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June 30, 1992

LOUIS W. SULLIVAN, Secretary of Health and Human Services, Defendant.


The opinion of the court was delivered by: NAOMI REICE BUCHWALD



 Defendant, the Secretary of Health and Human Services (the "Secretary"), has moved for "an order reversing *fn1" and remanding this action to the Secretary. . . ." As plaintiff agrees that a remand is appropriate, the sole issue is whether the remand requested is one pursuant to sentence four of 42 U.S.C. § 405(g) *fn2" or is one pursuant to sentence six of § 405(g). *fn3" The Secretary maintains that the remand should be considered a sentence four remand. Plaintiff, on the other hand, asserts that the remand ordered should be considered a sentence six remand.

 Both sides agree that, at least since the Supreme Court's decision in Melkonyan v. Sullivan, 111 S. Ct. 2157 (1991), remands in Social Security cases must be specifically classified either under sentence four or sentence six. Moreover, the parties agree that the consequences of the classification are significant. If the remand is pursuant to sentence four (and if the court may not retain jurisdiction), *fn4" rather than sentence six, a plaintiff may not be eligible for attorney's fees under the Equal Access to Justice Act ("EAJA") *fn5" for the necessary administrative proceedings because plaintiff is not the "prevailing party" when only a remand for further proceedings has been ordered. Sullivan v. Hudson, 490 U.S. 877, 855-86 (1989). Further, if plaintiff is the prevailing party at the administrative level, no fees would be appropriate because his award would not be pursuant to a final judgment of a court of law. Melkonyan, 111 S. Ct. at 2161. Of equal or perhaps greater significance is the fact that, if the remand is ordered pursuant to sentence four -- and the Secretary's argument that the court may not retain jurisdiction prevails -- then the plaintiff loses the protection of the court's "power . . . to assure that its prior mandate is effectuated." Hudson, 490 U.S. at 886. *fn6" Absent such protection, a plaintiff not receiving prompt and proper treatment on remand would be compelled to file a new action to obtain interim relief and would have to refile if he did not prevail administratively.

 In contrast, if the case is remanded under sentence six, the court retains jurisdiction with the attendant benefits to plaintiff, i.e., the continuing supervision of the court without the necessity of the filing of a new action and the potential eligibility for attorney's fees under the EAJA. Melkonyan, 111 S. Ct. at 2162 ( Sullivan v. Hudson, 490 U.S. 877, 892 (1989) "thus stands for the proposition that in those cases where the district court retains jurisdiction of the civil action and contemplates entering a final judgment following the completion of administrative proceedings, a claimant may collect EAJA fees for work done at the administrative level.")

 The issue thus becomes whether the result requested by the Secretary, which is "contrary to both common sense and the custom of most district courts," is required by the statute or precedent. Robertson v. Sullivan, 925 F.2d 1124, 1125 (8th Cir. 1991). We begin with the statutory language. Sentence six of 42 U.S.C. § 405(g) reads in relevant part: *fn7"


The court may, on motion of the Secretary made for good cause shown before he files his answer, remand the case to the Secretary for further action by the Secretary. . . .

 Every aspect of this provision has been met here. The Secretary has (a) made a motion, (b) before answer and (c) shown good cause, i.e., stated that the ALJ failed to comply with the treating physician rule of this Circuit, failed to develop the record with respect to plaintiff's residual functional capacity, and failed to identify the evidence relied upon in making his assessment of plaintiff's residual functional capacity. Secretary's Memorandum at 6.

 Despite this clear compliance with sentence six and the limited case authority to support its position, Jordan v. Sullivan, 785 F. Supp. 47, 48-49 (S.D.N.Y. 1992) (Martin, J.), the Secretary attempts to squeeze its remand motion into sentence four. But see Martinez v. Sullivan, 91 Civ. 2247 (MJL), slip op. (S.D.N.Y. 1991) (remanding under sentence six). For the reasons that follow, it simply does not fit. The language of sentence four and the Supreme Court's opinion in Melkonyan make this clear. Sentence four reads:


The court shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the case for a rehearing.

 Sentence four's reference to "pleadings", in contrast to sentence six, presumes that issue has been joined. Consistently, the Melkonyan Court recognized that sentence four remands follow a "substantive ruling" by the district court, as opposed to "merely returning the case to the agency for disposition, noting that both parties agreed to this course." 111 S. Ct. at 2163. This later scenario is the one before us.

 Further, the Secretary's suggestion that the district court, when presented with a mutually consented to remand, should nonetheless make a "substantive ruling" so that the Secretary may receive the benefits of a sentence four remand must be rejected. The suggestion either imposes a burden on the district courts to make rulings where none are required *fn8" contrary to generally accepted principles of jurisprudence or invites the court to accept the Secretary's arguments on their face and silently assist it to "make" a "substantive ruling." Neither course, absent mandate by statute or precedent, is tolerable.

 Finally, the Secretary argues that the legislative history to an amendment to § 405(g) enacted in 1980 -- which eliminated the Secretary's unfettered power to remand social security cases on its own motion by adding the good cause requirement -- limits sentence six remands to those resulting from technical, rather than substantive, flaws in the Secretary's administrative hearing. As the Conference Report relied on states, the illustrations of good cause are simply offered as examples. There is no suggestion that those illustrations described as examples are intended to be exclusive. For clarity, we quote the section relied on by the Secretary in the margin. *fn9"

 In conclusion, we reject the Secretary's attempt to reclassify its pre-answer motion to remand as one made under sentence four rather than under sentence six as contrary to both the statute and the controlling authority. Accordingly, this case is remanded to the Secretary for further action pursuant to sentence six of 42 U.S.C. § 405(g).


 DATED: New York, New York, June 30, 1992



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