
USCA1 Opinion

	




        September 30, 1992       ____________________        No. 92-1066                                    JOSEPH LABRIE,                                Plaintiff, Appellant,                                          v.                       SECRETARY OF HEALTH AND HUMAN SERVICES,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Jack Comart and Patrick Ende on brief for appellant.            ___________     ____________            Richard  S.  Cohen, United  States  Attorney,  Stuart  M.  Gerson,            __________________                             __________________        Assistant  Attorney  General, William  Kanter  and  Edward T.  Swaine,                                      _______________       _________________        United States Department of Justice, on brief for appellee.                                 ____________________                                 ____________________                 Per  Curiam.   This case  compels us  to enter  the fray                 ___________            which has arisen in the wake of Melkonyan v. Sullivan, 111 S.                                            _________    ________            Ct. 2157 (1991), concerning the timeliness of attorney's fees            applications  in  so-called "sentence  four"  Social Security            remands.  The district court read that decision as creating a            "procedural no-man's land"--as mandating that the application            here be denied because  it was not  filed at an earlier  time            when,  under  then-prevailing   law,  it   would  have   been            premature.  We disagree.                                          I.                 The facts are straightforward.  Joseph Labrie (claimant)            filed  an   application  for  Supplemental   Security  Income            benefits  in December  1985.   The  Administrative Law  Judge            (ALJ)  denied  the  claim  at step  five  of  the  sequential            evaluation, the Appeals  Council denied review, and  claimant            filed  a timely appeal.  A magistrate-judge, to whom the case            was referred,  determined that the  Secretary's decision  was            unsupported by substantial evidence.  In particular, he found            that the Secretary failed  adequately to consider  claimant's            subjective   complaints  of   pain.     The  magistrate-judge            recommended   that  the   case   be   remanded  for   further            proceedings.  On January 9, 1990, neither party having  filed            an objection,  the district  court entered an  order adopting            the  magistrate-judge's  report and  recommendation, vacating                                         -2-            the Secretary's decision,  and remanding  for further  agency            action.                   On  remand, the  ALJ  conducted a  new  hearing and,  on            September 17,  1991, issued  a decision awarding  benefits to            claimant.  Following the  prevailing practice, claimant  then            submitted  to the  district  court, on  October  22, 1991,  a            proposed  final order  and  application  for attorney's  fees            under the Equal  Access to  Justice Act (EAJA),  28 U.S.C.               2412(d).   Among the prerequisites  to an EAJA  award is that            the party file  an application "within  thirty days of  final            judgment  in the action."   Id.   2412(d)(1)(B).   Relying on                                        ___            Melkonyan, the district court  determined that its January 9,            _________            1990 remand  order constituted the final  judgment, such that            claimant's  application  needed  to have  been  filed  within            ninety  days of that date.1  The application was thus denied,            on  November 5,  1991, as  being over  eighteen  months late.            Claimant thereafter  filed motions  for relief under  Fed. R.            Civ.  P. 59(e)  and 60(b),  which were  denied on  January 3,            1992.  The district  court acknowledged that its  ruling "may            be  perceived as an  unfair result,"2 but  considered such an                                            ____________________            1.  As used in EAJA, final judgment "means a judgment that is            final  and   not  appealable,   and  includes  an   order  of            settlement."   28 U.S.C.   2412(d)(2)(G).  Under Fed. R. App.            P. 4(a)(1),  the remand order  was "not appealable"  after 60            days--giving claimant a total of 90 days to file for fees.            2.  As  the court  realized, pre-Melkonyan  case law  in this                                             _________            circuit was  to  the  contrary.    See,  e.g.,  Guglietti  v.                                               ___   ____   _________            Secretary of HHS,  900 F.2d  397, 400 (1st  Cir. 1990)  (mere            ________________                                         -3-            outcome mandated by the intervening Melkonyan decision.  This                                                _________            appeal followed.                                         II.                 A trio  of Supreme Court decisions  involving claims for            disability benefits  informs the analysis here.   In Sullivan                                                                 ________            v.  Hudson, 490 U.S. 877 (1989), the Court determined that an                ______            EAJA  fee award  could  encompass work  performed before  the            agency  on remand.   Specifically, it found  that such agency            proceedings may be so  "intimately connected" to the judicial            proceedings as to be  considered part of the  "civil action"3            for which EAJA fees were available.  Id. at 892.  In reaching                                                 ___            this conclusion, the  Court first took note  of the "somewhat            unusual" judicial review provisions in 42 U.S.C.   405(g):                 The   detailed  provisions  for   the  transfer  of                 proceedings  from the  courts to the  Secretary and                 for  the  filing   of  the  Secretary's  subsequent                 findings with the court  suggest a degree of direct                 interaction   between  a   federal  court   and  an                 administrative agency alien  to traditional  review                                            ____________________            obtaining  of a  remand does not  make claimant  a prevailing            party under EAJA).             3.  EAJA 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.            28 U.S.C.   2412(d)(1)(A) (emphasis added).                                         -4-                 of agency action under the Administrative Procedure                 Act.            490  U.S. at 885.4  It then  emphasized three points.  First,            "[i]n  many   remand  situations,   the  court   will  retain            jurisdiction over the action pending the Secretary's decision            and its filing with the court."  Id. at 886.5   Second, where                                             ___                                            ____________________            4.  The pertinent  portions of    405(g)  (quoted separately,            with sentence numbers added) are as follows:                      [1] Any  individual, after any  final decision                 of the Secretary made after  a hearing to which  he                 was  a  party,...  may  obtain  a  review  of  such                 decision by a civil action ....                        [4] The  court shall have the  power to enter,                 upon the pleadings and  transcript of the record, a                 judgment  affirming,  modifying,  or reversing  the                 decision   of  the   Secretary,  with   or  without                 remanding the cause for a rehearing.                        [6] The court may,  on motion of the Secretary                 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.                      [7]  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.            42 U.S.C.   405(g).            5.  The Court later elaborated somewhat on this point: "[T]he            remanding  court continues  to retain  jurisdiction over  the            action  within the meaning of the EAJA, and may exercise that            jurisdiction to determine if its legal instructions on remand                                         -5-            a remand for further proceedings does not dictate the receipt            of   benefits,  "the  claimant   will  not   normally  attain            'prevailing party' status  ... until after the  result of the            administrative  proceedings  is  known."   Id.    And  third,                                                       ___            referring to EAJA's requirement  that an application be filed            within  thirty days of "final judgment,"  it noted that "[a]s            in this  case, there  will often be  no final  judgment in  a            claimant's  civil  action  for  judicial   review  until  the            administrative proceedings  on remand are complete."   Id. at                                                                   ___            887.  The Court  concluded that EAJA fees  for representation            on remand were available  "where a court orders a  remand ...            and retains  continuing jurisdiction over the  case pending a            decision  from   the  Secretary  which  will   determine  the            claimant's entitlement to benefits."  Id. at 892.                                                  ___                 The following term,  Sullivan v.  Finkelstein, 496  U.S.                                      ________     ___________            617 (1990), was decided.  At issue there was whether a remand            order was immediately appealable  as a "final decision" under            28  U.S.C.     1291;  EAJA  was  not  involved.    An  agency            regulation provided  that a  surviving spouse (unlike  a wage            earner)  was  disabled only  if he  or  she suffered  from an            impairment  meeting the  Secretary's Listing  of Impairments;            age, education and work experience were not to be considered.            The  district court effectively  invalidated this regulation.            It  found that the claimant did not have a listed impairment,                                            ____________________            have been followed by the Secretary."  490 U.S. at 887-88.                                         -6-            but nonetheless remanded because of suggestions that claimant            was  unable to engage in any gainful activity.  The Secretary            sought  to  take an  immediate  appeal;  the appellate  court            dismissed for lack of jurisdiction.                 In finding  the remand order  to be an  appealable final            decision,  the Court  distinguished  between remands  ordered            pursuant to sentence  four of  42 U.S.C.    405(g) and  those            pursuant  to sentence six.  Claimant argued that   405(g), in            sentence seven, contemplated an appealable final  judgment to            be  entered  by  the  district  court  following  the  remand            proceedings.   Yet  the post-remand  review called  for under            sentence seven, the  Court held, referred only  to cases that            had been remanded  under sentence  six.  And  a sentence  six            remand was  only "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."  496  U.S. at 626.            Rather,  the  district  court's  order was  a  sentence  four            remand--"a  judgment   ...  reversing  the  decision  of  the            Secretary,  with ...  remanding the  cause for  a rehearing."            Id. at 625 (quoting statute).  The order was "unquestionably"            ___            a judgment:  "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                                         -7-            regulations in considering the  disability issue."  Id.   And                                                                ___            "the fourth sentence directs the entry of a final, appealable            judgment even  though that judgment  may be accompanied  by a            remand  order."   Id.  at  629.   Hudson,  despite containing                              ___             ______            "language ...  supporting" claimant's position,   id. at 630,                                                              ___            was  distinguishable:   the  concern   there  was   with  the            interpretation of the  term "any civil  action" in the  EAJA,            not  with the appealability of  a remand order  under   1291.            Id.  at  630.   The Court  did  reiterate its  conclusions in            ___            Hudson  that  the  agency  proceedings on  remand  should  be            ______            considered  part of the  civil action for  EAJA fee purposes,            and  that a  claimant would  not normally  attain "prevailing            party" status until the result of the remand proceedings  was            known.  Id.                      ___                 In  Melkonyan, the  issue was  what event  constituted a                     _________            "final   judgment"  for   EAJA   purposes,   triggering   the            jurisdictional thirty-day filing period.  Before the district            court, the Secretary had requested a remand for consideration            of new evidence; claimant eventually acceded to this request,            and  the  court  remanded   "for  all  further  proceedings."            Claimant was  awarded benefits  on remand, and  neither party            thereafter  returned to  district  court for  entry of  final            judgment.  Over a year later, claimant applied for EAJA fees.            The  Ninth Circuit  deemed  the application  untimely, ruling                                         -8-            that  the  Appeals  Council's  decision   to  award  benefits            constituted the EAJA final judgment.                 In  its  June  10,  1991  decision,  the  Supreme  Court            rejected  this view.  Congress' use of the term "judgment" in            EAJA, it held, "refers to judgments entered by a court of law                                                        _________________            and   does   not   encompass   decisions   rendered   by   an            administrative agency."   111 S.  Ct. at 2162.   In  reaching            this  conclusion,  the  Court  again   distinguished  Hudson,                                                                  ______            indicating that that decision encompassed the  "narrow class"            of cases  "where the  district court retains  jurisdiction of            the civil  action and contemplates entering  a final judgment            following the completion of administrative proceedings."  Id.                                                                      ___            As neither party had returned to the district court for entry            of final  judgment, the  question then became  whether either            was entitled to  do so.  "The answer depends  on what kind of            remand the District Court  contemplated."  Id. at 2163.   The                                                       ___            choices  were only  two, for  the Court  made clear  that the            sentence  four  and   sentence  six  remands   identified  in            Finkelstein were  the "only kinds of  remands permitted under            ___________            ____            the statute."   Id. at  2164.  "[R]emand  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                                         -9-            sentence six."6  Id. at 2165.  The Court  then explained when                             ___            the applicable EAJA filing period commenced for each category            of remand:                 In  sentence four  cases, the filing  period begins                 after the final judgment ("affirming, modifying, or                 reversing") is entered by  the court and the appeal                 period has run, so  that the judgment is  no longer                 appealable....   In sentence six cases,  the filing                 period does  not begin until  after the  postremand                 proceedings are completed, the Secretary returns to                 court, the  court enters a final  judgment, and the                 appeal period runs.            Id.            ___                 The Court and the  parties agreed that the  remand order            there was not  pursuant to sentence four; the  district court            had  sent  the  case  back without  making  "any  substantive            ruling" as  to the correctness of  the agency determination."            Id. at 2163.  It was possibly a sentence six remand, since it            ___            had been prompted by new evidence.  If so, the  parties could            return to district court  for entry of final judgment.   Yet,            as  the Court noted, the  district court had  made no finding            that "good cause" had  been shown for the failure  to present                                            ____________________            6.  The Court also  indicated that  sentence four  was to  be            construed expansively.  It quoted from a House Report stating            that  a 1980  amendment  to  sentence  six  was  "not  to  be            construed  as  a  limitation of  judicial  remands  currently            recognized under  the law in  cases [in] 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."  111  S. Ct. at 2165 (quoting H.R. Rep. No.            100,  96th  Cong., 1st  Sess. 13  (1979)).   It  then stated:            "Thus, under sentence four, a District Court may still remand            in  conjunction  with  a   judgment  reversing  in  part  the            Secretary's decision," 111 S.  Ct. at 2165--making clear that            the listed examples are encompassed by that provision.                                         -10-            the additional evidence in  the prior proceeding, as sentence            six  required.7   Nor  had  it  manifested  any intention  to            retain jurisdiction.  The Court  thus inferred that the lower            court  may have  treated the  joint request  for remand  as a            voluntary  dismissal, in  which case  its  jurisdiction would            have  ended, claimant would not be a prevailing party, and no            fees  would  be warranted.    Id.  at  2165.   The  case  was                                          ___            accordingly remanded to the district  court for clarification            of its order.                                          III.                 Melkonyan appears  to mandate  that every sentence  four                 _________            remand constitutes  a final judgment, depriving  the district            court of jurisdiction and  triggering the EAJA filing period.            So  construed, the case creates a  two-part quandary.  First,            such a rule appears at odds with the rationale of Hudson.  As                                                              ______            mentioned,   the  Court   there  specifically   endorsed  the            retention of jurisdiction by the district court and the entry            of final judgment following remand.  If Hudson had involved a                                                    ______            sentence  six  remand, of  course,  the  two decisions  would            easily  mesh.  Yet, as the Secretary here concedes (and as we            now realize),  the remand  in  Hudson was  based on  sentence                                           ______                                            ____________________            7.  The Court added that the first clause of sentence six was            not  implicated, 111 S. Ct. at 2164 n.2., since the Secretary            had filed an answer prior to its motion for remand.                                           -11-            four, not  sentence six.8   Second, in this as  in most other            circuits, the prevailing practice  prior to Melkonyan was for                                                        _________            the  district  court  in  sentence  four  remands  to  retain            jurisdiction  and  enter  final  judgment  following  remand,            thereby triggering  the EAJA  filing period.   To  the extent            Melkonyan  retroactively  abrogates  this practice,  numerous            _________            prevailing parties under  EAJA will be relegated to a "catch-            22" situation.                     Courts  have  endeavored,  in  a  variety  of  ways,  to            reconcile  Hudson  and  Melkonyan  and/or  to  mitigate   the                       ______       _________            perceived  hardship stemming from the latter.  The result has            been a welter of divergent, often conflicting, opinions.  One            school of  thought recognizes a subcategory  of sentence four            remands in which a district court may retain jurisdiction and            enter final judgment following the agency decision on remand.                                            ____________________            8.  In  Trinidad v. Secretary of  HHS, 935 F.2d  13 (1st Cir.                    ________    _________________            1991)  (per  curiam), which  issued  prior  to Melkonyan,  we                                                           _________            indicated that Hudson involved a sentence six remand.  Id. at                           ______                                  ___            16 n.2.   It is now apparent  that we were in error.   In the            Hudson  litigation,  the  Eleventh  Circuit  found  that  the            ______            Secretary had failed (1) to consider  the combined effects of            Hudson's impairments,  as required by regulation,  and (2) to            make clear the  weight accorded the evidence considered.   It            accordingly vacated and  remanded "for further  consideration            under proper legal  standards."  Hudson v.  Heckler, 755 F.2d                                             ______     _______            781, 783 (11th Cir.  1985) (per curiam).  As  Melkonyan makes                                                          _________            plain,  see note  6 supra,  such a  remand is  encompassed by                    ___         _____            sentence four.   See, e.g.,  Gutierrez v. Sullivan,  953 F.2d                             ___  ____   _________    ________            579,  584 (10th  Cir.  1992) (Hudson  involved sentence  four                                          ______            remand); Heredia v. Secretary of HHS, 783 F. Supp. 1550, 1556                     _______    ________________            n.12 (D.P.R. 1992) (same).  But see Spurlock v. Sullivan, 783                                        _______ ________    ________            F.  Supp. 474,  479  (N.D. Cal.  1992) (suggesting  Melkonyan                                                                _________            limited application of Hudson to sentence six cases).                                     ______                                         -12-            Applicable to cases where the court does not dictate an award            of  benefits but merely calls for further proceedings, such a            practice  is   said  to   be  consistent  with   Hudson,  not                                                             ______            inconsistent with  Melkonyan (or  at least not  foreclosed by                               _________            what is described  as dicta  in that decision),  and in  line            with accepted  notions of when  a party  "prevails" for  EAJA            purposes.  The  Eighth and Tenth  Circuits subscribe to  this            approach,9 see  Hafner  v. Sullivan,  ___ F.2d  ___, 1992  WL                       ___  ______     ________            188996 (8th Cir. Aug.  11, 1992); Gutierrez v. Sullivan,  953                                              _________    ________            F.2d  579, 584 (10th Cir. 1992); Welter v. Sullivan, 941 F.2d                                             ______    ________            674,   675  (8th  Cir.  1991),  as  do  a  host  of  district            courts.10  The  Fifth Circuit  has rejected it,  see Luna  v.                                                             ___ ____            Department  of  HHS, 948  F.2d  169, 172-73  (5th  Cir. 1991)            ___________________            (applying conclusion  in Frizzell  v. Sullivan, 937  F.2d 254                                     ________     ________                                            ____________________            9.  In Scanlon v. Sullivan, ___ F.2d ___, 1992 WL 171571 (9th                   _______    ________            Cir.  July  24,  1992),  the  Ninth  Circuit  seems  to  have            implicitly approved  of this  practice, refusing to  consider            theSecretary's Melkonyan argument because not raised below.                             _________            10.  See, e.g., Lenz v.  Secretary of HHS, ___ F.  Supp. ___,                 ___  ____  ____     ________________            1992 WL 199838  (D.N.H. 1992); Rodriguez v. Secretary of HHS,                                           _________    ________________            ___ F. Supp. ___, 1992 WL 171169 (D.P.R. 1992); Allbritton v.                                                            __________            Secretary of HHS, ___  F. Supp. ___, 1992 WL 143713 (D. Mass.            ________________            1992);  Kling v. Secretary of  HHS, 790 F.  Supp. 145, 149-50                    _____    _________________            (N.D.  Ohio 1992); Winn v. Sullivan, 787 F. Supp. 172, 174-75                               ____    ________            (E.D. Mo. 1992); Sparling v. Sullivan, 785 F. Supp. 312, 317-                             ________    ________            18 (N.D.N.Y. 1992); Heredia v. Secretary of HHS, 783 F. Supp.                                _______    ________________            1550, 1557-58 (D.P.R. 1992).                                         -13-            (5th Cir. 1991) (per  curiam) that all sentence  four remands            are final judgments), as have a handful of other courts.11                 Other courts have reached the same result by an opposite            route--construing sentence four narrowly, and holding that an            order that simply vacates and remands for further proceedings            falls  under   sentence  six.12     This  view   holds  that,            notwithstanding the language in  Melkonyan, see note 6 supra,                                             _________  ___        _____            such an order is not a "reversal" of the Secretary's decision            for purposes of sentence four.13                 A third  approach, embraced  by the Fourth  Circuit, see                                                                      ___            Sargent v.  Sullivan,  941 F.2d  1207  (4th Cir.  1991)  (per            _______     ________            curiam) (table) (text available in Westlaw), and by a variety                                            ____________________            11.  See, e.g., Misciagno v.  Secretary of HHS, 786 F.  Supp.                 ___  ____  _________     ________________            1120, 1124 (E.D.N.Y.  1992); Lopez v. Sullivan,  780 F. Supp.                                         _____    ________            496,  500-03 (N.D. Ill. 1991);  Butts v. Bowen,  775 F. Supp.                                            _____    _____            1167, 1170 n.4 (N.D. Ill. 1991).            12.  See, e.g., Hudson v. Sullivan, 779 F. Supp. 37, 40 (W.D.                 ___  ____  ______    ________            Pa.  1991); Johnson  v.  Sullivan, 777  F.  Supp. 1277,  1279                        _______      ________            (D.S.C. 1991);  Nelson  v. Sullivan,  776 F.  Supp. 360,  362                            ______     ________            (N.D. Ill.  1991).  This approach  is specifically criticized            in  Misciagno v. Secretary of HHS, 786 F. Supp. 1120, 1124-25                _________    ________________            (E.D.N.Y. 1992).   A number  of other courts  have implicitly            rejected  it.  See, e.g.,  Hafner v. Sullivan,  ___ F.2d ___,                           ___  ____   ______    ________            1992 WL 188996, at *1 (8th Cir. 1992); Gutierrez v. Sullivan,                                                   _________    ________            953 F.2d 579, 582 (10th Cir. 1992).            13.  The Seventh Circuit  embraced this narrow interpretation            of sentence four in Young v. Sullivan, ___ F.2d ___, 1992  WL                                _____    ________            194847  (7th Cir. 1992), and Damato v. Sullivan, 945 F.2d 982                                         ______    ________            (7th Cir.  1991).   In both  cases, it went  on to  proffer a            curious  variant of  this approach--suggesting  that, because            the  remand  order  fell  under  neither  sentence  four  nor            sentence six, the district court may have lacked authority to            issue it.  See  Young, 1992 WL at *3 to  *4; Damato, 945 F.2d                       ___  _____                        ______            at 987 n.3.  In each instance, such discussion was dicta.                                          -14-            of  district  courts,14 holds  that  Melkonyan  applies on  a                                                 _________            prospective basis only.  A minority contingent adheres to the            opposite view.15   The Fifth  Circuit in Luna  adopted yet  a                                                     ____            fourth alternative,  finding  that  the  EAJA  filing  period            should  be equitably  tolled because  the district  court had            purported  to retain jurisdiction.   948 F.2d at  173.16  And            one  court  has rejected  each  of the  above  approaches and            embraced  still another: invoking  Fed. R.  Civ. P.  60(b) to            vacate its earlier judgment  and clarify that the remand  was            pursuant to sentence six.  Misciagno v. Secretary of HHS, 786                                       _________    ________________            F. Supp. 1120, 1126 (E.D.N.Y. 1992).                   A remaining  alternative, of course, is  the one adopted            by the  district court  here--applying Melkonyan to  deny the                                                   _________                                            ____________________            14.  See, e.g., Sansano v. Sullivan, 788 F. Supp. 218, 222-25                 ___  ____  _______    ________            (D.N.J. 1992); Bacon v.  Secretary of HHS, 786 F.  Supp. 434,                           _____     ________________            438-41 (D.N.J.  1992); Thomas for  Brown v. Sullivan,  785 F.                                   _________________    ________            Supp.  788, 791-93 (C.D. Ill. 1992); Rollins v. Sullivan, 784                                                 _______    ________            F.  Supp. 253, 256-58 (E.D.  Pa. 1992); Santiago v. Sullivan,                                                    ________    ________            783  F. Supp. 223, 225-26 (E.D. Pa. 1992); Lopez v. Sullivan,                                                       _____    ________            780 F. Supp. 496, 503-04 (N.D. Ill. 1991); Sykes v. Sullivan,                                                       _____    ________            779 F. Supp.  29, 31-33 (E.D. Pa. 1991); Butts  v. Bowen, 775                                                     _____     _____            F. Supp. 1167, 1171-72 (N.D. Ill. 1991).             15.  See, e.g., Allbritton v. Secretary of  HHS, ___ F. Supp.                 ___  ____  __________    _________________            ___,  1992 WL 143713 (D. Mass.  1992); Misciagno v. Secretary                                                   _________    _________            of  HHS, 786 F. Supp. 1120, 1123-24 (E.D.N.Y. 1992); Salvador            _______                                              ________            v.  Sullivan,  786 F.  Supp.  830, 834-35  (N.D.  Cal. 1992);                ________            Audette v. Secretary of  HHS, 776 F. Supp. 84,  89-90 (D.R.I.            _______    _________________            1991);  Hudson v.  Sullivan, 779  F. Supp.  37, 40  (W.D. Pa.                    ______     ________            1991); Fergason v.  Sullivan, 771 F.  Supp. 1008, 1012  (W.D.                   ________     ________            Mo. 1991).             16.  This holding  is rejected in Allbritton  v. Secretary of                                              __________     ____________            HHS, ___ F. Supp. ___, 1992 WL 143713, at *7 (D. Mass. 1992);            ___            Misciagno v.  Secretary of  HHS, 786 F.  Supp. 1120,  1125-26            _________     _________________            (E.D.N.Y. 1992).                                         -15-            EAJA  application as untimely.  As  far as we are aware, this            result  has been  reached in only  a handful of  cases.  See,                                                                     ___            e.g.,  Salvador v.  Sullivan,  786 F.  Supp.  830 (N.D.  Cal.            ____   ________     ________            1992); Audette v. Secretary  of HHS, 776 F. Supp.  84 (D.R.I.                   _______    _________________            1991); Fergason v.Sullivan, 771F. Supp. 1008(W.D. Mo.1991).17                   ________   ________                                         IV.                 Petitioner relies  on three of the  approaches described            above plus one additional basis for relief.  Specifically, he            argues (1)  that the "retained jurisdiction"  approach of the            Eighth  and  Tenth  Circuits  should  be  adopted;  (2)  that            Melkonyan should be applied  prospectively only; (3) that the            _________            district  court erred  in  denying his  motion for  equitable                                            ____________________            17.  The Secretary argues that adopting this last alternative            need not  be inconsistent  with accepted  notions  of when  a            claimant becomes a prevailing party.  In his view, Hudson and                                                               ______            Melkonyan can be reconciled, at least in part, by (1) deeming            _________            all sentence  four remands to be  final judgments, triggering            the EAJA filing  period, and (2) thereafter holding  the EAJA            application  in  abeyance  until  it  is  determined  whether            claimant prevails on remand.                   As  far as  we are  aware, this  argument has  gained no            judicial adherents.  To the contrary, the proposal of holding            EAJA applications in abeyance has been specifically rejected.            See Hafner  v. Sullivan, ___ F.2d ___,  1992 WL 188996, at *1            ___ ______     ________            (8th Cir. 1992)  (describing it  as "the  ultimate in  laying            traps  for   the  unwary  and  senselessly  cluttering  court            dockets");  Heredia v. Secretary  of HHS, 783  F. Supp. 1550,                        _______    _________________            1558  (D.P.R. 1992); Spurlock v.  Sullivan, 783 F. Supp. 474,                                 ________     ________            481  (N.D. Cal.  1992).   Indeed, the  Spurlock court  (after                                                   ________            endorsing the  first part  of the Secretary's  argument) held            that  a  claimant  becomes   a  prevailing  party  simply  by            obtaining  a  sentence  four  remand, regardless  of  whether            benefits are ultimately awarded.  Id.  at 482.  This view has                                              ___            been  embraced  by  several  other  courts.   See  Gagnon  v.                                                          ___  ______            Sullivan, ___ F.  Supp. ___,  1992 WL 145192  (D. Me.  1992);            ________            Audette  v. Secretary  of HHS,  776 F.  Supp. 84,  91 (D.R.I.            _______     _________________            1991); Dow v. Sullivan, 774 F. Supp. 46, 48-49 (D. Me. 1991).                   ___    ________                                         -16-            relief under  Fed. R. Civ.  P. 60(b); and  (4) that  no final            judgment was ever entered here because no "separate document"            was issued under Fed.  R. Civ. P. 58.  As we accept his first            contention, the others need not be addressed.                 In  conformance with  Welter, Gutierrez  and  Hafner, we                                       ______  _________       ______            agree that a district court may retain jurisdiction pending a            sentence four remand and  thereafter enter final judgment for            EAJA  purposes.18     As  mentioned,  the   Court  in  Hudson                                                                   ______            specifically endorsed such a situation.   Neither Finkelstein                                                              ___________            nor Melkonyan purported to  overrule Hudson; to the contrary,                _________                        ______            they  acknowledged  its   continuing  validity.     See  also                                                                _________            Ardestani v.  INS, 112 S.  Ct. 515,  521 (1991).   And  while            _________     ___            Melkonyan  contains  language  seemingly at  odds  with  this            _________            position,  that  language  was  dicta: Melkonyan  was  not  a                                                   _________            sentence four  case; Hudson was.   Under these circumstances,                                 ______            we reject the Secretary's suggestion that Melkonyan overruled                                                      _________            Hudson  in  this  respect  sub  silentio.   We  think  Hudson            ______                     _____________               ______            controls.                  We therefore adopt the conclusion reached in Hafner:                                                              ______                 [W]hen a  judicial remand order in  Social Security                 disability     cases     contemplates    additional                                            ____________________            18.  Several courts  adopting this  position have gone  on to            indicate that, by analogy  to   405(g), a claimant  has sixty            days following notice of  a favorable administrative award to            petition the court  for the  entry of final  judgment.   See,                                                                     ___            e.g.,  Lenz v. Secretary  of HHS, ___  F. Supp.  ___, 1992 WL            ____   ____    _________________            199838, at *2 (D.N.H.  1992); Kling v. Secretary of  HHS, 790                                          _____    _________________            F.  Supp. 145,  149-50 (N.D.  Ohio 1992).   The  instant case            provides no occasion to address this issue.                                           -17-                 administrative proceedings that will  determine the                 merits of the  claimant's application for benefits,                 and thus  will determine whether the  claimant is a                 prevailing  party,  the   district  court   retains                 discretion  to  enter  a  final  judgment  for EAJA                 purposes after the proceedings  on remand have been                 completed.  On the other hand, if the remand  order                 directs  the  Secretary   to  award  benefits,  the                 claimant is a prevailing party and the remand order                 is the final judgment for EAJA purposes.            ___  F.2d   at  ___,   1992  WL  188996,   at  *2   (footnote            omitted).19   The  Secretary argues  that any  standard based            on the subjective  intent of the  district court would  prove            unworkable.   Yet we think it can  be presumed that the court            does intend  to retain jurisdiction  in such cases  absent an            express indication to  the contrary.  See id. (Welter applies                                                  ___ ___  ______            even if  sentence  four remand  order does  not "evidence  an            intent to retain jurisdiction").  The Secretary also suggests            that  the  court  here  manifested  just such  an  intent  to            relinquish jurisdiction.  This contention is frivolous.  Such                                            ____________________            19.  The  Eighth Circuit  added that  a sentence  four remand            order   would   still   be   immediately   appealable   under            Finkelstein,  explaining that  "[a]s  a matter  of  statutory            ___________            construction  and  common  sense, we  see  no  reason  why an            appealable 'final judgment'  under   405(g)  must necessarily            be  a 'final judgment' for purposes of   2412(d)(1)(B)."  ___            F.2d at ___, 1992 WL  188996, at *3 n.3.   While we need  not            address  that issue  here, we  note  that such  a distinction            finds  support in  Finkelstein.   There, in  distinguishing a                               ___________            remark in a congressional report that a remand under   405(g)            is  not a final judgment,  the Court stated:  "[T]his part of            this  particular committee  report concerned the  proper time            period for  filing a petition for attorney's fees under EAJA,            not appealability."   496 U.S. at  629 n.8.  Cf.  Budinich v.                                                         ___  ________            Becton  Dickinson & Co., 486  U.S. 196 (1988)  (a decision on            _______________________            merits  is  appealable "final  decision"  under    1291  even            though recoverability or amount of attorney's fees remains to            be determined).                                             -18-            an  intent  would  have  been  at   odds  with  the  practice            prevailing in January 1990.  No final judgment was entered on            the docket at that time.   No such suggestion can be inferred            from   the  court's   subsequent  orders  denying   the  EAJA            application, since the remand had been ordered by a different            judge.   And  it  is  apparent  that  the  court  denied  the            application in the belief that such a result was compelled by            Melkonyan--a belief we now find to have been misplaced.            _________                 For these  reasons, we  conclude that no  final judgment            for  EAJA  purposes has  been  issued, and  that  claimant is            entitled  to return  to district  court for  entry of  such a            judgment and for consideration of his fees application.                   Reversed and remanded for further proceedings.                    ______________________________________________                                         -19-
