                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

HOA HONG VAN,                          
                Plaintiff-Appellant,         No. 04-56424
                v.                             D.C. No.
JO ANNE B. BARNHART,                      CV-01-00402-LAB/
Commissioner of Social Security                  AJB
Administration,                                OPINION
               Defendant-Appellee.
                                       
        Appeal from the United States District Court
          for the Southern District of California
         Larry A. Burns, District Judge, Presiding

                 Argued and Submitted
         November 15, 2006—Pasadena, California

                  Filed February 26, 2007

    Before: Dorothy W. Nelson, Stephen Reinhardt, and
              Jay S. Bybee, Circuit Judges.

                Opinion by Judge Reinhardt




                            2133
2136                  VAN v. BARNHART


                        COUNSEL

Alexandra T. Manbeck, San Diego, California, for the
plaintiff-appellant.

Peter D. Keisler, Assistant Attorney General, Carol C. Lam,
United States Attorney, Janice L. Walli, Regional Chief
Counsel, Region IX, John C. Cusker, Assistant Regional
Counsel, Social Security Administration, San Francisco, Cali-
fornia, for the defendant-appellee.
                       VAN v. BARNHART                    2137
                         OPINION

REINHARDT, Circuit Judge:

                               I

   Hoa Hong Van, a successful claimant for Supplemental
Security Income (“SSI”) benefits, appeals the district court’s
denial of her application for attorneys’ fees as time-barred by
the filing provision in the Equal Access to Justice Act
(“EAJA” or “the Act”), which requires a party to submit a fee
application “within thirty days of final judgment in the
action,” 28 U.S.C. § 2412(d)(1)(B), and defines “final judg-
ment” as “a judgment that is final and not appealable . . . .”
Id. § 2412(d)(2)(G). The district court held that because, fol-
lowing a remand under sentence six of 42 U.S.C. § 405(g),
the Commissioner of Social Security (“Commissioner”) con-
sented to a judgment enforcing the agency’s determination in
favor of Van, the judgment became “final and not appealable”
immediately, requiring Van to file her fee application within
30 days after entry of judgment, rather than 30 days after
expiration of the 60-day appeal period provided for in Rule
4(a)(1)(B) of the Federal Rules of Appellate Procedure.
Because Van filed her fee application 62 days after entry of
judgment, the district court denied her application as
untimely. Id.

   In this case, we consider whether in order to be deemed
timely under 28 U.S.C. § 2412(d)(1)(B), a Social Security dis-
ability claimant who, following a remand under sentence six
of 42 U.S.C. § 405(g), obtains a favorable determination from
the agency and enforces it in the district court by a judgment
to which the government consents must file an application for
attorneys’ fees under EAJA within 30 days after the entry of
judgment, or, whether he may file within 30 days following
expiration of the 60-day appeal period provided for by Rule
4(a)(1)(B). We hold that such a claimant, like other successful
sentence-six remand claimants, may file within 30 days after
2138                   VAN v. BARNHART
the 60-day appeal period in Rule 4(a) has expired. Thus, we
reverse the district court and remand with instructions to con-
sider Van’s fee application on the merits.

                               II

   In January 1999, Van filed an application for SSI benefits.
The Social Security Administration (“SSA”) denied her appli-
cation in April 1999, and after a hearing before an Adminis-
trative Law Judge (“ALJ”) in January 2000, the ALJ denied
her claim. In January 2001, the Appeals Council denied Van’s
request for review of the ALJ’s decision, and, in March 2001,
Van filed an action in the district court pursuant to 42 U.S.C.
§ 405(g), challenging the denial of her benefits. Thereafter, in
January 2002, she filed a motion for summary judgment, and,
in response, in February 2002, the Commissioner filed a
motion to remand. On March 27, 2002, the district court
denied Van’s motion for summary judgment and granted the
Commissioner’s motion to remand. The district judge subse-
quently made it clear in an April 16, 2002 order that the
March 27 remand was issued pursuant to sentence six of 42
U.S.C. § 405(g). Van appealed the remand order to this court,
and we held that we lacked jurisdiction to hear an appeal of
a sentence-six remand. Van v. Barnhart, 58 Fed. Appx. 766
(9th Cir. 2003).

   Following the sentence-six remand, the Appeals Council
vacated its earlier decision, and, on June 27, 2003, after con-
sidering new evidence, an ALJ awarded benefits to Van. On
August 6, 2003, Van filed an ex parte motion in the district
court, requesting that the case be reopened and that the district
court issue a final judgment. District Judge Napoleon Jones
reopened the case on August 14, 2003, and on November 12,
2003, Magistrate Judge Anthony Battaglia directed the Com-
missioner to file a supplemental transcript of the proceedings
conducted before the SSA by December 12, 2003. The Com-
missioner submitted the supplemental transcript on December
18, 2003, and on January 22, 2004, Van submitted to the court
                      VAN v. BARNHART                    2139
an ex parte request for a final judgment. On January 28, 2004,
the magistrate judge ordered that a judgment be entered, stat-
ing that “[p]ursuant to this Court’s order of August 14, 2003,
and the results of the post-remand proceedings, which have
been filed with this court, and which found that Plaintiff has
been disabled since January 6, 1999, IT IS HEREBY
ORDERED that Judgment in this matter be entered in favor
of Plaintiff and against Defendant.” Subsequent to the issu-
ance of this order, on February 4, 2004 the Commissioner
filed a document with the district court entitled “Consent to
Entry of Judgment,” which stated that “[b]ecause the Com-
missioner has awarded benefits to Plaintiff following further
proceedings on remand, [the Commissioner] consents to the
entry of judgment as proposed by [Van].” On February 6,
2004, District Judge Larry Burns issued an order identical to
the one issued nine days earlier by the magistrate judge, and
the judgment was entered.

   On April 8, 2004, Van filed a motion for attorneys’ fees
under EAJA with the district court. This filing occurred 62
days after the February 6, 2004 entry of judgment, and 71
days after the January 28, 2004 order. Van requested
$18,947.37 in attorneys’ fees. The Commissioner opposed the
motion and argued, inter alia, that the district court lacked
jurisdiction over it because it was untimely. The Commis-
sioner argued that Van was required to file her motion within
30 days after the entry of judgment, because a party cannot
generally appeal a consent judgment; she urged that in a case
in which the government has so consented, the 30-day period
for filing a motion for attorneys’ fees under 28 U.S.C.
§ 2412(d)(1)(B) begins to run immediately upon the district
court’s entry of final judgment, citing Melkonyan v. Sullivan,
501 U.S. 89, 102 (1991), and Slaven v. American Trading
Trans. Co., 146 F.3d 1066, 1070 (9th Cir. 1998). According
to the Commissioner, neither party could appeal the judgment,
the judgment was “not appealable” and, as a result, the 30-day
period to file for EAJA fees commenced immediately upon
entry of the judgment.
2140                        VAN v. BARNHART
   The district court agreed with the Commissioner’s argu-
ment that Van was required to file her motion for attorneys’
fees within 30 days after entry of the judgment,1 and held that
Van’s motion was untimely because it was filed 62 days after
the February 6, 2004 entry of judgment. Accordingly, it
denied her EAJA application as time-barred in a written order
filed August 4, 2004.2 Thereafter, Van filed a timely appeal
with this court. We have jurisdiction under 28 U.S.C. § 1291.

   On appeal, Van asserts that her motion for attorneys’ fees
was timely filed, because the 30-day period in
§ 2412(d)(1)(B) did not begin to run until 60 days after entry
of the judgment, and she filed 62 days after entry — just two
days into the 30-day period. Van argues that under Melkonyan
and Shalala v. Schaefer, 509 U.S. 292 (1993), when a Social
Security disability claimant’s case is remanded pursuant to
sentence six of 42 U.S.C. § 405(g), and she subsequently
obtains a district court judgment enforcing a favorable agency
determination, the 30-day filing period does not begin to run
until the 60-day appeal period provided for in Rule 4(a)(1)(B)
has expired, whether or not the government has consented to
the judgment. See Fed. R. App. P. 4(a)(1)(B). Relying in part
on the legislative history of EAJA, Van asserts that the regu-
lar statutory filing period, which includes the 60-day appeal
  1
     The district court explained that “[n]o reservation of the right to appeal
accompanied the Defendant’s consent to entry of the judgment. The Court
finds the judgment entered was accordingly not appealable. Slaven, 146
F.3d at 1070.”
   2
     We note that the district court correctly held that it had subject matter
jurisdiction over Van’s fee application, even if it was untimely filed. After
Scarborough v. Principi, 541 U.S. 401 (2004), § 2412(d)(1)(B)’s 30-day
filing requirement is no longer considered jurisdictional. Scarborough,
541 U.S. at 413-14 (stating that § 2412(d)(1)(B)’s “30-day deadline for fee
applications and its application-content specifications are not properly
typed ‘jurisdictional.’ ”); Zheng v. Ashcroft, 383 F.3d 919, 922 n.5 (9th
Cir. 2004) (“The Supreme Court has recently instructed us to avoid the
phrase ‘jurisdictional’ ” in the context of “our adherence to the EAJA’s
timely filing requirement.”) (citing Scarborough, 541 U.S. at 413-14).
                        VAN v. BARNHART                       2141
period, is unaffected by the Commissioner’s consent to a
judgment that follows a remand under sentence six.

                               III

   We review for an abuse of discretion a district court’s
denial of attorneys’ fees under EAJA, but an error of law con-
stitutes an abuse of discretion. Akopyan v. Barnhart, 296 F.3d
852, 856 (9th Cir. 2002) (citing Cooter & Gell v. Hartmarx
Corp., 496 U.S. 384, 405 (1990); Lewis v. Barnhart, 281 F.3d
1081, 1083 (9th Cir. 2002)).

                                IV

   [1] “The Equal Access to Justice Act (EAJA or Act)
departs from the general rule that each party to a lawsuit pays
his or her own legal fees.” Scarborough, 541 U.S. at 404-05
(citing Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421
U.S. 240, 257 (1975)). Under EAJA, “[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[,]” Flores v. Shalala, 49 F.3d 562, 566 (9th
Cir. 1995), but not when the “court finds that the position of
the United States was substantially justified . . . .” 28 U.S.C.
§ 2412(d)(1)(A).

   [2] EAJA, however, limits the time during which a claim-
ant may file a fee application. See id. § 2412(d)(1)(B). Under
§ 2412(d)(1)(B), “[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 . . . .” Id.
(emphasis added). Section 2412(d)(2)(G), in turn, provides
that “ ‘final judgment’ means a judgment that is final and not
appealable . . . .” Id. As a result, in order to be timely, a party
seeking attorneys’ fees must file his application within 30
days after a “judgment that is final and not appealable.” Id.
2142                   VAN v. BARNHART
The applicable statutory provisions are contained in EAJA as
re-enacted in 1985. Equal Access to Justice Act, Extension
and Amendment, Pub. L. No. 99-80, § 2(c)(2)(G), 99 Stat.
183, 185 (1985).

   In this case, we must first examine the law, as it has thus
far been established, regarding when a judgment enforcing an
agency determination favorable to a Social Security disability
claimant, following a remand under sentence six of 42 U.S.C.
§ 405(g), constitutes a “final judgment,” or, more specifically,
a “judgment that is final and not appealable . . . .” 28 U.S.C.
§§ 2412(d)(1)(B), 2412(d)(2)(G). We must then determine
whether a different rule applies in cases in which the govern-
ment consents to the entry of the judgment. In construing the
applicable statutory provisions, our “objective is to ascertain
the intent of Congress in enacting [them] and give effect to
the legislative will.” United States v. Stephens, 424 F.3d 876,
882 (9th Cir. 2005). Accordingly, if the plain language of
§ 2412(d) “renders its meaning reasonably clear, the court
will not investigate further unless its ‘application leads to
unreasonable or impracticable results.’ ” Id. (quoting United
States v. Daas, 198 F.3d 1167, 1174 (9th Cir. 1999)). Because
here the statute is ambiguous, and because judicial decisions
have previously considered the pertinent language and the
legislative history behind it, we rely primarily on prior deci-
sions interpreting these terms as well as the relevant legisla-
tive history. See Al-Harbi v. INS, 284 F.3d 1080, 1082-84 (9th
Cir. 2002) (discussing the legislative history behind the 1985
re-enactment of EAJA and stating that “under this statutory
language, there is more than one plausible interpretation of
‘final judgment.’ ”) (citation omitted); see also Melkonyan,
501 U.S. at 95-96 (consulting the legislative history behind
§ 2412(d) to determine when a “final judgment” occurs under
EAJA). In particular, we review two Supreme Court decisions
issued subsequent to EAJA’s 1985 re-enactment that interpret
the term “final and not appealable” in Social Security disabil-
ity cases involving remands under 42 U.S.C. § 405(g),
Melkonyan, 501 U.S. at 101-02, and Schaefer, 509 U.S. at
                           VAN v. BARNHART                           2143
298. We also examine pertinent circuit court decisions inter-
preting § 2412(d) and the relevant legislative history of the
Act.

   [3] Before discussing Melkonyan and Schaefer, however,
we briefly review the statutory authority for both judicial
review and remands in Social Security cases. Pursuant to 42
U.S.C. § 405(g), an individual may seek judicial review in the
district court “after any final decision of the Commissioner of
Social Security made after a hearing to which he was a
party[.]” Id. Once a claimant brings an action under § 405(g),
the district court may remand to the Commissioner of Social
Security Administration only under sentence four3 or sentence
six4 of § 405(g). Akopyan, 296 F.3d at 854 (citing Schaefer,
509 U.S. at 296; Melkonyan, 501 U.S. at 99-100). A remand
under sentence four is “essentially a determination that the
agency erred in some respect in reaching a decision to deny
   3
     Sentence four of § 405(g) provides that “[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 Commissioner of
Social Security, with or without remanding the cause for a rehearing.”
   4
     Sentence six of § 405(g) provides that “[t]he court may, on motion of
the Commissioner of Social Security made for good cause shown before
the Commissioner files the Commissioner’s answer, remand the case to
the Commissioner of Social Security for further action by the Commis-
sioner of Social Security, and it may at any time order additional evidence
to be taken before the Commissioner of Social Security, 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 Commissioner of Social Security shall, after
the case is remanded, and after hearing such additional evidence if so
ordered, modify or affirm the Commissioner’s findings of fact or the Com-
missioner’s decision, or both, and shall file with the court any such addi-
tional and modified findings of fact and decision, and, in any case in
which the Commissioner has not made a decision fully favorable to the
individual, a transcript of the additional record and testimony upon which
the Commissioner’s 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.”
2144                   VAN v. BARNHART
benefits[,]” id. (citing Jackson v. Chater, 99 F.3d 1086, 1095
(11th Cir. 1996)), whereas a remand under sentence six can
be ordered only in two particular instances: “where the Com-
missioner requests a remand before answering the complaint,
or where new, material evidence is adduced that was for good
cause not presented before the agency.” Id. at 854-55 (citing
Schaefer, 509 U.S. at 297 n.2).

                               V

  In Melkonyan, the Supreme Court interpreted EAJA in the
context of a Social Security action, and explained that in
1985, when Congress reenacted § 2412(d)(1)(B), it adopted
an “unusual” definition of “final judgment” in order to resolve
a circuit split between this court and the Seventh Circuit
regarding whether the 30-day period in § 2412(d)(1)(B)
begins to run when a judgment is entered or only after the
appeal period has run. 501 U.S. at 95-96.

   Congress opted for the latter approach, the more liberal rule
that had been adopted by the Seventh Circuit. The Court
stated that

    [a]s for why Congress added the unusual definition
    of “final judgment,” the answer is clear. “The defini-
    tion . . . was added in 1985 to resolve a conflict in
    the lower courts on the question whether a ‘judg-
    ment’ was to be regarded as ‘final’ for EAJA pur-
    poses when it was entered, or only when the period
    for taking an appeal had lapsed.” Brief for Respon-
    dent 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 fil-
    ing 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
                       VAN v. BARNHART                       2145
    F.2d 311, 314 (1983). . . . 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 believes that the
    interpretation of the court in [McDonald ] is the cor-
    rect one”). See also H.R.Rep. No. 98-992, p.14
    (1984) (“The term ‘final judgment’ has been clari-
    fied to mean a judgment the time to appeal which
    has expired for all parties”); H.R.Rep. No. 99-120, p.
    18 (1985).

Id.; see also H.R. Rep. No. 99-120, at 18 n.26 (1985),
reprinted in 1985 U.S.C.C.A.N. 132, 146 n. 26 (stating that
“the term ‘final judgment’ has been clarified to mean a judg-
ment that is final and not appealable,” and specifying that
when a district court judgment is not appealed by the govern-
ment, “the thirty-day period would begin to run upon expira-
tion of the time for filing the notice of appeal”).

   In McDonald, the Seventh Circuit, in an opinion authored
by Judge Posner, had reasoned that the “practical conse-
quences” that would flow from requiring a fee application to
be filed within 30 days of judgment necessitated interpreting
EAJA’s 30-day period as beginning after the period for appeal
had expired. 726 F.2d at 314. Otherwise, as Judge Posner
wrote, some applicants might be compelled to file multiple
costly fee applications or file applications prior to when the
fees were fully ascertainable following the appellate proceed-
ings. Id. Moreover, requiring a fee applicant to file an applica-
tion before the government could file its own appeal would
serve as a “perverse weapon for discouraging meritorious fee
applications[,]” because the government might appeal the
underlying judgment if it learned that the fees were signifi-
cant. Id. at 315. This would create a dilemma for claimants
considering whether to file a fee application, which the “fram-
ers of [EAJA] could not have meant to create . . . when they
used the words ‘final judgment’ . . . .” Id.
2146                   VAN v. BARNHART
   With these adverse practical consequences in mind, Con-
gress ratified the McDonald approach in the 1985 reenactment
of EAJA, and expressed similar reasons to those stated by the
McDonald court for adopting the “final and not appealable”
language. See Adams v. SEC, 287 F.3d 183, 190 (D.C. Cir.
2002) (“That Congress adopted the McDonald approach for
applications in judicial proceedings under § 2412 suggests
that Congress also agreed with the court’s underlying reason-
ing . . . .”). For instance, a House Report stated that “[b]y
adopting the [Seventh Circuit’s] interpretation,” the amend-
ment will “give both courts and litigants clear guidance on
what is expected and avoid the unnecessary confusion which
accompanied this issue in the past.” H.R. Rep. No. 99-120, at
7 (1985).

   [4] In addition to explaining the origin of the term “final
judgment” in § 2412(d)(1)(B), the Melkonyan Court clarified
how this term applies in the context of the two types of
remands of Social Security cases under 42 U.S.C. § 405(g).
Because the Melkonyan Court was uncertain whether the dis-
trict court had intended to issue a sentence-four remand or a
sentence-six remand, it stated when the judgment would
become a “final judgment” for the purpose of § 2412(d)(1)(B)
in each instance. In sentence-four remands, the Court con-
cluded, “the filing period begins after the final judgment (‘af-
firming, 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).” Melkonyan, 501 U.S. at
102 (emphasis added). In sentence six cases, the Court said,
“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.” Id.
(emphasis added); accord Akopyan, 296 F.3d at 855 (citing
Melkonyan, 501 U.S. at 102).

   [5] As a result of this formulation by the Supreme Court,
although the timing of a fee application following a sentence-
six remand differs from that of a fee application following a
                       VAN v. BARNHART                      2147
sentence-four remand, it does so primarily because the former
may only be filed after the completion of the post-remand
proceedings and a return to the district court to enter a judg-
ment. Melkonyan, 501 U.S. at 102; Flores, 49 F.3d at 568.
Once the requisite judgment is entered, however, the timing
is identical in both types of cases, in that in both the claimant
must file within 30 days after the appeal period provided for
in Rule 4(a) has run. See Melkonyan, 501 U.S. at 102; Schae-
fer, 509 U.S. at 298, 302; Akopyan, 296 F.3d at 857; Yang v.
Shalala, 22 F.3d 213, 215-16 (9th Cir. 1994). Because the
prescribed appeal period in Rule 4(a) for cases in which the
United States is a party is 60 days, Fed. R. App. P. 4(a)(1)(B),
a judgment in an SSI case is “no longer appealable” or “not
appealable” when the 60-day post-judgment appeal period has
run. See Melkonyan, 501 U.S. at 102; accord Barry v. Bowen,
825 F.2d 1324, 1327 (9th Cir. 1987) (“The judgment is final
when it is no longer appealable, 28 U.S.C. § 2412(d)(2)(G),
and this occurs when the government’s sixty-day period in
which to appeal has elapsed, see Fed. R. App. P. Rule
4(a)(1).”). Melkonyan neither set forth nor implied the exis-
tence of any exceptions to its rule.

                               VI

   The government asserts, nevertheless, that a different rule
applies when it consents to the entry of a judgment favorable
to an SSI claimant. In such a case, it contends, there is no
appeal period, and the 30 days begins to run immediately
upon the entry of judgment rather than upon the expiration of
the 60-day appeal period provided for in Rule 4(a). We reject
this contention, and hold that the 60-day appeal period applies
whether or not the government consents to the judgment.

   We begin our analysis of the government’s argument by
examining Melkonyan further. Notably, the Melkonyan Court
stated that, for sentence-six remands, the filing period begins
after the “appeal period runs[,]” despite the fact that the Court
had already recognized that on remand the agency had found
2148                    VAN v. BARNHART
the “petitioner disabled” and had “granted petitioner all the
relief he had initially requested.” 501 U.S. at 92, 102. More-
over, despite knowing that the Commissioner had awarded the
benefits and would, therefore, in all likelihood consent to a
judgment for Melkonyan in the district court, the Court con-
cluded its opinion by stating that if “this was a sentence six
remand . . . petitioner can easily reapply for EAJA fees fol-
lowing the District Court’s entry of a final judgment.” Id. at
103 (emphasis added). The Court did not qualify this state-
ment with any suggestion that, should the Commissioner for-
mally consent to the award of the relief the agency had
ordered, the entry of the judgment granting benefits would, in
direct contravention of the rule it had just announced, consti-
tute a “final judgment” before Rule 4(a)’s 60-day “appeal
period runs.” Id. at 102-103.

   [6] We recognize that attorneys’ fees are frequently sought
in sentence-six remand cases when the Commissioner has,
upon remand, awarded benefits to the disabled claimant, and
that attorneys’ fees are not sought in cases in which the claim-
ant is ultimately unsuccessful. We also recognize that in the
former category of cases the Commissioner ordinarily has lit-
tle reason to object to the judgment. In light of the Court’s
failure to distinguish between district court judgments favor-
able to the claimant to which the government formally con-
sents, and those to which it merely fails to object (or even
those to which it may for some reason object), we read
Melkonyan as adopting a uniform approach to all favorable
judgments that follow sentence-six remands. Thus, under
Melkonyan, a successful disability applicant may file for
attorneys’ fees 30 days after the 60-day appeal period pro-
vided for in Rule 4(a) has run, regardless of the specific form
of the court’s judgment, or the particular nature of the govern-
ment’s non-opposition to or acquiescence in an award of ben-
efits. Such a uniform approach is consistent with the intent of
Congress, as evidenced by the House Report — the same
report cited in Melkonyan — which stated that “by adopting
the [ ] interpretation” that “a judgment [is] final . . . when the
                           VAN v. BARNHART                           2149
time to appeal had run,” it “will give both courts and litigants
clear guidance on what is expected and avoid the unnecessary
confusion which accompanied this issue in the past.” H.R.
Rep. No. 99-120, at 7 (1985). Under a uniform approach, liti-
gants will have “clear guidance on what is expected,” id.,
removing any uncertainty or confusion about the appropriate
date to file fee applications following sentence-six remands.
Further, a uniform approach to judgments following post-
sentence-six remands “avoid[s] an overly technical construc-
tion of these terms[,]” and ensures that the definition of “final
judgment” is not “used as a trap for the unwary resulting in
the unwarranted denial of fees.” Id. at 18 n.26.

   We previously made this very point in Al-Harbi, where we
stated that “[W]hen Congress re-enacted the EAJA in 1985,
it sought to clarify its intent by defining final judgment in a
manner that would avoid the ‘overly technical’ approach pre-
viously taken by some courts.” Al-Harbi, 284 F.3d at 1084
(internal quotation and citation omitted); see also id. (citing
H.R. Rep. No. 99-120, at 18 n. 26 (“This section should not
be used as a trap for the unwary resulting in the unwarranted
denial of fees”); Myers v. Sullivan, 916 F.2d 659, 668 (11th
Cir. 1990) (finding that the 30-day requirement “should be
interpreted broadly and that overtechnical constructions of the
requirement should be avoided.”)); Adams, 287 F.3d at 190-
91 (“Realization of [the purpose of EAJA] necessarily
requires an interpretation of the procedural requirements of
EAJA in a manner that is not unduly confusing or misleading
so that they are not a ‘trap for the unwary.’ ”) (quoting Myers,
916 F.2d at 670).

   [7] Contrary to the government’s argument, the fact that it
has consented to a judgment following a sentence-six-remand
does not necessarily mean that the judgment is “not appeal-
able.” § 2412(d)(2)(G). As the government acknowledges,
there are exceptions to the rule that consent judgments are not
subject to appeal.5 Given that some consent judgments may in
  5
   “In general, a party cannot appeal a judgment entered with its consent.”
Slaven v. American Trading Transp. Co., 146 F.3d 1066, 1070 (9th Cir.
2150                        VAN v. BARNHART
fact be appealed, a claimant cannot know with certainty that
the Commissioner will not file a notice of appeal in his case
until the 60-day appeal period has ended; nor can the claimant
be certain that the Commissioner will not decide to invoke
one of the existing exceptions to the general rule, or ask the

1998); see also U.A. Local 342 Apprenticeship & Training Trust v. Bab-
cock & Wilcox Constr. Co., 396 F.3d 1056, 1058 (9th Cir. 2005) (citing
Slaven, 146 F.3d at 1070). There are, however, several exceptions to this
general rule of non-appealability, including: (1) where there was no actual
consent; (2) where the district “court lacked subject matter jurisdiction to
enter the judgment[,]” Tapper v. Commissioner, 766 F.2d 401, 403 (9th
Cir. 1985); and (3) where a party “ ‘intended to preserve its right of
appeal,’ ” U.A. Local 342, 396 F.3d at 1058 (quoting Christian Sci. Read-
ing Room Jointly Maintained v. City & County of S.F., 784 F.2d 1010,
1017 (9th Cir. 1986)), or “specifically preserves its right to appeal.” Sla-
ven, 146 F.3d at 1070. Furthermore, when the Commissioner has opposed
a sentence-six remand, an interlocutory order, and then subsequently
returns to the district court, she may wish to challenge the prior order after
an appealable judgment has been entered. Myers, 916 F.2d at 673 (“The
fact that the Secretary, under the compulsion of the district court’s remand
order, arrived at a new decision, need not change the fact that the Secre-
tary might believe the first remand decision was erroneous. Under general
legal principles, earlier interlocutory orders merge into the final judgment,
and a party may appeal the latter to assert error in the earlier interlocutory
order. . . . [W]e find it entirely reasonable for a claimant to believe that
the Secretary, having finally obtained an appealable judgment of the dis-
trict court, might seek to obtain review of the district court’s earlier
remand order.”) (citations omitted). Indeed, when Van appealed the
sentence-six remand order to this court, we accepted, in an unpublished
memorandum disposition, the government’s argument that “the district
court’s order was not final because it [was] remanded [ ] under sentence
six.” Van, 58 Fed. Appx. 766; see also Brief of Appellee at 6, Van v.
Barnhart, 58 Fed. Appx. 766 (9th Cir. Sept. 30, 2002) (“[A] sentence six
remand is considered interlocutory and non-appealable, because the dis-
trict court retains jurisdiction over the action pending further development
and consideration by the ALJ.”) (citing Raitport v. Callahan, 183 F.3d
101, 104 (2d Cir. 1999)). If the Commissioner has no objection to the
agency determination other than her contention that the sentence-six
remand was improper, she may have no reason to object to entry of the
judgment and may indeed welcome it as a necessary step toward bringing
her previously barred appeal to the circuit court.
                       VAN v. BARNHART                     2151
court to create a new one. Thus, under the case-specific
approach advocated by the Commissioner — asking post hoc
whether the judgment obtained by the specific litigant was
appealable when it was entered — Social Security disability
litigants who obtain judgments to which the government con-
sents following sentence-six remands would be subject to the
very uncertainty as to whether the Commissioner may or
could appeal — and as to when the 30 days begins to run —
that Congress and this court so assiduously sought to avoid.

   If we were to adopt the government’s case-specific
approach to sentence-six cases, we would be encouraging the
very type of “unnecessary confusion which accompanied this
issue in the past[,]” H.R. Rep. No. 99-120, at 7 (1985), and
would revive the concerns raised by the Seventh Circuit in
McDonald — the same concerns that prompted Congress to
amend the definition of “final judgment” to avoid entrapping
unwary fee applicants. Id. at 18 n.26; S. Rep. 98-586, at 16
(1984); accord Adams, 287 F.3d at 191 (concluding that a
“case-specific approach [ ] constitutes” the type of “trap” that
Congress intended the courts to avoid when interpreting
EAJA, and stating that it “would pointlessly leave consider-
able uncertainty about when EAJA’s 30 day deadline would
expire and result in an unworkable rule”); Scafar Contracting,
Inc. v. Secretary of Labor, 325 F.3d 422, 431 (3rd Cir. 2003)
(following Adams and stating that requiring the filing of a fee
application before the agency could appeal would “breathe
life into the hypothetical problems and concerns earlier
expressed by this Court and others over the proper interpreta-
tion of § 2412’s ‘final judgment’ in the context of [5 U.S.C.]
§ 504.”).

   [8] Finally, we conclude that a uniform rule governing
judgments that follow sentence-six remands comports with
our recent statement that we “ ‘construe[ ] the Act’s definition
of “final judgment” as designating the date’ ” when “ ‘there
is no longer any possibility that the district court’s judgment
is open to attack.’ ” Al-Harbi, 284 F.3d at 1084 (quoting
2152                   VAN v. BARNHART
Myers, 916 F.2d at 669). Where there is a potential for either
party to appeal a particular type of judgment under the rele-
vant statute that designates the time to appeal, there is a “pos-
sibility that the district court’s judgment is open to attack”
during the period provided for in the statute. Al-Harbi, 284
F.3d at 1084 (emphasis added) (quoting Myers, 916 F.2d at
669); accord Adams, 287 F.3d at 191. Even if a court deter-
mining the timeliness of an EAJA fee application could have
reasonably concluded at the outset of the appeal period that
the particular judgment would not be appealable, the mere
fact that there was a potential for the type of judgment to be
appealed under the relevant statute means that — at least from
the standpoint of the claimant — there was a possibility that
the judgment was “open to attack” during the appeal period.
Al-Harbi, 284 F.3d at 1084. Because, in a number of circum-
stances, there is a potential for a party to appeal a judgment
to which it consented, see U.A. Local 342, 396 F.3d at 1058;
Slaven, 146 F.3d at 1070; Tapper, 766 F.2d at 403, there is
a “possibility” with respect to any such individual judgment
that it “is open to attack” during the 60-day appeal period pro-
vided for in Rule 4(a). Al-Harbi, 284 F.3d at 1084. Accord-
ingly, the 30-day filing period for all such judgments does not
begin to run until the 60-day period in Rule 4(a) has actually
lapsed, or, until an appeal has been completed, thereby elimi-
nating “any possibility” that a party could institute a further
attack upon the particular judgment. Id.

                              VII

   Not only do Melkonyan and the legislative history of
§ 2412(d)(1)(B) dictate the use of a uniform rule in the case
of judgments that follow sentence-six remands, but the
Court’s subsequent decision in Schaefer and our decisions
interpreting § 2412(d)(1)(B) in the context of sentence-four
remands also support that same conclusion. Two years after
Melkonyan, the Supreme Court again addressed the question
of when a “final judgment” occurs under § 2412(d)(1)(B), this
time in a sentence-four remand case, Shalala v. Schaefer, 509
                            VAN v. BARNHART                              2153
U.S. 292 (1993). In Schaefer, when considering the rule to be
applied to sentence four cases, the Court reiterated — without
qualification — that “[w]e described the law with complete
accuracy in Melkonyan, when we said . . . [that] ‘[i]n 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.’ ” Id. at 298 (emphasis added) (quoting
Melkonyan, 501 U.S. at 102). Later in the opinion, when
determining whether a fee application that followed a
sentence-four remand was timely, the Schaefer Court stated
that “[a]n 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[,]” id. at 302 (citing
§§ 2412(d)(1)(B), 2412(d)(2)(G); Melkonyan, 501 U.S. at
102), and then explained that the time for appeal is deter-
mined by Rule 4(a) of the Federal Rules of Appellate Proce-
dure. Id.6

   As in Melkonyan, Schaefer concluded that for sentence six
and sentence four cases the filing period begins after the
appeal period runs, id. at 298 (citing Melkonyan, 501 U.S. at
102); id. at 302-03, again without suggesting that only in
cases in which the Commissioner opposes the judgment does
a fee applicant receive the benefit of the 60-day appeal period.
Indeed, several courts, including this court, have applied
Schaefer’s holding that an EAJA application may be filed
within 30 days after the 60-day period provided for in Rule
4(a) in cases in which both the claimant and the Commis-
sioner have consented to the entry of a judgment of a
sentence-four remand. See Akopyan, 296 F.3d at 856-57.7 In
  6
     In Schaefer, the district court had not yet entered the judgment in a sep-
arate document, as required by Federal Rule of Civil Procedure 58. 509
U.S. at 302-03. Accordingly, the judgment remained appealable and the
EAJA application was timely, given that “EAJA’s 30-day time limit runs
from the end of the period for appeal, not the beginning.” Id. at 303
(emphasis in original).
   7
     See also Dinunzio v. Apfel, 101 F. Supp. 2d 1028, 1030, 1032 (N.D.
Ill. 2000); Luna v. Apfel, 986 F. Supp. 275, 279 (D.N.J. 1997) (holding
2154                       VAN v. BARNHART
Akopyan, although both parties had stipulated to a sentence-
four remand order,8 we concluded that the claimant had the
benefit of the entire 60-day appeal period in Rule 4(a), plus
the 30-day period in § 2412(d)(1)(B), to file a timely EAJA
application. Akopyan, 296 F.3d at 856-57 (“Because this sen-
tence four remand was a final judgment in the case, the time
frame for Akopyan to file his petition for attorneys’ fees
began to run upon expiration of the 60 day appeal period.”)
(citing Schaefer, 509 U.S. at 302).

   Akopyan differs from the case at hand because the judg-
ment at issue in Akopyan was a sentence-four remand order,
and the judgment at issue here is a judgment awarding bene-
fits to which the Commissioner consented following a
sentence-six remand. Yet, significantly, both cases involve
judgments to which the government had consented but which
were still potentially appealable to this court, under the excep-
tions discussed earlier. We see no reason to interpret a judg-

that because a consent judgment ordering a sentence-four remand
remained appealable for 60 days after the entry of judgment, EAJA’s
“thirty-day [filing] period does not commence on the date of entry of the
consent judgment”); Christian v. Apfel, No. 96-7766, 1998 U.S. Dist.
LEXIS 11564, at *6 (S.D.N.Y. July 29, 1998) (following Luna and hold-
ing timely an EAJA fee application that was filed shortly before 90 days
had elapsed after the entry of judgment of a sentence-four remand to
which the parties had consented).
   8
     In Akopyan, the claimant was denied SSI benefits, but upon judicial
review the district court ordered a sentence-six remand, and again the
claimant was denied benefits. Id. at 855. The claimant then brought an
action in the district court, which issued a sentence-four remand on June
4, 1998 pursuant to a stipulation signed by counsel of both parties and the
court. Id. at 855-56. On remand, in February 2000, an ALJ awarded
Akopyan benefits, but Akopyan did not file his petition for attorneys’ fees
under EAJA until February 2001. Id. at 855. The district court determined
that Akopyan’s application was time-barred, and we affirmed, because
Akopyan had not filed his application by September 2, 1998 or 90 days
after the district court’s sentence-four remand order to which both parties
had stipulated. Id. at 855, 857-58.
                       VAN v. BARNHART                      2155
ment to which the government consented in a sentence-six
remand case differently than a judgment entered with the gov-
ernment’s consent in a sentence-four remand case. Nor does
the government suggest how the instant case is distinguish-
able from Akopyan, in which it urged us to commence
EAJA’s 30-day filing period following the 60-day appeal
period, although it had consented to the judgment ordering a
remand.

   Our conclusion is consistent with the approach followed by
the D.C. Circuit in Adams. 287 F.3d at 191. In Adams, the
D.C. Circuit rejected a case-specific rule such as is advocated
by the government here — a rule that would require a deter-
mination of the “appealability” of the specific judgment
obtained by the fee applicant. Id. at 191. Instead, the D.C. Cir-
cuit adopted a “bright-line rule” that simply entails “looking
at the category of order in question and the applicable law of
appealability.” Id. Thus, “[w]hen a potential appeal exists
under the relevant statute, the time for appeal must lapse or
the appeal be completed, before the 30-day deadline begins to
run.” Id. (citing Myers, 916 F.2d at 671-72, 674). As the D.C.
Circuit said, the benefit of the rule is that it “eliminates the
high potential for confusion resulting from determining
‘appealability’ on a case-by-case basis and appropriately
avoids the practical problems that the Seventh Circuit
described [in McDonald].” Id.; accord Scafar, 325 F.3d at
431. Because, as discussed above, under the exceptions to the
general rule, there is a potential for cases in the category of
order — consent judgments — to be appealed during the 60-
day appeal period, EAJA’s 30-day filing period does not
begin to run under the bright-line rule until that 60-day period
“lapse[s] or the appeal [is] completed.” Adams, 287 F.3d at
191.

                              VIII

  [9] In sum, Melkonyan and Schaefer, the decisions of this
and other circuits, and the legislative history of § 2412(d) dic-
2156                   VAN v. BARNHART
tate the conclusion that EAJA’s 30-day filing period does not
begin to run until after the 60-day appeal period in Rule 4(a)
has lapsed, even when the Commissioner of Social Security
Administration, following a sentence-six remand, has
awarded benefits to a claimant who then obtains a judgment
to which the Commissioner consents in the district court. We
reject the government’s suggested case-specific rule for deter-
mining when a judgment is “not appealable” under
§ 2412(d)(2)(G). Because there is a potential for consent judg-
ments to be appealed, such a rule would leave fee applicants
uncertain as to when to file and would revive the very confu-
sion and difficulties that Congress sought to eliminate when
it re-enacted EAJA in 1985. Because Van’s fee application
was filed only two days after the 60-day period expired, it fell
well within the 30-day filing period. Accordingly, we hold
that the district court erred in denying Van’s fee application
as untimely. We therefore remand to the district court to con-
sider Van’s fee application on the merits.

  Reversed and Remanded.
