MEMORANDUM AND ORDER
NAOMI REICE BUCHWALD, UNITED STATES MAGISTRATE
Defendant, the Secretary of Health and Human Services (the "Secretary"), has moved for "an order reversing
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)
or is one pursuant to sentence six of § 405(g).
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),
rather than sentence six, a plaintiff may not be eligible for attorney's fees under the Equal Access to Justice Act ("EAJA")
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.
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:
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. . . .