SSR 91-2c: SECTIONS 202(e), 205(g), AND 223(d) OF THE SOCIAL SECURITY ACT (42 U.S.C. 402(e), 405(g), AND 423(d)) DISABLED WIDOW'S INSURANCE BENEFITS -- IMMEDIATE APPEALABILITY OF A COURT REMAND ORDER

SSR 91-2c

EFFECTIVE/PUBLICATION DATE: 03/18/91

20 CFR 404.1577, 404.1578(a)(1), and Regulations No. 4, Subpart P,

Appendix 1

Sullivan v. Finkelstein, _____ U.S. _____, 110 S.Ct. 2658 (1990)

WHITE, Supreme Court Justice:

We granted certiorari to decide whether the Secretary of Health and Human

Services may immediately appeal a district court order effectively

declaring invalid regulations that limit the kinds of inquiries that must

be made to determine whether a person is entitled to disability insurance

benefits and remanding a claim for benefits to the Secretary for

consideration without those restrictions. We hold that the Secretary may

appeal such an order as a "final decision" under 28 U.S.C. §

1291. [1]

I

Respondent Finkelstein is the widow of a wage earner who died in 1980

while fully insured under Title II of the Social Security Act, 49 Stat.

622, as amended, 42 U.S.C. § et seq . (1982 ed.). In 1983,

respondent applied to the Social Security Administration for widow's

disability benefits, claiming that her heart condition made her disabled

within the meaning of the section of the Social Security Act providing for

surviving spouses' disability insurance benefit payments, § 223, as added,

70 Stat. 815, and as amended, 42 U.S.C. §§ 423(d)(1)(A), (d)(2)(B) (1982

ed. and Supp. V).

Section 423(d)(2)(B) states that a widow shall not be determined to be

disabled unless her impairment is of a level of severity which, "under

regulations prescribed by the Secretary (of Health and Human Services),"

is deemed sufficient to preclude an individual from engaging in any

gainful activity. Under regulations promulgated by the Secretary, 20 CFR

§§ 404.1577, 404.1578(a)(1) (1989), a surviving spouse is deemed disabled

only if the spouse suffers from a physical or mental impairment meeting or

equaling the severity of an impairment included in the Secretary's Listing

of Impairments located at Appendix 1 to 20 CFR pt. 404, subpt. P (1989)

from engaging in any

gainful activity. Under regulations promulgated by the Secretary, 20 CFR

§§ 404.1577, 404.1578(a)(1) (1989), a surviving spouse is deemed disabled

only if the spouse suffers from a physical or mental impairment meeting or

equaling the severity of an impairment included in the Secretary's Listing

of Impairments located at Appendix 1 to 20 CFR pt. 404, subpt. P (1989).

If the surviving spouse's impairment does not meet or equal one of the

listed impairments, the Secretary will not find the spouse disabled; in

particular, the Secretary will not consider whether the spouse's

impairment nonetheless makes the spouse disabled, given the spouse's age,

education, and work experience.

The Secretary's practice for spouses' disability insurance benefits thus

differs significantly from the regulations for determining whether a wage

earner is entitled to disability insurance benefits. For wage earners, the

Secretary has established a "five-step sequential evaluation process for

determining whether a person is disabled." Bowen v. Yuckert , 482

U.S. 137, 140, 107 S.Ct. 2287, 2290, 96 L.Ed.2d 119 (1987). Under that

five-step process, even if a wage earner's impairment does not meet or

equal one of the listed impairments, the wage earner may nonetheless be

entitled to disability insurance benefits if the Secretary determines that

his "impairment in fact prevents him from working." Sullivan v.

Zebley , 493 U.S. _____, _____, 110 S.Ct. 885, 893, 107 L.Ed.2d 967

290, 96 L.Ed.2d 119 (1987). Under that

five-step process, even if a wage earner's impairment does not meet or

equal one of the listed impairments, the wage earner may nonetheless be

entitled to disability insurance benefits if the Secretary determines that

his "impairment in fact prevents him from working." Sullivan v.

Zebley , 493 U.S. _____, _____, 110 S.Ct. 885, 893, 107 L.Ed.2d 967

(1990). The Secretary maintains that the difference between the wage

earner regulations and the surviving spouse regulations is supported by a

difference between the two pertinent statutory definitions of disability.

Compare 42 U.S.C. § 423(d)(2)(A) with § 423(d)(2)(B).

Respondent's application for benefits was denied on the ground that her

heart condition did not meet or equal a listed impairment. After

exhausting administrative remedies, respondent sought judicial review of

the Secretary's decision in the United States District Court for the

District of New Jersey, invoking § 205(g) of the Social Security Act, as

amended, 53 Stat. 1370, 42 U.S.C. § 405(g) (1982

ed. [2] The District Court

sustained the Secretary's conclusion that respondent did not suffer from

an impairment that met or equaled a listed impairment. See App. to Pet.

for Cert. 16a. The District Court nonetheless concluded that "the case

must be remanded to the Secretary," id , at 17a, because the record

was "devoid of any findings" regarding respondent's inability to engage in

any gainful activity even though her impairment was not equal to one of

the listed impairments, see ibid .

impairment that met or equaled a listed impairment. See App. to Pet.

for Cert. 16a. The District Court nonetheless concluded that "the case

must be remanded to the Secretary," id , at 17a, because the record

was "devoid of any findings" regarding respondent's inability to engage in

any gainful activity even though her impairment was not equal to one of

the listed impairments, see ibid .

The Court of Appeals for the Third Circuit dismissed the Secretary's

appeal for lack of jurisdiction. 869 F.2d 215 (1989). The Court of Appeals

relied on its past decisions holding that "remands to administrative

agencies are not ordinarily appealable." Id ., at 217 (citation

omitted). Although the Court of Appeals acknowledged an exception to that

rule for cases" in which an important legal issue is finally resolved and

review of that issue would be foreclosed 'as a practical matter' if an

immediate appeal were unavailable," ibid . (citation omitted), that

exception was deemed inapplicable in this case because the Secretary might

persist in refusing benefits even after consideration of respondent's

residual functional capacity on remand, and the District Court might

thereafter order that benefits be granted, thereby providing the Secretary

with an appealable final decision. Id ., at 220. The Court of

Appeals conceded that the Secretary might not be able to obtain review at

a later point if he concluded on remand that respondent was entitled to

benefits based on her lack of residual functional capacity, but it

believed this argument for immediate appealability to be foreclosed by a

prior decision of the Circuit. Ibid . We granted certiorari, 493

U.S. _____, 110 S.Ct. 862, 107 L.Ed.2d 947 (1990).

II

d that the Secretary might not be able to obtain review at

a later point if he concluded on remand that respondent was entitled to

benefits based on her lack of residual functional capacity, but it

believed this argument for immediate appealability to be foreclosed by a

prior decision of the Circuit. Ibid . We granted certiorari, 493

U.S. _____, 110 S.Ct. 862, 107 L.Ed.2d 947 (1990).

II

We begin by noting that the issue before us is not the broad question

whether remands to administrative agencies are always immediately

appealable. There is, of course, a great variety in remands, reflecting in

turn the variety of ways in which agency action may be challenged in the

district courts and the possible outcomes of such

challenges. [3] The question

before us rather is whether orders of the type entered by the District

Court in this case are immediately appealable by the Secretary. It is

necessary therefore to consider precisely what the District Court held and

may it remanded this case to the Secretary.

Although the District Court sustained the Secretary's conclusion that

respondent did not suffer from an impairment that met or equaled the

severity of a listed impairment, it concluded that the Secretary's

ultimate conclusion that respondent was not disabled could not be

sustained because other medical evidence suggested that respondent might

not be able to engage in any gainful

activity. [4] Considering it

"anomalous" that an impairment actually leaving respondent without the

residual functional capacity to perform any gainful activity could be

insufficient to warrant benefits just because it was not equal to one of

the listed impairments, the District Court directed the Secretary "to

inquire whether [respondent] may or may not engage in any gainful

activity, as contemplated by the Act." App. to Pet. for Cert. 18a

rment actually leaving respondent without the

residual functional capacity to perform any gainful activity could be

insufficient to warrant benefits just because it was not equal to one of

the listed impairments, the District Court directed the Secretary "to

inquire whether [respondent] may or may not engage in any gainful

activity, as contemplated by the Act." App. to Pet. for Cert. 18a. The

District Court's order thus essentially invalidated, as inconsistent with

the Social Security Act, the Secretary's regulations restricting spouses'

disability insurance benefits to those claimants who can show that they

have impairments with "specific clinical findings that are the same . . .

or are medically equivalent to" one of the listed impairments, 20 CFR §

404.1578(a)(1) (1989). Cf. Heckler v. Campbell , 461 U.S. 458,

465-466, 103 S.Ct. 1952, 1956, 76 L.Ed.2d 66 (1983). The District Court

stated that it was "remand[ing] the case to the Secretary because the

record contained no findings about the functional impact of respondent's

impairment; in effect it ordered to Secretary to address respondent's

ailment without regard for the regulations that would have precluded such

consideration. The District Court's order thus reversed the Secretary's

conclusion that respondent was not disabled and remanded for further

consideration of respondent's medical condition.

Once the nature of the District court's action is made clear, it becomes

clear how this action fits into the structure of § 405(g). The first

sentence of § 405(g) provides that an individual denied benefits by a

final decision of the Secretary may obtain judicial review of that

decision by filing "a civil action" in federal district court. The use of

the term "a civil action" suggests that at least in the context of §

405(g), each final decision of the Secretary will be reviewable by a

separate piece of litigation. [5] The fourth and eighth sentences of § 405(g) buttress this conclusion

its by a

final decision of the Secretary may obtain judicial review of that

decision by filing "a civil action" in federal district court. The use of

the term "a civil action" suggests that at least in the context of §

405(g), each final decision of the Secretary will be reviewable by a

separate piece of litigation. [5] The fourth and eighth sentences of § 405(g) buttress this conclusion. The

fourth sentence states that in such a civil action, the district court

shall have the power to enter "a judgment affirming, modifying, or

reversing the decision of the Secretary, with or without remanding the

cause for a rehearing." (Emphasis added.) This sentence describes the

action that the District Court actually took in this case. In particular,

although the fourth sentence clearly foresees the possibility that a

district court may remand a cause to the Secretary for rehearing (as the

District Court did here), nonetheless such a remand order is a "judgment"

in the terminology of § 405(g). What happened in this case is that the

District Court entered "a judgment . . . reversing the decision of the

Secretary, with . . . remanding the cause for a rehearing." The District

Court's remand order was unquestionably a "judgment," as 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. Furthermore, should the Secretary on

remand undertake the inquiry mandated by the District court and award

benefits, there would be grave doubt, as the Court of appeals recognized,

whether he could appeal his own order. Thus it is that the eighth sentence

of § 405(g) provides that "(t)he judgment of the court shall be

final except that it shall be subject to review in the same manner as

a judgment in other civil actions." (Emphasis added.)

the inquiry mandated by the District court and award

benefits, there would be grave doubt, as the Court of appeals recognized,

whether he could appeal his own order. Thus it is that the eighth sentence

of § 405(g) provides that "(t)he judgment of the court shall be

final except that it shall be subject to review in the same manner as

a judgment in other civil actions." (Emphasis added.)

Respondent makes several arguments countering this construction of §

405(g) and of the District Court's order, none of which persuades us.

First, respondent argues that the remand in this case was ordered not

pursuant to the fourth sentence of § 405(g), but under the sixth sentence

of that section, which states in pertinent part that the District Court

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." Respondent points out

that the District Court stated that it was ordering a remand because the

evidence on the record was insufficient to support the Secretary's

conclusion and that further factfinding regarding respondent's ailment was

necessary. We do not agree with respondent that the District Court's

action in this case was a "sixth-sentence remand." The sixth sentence of §

405(g) plainly describes an entirely different kind of remand, 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. [6]

ee with respondent that the District Court's

action in this case was a "sixth-sentence remand." The sixth sentence of §

405(g) plainly describes an entirely different kind of remand, 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. [6]

For the same reason, we reject respondent's argument, based on the

seventh sentence of § 405(g), that the district court may enter an

appealable final judgment upon reviewing the Secretary's postremand

"additional or modified findings of fact and decision." The postremand

review conducted by the District Court under the seventh sentence refers

only to cases that were previously remanded under the sixth sentence. The

seventh sentence states that the district court may review "(s)uch

additional or modified findings of fact," a reference to the second half

of the sixth sentence of § 405(g), which requires that "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. . . ." The phrase "such additional

evidence" refers in turn to the "additional evidence" mentioned in the

first half of the sixth sentence that the district court may order the

Secretary to take in a sixth-sentence remand. See supra , at _____.

But as the first half of the sixth sentence makes clear, the taking of

this additional evidence may be ordered only upon a showing that there is

material new evidence. The postremand judicial review contemplated by the

seventh sentence of § 405(g) does not fit the kind of remand ordered by

the District Court in this case.

ecretary to take in a sixth-sentence remand. See supra , at _____.

But as the first half of the sixth sentence makes clear, the taking of

this additional evidence may be ordered only upon a showing that there is

material new evidence. The postremand judicial review contemplated by the

seventh sentence of § 405(g) does not fit the kind of remand ordered by

the District Court in this case.

Respondent also argues that the eighth sentence of § 405(g), providing

that the judgment of the district court "shall be final except that it

shall be subject to review in the same manner as a judgment in other civil

actions," does not compel the conclusion that a judgment entered pursuant

to the fourth sentence is immediately appealable. In respondent's view,

Congress used the term "final" in the eighth sentence only to make clear

that a court's decision reviewing agency action could operate as law of

the case and res judicata. Cf. City of Tacoma v. Taxpayers of

Tacoma , 357 U.S. 320, 336, 78 S.Ct. 1209, 1218, 2 L.Ed.2d 1345 (1958).

But even if it is true that Congress used the term "final" to mean

"conclusively decided," this reading does not preclude the construction of

"final" to include "appealable," a meaning with which "final" is usually

coupled. Nor does respondent consider the significance of Congress' use of

the term "judgment" to describe the action taken by the District Court in

this case. [7] Although

respondent argues that the words "final decisions," as used in 28 U.S.C. §

1291 encompass no more than what was meant by the terms "final judgments

and decrees" in the predecessor statute to § 1291, respondent recognizes

that "final judgments" are at the core of matters appealable under § 1291,

and respondent does not contest the power of Congress to define a class of

orders as "final judgments" that by inference would be appealable under §

1291. Cf. Sears, Roebuck & Co. v. Mackey , 351 U.S. 427, 434, 76

S.Ct. 895, 899, 100 L.Ed. 1297 (1956)

es" in the predecessor statute to § 1291, respondent recognizes

that "final judgments" are at the core of matters appealable under § 1291,

and respondent does not contest the power of Congress to define a class of

orders as "final judgments" that by inference would be appealable under §

1291. Cf. Sears, Roebuck & Co. v. Mackey , 351 U.S. 427, 434, 76

S.Ct. 895, 899, 100 L.Ed. 1297 (1956). This is what Congress has done in

the fourth sentence of §

405(g). [8]

More generally, respondent argues that a power in the district court to

remand to an agency is always incident to the power to review agency

action and that § 405(g) only expanded the district courts' equitable

powers; therefore, she insists, it is improper to construe § 405(g) as a

limit on the district courts' power to remand. This argument misapprehends

what Congress sought to accomplish in § 405(g). The fourth sentence of §

405(g) does not "limit" the district courts' authority to remand. Rather,

the fourth sentence directs the entry of a final, appealable judgment even

though that judgment may be accompanied by a remand order. The fourth

sentence does not require the district court to choose between entering a

final judgment and remanding; to the contrary, it specifically provides

that a district court may enter judgment "with or without remanding the

cause for a rehearing."

Finally, respondent argues that we already decided last Term, in Sullivan v. Hudson , 490 U.S. _____, 109 S.Ct. 2248, 104 L.Ed.2d 941

r. The fourth

sentence does not require the district court to choose between entering a

final judgment and remanding; to the contrary, it specifically provides

that a district court may enter judgment "with or without remanding the

cause for a rehearing."

Finally, respondent argues that we already decided last Term, in Sullivan v. Hudson , 490 U.S. _____, 109 S.Ct. 2248, 104 L.Ed.2d 941

(1989), that a remand order of the kind entered in this case is not

appealable as a final decision. Although there is language in Hudson supporting respondent's interpretation of that case, we do

not find that language sufficient to sustain respondent's contentions

here. In Hudson , we held that under the Equal Access to Justice Act

(EAJA), 28 U.S.C. § 2412(d)(1)(A), a federal court may award a Social

Security claimant attorney's fees for representation during administrative

proceedings held pursuant to a district court order remanding the action

to the Secretary. We were concerned there with interpreting the term "any

civil action" in the EAJA, [9] not with deciding whether a remand order could be appealed as a "final

decision" under 28 U.S.C. § 1291. We noted in Hudson that the

language of § 2412(d)(1)(A) must be construed with reference to the

purpose of the EAJA and the realities of litigation against the

Government. The purpose of the EAJA was to counterbalance the financial

disincentives to vindicating rights against the Government through

litigation; given this purpose, we could not believe that Congress would

"throw the Social Security claimant a lifeline that it knew was a foot

short" by denying her attorney's fees for the mandatory proceedings on

remand. Hudson, supra , at _____, 109 S.Ct., at 2256. We also

recognized that even if a claimant had obtained a remand from the district

court, she would not be a "prevailing party" for purposes of the EAJA

until the result of the administrative proceedings held on remand was

known. 490 U.S., at _____, 109 S.Ct., at _____

t" by denying her attorney's fees for the mandatory proceedings on

remand. Hudson, supra , at _____, 109 S.Ct., at 2256. We also

recognized that even if a claimant had obtained a remand from the district

court, she would not be a "prevailing party" for purposes of the EAJA

until the result of the administrative proceedings held on remand was

known. 490 U.S., at _____, 109 S.Ct., at _____. We therefore concluded

that for purposes of the EAJA, the administrative proceedings on remand

"should be considered part and parcel of the action for which fees may be

awarded." Id ., at _____, 109 S.Ct., at 2255. We did not say that

proceedings on remand to an agency are "part and parcel" of a civil action

in federal district court for all purposes, and we decline to do so

today.

Accordingly, the judgment of the Court of Appeals is reversed, and the

case is remanded for further proceedings consistent with this opinion.

It is so ordered .

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

Rehnquist and Justices Brennan, Marshall, Stevens, O'Connor, and Kennedy

joined, and in which Justice Scalia joined except as to n.8. Justice

Scalia filed an opinion concurring in part. Justice Blackmun filed a

concurring opinion.

[1] Title 28 U.S.C. § 1291

provides that "(t)he courts of appeals . . . shall have jurisdiction of

appeals from all final decisions of the district courts . . . except where

a direct review may be had in the Supreme Court."

[2] Title 42 U.S.C. § 405(g)

(1982 ed.) provides:

cept as to n.8. Justice

Scalia filed an opinion concurring in part. Justice Blackmun filed a

concurring opinion.

[1] Title 28 U.S.C. § 1291

provides that "(t)he courts of appeals . . . shall have jurisdiction of

appeals from all final decisions of the district courts . . . except where

a direct review may be had in the Supreme Court."

[2] Title 42 U.S.C. § 405(g)

(1982 ed.) provides:

"Any individual, after any final decision of the Secretary made after a

hearing to which he was a party, irrespective of the amount in

controversy, may obtain a review of such decision by a civil action

commenced within sixty days after the mailing to him of notice of such

decision or within such further time as the Secretary may allow. Such

action shall be brought in the district court of the United States for the

judicial district in which the plaintiff resides, or has his principal

place of business, or, if he does not reside or have his principal place

of business within any such judicial district, in the United States

District Court for the District of Columbia. As part of his answer the

Secretary shall file a certified copy of the transcript of the record

including the evidence upon which the findings and decision complained of

are based. The 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

of his answer the

Secretary shall file a certified copy of the transcript of the record

including the evidence upon which the findings and decision complained of

are based. The 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 findings of the Secretary as to any fact, if supported by

substantial evidence, shall be conclusive, and where a claim has been

denied by the Secretary or a decision is rendered under subsection (b) of

this section which is adverse to an individual who was a party to the

hearing before the Secretary, because of failure of the claimant or such

individual to submit proof in conformity with any regulation prescribed

under subsection (a) of this section, the court shall review only the

question of conformity with such regulations and the validity of such

regulations. 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. Such additional or modified findings of

fact and decision shall be reviewable only to the extent provided for

review of the original findings of fact and decision

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. Such additional or modified findings of

fact and decision shall be reviewable only to the extent provided for

review of the original findings of fact and decision. The judgment of the

court shall be final except that it shall be subject to review in the same

manner as a judgment in other civil actions. Any action instituted in

accordance with this subsection shall survive notwithstanding any change

in the person occupying the office of Secretary or any vacancy in such

office."

[3] For example, a district

court may on occasion order a remand to an agency even though the district

court action was filed by the agency, not someone seeking judicial review,

e.g., United States v. Alcon Laboratories , 636 F.2d 876 (CAI),

cert. denied, 451 U.S. 1017, 101 S.Ct. 3005, 69 L.Ed. 2d 388 (1981). In

other cases the district court may order a remand to the agency but the

person seeking judicial review may seek to appeal on the ground that

broader relief should have been granted by the district court, e.g., Bohms v. Gardner , 381 F.2d 283 (CA8 1967), cert. denied, 390 U.S.

964, 88 S.Ct. 1069 L.Ed.2d 1164 (1968). None of these situations is

presented in this case, and we express no opinion about appealability in

those circumstances.

[4] Specifically, the District

Court noted that an Administrative Law Judge "found that the 'medical

findings shown in the medical evidence of record establish the existence

of mitral valve prolapse," App. to Pet. for Cert. 17a, which does not meet

or equal one of the listed impairments but might, in the District Court's

view prevent respondent from engaging in any gainful activity, ibid .

] Specifically, the District

Court noted that an Administrative Law Judge "found that the 'medical

findings shown in the medical evidence of record establish the existence

of mitral valve prolapse," App. to Pet. for Cert. 17a, which does not meet

or equal one of the listed impairments but might, in the District Court's

view prevent respondent from engaging in any gainful activity, ibid .

[5] Neither party suggests that

the Secretary's decision denying respondent benefits without considering

her mitral valve prolapse was not a "final decision of the Secretary"

within the meaning of § 405(g).

[6] See, e.g., Caulder v.

Bowen , 791 F.2d 872 (CA11 1986); Borders v. Heckler , 777 F.2d

954, 955 (CA4 1985); Newhouse v. Heckler , 753 F.2d 283, 287 (CA3

1985); Booz v. Secretary of Health and Human Services , 734 F.2d

1378, 1381 (CA9 1984); Dorsey v. Heckler , 702 F.2d 597, 604-605

(CA5 1983); Cagle v. Califano , 638 F.2d 219, 221 (CA10 1981).

Although all the Circuits recognize that new evidence must be "material"

to warrant a sixth-sentence remand, it is not clear whether the Circuits

have interpreted the requirement of materiality in the same way. See Dorsey, supra , at 605, n.9 (criticizing "stricter position" of

Fourth and Tenth Circuits); Godsey v. Bowen , 832 F.2d 443, 444 (CA7

1987) (expressing skepticism about existence of conflict); Borders,

supra , at 956 (also skeptical). We express no opinion on the proper

definition of materiality in this context.

[7] It is true, as respondent

maintains, that the District Court did not caption its order as a

"judgment," much less a "final judgment." The label used by the District

Court of course cannot control the order's appealability in this case, any

more than it could when a District Court labeled a nonappealable

interlocutory order as a "final judgment." See Liberty Mutual Ins. Co.

v. Wetzel , 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976).

trict Court did not caption its order as a

"judgment," much less a "final judgment." The label used by the District

Court of course cannot control the order's appealability in this case, any

more than it could when a District Court labeled a nonappealable

interlocutory order as a "final judgment." See Liberty Mutual Ins. Co.

v. Wetzel , 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976).

[8] Respondent also makes two

arguments based on subsequent legislative history to counter the

conclusion that Congress intended orders entered under the fourth sentence

of § 405(g) to be appealable final judgments. First, she relies on a

committee print prepared by the Social Security Subcommittee of the House

Ways and Means Committee which, in summarizing amendments to the Social

Security Act, stated that under prior law, a district court could remand a

case to the Secretary on its own motion and that the judgment of the

district court would be final after the Secretary filed any

modified findings of fact and decision with the court, and that no change

had been made by the amendments. See Subcommittee on Social Security of

the House Committee on Ways and Means, The Social Security Amendments of

1977: Brief Summary of Major Provisions and Detailed Comparison With Prior

Law, WMCP No. 95-72, p. 26 (Comm. Print 1978) (Brief Summary). The

committee print's observations are entirely consistent with the

construction we have placed on remands ordered under the sixth sentence of

§ 405(g). Moreover, leaving aside all the usual difficulties inherent in

relying on subsequent legislative history, see, e.g., United States v.

Mine Workers , 330 U.S. 258, 281-282, 67 S.Ct. 677, 690, 91 L.Ed. 884

m. Print 1978) (Brief Summary). The

committee print's observations are entirely consistent with the

construction we have placed on remands ordered under the sixth sentence of

§ 405(g). Moreover, leaving aside all the usual difficulties inherent in

relying on subsequent legislative history, see, e.g., United States v.

Mine Workers , 330 U.S. 258, 281-282, 67 S.Ct. 677, 690, 91 L.Ed. 884

(1947), we note that the print specifically warned that it was prepared by

the subcommittee staff for informational purposes only and was not

considered or approved by the subcommittee, and that it was designed not

to be a section-by-section analysis of the amendments but only a

"narrative synopsis." Brief Summary, at I, V. We therefore cannot assign

this committee print any significant weight.

Second, respondent relies on a House Judiciary Report on amendments to

the Equal Access to Justice Act (EAJA), stating that a district court's

remand decision under § 405(g) is not a "final judgment." H.R. Rep. No.

99-120, p. 19 (1985), U.S. Code Cong. & Admin. News 1985, pp. 132,

147. Again, we cannot conclude that this subsequent legislative history

overthrows the language of § 405(g). In the first place, this part of this

particular committee report concerned the proper time period for filing a

petition for attorney's fees under EAJA, not appealability. Second, the

committee relied in particular on Guthrie v. Schweiker , 718 F.2d

104 (CA4 1982), for the proposition that a remand order is not a final

judgment, but Guthrie also concerned the time for filing an

attorney's fee petition, and it is far from clear that Guthrie did

not involve a sixth-sentence remand. Guthrie , in turn, relied on Gilcrist v. Schweiker , 645 F.2d 818, 819 (CA9 1981), which, quite

unlike the present case, involved an appeal from a district court remand

order that did "no more than order clarification of the administrative

decision."

[9] Title 28 U.S.C. §

2412(d)(1)(A) provides in pertinent part:

it is far from clear that Guthrie did

not involve a sixth-sentence remand. Guthrie , in turn, relied on Gilcrist v. Schweiker , 645 F.2d 818, 819 (CA9 1981), which, quite

unlike the present case, involved an appeal from a district court remand

order that did "no more than order clarification of the administrative

decision."

[9] Title 28 U.S.C. §

2412(d)(1)(A) provides in pertinent part:

"Except as otherwise specifically provided by statute, a court shall

award to a prevailing party other than the united States fees and other

expenses . . . incurred by that party in any civil action . . . including

proceedings for judicial review of agency action, brought by or against

the United States in any court having jurisdiction of that action, unless

the court finds that the position of the United States was substantially

justified or that special circumstances make an award unjust."