SSR 92-3c: SECTIONS 205(g) AND 1631(c)(3) OF THE SOCIAL SECURITY ACT (42 U.S.C. 405(g) AND 1383(c)(3)) TIMELY FILING FOR ATTORNEY FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT

SSR 92-3c

EFFECTIVE/PUBLICATION DATE: 03/17/92

Melkonyan v. Sullivan , _____ U.S. _____, 111 S.Ct. 2157 (1991)

O'CONNOR, Supreme Court Justice:

A party that prevails against the United States in a civil action is

entitled, in certain circumstances, to an award of attorney's fees, court

costs, and other expenses. Equal Access to Justice Act (EAJA), 28 U.S.C. §

2412. Among other requirements, the prevailing party must submit to the

court an application for fees and expenses "within thirty days of final

judgment in the action § 2412(d)(1)(B). This case requires us to decide

whether an administrative decision rendered following a remand from the

District Court is a "final judgment" within the meaning of EAJA.

I

In May 1982, petitioner Zakhar Melkonyan filed an application for

disability benefits under the Supplemental Security Income (SSI) program

established by Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq . Following a hearing, an Administrative Law Judge (ALJ)

concluded that petitioner was not disabled within the meaning of the Act.

The Appeals Council denied review of the ALJ's decision. In June 1984,

petitioner timely filed a complaint in the United States District Court

for the Central District of California seeking judicial review pursuant to

42 U.S.C. § 1383(c)(3), which incorporates the review provisions of 42

U.S.C. § 405(g).

On May 30, 1984, shortly before filing the complaint, petitioner filed a

second application for SSI disability benefits accompanied by new evidence

of disability. In August 1984, petitioner's second application was

approved as of the date it was filed. He then sought summary judgment in

his action to review the administrative decision denying his first application for benefits. The Secretary cross-filed for summary

judgment.

the complaint, petitioner filed a

second application for SSI disability benefits accompanied by new evidence

of disability. In August 1984, petitioner's second application was

approved as of the date it was filed. He then sought summary judgment in

his action to review the administrative decision denying his first application for benefits. The Secretary cross-filed for summary

judgment.

While the summary judgment motions were pending, the Secretary requested

that the case be remanded to the Appeals Council so the first application

could be reconsidered in light of the new evidence. Petitioner initially

opposed the Secretary's remand request, arguing that evidence already in

the record amply established his disability. Three months later, however,

citing failing health and the prospect of increased medical expenses,

petitioner moved the court to "either issue [the decision] or remand the

cause to the Secretary." App. 9-10. In response, on April 3, 1985, the

District Court entered a "judgment" which read in its entirety:

One month after the remand the Appeals Council vacated the ALJ's prior

decision and found petitioner disabled as of the date of his original SSI

application. That decision granted petitioner all the relief he had

initially requested.

More than a year later, petitioner applied to the District Court for

attorney's fees under EAJA. The Magistrate recommended that the fee

application be denied, concluding that the Secretary's decision to deny

the first application was "substantially justified" at the time because

the original record did not establish that petitioner was disabled. App.

20-21. The District Court agreed and denied the fee request.

petitioner applied to the District Court for

attorney's fees under EAJA. The Magistrate recommended that the fee

application be denied, concluding that the Secretary's decision to deny

the first application was "substantially justified" at the time because

the original record did not establish that petitioner was disabled. App.

20-21. The District Court agreed and denied the fee request.

The Court of Appeals for the Ninth Circuit vacated the District Court's

judgment. It agreed that petitioner was not eligible for attorney's fees

under EAJA, but for a different reason. Melkonyan v. Heckler , 895

F.2d 556 (1990). The Court of Appeals noted that EAJA requires an

application for fees to be filed within 30 days of the "final judgment in

the action," a term defined in the statute as a "judgment that is final

and not appealable." Id. , at 557 (citing 28 U.S.C. §

2412(d)(2)(G)). In the court's view, its task was to determine when that

"final and not appealable" judgment was rendered. 895 F.2d, at 557.

The Court of Appeals recognized that the District Court's order remanding

the case to the Secretary was not a "final judgment" because both parties

anticipated further administrative proceedings. Id. , at 557-558. On

remand, the Appeals Council reversed itself and held for petitioner,

having won all he had asked for, there was no reason to return to the

District Court. Under those circumstances the Court of Appeals concluded

that the Appeals Council's decision to award benefits was, in effect, a

"final judgment" under EAJA, thereby commencing the 30-day period for

filing the fee application. Id. , at 558-559. Because petitioner

waited more than a year after the Appeals Council's decision, his

application was untimely. Id. , at 559. We granted certiorari, 498

U.S. , 111 S.Ct. 669, 112 L.Ed.2d 662 (1991), and now vacate the

judgment of the Court of Appeals.

II

The language of the relevant EAJA statute, § 2412, provides:

ncing the 30-day period for

filing the fee application. Id. , at 558-559. Because petitioner

waited more than a year after the Appeals Council's decision, his

application was untimely. Id. , at 559. We granted certiorari, 498

U.S. , 111 S.Ct. 669, 112 L.Ed.2d 662 (1991), and now vacate the

judgment of the Court of Appeals.

II

The language of the relevant EAJA statute, § 2412, provides:

Petitioner argues that this provision is most naturally read to mean that

it is the court before which the civil action is pending that must

render the "final judgment" that starts the running of the 30-day EAJA

filing period. Brief for Petitioner 13. We agree. AS the highlighted

language indicates, subsections (d)(1)(A) and (d)(1)(B) work in tandem.

Subsection (d)(1)(A) authorizes the awarding of fees to parties that

prevail against the United States in nontort civil actions, subject to

qualifications not pertinent here. Subsection (d)(1)(B) explains what the

prevailing party must do to secure the fee award. The requirement that the

fee application be filed within 30 days of "final judgment in the

action " plainly refers back to the "civil action . . . in any court"

in (d)(1)(A). The plain language makes clear that a "final judgment" under

§ 2412 can only be the judgment of a court of law. This reading is

reinforced by the contrast between § 2412 and 5 U.S.C. § 504(a). Section

504 was enacted at the same time as § 2412, and is the only part of the

EAJA that allows fees and expenses for administrative proceedings

conducted prior to the filing of a civil action. The pertinent language of

§ 504(a)(2) largely mirrors that of § 2412(d)(1)(B), with one notable

exception: it states that a "party seeking an award of fees and other

expenses shall, within thirty days of a final disposition in the

adversary adjudication ," file an application for fees. 5 U.S.C. §

504(a)(2)

for administrative proceedings

conducted prior to the filing of a civil action. The pertinent language of

§ 504(a)(2) largely mirrors that of § 2412(d)(1)(B), with one notable

exception: it states that a "party seeking an award of fees and other

expenses shall, within thirty days of a final disposition in the

adversary adjudication ," file an application for fees. 5 U.S.C. §

504(a)(2). Clearly Congress knew how to distinguish between a "final

judgment in [an] action" and a "final disposition in [an] adversary

adjudication." One is rendered by a court; the other includes adjudication

by an administrative agency.

The Secretary's sole argument to the contrary rests on the 1985

amendments to EAJA, which added a definition of "final judgment" to 2412.

Traditionally, a "final judgment" is one that is final and appealable. See

Fed.Rule Civ.Proc. 54(a) ("'Judgment' as used in these rules includes a

decree and any order from which an appeal lies"); Sullivan v.

Finkelstein , 496 U.S. _____, _____, 110 S.Ct. 2658, 2665, 110 L.Ed.2d

563 (1990) ("'final judgments' are at the core of matters appealable under

1291"). Under 2412 as amended, however, a "final judgment" is one that is

"final and not appealable." 28 U.S.C. 2412(d)(2)(G) (emphasis

added). In the Secretary's view, "[t]his significant departure from the

usual characteristi[c] of a 'judgment' entered by a court" dictates a

different understanding of how the phrase "final judgment" is used in

2412(d)(1)(B). Brief for Respondent 20. The Secretary argues that under

the revised statute, a "final judgment" includes not only judgments

rendered by a court, but also decision made by administrative agencies. Ibid .

significant departure from the

usual characteristi[c] of a 'judgment' entered by a court" dictates a

different understanding of how the phrase "final judgment" is used in

2412(d)(1)(B). Brief for Respondent 20. The Secretary argues that under

the revised statute, a "final judgment" includes not only judgments

rendered by a court, but also decision made by administrative agencies. Ibid .

We reject this argument. Section 2412(d)(1)(B) does not speak merely of a

"judgment," it speaks of a "final judgment in the action ." As we

have explained, the "action" referred to in subsection (d)(1)(B) is a

"civil action . . . in any court" under subsection (d)(1)(A). The

Secretary's suggested interpretation of "final judgment" does not alter

this unambiguous requirement of judgment by a court .

As for why Congress added the unusual definition of "final judgment," the

answer is clear. "the definition . . . was added in 1985 to resolve a

conflict in the lower courts on the question whether a 'judgment' was to

be regarded as 'final' for EAJA purposes when it was entered, or only when

the period for taking an appeal had lapsed." Brief for Respondent 20

(footnote omitted). The Ninth Circuit had held that the 30-day EAJA filing

period began to run when the District Court entered judgment. McQuiston

v. Marsh , 707 F.2d 1082, 1085 (1983). The Seventh Circuit rejected

this view, holding that the EAJA filing period should be deemed to begin

only after the time for taking an appeal from the District Court judgment

had expired. McDonald v. Schweiker , 726 F.2d 311, 314 (1983).

Accord, Massachusetts Union of Public Housing Tenants, Inc. v.

Pierce , 244 U.S.App.D.C. 34, 36 755 F.2d 177, 179 (1985).

, 707 F.2d 1082, 1085 (1983). The Seventh Circuit rejected

this view, holding that the EAJA filing period should be deemed to begin

only after the time for taking an appeal from the District Court judgment

had expired. McDonald v. Schweiker , 726 F.2d 311, 314 (1983).

Accord, Massachusetts Union of Public Housing Tenants, Inc. v.

Pierce , 244 U.S.App.D.C. 34, 36 755 F.2d 177, 179 (1985).

Congress responded to this split in the federal courts by explicitly

adopting and ratifying the McDonald approach. S.Rep. No. 98-586, p.

16 (1984) ("The Committee believe that the interpretation of the court in

[ McDonald ] is the correct one"). See also H.R.Rep. No. 98-992, p.

14 (1984) ("The term 'final judgment' has been clarified to mean a

judgment the time to appeal which has expired for all parties"); H.R.Rep.

No. 99-120, p. 18 (1985). There simply is no evidence to support the

argument the Secretary now advances -- that, in defining "final judgment"

so as to resolve an existing problem, Congress also intended, sub

silentio , to alter the meaning of the term to include a final agency

decision. We conclude that, notwithstanding the 1985 amendment, Congress'

use of "judgment" in 28 U.S.C. § 2412 refers to judgments entered by a

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

administrative agency. Accordingly, we hold that a "final judgment" for

purposes of 28 U.S.C. § 2412(d)(1)(B) means a judgment rendered by a court

that terminates the civil action for which EAJA fees may be received. The

30-day EAJA clock begins to run after the time to appeal that "final

judgment" has expired.

entered by a

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

administrative agency. Accordingly, we hold that a "final judgment" for

purposes of 28 U.S.C. § 2412(d)(1)(B) means a judgment rendered by a court

that terminates the civil action for which EAJA fees may be received. The

30-day EAJA clock begins to run after the time to appeal that "final

judgment" has expired.

Our decision in Sullivan v. Hudson , 490 U.S. 877, 109 S.Ct. 2248,

104 L.Ed.2d 941 (1989), is not to the contrary. The issue in Hudson was whether, under § 2412(d), a "civil action" could include

administrative proceedings so that a claimant could receive attorney's

fees for work done at the administrative level following a remand by the

District Court. We explained that certain administrative proceedings are

"so intimately connected with judicial proceedings as to be considered

part of the 'civil action' for purposes of a fee award." Id. , at

892, 109 S.Ct., at 2258. We defined the narrow class of qualifying

administrative proceedings to be those "where 'a suit has been brought in

a court,' and where 'a formal complaint within the jurisdiction of

a court of law' remains pending and depends for its resolution upon the

outcome of the administrative proceedings ." Ibid . (emphasis

added). Hudson 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. Ibid . "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 . . . ." Sullivan v. Finkelstein,

supra , 496 U.S., at , 110 S.Ct., at 2666-2667.

III

entering a final judgment following the completion of

administrative proceedings, a claimant may collect EAJA fees for work done

at the administrative level. Ibid . "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 . . . ." Sullivan v. Finkelstein,

supra , 496 U.S., at , 110 S.Ct., at 2666-2667.

III

Having decided that EAJA requires a "final judgment" entered by a court,

it is obvious that no "final judgment" was entered in this case before

petitioner initiated his appeal. Petitioner filed a civil action in

District Court under 42 U.S.C. § 405(g), seeking review of the Secretary's

decision that he was not entitled to disability benefits. Without ruling

on the correctness of the Secretary's decision, the District Court

remanded the case for further administrative proceedings. On remand, the

Appeals Council awarded petitioner the disability benefits he sought.

Neither petitioner nor the Secretary returned to District Court for entry

of a final judgment. The question we must decide now is whether either

party is entitled to do so.

The answer depends on what kind of remand the District Court

contemplated. In Finkelstein , we examined closely the language of §

405(g) and identified two kinds of remands under that statute: (1) remands

pursuant to the fourth sentence, and (2) remands pursuant to the sixth

sentence. See 496 U.S., at _____ - _____, 110 S.Ct., at 2663-2665. The

fourth sentence of § 405(g) authorizes a court to enter "a judgment

affirming, modifying, or reversing the decision of the Secretary, with or

without remanding the cause for a rehearing." The parties agree that the

remand order in this case was not entered pursuant to sentence four, as

the District Court did not affirm, modify, or reverse the Secretary's

decision. We concur

3-2665. The

fourth sentence of § 405(g) authorizes a court to enter "a judgment

affirming, modifying, or reversing the decision of the Secretary, with or

without remanding the cause for a rehearing." The parties agree that the

remand order in this case was not entered pursuant to sentence four, as

the District Court did not affirm, modify, or reverse the Secretary's

decision. We concur. The District Court did not make any substantive

ruling; it merely returned the case to the agency for disposition, noting

that both parties agreed to this course.

The sixth sentence of § 405(g), as we explained in Finkelstein, "describes an entirely different kind of remand." Id ., at _____,

110 S.Ct., at 2664. The District Court does not affirm, modify, or reverse

the Secretary's decision; it does not rule in any way as to the

correctness of the administrative determination. Rather, the court remands

because new evidence has come to light that was not available to the

claimant at the time of the administrative proceeding and that evidence

might have changed the outcome of the prior proceeding. Ibid. The

statute provides that following a sentence six remand, the Secretary must

return to the District Court to "file with the court any such additional

or 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) [1]

have changed the outcome of the prior proceeding. Ibid. The

statute provides that following a sentence six remand, the Secretary must

return to the District Court to "file with the court any such additional

or 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) [1]

Petitioner argues, plausibly, that the court contemplated a sentence six

remand. Indeed, it is undisputed that it was consideration of

later-acquired evidence that led the Appeals Council ultimately to reverse

its earlier decision and declare petitioner eligible for benefits from the

date of his original application. Petitioner further argues that this must

have been a sentence six remand because § 405(g) authorizes only two kinds

of remands -- those pursuant to sentence four and those pursuant to

sentence six -- and the Secretary concedes that this was not a sentence

four remand.

The Secretary maintains that this was not a sentence six remand. While

acknowledging that the remand request was prompted by the discovery of new

evidence of disability, see Brief for Respondent 27-28, the Secretary

observes correctly that the sixth sentence of § 405(g) requires a showing

of "good cause" for the failure to present the additional evidence in the

prior proceeding and that the District Court did not rule explicitly that

such a showing had been made. The Secretary also notes that the District

Court did not manifest any intent to retain jurisdiction, as would be the

case under sentence six, but rather remanded to the agency "for all

further proceedings."

ing

of "good cause" for the failure to present the additional evidence in the

prior proceeding and that the District Court did not rule explicitly that

such a showing had been made. The Secretary also notes that the District

Court did not manifest any intent to retain jurisdiction, as would be the

case under sentence six, but rather remanded to the agency "for all

further proceedings."

The Secretary also disputes petitioner's assumption that sentences four

and six set forth the only kinds of remands that are permitted under §

405(g), arguing that the District Court has inherent authority to enter

other types of remand orders. Id., at 28-29, n. 23. On this point,

we think petitioner has the better of the argument. As mentioned, in Finkelstein we analyzed § 405(g) sentence-by-sentence and

identified two kinds of possible remands under the statute. While we did

not state explicitly at the time that these were the only kinds of

remands permitted under the statute, we do so today. Under sentence four,

a district court may remand a conjunction with a judgment affirming,

modifying, or reversing the Secretary's decision. Under sentence six, the

district court may remand in light of additional evidence without making

any substantive ruling as to the correctness of the Secretary's decision,

but only if the claimant shows good cause for failing to present the

evidence earlier. [2] Congress'

explicit delineation in § 405(g) regarding the circumstances under which

remands are authorized leads us to conclude that it intended to limit the

district court's authority to enter remand orders to these two types. Cf. United States v. Smith, 499 U.S. _____, 111 S.Ct. 1180, 113 L.Ed.2d

134 (1991) (expressly enumerated exceptions presumed to be exclusive).

evidence earlier. [2] Congress'

explicit delineation in § 405(g) regarding the circumstances under which

remands are authorized leads us to conclude that it intended to limit the

district court's authority to enter remand orders to these two types. Cf. United States v. Smith, 499 U.S. _____, 111 S.Ct. 1180, 113 L.Ed.2d

134 (1991) (expressly enumerated exceptions presumed to be exclusive).

This reading of the statute is dictated by the plain language of § 405(g)

and is supported by the legislative history. In amending the sixth

sentence of § 405(g) in 1980, Congress made it unmistakably clear that it

intended to limit the power of District Courts to order remands for "new

evidence" in Social Security cases. Pub.L. 96-265, § 307, 94 Stat. 458.

The Senate Report accompanying the amendments explained:

Congressman Pickle, one of the Floor managers of the bill, echoed this

explanation when he noted in a Floor statement that with the amendment "we

have tried to speed up the judicial process so that these cases would not

just go on and on and on. The court could remand [them] back down to the

ALJ without cause or other reason which was weakening the appeal process

at that level." 125 Cong.Rec. 23383 (1979).

The amendment to sentence six, of course, was not intended to limit a

District Court's ability to order remands under sentence four. The House

Report explains that "[t]his language [amending sentence six] is not to be

construed as a limitation of judicial remands currently recognized under

the law in cases which the Secretary has failed to provide a full and fair

hearing, to make explicit findings, or to have correctly apply

[ sic ] the law and regulations." H.R.Rep. No. 96-100, supra, at 13. Thus, under sentence four, a District Court may still remand in

conjunction with a judgment reversing in part the Secretary's decision.

on of judicial remands currently recognized under

the law in cases which the Secretary has failed to provide a full and fair

hearing, to make explicit findings, or to have correctly apply

[ sic ] the law and regulations." H.R.Rep. No. 96-100, supra, at 13. Thus, under sentence four, a District Court may still remand in

conjunction with a judgment reversing in part the Secretary's decision.

It is evident from these passages that Congress believed courts were

often remanding Social Security cases without good reason. While normally

courts have inherent power, among other things, to remand cases, see United States v. Jones, 336 U.S. 641, 671, 69 S.Ct. 787, 803, 93

L.Ed. 938 (1949), both the structure of 405(g), as amended, and the

accompanying legislative history show Congress' clear intent to limit

courts to two kinds of remands in these cases. Cf. Chambers v. Nasco,

Inc., 500 U.S. _____, 111 S.Ct. 2123, _____ L.Ed.2d _____ (1991)

(finding no congressional intent to limit a court's inherent authority to

impose sanctions).

In light of the foregoing, we conclude that in § 405(g) actions, remand

orders must either accompany a final judgment affirming, modifying, or

reversing the administrative decision in accordance with sentence four, or

conform with the requirements outlined by Congress in sentence six.

Construing remand orders in this manner harmonizes the remand provisions

of § 405(g) with the EAJA requirement that a "final judgment" be entered

in the civil action in order to trigger the EAJA filing period. 28 U.S.C.

§ 2412(d)(1)(B). 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. See § 2412(d)(2)(G)

5(g) with the EAJA requirement that a "final judgment" be entered

in the civil action in order to trigger the EAJA filing period. 28 U.S.C.

§ 2412(d)(1)(B). 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. See § 2412(d)(2)(G). 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.

Although we agree with petitioner that the District Court's remand

authority is confined to those circumstances specifically defined in §

405(g), we cannot state with certainty that the remand in this case was,

as petitioner contends, a sentence six remand. As the Secretary points

out, the District Court did not make a finding that "good cause" had been

shown, nor did the court seem to anticipate that the parties would return

to court following the administrative proceedings. Indeed, it may be that

the court treated the joint request for remand as a voluntary dismissal

under Fed. Rule Civ. Proc. 41(a), although the parties did not file a

signed stipulation, as required by the Rule. Because the record before us

does not clearly indicate what the District Court intended by its

disposition, we vacate the judgment and remand the matter to enable the

District Court to clarify its order. If petitioner is correct that the

court remanded the case under sentence six, the Secretary must return to

District Court, at which time the court will enter a final judgment.

Petitioner will be entitled to EAJA fees unless the Secretary's initial

position was substantially justified, a question which was not addressed

by the Court of Appeals. If, on the other hand, this was not a

sentence six remand, it may be that petitioner is not entitled to EAJA

fees at all

the Secretary must return to

District Court, at which time the court will enter a final judgment.

Petitioner will be entitled to EAJA fees unless the Secretary's initial

position was substantially justified, a question which was not addressed

by the Court of Appeals. If, on the other hand, this was not a

sentence six remand, it may be that petitioner is not entitled to EAJA

fees at all. For example, if the court's order was, in effect, a dismissal

under Fed.Rule Civ.Proc. 41(a), the District Court's jurisdiction over the

case would have ended at that point, and petitioner would not have been a

prevailing party "in [a] civil action." 28 U.S.C. § 2412(d)(1)(A). Under

those circumstances, the Secretary would not return to the District Court

and petitioner would not be eligible to receive EAJA fees.

IV

At oral argument the parties discussed the timeliness of petitioner's fee

application. EAJA requires prevailing parties seeking an award of fees to

file with the court, " within thirty days of final judgment in the

action, " an application for fees and other expenses. § 2412(d)(1)(B)

(emphasis added). Petitioner claims that this language permits him to

apply for fees at any time up to 30 days after entry of judgment,

and even before judgment is entered, as long as he has achieved prevailing

party status. Tr. of Oral Arg. 16-18.

This case is not an appropriate vehicle for resolving the issue. If

petitioner is correct that this was a sentence six remand, the District

Court may determine that the application he has already filed is

sufficient. Alternatively, petitioner can easily reapply for EAJA fees

following the District Court's entry of a final judgment. In either case,

petitioner will not be prejudiced by having filed prematurely. On the

other hand, if this was not a sentence six remand, we have already

explained that petitioner would not be entitled to fees, so the timeliness

of the application will not be an issue.

ent. Alternatively, petitioner can easily reapply for EAJA fees

following the District Court's entry of a final judgment. In either case,

petitioner will not be prejudiced by having filed prematurely. On the

other hand, if this was not a sentence six remand, we have already

explained that petitioner would not be entitled to fees, so the timeliness

of the application will not be an issue.

The judgment of the Ninth Circuit Court of Appeals is vacated, and the

case is remanded to the Court of Appeals, with instructions to remand to

the District Court for further proceedings consistent with this

opinion.

It is so ordered.

Justice O'Connor delivered the opinion for a unanimous Court.

[1] Sentence six of § 405(g)

provides in full: "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."

[2] 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 this case.