Social Security Ruling SSR 94-3c; Timely Filing for Attorney Fees Under the Equal Access to Justice Act

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Social Security Administration

Social Security Ruling SSR 94-3c; Timely Filing for Attorney Fees

Under the Equal Access to Justice Act

AGENCY: Social Security Administration, HHS.

ACTION: Notice of Social Security Ruling.

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SUMMARY: In accordance with 20 CFR 422.406(b)(1), the Commissioner of

Social Security gives notice of Social Security Ruling 94-3c. This

Ruling, based on the Supreme Court's decision in Shalala v. Schaefer,

________ U.S. ________, 113 S.Ct. 2625 (1993), concerns the time period

for filing for attorney fees under the Equal Access to Justice Act

(EAJA). Specifically, the issue before the Court was whether the 30-day

period for filing a petition for EAJA fees begins immediately upon

expiration of the time for appeal of a remand order issued by a court

under sentence four of section 205(g) of the Social Security Act, or

after the administrative proceedings on remand are complete.

EFFECTIVE DATE: January 28, 1994.

FOR FURTHER INFORMATION CONTACT: Joanne K. Castello, Office of

Regulations, Social Security Administration, 6401 Security Boulevard,

Baltimore, MD 21235, (410) 965-1711.

SUPPLEMENTARY INFORMATION: Although we are not required to do so

pursuant to 5 U.S.C. 552 (a)(1) and (a)(2), we are publishing this

Social Security Ruling in accordance with 20 CFR 422.406(b)(1).

Social Security Rulings make available to the public precedential

decisions relating to the Federal old-age, survivors, disability,

supplemental security income, and black lung benefits programs. Social

Security Rulings may be based on case decisions made at all

administrative levels of adjudication, Federal court decisions,

Commissioner's decisions, opinions of the Office of the General

Counsel, and other policy interpretations of the law and regulations.

Although Social Security Rulings do not have the force and effect

of the law or regulations, they are binding on all components of the

Social Security Administration, in accordance with 20 CFR

422.406(b)(1), and are to be relied upon as precedents in adjudicating

other cases.

If this Social Security Ruling is later superseded, modified, or

rescinded, we will publish a notice in the Federal Register to that

effect.

(Catalog of Federal Domestic Assistance Programs Nos. 93.802 Social

Security--Disability Insurance; 93.803 Social Security--Retirement

Insurance; 93.805 Social Security--Survivors Insurance; 93.806

Special Benefits for Disabled Coal Miners; 93.807 Supplemental

Security Income.)

Dated: January 11, 1994.

Shirley S. Chater,

Commissioner of Social Security.

Sections 205(g) and 223 of the Social Security Act (42 U.S.C. 405(g)

and 423) Timely Filing for Attorney's Fees Under the Equal Access to

Justice Act

Shalala v. Schaefer, ________ U.S. ________, 113 S.Ct. 2625 (1993)

This Ruling concerns whether the 30-day period for filing an

application for attorney's fees under the Equal Access to Justice

Act (EAJA) begins immediately upon expiration of the time for appeal

of a remand order issued by a court under sentence four of section

205(g) of the Social Security Act (the Act), or after the

administrative proceedings on remand are complete. Sentence four

states, ``[t]he court shall have 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.''

The claimant filed for and was denied title II disability

benefits. The claimant sought review in district court under section

205(g) of the Act. Reversing the Secretary, the district court held

that the Secretary had erred in her decision on this case and

remanded the case under sentence four of section 205(g) of the Act

to the Secretary for further consideration. The Secretary

subsequently awarded benefits.

More than a year later, the claimant filed a petition for

attorney's fees under the EAJA. The Secretary, in response, noted

that the claimant was required to file the petition for EAJA fees

``within 30 days of final judgment in the action'' pursuant to 28

U.S.C. 2412(d)(1)(B), and argued that the ``final judgment'' in this

case was the administrative decision on remand.

The district court relied on Welter v. Sullivan in which the

eighth circuit held that the district court did not intend to enter

final judgment when it remanded the plaintiffs' cases under sentence

four. When the Secretary appealed Schaefer to the circuit court, the

court declined the Secretary's suggestion for en banc

reconsideration of Welter.

The circuit court affirmed the district court's award of EAJA

fees to the claimant. On review by the Supreme Court, the Secretary

argued that, in light of the Supreme Court's decisions in Sullivan

v. Finkelstein and Melkonyan v. Sullivan, a district court cannot

retain jurisdiction of a case after a remand under sentence four of

section 205(g) of the Act. Although the Supreme Court affirmed the

circuit court's decision to award EAJA fees, it rejected its

analysis. The Court held that, under the clear language of section

205(g) of the Act, a district court may not retain jurisdiction

after a sentence four remand. The Court found that a sentence four

remand is an appealable final judgment of the district court that

terminates the action and makes a plaintiff a ``prevailing party''

for the purposes of the EAJA. The Court clarified dicta in Sullivan

v. Hudson, emphasizing that a sentence four remand (as opposed to a

remand under sentence six of section 205(g), in which the court

retains jurisdiction of the case) confers prevailing party status on

the plaintiff.

The Court also clarified that, in a sentence four remand, the

time period in which an EAJA petition must be filed begins at the

conclusion of the appeal period following the district court's entry

of a judgment. However, in this case, the Court found that, because

the district court failed to enter a judgment pursuant to Rule 58 of

the Federal Rules of Civil Procedure, neither the appeal period nor

the EAJA 30-day filing period had lapsed.

For the foregoing reasons, the Court affirmed the judgment of

the court of appeals.

SCALIA, Supreme Court Justice

This case concerns the proper timing of an application for

attorney's fees under the Equal Access to Justice Act (EAJA) in a

Social Security case. Under 42 U.S.C. 405(g), a claimant has the right

to seek judicial review of a final decision of the Secretary of Health

and Human Services denying Social Security benefits. One possible

outcome of such a suit is that the district court, pursuant to sentence

four of section 405(g), will enter ``a judgment * * * reversing the

decision of the Secretary * * * (and) remanding the cause for a

rehearing.'' The issue here is whether the 30-day period for filing an

application for EAJA fees begins immediately upon expiration of the

time for appeal of such a ``sentence-four remand order,'' or sometime

after the administrative proceedings on remand are complete.

In 1986, respondent Richard Schaefer filed an application for

disability benefits under Title II of the Social Security Act, 49 Stat.

622, as amended, 42 U.S.C. 401 et seq. (1988 ed. and Supp. III). He was

denied benefits at the administrative level, and sought judicial review

by filing suit against the Secretary as authorized by section 405(g).

Schaefer and the Secretary filed cross-motions for summary judgment. On

April 4, 1989, the District Court held that the Secretary had committed

three errors in ruling on Schaefer's case and entered an order stating

that ``the Secretary's decision denying disability insurance benefits

to [Schaefer] is reversed, that the parties' cross-motions for summary

judgment are denied, and that the case is remanded to the Secretary for

further consideration in light of this Order.'' App. to Pet. for Cert.

27a.

In accordance with this order, Schaefer's application for benefits

was reconsidered at the administrative level, and was granted. On July

18, 1990, Schaefer returned to the District Court and filed an

application for attorney's fees pursuant to EAJA. In response, the

Secretary noted that Schaefer was required to file any application for

EAJA fees ``within thirty days of final judgment in the action,'' 28

U.S.C. 2412(d)(1)(B), and argued that the relevant ``final judgment''

in the case was the administrative decision on remand, which had become

final on April 2, 1990. The District Court stayed action on Schaefer's

EAJA application pending this Court's imminent ruling in Melkonyan v.

Sullivan, 501 U.S. ________, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991).

Melkonyan was announced shortly thereafter, holding that a final

administrative decision could not constitute a ``final judgment'' for

purposes of section 2412(d)(1)(B). Id., at ________, 111 S.Ct., at

2162. In light of Melkonyan, the Secretary changed positions to argue

that EAJA's 30-day clock began running when the District Court's April

4, 1989 order (not the administrative ruling on remand) became final,

which would have occurred at the end of the 60 days for appeal provided

under Federal Rule of Appellate Procedure 4(a). Thus, the Secretary

concluded, Schaefer's time to file his EAJA application expired on July

3, 1989, over a year before the application was filed. The District

Court, however, found Schaefer's EAJA application timely under the

controlling circuit precedent of Welter v. Sullivan, 941 F.2d 674 (CA8

1991), which held that a sentence-four remand order is not a final

judgment where ``the district court retain[s] jurisdiction * * * and

plan[s] to enter dispositive sentence four judgmen[t]'' after the

administrative proceedings on remand are complete. Id., at 675. The

District Court went on to rule that Schaefer was entitled to $1,372.50

in attorney's fees.

The Secretary fared no better on appeal. The Eighth Circuit

declined the Secretary's suggestion for en banc reconsideration of

Welter, and affirmed the District Court in an unpublished per curiam

opinion. The Secretary filed a petition for certiorari, urging us to

reverse the Court of Appeals summarily. We granted certiorari, 506 U.S.

______, 113 S.Ct. 594, 121 L.Ed.2d 532 (1992), and set the case for

oral argument.

II

The first sentence of 28 U.S.C. 2412(d)(1)(B) provides:

``A party seeking an award of fees and other expenses shall,

within thirty days of final judgment in the action, submit to the

court an application for fees and other expenses which shows that

the party is a prevailing party and is eligible to receive an award

under this subsection, and the amount sought, including an itemized

statement from any attorney or expert witness representing or

appearing in behalf of the party stating the actual time expended

and the rate at which fees and other expenses were computed.''

(Emphasis added.)

In Melkonyan v. Sullivan, we held that the term ``final judgment''

in the highlighted phrase above ``refers to judgments entered by a

court of law, and does not encompass decisions rendered by an

administrative agency.'' See 501 U.S., at ______, 111 S.Ct., at 2162.

Thus, the only order in this case that could have resulted in the

starting of EAJA's 30-day clock was the District Court's April 4, 1989

order, which reversed the Secretary's decision denying disability

benefits and remanded the case to the Secretary for further

proceedings.

In cases reviewing final agency decisions on Social Security

benefits, the exclusive methods by which district courts may remand to

the Secretary are set forth in sentence four and sentence six of

section 405(g), which are set forth in the margin.1 See Melkonyan,

supra, at ______-______, 111 S.Ct., at 2163-2164. Schaefer correctly

concedes that the District Court's remand order in this case was

entered pursuant to sentence four.2 He argues, however, that a

district court proceeding under that provision need not enter a

judgment at the time of remand, but may postpone it and retain

jurisdiction pending completion of the administrative proceedings. That

argument, however, is inconsistent with the plain language of sentence

four, which authorizes a district court to enter a judgment ``with or

without'' a remand order, not a remand order ``with or without'' a

judgment.

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\1\Sentences four and six of section 405(g) provide:

``[4] The [district] court shall have 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 * * *. [6] 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 now 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.''

\2\Sentence-six remands may be ordered in only two situations:

where the Secretary requests a remand before answering the

complaint, or where new, material evidence is adduced that was for

good cause not presented before the agency. See section 405(g)

(sentence six); Melkonyan v. Sullivan, 501 U.S. ______, ______, and

n. 2, 111 S.Ct. 2157, 2163-2164, and n. 2, (1991); cf. Sullivan v.

Finkelstein, 496 U.S. 617, 626, 110 S.Ct. 2658, 2664, 110 L.Ed.2d

563 (1990). The District Court's April 4, 1989 remand order clearly

does not fit within either situation.

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See Sullivan v. Finkelstein, 496 U.S. 617, 629, 110 S. Ct. 2658,

2666, 110 L.Ed.2d 563 (1990). 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. See Melkonyan, 501 U.S. at ______-______, 111

S.Ct., at 2164-2165.

Nor is it possible to argue that the judgment authorized by

sentence four, if it includes a remand, does not become a ``final

judgment''--as required by section 2412(d)--upon expiration of the time

for appeal. If that were true, there would never be any final judgment

in cases reversed and remanded for further agency proceedings

(including those which suffer that fate after the Secretary has filed

the results of a sentence-six remand). Sentence eight of section 405(g)

states that ``(t)he judgment of the court''--which must be a reference

to a sentence-four judgment, since that is the only judgment authorized

by section 405(g)--``shall be final except that it shall be subject to

review in the same manner as a judgment in other civil actions.'' Thus,

when the time for seeking appellate review has run, the sentence-four

judgment fits squarely within the term ``final judgment'' as used in

section 2412(d), which is defined to mean ``a judgment that is final

and not appealable.'' 28 U.S.C. 2412(d)(2)(G). We described the law

with complete accuracy in Melkonyan, when we said:

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. 501 U.S. at ______, 111 S.Ct., at 2165.

Schaefer raises two arguments that merit further discussion. The

first is based on our decision in Sullivan v. Hudson, 490 U.S. 877,

892, 109 S.Ct. 2248, 2257, 104 L.Ed.2d 941, (1989), which held that

fees incurred during administrative proceedings held pursuant to a

district court's remand order could be recovered under EAJA. In order

``to effectuate Hudson,'' Schaefer contends, a district court entering

a sentence-four remand order may properly hold its judgment in abeyance

(and thereby delay the start of EAJA's 30-day clock) until postremand

administrative proceedings are complete; otherwise, as far as fees

incurred during the yet-to-be-held administrative proceedings are

concerned, the claimant would be unable to comply with the requirement

of section 2412(d)(1)(B) that the fee application include ``the amount

sought'' and ``an itemized statement * * * [of] the actual time

expended'' by attorneys and experts. In response, the Secretary argues

that Hudson applies only to cases remanded pursuant to sentence six of

section 405(g), where there is no final judgment and the clock does not

begin to run. The difficulty with that, Schaefer contends, is that

Hudson itself clearly involved a sentence-four remand.

On the last point, Schaefer is right. Given the facts recited by

the Court in Hudson, the remand order there could have been authorized

only under sentence four. See 490 U.S., at 880-881, 109 S.Ct.,at 2252;

cf. n. 2, supra. However, the facts in Hudson also show that the

District Court had not terminated the case, but had retained

jurisdiction during the remand. And that was a central element in our

decision, as the penultimate sentence of the opinion shows:

We conclude that where a court orders a remand to the Secretary

in a benefits litigation and retains continuing jurisdiction over

the case pending a decision from the Secretary which will determine

the claimant's entitlement to benefits, the proceedings on remand

are an integral part of the ``civil action'' for judicial review,

and thus attorney's fees for representation on remand are available

subject to the other limitations in the EAJA. 490 U.S., at 892, 109

S.Ct., at 2258 (emphasis added).

We have since made clear, in Finkelstein, that that retention of

jurisdiction, that failure to terminate the case, was error: Under

section 405(g), ``each final decision of the Secretary [is] reviewable

by a separate piece of litigation,'' and a sentence-four remand order

``terminate[s] the civil action'' seeking judicial review of the

Secretary's final decision. 496 U.S., at 624-625, 110 S.Ct., at 2663

(emphases added). What we adjudicated in Hudson, in other words, was a

hybrid: a sentence-four remand that the District Court had improperly

(but without objection) treated like a sentence-six remand.3 We

specifically noted in Melkonyan that Hudson was limited to a ``narrow

class of qualifying administrative proceedings'' where ``the district

court retains jurisdiction of the civil action'' pending the completion

of the administrative proceedings. 501 U.S. at ______, 111 S.Ct., at

2162. We therefore do not consider the holding of Hudson binding as to

sentence-four remands that are ordered (as they should be) without

retention of jurisdiction, or that are ordered with retention of

jurisdiction that is challenged.4

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\3\ The Secretary not only failed to object to the District

Court's retention of jurisdiction, but affirmatively endorsed the

practice as a means of accommodating the lower court cases holding

that a section 405(g) plaintiff does not become a prevailing party

until Social Security benefits are actually awarded. Reply Brief for

Petitioner in Sullivan v. Hudson, O.T. 1988, No. 616, pp. 12-13.

Those precedents were highly favorable to the Government, of course,

because they relieved the Secretary of liability for EAJA fees in

all cases where Social Security benefits were ultimately denied. But

they were also at war with the view--expressed later in the

Secretary's Hudson reply brief--that a sentence-four remand order is

a ``final judgment'' in the civil action. Id., at 16. Essentially,

the Secretary in Hudson wanted it both ways: He wanted us to regard

retention of jurisdiction as proper for purposes of determining

prevailing-party status, but as improper for purposes of awarding

fees on remand.

\4\Justice STEVENS says that our holding ``overrul[es]''

Sullivan v. Hudson, 490 U.S. 877, 109 S.Ct. 2248, 104 L.Ed.2d 941,

(1989). Post, at 2633, 2636. We do not think that is an accurate

characterization. Hudson remains good law as applied to remands

ordered pursuant to sentence six. And since the distinction between

sentence-four and sentence-six remands was neither properly

presented nor considered in Hudson, see supra, at 2630 and n. 3, and

infra, at 2631, limiting Hudson to sentence-six cases does not

``overrule'' the decision even in part. See Brecht v. Abrahamson,

507 U.S. ______, ______, 113 S.Ct., 1710, 1718, 123 L.Ed.2d 353

(1993). We agree with Justice STEVENS that until today there has

been some contradiction in our case law on this subject. In

resolving it, however, we have not simply chosen Melkonyan's dicta

over Hudson, but have grounded our decision in the text and

structure of the relevant statutes, particularly section 405.

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Schaefer's second argument is that a sentence-four remand order

cannot be considered a ``final judgment'' for purposes of section

2412(d)(1)(B) because that provision requires the party seeking fees to

submit an application ``show[ing] that [he] is a prevailing party.''

That showing, Schaefer contends, cannot be made until the proceedings

on remand are complete, since a Social Security claimant does not

``prevail'' until he is awarded Social Security benefits. The premise

of this argument is wrong. No holding of this Court has ever denied

prevailing-party status (under section 2412(d)(1)(B)) to a plaintiff

who won a remand order pursuant to sentence four of section 405(g).

Dicta in Hudson stated that ``a Social Security claimant would not, as

a general matter, be a prevailing party within the meaning of the EAJA

merely because a court had remanded the action to the agency for

further proceedings.'' 490 U.S., at 887, 109 S.Ct., at 2255. But that

statement (like the holding of the case) simply failed to recognize the

distinction between a sentence-four remand, which terminates the

litigation with victory for the plaintiff, and a sentence-six remand,

which does not. The sharp distinction between the two types of remand

had not been made in the lower-court opinions in Hudson, see Hudson v.

Secretary of Health and Human Services, 839 F.2d 1453 (CA11 1988); App.

to Pet. for Cert. in Sullivan v. Hudson, O.T.1988, No. 616, pp. 17a-20a

(setting forth unpublished District Court opinion), was not included in

the question presented for decision,5 and was mentioned for the

first time in the closing pages of the Secretary's reply brief, see

Reply Brief for Petitioner in Sullivan v. Hudson, O.T.1988, No. 616,

pp. 14-17. It is only decisions after Hudson--specifically Finkelstein

and Melkonyan--which establish that the sentence-four, sentence-six

distinction is crucial to the structure of judicial review established

under section 405(g). See Finkelstein, 496 U.S., at 626, 110 S.Ct., at

2664; Melkonyan, 501 U.S., at ______-______, 111 S.Ct., at 2162-2163.

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\5\As formulated in the Secretary's petition, the question on

which the Court granted certiorari in Hudson was: ``Whether Social

Security administrative proceedings conducted after a remand from

the courts are `adversary adjudications' for which attorney fees are

available under the [EAJA].'' Pet. for Cert. in Sullivan v. Hudson,

O.T.1988, No. 616, p. I.

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Hudson's dicta that remand does not generally confer prevailing-

party status relied on three cases, none of which supports that

proposition as applied to sentence-four remands. Hanrahan v. Hampton,

446 U.S. 754, 758-759, 100 S.Ct. 1987, 1990, 64 L.Ed.2d 670 (1980),

rejected an assertion of prevailing-party status, not by virtue of

having secured a remand, but by virtue of having obtained a favorable

procedural ruling (the reversal on appeal of a directed verdict) during

the course of the judicial proceedings. Hewitt v. Helms, 482 U.S. 755,

107 S.Ct. 2672, 96 L.Ed.2d 654 (1987), held that a plaintiff does not

become a prevailing party merely by obtaining ``a favorable judicial

statement of law in the course of litigation that results in judgment

against the plaintiff,'' id., at 763, 107 S.Ct., at 2677 (emphasis

added). (A sentence-four remand, of course, is a judgment for the

plaintiff.) And the third case cited in Hudson, Texas Teachers Assn. v.

Garland Independent School Dist., 489 U.S. 782, 109 S.Ct. 1486, 103

L.Ed.2d 866 (1989), affirmatively supports the proposition that a party

who wins a sentence-four remand order is a prevailing party. Garland

held that status to have been obtained ``[i]f the plaintiff has

succeeded on any significant issue in litigation which achieve[d] some

of the benefit * * * sought in bringing suit.'' Id., at 791-792, 109

S.Ct., at 1493 (citation and internal quotation marks omitted).

Obtaining a sentence-four judgment reversing the Secretary's denial of

benefits certainly meets this description. See also Farrar v. Hobby,

506 U.S. ______, 113 S.Ct., 566, 121 L.Ed.2d 494 (1992).

III

Finally, Schaefer argues that, even if the District Court should

have entered judgment in connection with its April 4, 1989 order

remanding the case to the Secretary, the fact remains that it did not.

And since no judgment was entered, he contends, the 30-day time period

for filing an application for EAJA fees cannot have run. We agree.

An EAJA application may be filed until 30 days after a judgment

becomes ``not appealable''--i.e., 30 days after the time for appeal has

ended. See section 2412(d)(1)(B), (d)(2)(G); see also Melkonyan, 501

U.S., at ______, 111 S.Ct., at 2165. Rule 4(a) of the Federal Rules of

Appellate Procedure establishes that, in a civil case to which a

federal officer is a party, the time for appeal does not end until 60

days after ``entry of judgment,'' and that a judgment is considered

entered for purposes of the rule only if it has been ``entered in

compliance with Rul[e] 58 * * * of the Federal Rules of Civil

Procedure.'' Fed. R. App. Proc. 4(a)(1), (7). Rule 58, in turn,

requires a district court to set forth every judgment ``on a separate

document'' and provides that ``[a] judgment is effective only when so

set forth.'' See United States v. Indrelunas, 411 U.S. 216, 220, 93

S.Ct. 1562, 1564, 36 L.Ed.2d 202 (1973) (per curiam).

Since the District Court's April 4 remand order was a final

judgment, see ante, at 2630, a ``separate document'' of judgment should

have been entered. It is clear from the record that this was not done.

The Secretary does not dispute that, but argues that a formal

``separate document'' of judgment is not needed for an order of a

district court to become appealable. That is quite true, see 28 U.S.C.

1291; Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55

L.Ed.2d 357 (1978) (per curiam); Finkelstein, supra, 496 U.S. at 628,

n. 7, 110 S.Ct., at 2665, n. 7, but also quite irrelevant. EAJA's 30-

day time limit runs from the end of the period for appeal, not the

beginning. Absent a formal judgment, the District Court's April 4 order

remained ``appealable'' at the time that Schaefer filed his application

for EAJA fees, and thus the application was timely under section

2412(d)(1).6

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\6\We disagree with Justice STEVENS' assertion that ``the

respondent has prevailed precisely because the District Court in

this case did enter a remand order without entering a judgment.''

Post, at 2633, n. 2 (emphasis in original). By entering a sentence-

four remand order, the District Court did enter a judgment; it just

failed to comply with the formalities of Rule 58 in doing so. That

was error but, as detailed in the text, the relevant rules and

statutes impose the burden of that error on the party seeking to

assert an untimeliness defense, here the Secretary. Thus, contrary

to Justice STEVENS' suggestion, see post, at 2633, n. 2, our ruling

in favor of respondent is not at all inconsistent with the

proposition that sentence four and sentence six provide the

exclusive methods by which district courts may remand a section 405

case to the Secretary.

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For the foregoing reasons, the judgment of the Court of Appeals is

Affirmed.

Justice Scalia delivered the opinion of the Court, in which Chief

Justice Rehnquist, and Justices White, O'Connor, Kennedy, Souter, and

Thomas joined. Justice Stevens filed an opinion concurring in the

judgment, in which Justice Blackmun joined.

[FR Doc. 94-1922 Filed 1-27-94; 8:45 am]

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