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FERNANDEZ v. SULLIVAN

October 22, 1992

MARIA FERNANDEZ, Plaintiff, - v - LOUIS W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant.

McKENNA


The opinion of the court was delivered by: LAWRENCE M. MCKENNA

McKENNA, D.J.

 Plaintiff Maria Fernandez ("Plaintiff" or "Fernandez") brings this action pursuant to 42 U.S.C. § 405(g) to challenge the final determination of the defendant, Louis W. Sullivan, Secretary of Health and Human Services ("Defendant" or the "Secretary"), that Plaintiff retained the residual functional capacity to perform her past relevant work, and thus is not disabled, and, therefore, is not entitled to disability insurance benefits and Supplemental Security Income. The Secretary now moves for an order remanding the case to the Secretary pursuant to sentence four of 42 U.S.C. § 405(g). The Secretary's motion is granted in part and denied in part.

 Discussion

 The parties do not dispute the procedural history of this action. Further, as Plaintiff agrees that a remand is appropriate, the sole issue before the Court is whether the remand requested is to be one pursuant to sentence four or one pursuant to sentence six of 42 U.S.C. § 405(g). Sentence four provides that:

 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 cause for a rehearing.

 42 U.S.C. § 405(g) (1988). Sentence six provides that:

 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, and it may at any time order additional evidence to be taken before the Secretary, but only 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; and the Secretary shall, after the case is remanded, and after hearing such additional evidence if so ordered, modify or affirm his findings of fact or his decision, or both, and shall file with the court any such additional and modified findings of fact and decision, and a transcript of the additional record and testimony upon which his action in modifying or affirming was based.

 42 U.S.C. § 405(g) (1988). The Secretary maintains that a remand on his motion should be considered a sentence four remand. On the other hand, Fernandez contends that such a remand should be considered a sentence six remand. The distinction is critical to the issues of the Court's retention of jurisdiction *fn1" and the potential award of attorney's fees, court costs, and other expenses under the Equal Access to Justice Act ("EAJA"). *fn2"

 In Melkonyan v. Sullivan, v. , 115 L. Ed. 2d 78, 111 S. Ct. 2157 (1991), the Supreme Court recently addressed the distinction between sentences four and six. According to the Court,

 Id. at 2164. This Court's section 405(g) inquiry does not end with the foregoing statement. In fact, the Supreme Court noted that "sentence six also authorizes the District Court to remand on motion by the Secretary made before the Secretary has filed a response in the action. That subcategory of sentence six remands is not implicated in [Melkonyan]." Id. at 2164 n.2.

 Dividing remand orders into two categories, sentence four and sentence six orders, "harmonizes the remand provisions of § 405(g) with the EAJA requirement that a 'final judgment' be entered in a civil action in order to trigger the EAJA filing period." Id. at 2165. Despite the Supreme Court's explicit statement that only two kinds of section 405(g) remands are permitted, numerous courts have found that "there are two types of sentence four remands" in addition to remands made pursuant to sentence six. Sparling v. Sullivan, 785 F. Supp. 312, 317 (N.D.N.Y. 1992). Sentence four remands are divided between those orders in which the district court retains jurisdiction and those in which the court relinquishes jurisdiction. *fn3" The Second Circuit has not yet examined the question of the potentially dual nature of sentence four and this Court need not address this matter in order to resolve the present controversy.

 A sentence six remand does not rule on the substantive aspects of the case. Rather, the court remands the case to the Secretary for further proceedings. If the case is remanded under sentence six of section 405(g), "a claimant may collect EAJA fees for work done at the administrative level." Melkonyan, 111 S. Ct. at 2162 (citing Sullivan v. Hudson, 490 U.S. 877, 892, 104 L. Ed. 2d 941, 109 S. Ct. 2248 (1989)). In order for an order to fall within the parameters of sentence six, the Secretary must have made a motion "for good cause shown before he files his answer." 42 U.S.C. § 405(g) ...


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