i]n many remand situations, the court will retain jurisdiction over the action pending the Secretary’s decision and its filing with the court.”
Id.
at 886, 109 S.Ct. at 2254.
Second, where a remand for further proceedings does not dictate the receipt of benefits, “the claimant will not normally attain ‘prevailing party’ status ... until after the result of the administrative proceedings is known.”
Id.
And third, referring to EAJA’s requirement that an application be filed within thirty days of “final judgment,” it noted that “[a]s in this case, there will often be no final judgment in a claimant’s civil action for judicial review until the administrative proceedings on remand are complete.”
Id.
at 887, 109 S.Ct. at 2255. The Court concluded that EAJA fees for representation on remand were available “where a court orders a remand ... and retains continuing jurisdiction over the case pending a decision from the Secretary which will determine the claimant’s entitlement to benefits.”
Id.
at 892, 109 S.Ct. at 2258.
The following term,
Sullivan v. Finkelstein,
496 U.S. 617, 110 S.Ct. 2658, 110 L.Ed.2d 563 (1990), was decided. At issue there was whether a remand order was immediately appealable as a “final decision” under 28 U.S.C. § 1291; EAJA was not involved. An agency regulation provided that a surviving spouse (unlike a wage earner) was disabled only if he or she suffered from an impairment meeting the Secretary’s Listing of Impairments; age, edu
cation and work experience were not to be considered. The district court effectively invalidated this regulation. It found that the claimant did not have a listed impairment, but nonetheless remanded because of suggestions that claimant was unable to engage in any gainful activity. The Secretary sought to take an immediate appeal; the appellate court dismissed for lack of jurisdiction.
In finding the remand order to be an appealable final decision, the Court distinguished between remands ordered pursuant to sentence four of 42 U.S.C. § 405(g) and those pursuant to sentence six. Claimant argued that § 405(g), in sentence seven, contemplated an appealable final judgment to be entered by the district court following the remand proceedings. Yet the post-remand review called for under sentence seven, the Court held, referred only to cases that had been remanded under sentence six. And a sentence six remand was only “appropriate when the district court learns of evidence not in existence or available to the claimant at the time of the administrative proceeding that might have changed the outcome of that proceeding.” 496 U.S. at 626, 110 S.Ct. at 2664. Rather, the district court’s order was a sentence four remand — “a judgment ... reversing the decision of the Secretary, with ...
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PER CURIAM.
This case compels us to enter the fray which has arisen in the wake of
Melkonyan v. Sullivan,
— U.S.-, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991), concerning the timeliness of attorney’s fees applications in so-called “sentence four” Social Security remands. The district court read that decision as creating a “procedural no-man’s land” — as mandating that the application here be denied because it was not filed at an earlier time when, under then-prevailing law, it would have been premature. We disagree.
I.
The facts are straightforward. Joseph Labrie (claimant) filed an application for Supplemental Security Income benefits in December 1985. The Administrative Law Judge (ALJ) denied the claim at step five of the sequential evaluation, the Appeals Council denied review, and claimant filed a timely appeal. A magistrate-judge, to whom the case was referred, determined that the Secretary’s decision was unsupported by substantial evidence. In particular, he found that the Secretary failed adequately to consider claimant’s subjective complaints of pain. The magistrate-judge recommended that the case be remanded for further proceedings. On January 9, 1990, neither party having filed an objection, the district court entered an order adopting the magistrate-judge’s report and recommendation, vacating the Secretary’s decision, and remanding for further agency action.
On remand, the AU conducted a new hearing and, on September 17, 1991, issued a decision awarding benefits to claimant. Following the prevailing practice, claimant then submitted to the district court, on October 22, 1991, a proposed final order and application for attorney’s fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). Among the prerequisites to an EAJA award is that the party file an application “within thirty days of final judgment in the action.”
Id.
§ 2412(d)(1)(B). Relying on
Melkonyan,
the district court determined that its January 9, 1990 remand order constituted the final judgment, such that claimant’s application needed to have been filed within ninety days of that date.
The application was thus denied, on November 5, 1991, as being over eighteen months late. Claimant thereafter filed motions for relief under Fed.R.Civ.P. 59(e) and 60(b), which were denied on January 3, 1992. The district court acknowledged that its ruling “may be perceived as an unfair result,”
but considered such an outcome mandated by the intervening
Melkonyan
decision. This appeal followed.
II.
A trio of Supreme Court decisions involving claims for disability benefits informs the analysis here. In
Sullivan v. Hudson,
490 U.S. 877, 109 S.Ct. 2248, 104 L.Ed.2d 941 (1989), the Court determined that an EAJA fee award could encompass work
performed before the agency on remand. Specifically, it found that such agency proceedings may be so “intimately connected” to the judicial proceedings as to be considered part of the “civil action”
for which EAJA fees were available.
Id.
at 892, 109 S.Ct. at 2257. In reaching this conclusion, the Court first took note of the “somewhat unusual” judicial review provisions in 42 U.S.C. § 405(g):
The detailed provisions for the transfer of proceedings from the courts to the Secretary and for the filing of the Secretary’s subsequent findings with the court suggest a degree of direct interaction between a federal court and an administrative agency alien to traditional review of agency action under the Administrative Procedure Act.
490 U.S. at 885, 109 S.Ct. at 2254.
It then emphasized three points. First, “[i]n many remand situations, the court will retain jurisdiction over the action pending the Secretary’s decision and its filing with the court.”
Id.
at 886, 109 S.Ct. at 2254.
Second, where a remand for further proceedings does not dictate the receipt of benefits, “the claimant will not normally attain ‘prevailing party’ status ... until after the result of the administrative proceedings is known.”
Id.
And third, referring to EAJA’s requirement that an application be filed within thirty days of “final judgment,” it noted that “[a]s in this case, there will often be no final judgment in a claimant’s civil action for judicial review until the administrative proceedings on remand are complete.”
Id.
at 887, 109 S.Ct. at 2255. The Court concluded that EAJA fees for representation on remand were available “where a court orders a remand ... and retains continuing jurisdiction over the case pending a decision from the Secretary which will determine the claimant’s entitlement to benefits.”
Id.
at 892, 109 S.Ct. at 2258.
The following term,
Sullivan v. Finkelstein,
496 U.S. 617, 110 S.Ct. 2658, 110 L.Ed.2d 563 (1990), was decided. At issue there was whether a remand order was immediately appealable as a “final decision” under 28 U.S.C. § 1291; EAJA was not involved. An agency regulation provided that a surviving spouse (unlike a wage earner) was disabled only if he or she suffered from an impairment meeting the Secretary’s Listing of Impairments; age, edu
cation and work experience were not to be considered. The district court effectively invalidated this regulation. It found that the claimant did not have a listed impairment, but nonetheless remanded because of suggestions that claimant was unable to engage in any gainful activity. The Secretary sought to take an immediate appeal; the appellate court dismissed for lack of jurisdiction.
In finding the remand order to be an appealable final decision, the Court distinguished between remands ordered pursuant to sentence four of 42 U.S.C. § 405(g) and those pursuant to sentence six. Claimant argued that § 405(g), in sentence seven, contemplated an appealable final judgment to be entered by the district court following the remand proceedings. Yet the post-remand review called for under sentence seven, the Court held, referred only to cases that had been remanded under sentence six. And a sentence six remand was only “appropriate when the district court learns of evidence not in existence or available to the claimant at the time of the administrative proceeding that might have changed the outcome of that proceeding.” 496 U.S. at 626, 110 S.Ct. at 2664. Rather, the district court’s order was a sentence four remand — “a judgment ... reversing the decision of the Secretary, with ... remanding the cause for a rehearing.”
Id.
at 625, 110 S.Ct. at 2663-64 (quoting statute). The order was “unquestionably” a judgment: “it terminated the civil action challenging the Secretary’s final determination that respondent was not entitled to benefits, set aside that determination, and finally decided that the Secretary could not follow his own regulations in considering the disability issue.”
Id.
And “the fourth sentence directs the entry of a final, ap-pealable judgment even though that judgment may be accompanied by a remand order.”
Id.
at 629, 110 S.Ct. at 2666.
Hudson,
despite containing “language ... supporting” claimant’s position,
id.
at 630, 110 S.Ct. at 2666, was distinguishable: the concern there was with the interpretation of the term “any civil action” in the EAJA, not with the appealability of a remand order under § 1291.
Id.
at 630, 110 S.Ct. at 2666. The Court did reiterate its conclusions in
Hudson
that the agency proceedings on remand should be considered part of the civil action for EAJA fee purposes, and that a claimant would not normally attain “prevailing party” status until the result of the remand proceedings was known.
Id.
In
Melkonyan,
the issue was what event constituted a “final judgment” for EAJA purposes, triggering the jurisdictional thirty-day filing period. Before the district court, the Secretary had requested a remand for consideration of new evidence; claimant eventually acceded to this request, and the court remanded “for all further proceedings.” Claimant was awarded benefits on remand, and neither party thereafter returned to district court for entry of final judgment. Over a year later, claimant applied for EAJA fees. The Ninth Circuit deemed the application untimely, ruling that the Appeals Council’s decision to award benefits constituted the EAJA final judgment.
In its June 10, 1991 decision, the Supreme Court rejected this view. Congress’ use of the term “judgment” in EAJA, it held, “refers to judgments entered
by a court of law
and does not encompass decisions rendered by an administrative agency.” — U.S.-, 111 S.Ct. at 2162. In reaching this conclusion, the Court again distinguished
Hudson,
indicating that that decision encompassed the “narrow class” of cases “where the district court retains jurisdiction of the civil action and contemplates entering a final judgment following the completion of administrative proceedings.”
Id.
As neither party had returned to the district court for entry of final judgment, the question then became whether either was entitled to do so. “The answer depends on what kind of remand the District Court contemplated.”
Id.
— U.S. at -, 111 S.Ct. at 2163. The choices were only two, for the Court made clear that the sentence four and sentence six remands identified in
Finkelstein
were the
“only
kinds of remands permitted under the statute.”
Id.
— U.S. at -, 111 S.Ct. at 2164. “[Rjemand orders must either ac
company a final judgment affirming, modifying, or reversing the administrative decision in accordance with sentence four, or conform with the requirements outlined by Congress in sentence six.”
Id.
— U.S. at -, 111 S.Ct. at 2165. The Court then explained when the applicable EAJA filing period commenced for each category of remand:
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 postremand proceedings are completed, the Secretary returns to court, the court enters a final judgment, and the appeal period runs.
Id.
The Court and the parties agreed that the remand order there was not pursuant to sentence four; the district court had sent the case back without making “any substantive ruling” as to the correctness of the agency determination.”
Id.
— U.S. at -, 111 S.Ct. at 2163. It was possibly a sentence six remand, since it had been prompted by new evidence. If so, the parties could return to district court for entry of final judgment. Yet, as the Court noted, the district court had made no finding that “good cause” had been shown for the failure to present the additional evidence in the prior proceeding, as sentence six required.
Nor had it manifested any intention to retain jurisdiction. The Court thus inferred that the lower court may have treated the joint request for remand as a voluntary dismissal, in which case its jurisdiction would have ended, claimant would not be a prevailing party, and no fees would be warranted.
Id.
— U.S. at-, 111 S.Ct. at 2165. The case was accordingly remanded to the district court for clarification of its order.
III.
Melkonyan
appears to mandate that every sentence four remand constitutes a final judgment, depriving the district court of jurisdiction and triggering the EAJA filing period. So construed, the case creates a two-párt quandary. , First, such a rule appears at odds with the rationale of
Hudson.
As mentioned, the Court there specifically endorsed the retention of jurisdiction by the district court and the entry of final judgment following remand. If
Hudson
had involved a sentence six remand, of course, the two decisions would easily mesh. Yet, as the Secretary here concedes (and as we now realize), the remand in
Hudson
was based on sentence four, not sentence six.
Second, in this as in most other circuits, the prevailing prac
tice prior to
Melkonyan
was for the district court in sentence four remands to retain jurisdiction and enter final judgment following remand, thereby triggering the EAJA filing period. To the extent
Melko-nyan
retroactively abrogates this practice, numerous prevailing parties under EAJA will be relegated to a “catch-22” situation.
Courts have endeavored, in a variety of ways, to reconcile
Hudson
and
Melkonyan
and/or to mitigate the perceived hardship stemming from the latter. The result has been a welter of divergent, often conflicting, opinions. One school of thought recognizes a subcategory of sentence four remands in which a district court may retain jurisdiction and enter final judgment following the agency decision on remand. Applicable to cases where the court does not dictate an award of benefits but merely calls for further proceedings, such a practice is said to be consistent with
Hudson,
not inconsistent with
Melkonyan
(or at least not foreclosed by what is described, as dicta in that decision), and in line with accepted notions of when a party “prevails” for EAJA purposes. The Eighth and Tenth Circuits subscribe to this approach,
see Hafner v. Sullivan,
972 F.2d 249, 251-52 (8th Cir.1992);
Gutierrez v. Sullivan,
953 F.2d 579, 584 (10th Cir.1992);
Welter v. Sullivan,
941 F.2d 674, 675 (8th Cir.1991), as do a host of district courts.
The Fifth Circuit has rejected it,
see Luna v. Department of HHS,
948 F.2d 169, 172-73 (5th Cir.1991) (applying conclusion in
Frizzell v. Sullivan,
937 F.2d 254 (5th Cir.1991) (per curiam) that all sentence four remands are final judgments), as have a handful of other courts.
Other courts have reached the same result by an opposite route — construing sentence four narrowly, and holding that an order that simply vacates and remands for further proceedings falls under sentence six.
This view holds that, notwithstanding the language in
Melkonyan, see
note 6
supra,
such an order is not a “reversal” of the Secretary’s decision for purposes of sentence four.
A third approach, embraced by the Fourth Circuit,
see Sargent v. Sullivan,
941 F.2d 1207 (4th Cir.1991) (per curiam) (table) (text available in Westlaw), and by a variety of district courts,
holds that
Mel-konyan
applies on a prospective basis only. A minority contingent adheres to the oppo
site view.
The Fifth Circuit in
Luna
adopted yet a fourth alternative, finding that the EAJA filing period should be equitably tolled because the district court had purported to retain jurisdiction. 948 F.2d at 173.
And one court has rejected each of the above approaches and embraced still another: invoking Fed.R.Civ.P. 60(b) to vacate its earlier judgment and clarify that the remand was pursuant to sentence six.
Misciagno v. Secretary of HHS,
786 F.Supp. 1120, 1126 (E.D.N.Y.1992).
A remaining alternative, of course, is the one adopted by the district court here— applying
Melkonyan
to deny the EAJA application as untimely. As far as we are aware, this result has been reached in only a handful of cases.
See, e.g., Salvador v. Sullivan,
786 F.Supp. 830 (N.D.Cal.1992);
Audette v. Secretary of HHS,
776 F.Supp. 84 (D.R.I.1991);
Fergason v. Sullivan,
771 F.Supp. 1008 (W.D.Mo.1991).
IV.
Petitioner relies on three of the approaches described above plus one additional basis for relief. Specifically, he argues (1) that the “retained jurisdiction” approach of the Eighth and Tenth Circuits should be adopted; (2) that
Melkonyan
should be applied prospectively only; (3) that the district court erred in denying his motion for equitable relief under Fed.R.Civ.P. 60(b); and (4) that no final judgment was ever entered here because no “separate document” was issued under Fed.R.Civ.P. 58. As we accept his first contention, the others need not be addressed.
In conformance with
Welter, Gutierrez
and
Hafner,
we agree that a district court may retain jurisdiction pending a sentence four remand and thereafter enter final judgment for EAJA purposes.
As mentioned, the Court in
Hudson
specifically endorsed such a situation. Neither
Finkel-stein
nor
Melkonyan
purported to overrule
Hudson;
to the contrary, they acknowledged its continuing validity.
See also Ardestani v.
INS,— U.S. -, -, 112 S.Ct. 515, 521, 116 L.Ed.2d 496 (1991). And while
Melkonyan
contains language seemingly at odds with this position, that language was dicta:
Melkonyan
was not a sentence four case;
Hudson
was. Under these circumstances, we reject the Secretary’s suggestion that
Melkonyan
overruled
Hudson
in this respect
sub silentio.
We think
Hudson
controls.
We therefore adopt the conclusion reached in
Hafner:
[W]hen a judicial remand order in Social Security disability cases contemplates additional administrative proceedings that will determine the merits of the claimant’s application for benefits, and thus will determine whether the claimant is a prevailing party, the district court retains discretion to enter a final judgment for EAJA purposes after the proceedings on remand have been completed. On the other hand, if the remand order directs the Secretary to award benefits, the claimant is a prevailing party and the remand order is the final judgment for EAJA purposes.
972 F.2d at 250-51 (footnote omitted).
The Secretary argues that any standard based on the subjective intent of the district court would prove unworkable. Yet we think it can be presumed that the court does intend to retain jurisdiction in such cases absent an express indication to the contrary.
See id. (Welter
applies even if sentence four remand order does not “evidence an intent to retain jurisdiction”). The Secretary also suggests that the court here manifested just such an intent to relinquish jurisdiction. This contention is frivolous. Such an intent would have been at odds with the practice prevailing in January 1990. No final judgment was entered on the docket at that time. No such suggestion can be inferred from the court’s subsequent orders denying the EAJA application, since the remand had been ordered by a different judge. And it is apparent that the court denied the application in the belief that such a result was compelled by
Melkonyan
— a belief we now find to have been misplaced.
For these reasons, we conclude that no final judgment for EAJA purposes has been issued, and that claimant is entitled to return to district court for entry of such a judgment and for consideration of his fees application.
Reversed and remanded for further proceedings.