Jackson v. Chater

United States Court of Appeals,

Eleventh Circuit.

No. 95-8784.

Donald B. JACKSON, Plaintiff-Appellant,

v.

Shirley CHATER, Commissioner of Social Security, Defendant-
Appellee.

Nov. 20, 1996.

Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:92-CV-1645-JTC), Jack T. Camp, Judge.

Before BIRCH and CARNES, Circuit Judges, and MICHAEL*, Senior
District Judge.

CARNES, Circuit Judge:

This appeal by the claimant in a social security disability

benefits case is not about the claim itself; the claimant has

already prevailed on his claim. This appeal concerns the

claimant's attempt to have the district court enter judgment in his

favor after the completion of an administrative remand ordered by

the district court. The district court refused to reopen the case

and enter judgment for the claimant following the remand. Although

that refusal did not affect the claimant's entitlement to benefits,

it did prevent the claimant from filing a timely application for

attorney's fees pursuant to the Equal Access to Justice Act, 28

U.S.C. § 2412 ("EAJA").

As will be explained in more detail later, there are two

types of social security case remands under 42 U.S.C. § 405(g). In

a remand pursuant to the fourth sentence of that provision, called

*
Honorable James H. Michael, Senior U.S. District Judge for
the Western District of Virginia, sitting by designation.
a "sentence-four remand," the district court enters judgment

immediately, and an EAJA application should be filed then, because

the court loses jurisdiction over the case after entry of a

sentence-four remand judgment. The other type of § 405(g) remand

is pursuant to the sixth sentence of that provision. With a

"sentence-six remand" the district court retains jurisdiction and

enters judgment after the remand proceedings are completed. The

time for filing an EAJA application, in a sentence-six remand, runs

from that postremand judgment entry date in the district court.

Donald Jackson, the disability benefits claimant in this case,

appeals the district court's denial of his motion to reopen his

case in the district court following a remand to the Commissioner.

He contends that the district court erred in holding that its

remand had been only a sentence-four remand.

For the reasons that follow, we agree with Jackson that the

district court's remand was both a sentence-four and sentence-six

remand, and we hold that such a dual basis remand is permissible.

We also hold that where the remand is pursuant to both provisions

and the claimant prevails at least in part for sentence-six

reasons, he is entitled to reopen the case in the district court

and have judgment entered there in his favor. The time for filing

an EAJA application runs from that later date, instead of from the

date on which the judgment remanding the matter was entered.
I. BACKGROUND AND PROCEDURAL HISTORY

Jackson filed his first application for disability benefits
 1
with the Commissioner of Social Security in 1990. The

Commissioner denied his application in 1991. Upon receiving the

adverse decision, Jackson requested and was granted a hearing

before an administrative law judge ("ALJ"). Jackson appeared pro

se before the ALJ, who agreed with the Commissioner's decision to

deny benefits. Thereafter, Jackson filed a civil action in the

district court, seeking judicial review of the Commissioner's

denial of benefits.

Jackson's case was heard initially by a magistrate judge. The

magistrate judge issued a report and recommendation to the district

court, suggesting that Jackson's case be remanded to the

Commissioner for reconsideration. The magistrate judge identified

two statutory grounds for a remand. First, the ALJ had failed to

perform his legal duty to develop a full and fair record at

Jackson's hearing. The magistrate judge stated that the ALJ's

failure to develop a full and fair record was exemplified by his

finding that Jackson possessed residual functional capacity,

despite evidence to the contrary. The failure to develop a full

and fair record was a sentence-four basis for remand. Second, the

magistrate judge recommended that Jackson's case also should be

1
At the time Jackson began seeking social security
disability benefits, administrative authority to grant or deny
benefits rested with Secretary of the Department of Health and
Human Services. See 42 U.S.C. § 405 (West 1991) (amended 1994).
Today, this authority is bestowed on the Commissioner of Social
Security. See 42 U.S.C. § 405 (West Supp.1996). The
Commissioner is the appellee in this case, and the Secretary is
not in any way involved in this appeal. Therefore, to avoid
confusion, we treat the initial benefits decisions made in
Jackson's case—which were made by the Secretary—as if they were
made by the Commissioner. Also, where the case law discusses
actions taken by and arguments made by "the Secretary," we
substitute "the Commissioner" for clarity and consistency.
remanded because Jackson had new and noncumulative material

evidence of deterioration of his back condition, which is a §

405(g) sentence-six reason for remanding a case. The magistrate

judge found Jackson had shown good cause for not submitting this

evidence in the administrative proceedings, because the evidence of

further deterioration did not exist at the time of Jackson's

hearing.

On May 5, 1993 the district court issued an order and opinion

adopting the magistrate judge's report and recommendation in its

entirety, stating that it was "correct in all respects." The

court's order specifically mentioned the two grounds for remand

suggested by the magistrate judge: the failure to develop the

record, and the existence of new evidence. Based on the magistrate

judge's recommendations, the district court remanded Jackson's case

to the Commissioner. A judgment was entered on the district

court's docket the next day, May 6, 1993, reflecting that the court

adopted the report and recommendation of the magistrate judge, and

that the action was remanded.2

On remand, an ALJ reviewed the evidence presented at Jackson's

first ALJ hearing, as well as new evidence from medical

examinations conducted after the first hearing. Relying upon all

the information before him, the ALJ found Jackson did not possess

2
No entry was made on the docket showing service of the
judgment to Jackson, and Jackson contends that he never received
service. Jackson argues that because he never received actual
notice of the judgment, it would be inequitable to use the date
judgment was entered to bar his EAJA attorney's fees application.
But see, Fed.R.Civ.P. 77(d); Tucker v. Commonwealth Land Title
Ins. Co., 800 F.2d 1054, 1056 (11th Cir.1986). Because we hold
for other reasons that the entry of judgment does not bar
Jackson's application, we need not resolve this question.
the residual functional capacity to pursue more than sedentary

work. Based on this finding and findings regarding Jackson's

skills, experience, and education, the ALJ determined Jackson was

disabled and awarded Jackson benefits for the entire period

requested in his application.

After winning his disability benefits on remand, Jackson filed

a motion to reopen his case in the district court. Jackson wanted

to reopen his case so that the court could enter a judgment in his

favor, paving the way for Jackson to file an application for

attorney's fees under the EAJA. The Commissioner objected to

Jackson's motion, contending that the May 6, 1993 judgment of

remand was a final judgment. As a final judgment, it triggered the

start of the filing period for an EAJA fee application, and, the

Commissioner contended, Jackson had missed his one opportunity to

file a fee application. According to the Commissioner, after

entering the remand order, the district court lost jurisdiction

over Jackson's case.

Jackson responded by pointing out language in the remand order

indicating that the case was remanded on a sentence-six ground as

well as a sentence-four ground. Jackson contended that because a

remand based upon sentence six of § 405(g) does not terminate

district court jurisdiction, he was entitled to have the district

court reopen his case and enter final judgment in his favor. Once

that judgment was entered, Jackson could file his EAJA fee

application.

Jackson's motion to reopen his case in district court was

denied in an order dated June 1, 1995. In that order, the district
court acknowledged that the 1993 remand order "was arguably made

pursuant to both sentence four and sentence six" of 42 U.S.C. §

405(g). Nevertheless, the court held that in reality the remand

order had been issued on a sentence-four ground only. The district

court reasoned that the entry of judgment immediately after the

remand order indicated "that the Court did not contemplate the

parties returning to court...." The district court citedMelkonyan

v. Sullivan, 501 U.S. 89, 102, 111 S.Ct. 2157, 2165, 115 L.Ed.2d 78

(1991) in support of that proposition. Next, the court stated that

the entry of judgment would normally indicate that the remand order

was a final, appealable order. The court did not explain how the

fact that the order was appealable led to a conclusion that the

remand order was pursuant to sentence four only, instead of both

sentence four and sentence six. Finally, the court noted that the

order was partially based on the incorrectness of the ALJ's

determination, and for that reason, should be construed as a

sentence-four remand. For this proposition, the district court

also cited the "language of Melkonyan."

Once the district court held that the 1993 remand order had

been made pursuant to sentence four only, the court was required to

hold that it no longer had jurisdiction over Jackson's case. It

was also required to reject Jackson's EAJA application for

attorney's fees as untimely, which it did.
II. DISCUSSION

Jackson's case is governed by 42 U.S.C. § 405(g), which

provides for judicial review of final decisions of the

Commissioner. That section also specifies the actions that the
district court may take with a claimant's case. One action is to

remand the case for reconsideration by the Commissioner, or by an

ALJ, if the Commissioner chooses to delegate benefits decisions, as

she has. According to subsection (g), the district court can

remand a case for only two reasons. See Melkonyan, 501 U.S. at 99-

100, 111 S.Ct. at 2164 (holding that a district court may not use

inherent power to remand in a disability benefits case). One of

those reasons is found in sentence four of § 405(g), which

provides:

The court shall have power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner of Social Security,
with or without remanding the cause for a rehearing.

42 U.S.C.A. § 405(g) (West Supp.1996). To remand under that

provision, sentence four, the district court must either find that

the decision is not supported by substantial evidence, or that the

Commissioner (or the ALJ) incorrectly applied the law relevant to

the disability claim.

The second reason for remanding a case under § 405(g) is found

in sentence six of that subsection. Sentence six authorizes a

district court to remand a case:

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.

42 U.S.C.A. § 405(g) (West Supp.1996).

In this appeal, we must decide whether the district court

erred when it held that Jackson's case had been remanded only on a

sentence-four basis. Our consideration of that issue leads us to

discuss the Commissioner's contention that the district court

lacked authority to remand Jackson's case pursuant to both sentence
four and sentence six of 405(g). These issues present questions of

law over which this Court has de novo review. See Panama City

Medical Diagnostic Ltd. v. Williams, 13 F.3d 1541, 1545 (11th

Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 93, 130 L.Ed.2d 44

(1994); see also United States v. Hurtado, 779 F.2d 1467, 1472

(11th Cir.1985).

A. THE DISTRICT COURT'S INTERPRETATION OF THE REMAND ORDER

The district court never explicitly held whether a district

court is authorized to issue a remand on both sentence-four and

sentence-six grounds. Instead, the court held that it had remanded

Jackson's case on sentence-four grounds only. In reaching that

conclusion, the district court noted that an entry of judgment had

been made the day after the remand order was issued. The court

then cited the following language from Shalala v. Schaefer:

Immediate entry of judgment (as opposed to entry of judgment
after postremand agency proceedings have been completed and
their results filed with the court) is in fact the principal
feature that distinguishes a sentence-four remand from a
sentence-six remand.

509 U.S. 292, 297, 113 S.Ct. 2625, 2629, 125 L.Ed.2d 239 (1993)

(citing Melkonyan, 501 U.S. at 99-101, 111 S.Ct. at 2164-65). The

district court's reliance upon that passage is misplaced. In

Schaefer, the claimant conceded that the district court had

remanded his case pursuant to sentence four of § 405(g); the

claimant had no basis in the facts of that case for contending that

the remand was made on other or additional grounds. After holding

that a sentence-four remand cannot be treated as a sentence-six

remand for jurisdictional purposes, the Schaefer Court discussed

how to tell one type of remand from the other. In Schaefer and
Melkonyan the Court was not presented with, and did not speak to,

the question of whether an entry of judgment requires that a case

remanded on both sentence-four and sentence-six grounds be treated

solely as a remand on one ground or the other, instead of as a dual

basis remand.

It is clear from the record that the district court remanded

Jackson's case to the Commissioner on both sentence-four and

sentence-six grounds. The remand order states:

The Magistrate concluded that the ALJ failed to comply with
his special duty to develop a full and fair record. Further,
because plaintiff has produced new evidence which was
noncumulative and material the case should be remanded. Thus,
the Magistrate recommended that this case should be remanded
to the [Commissioner] so that the record may be further
developed and the new evidence may be considered.

Order of May 5, 1993, at 2. The remand to develop a full and fair

record in accordance with law is a sentence-four remand. The

remand to the ALJ to consider new evidence is a sentence-six

remand. Thus, the district court remanded for both reasons.

Even though the remand order contains both grounds, the

Commissioner contends the district court's 1993 remand order should

be treated as a sentence-four remand only. According to the

Commissioner, any remand based partially upon the correctness of

the decision by the Commissioner or the ALJ should be treated

solely as a sentence-four remand. The district court relied in

part on this proposition when it denied Jackson's motion to reopen

his district court case. The district court cited Flores v.

Shalala, 49 F.3d 562, 569 (9th Cir.1995), Faucher v. Secretary of

Health and Human Servs., 17 F.3d 171, 174-75 (6th Cir.1994), and

Pettyjohn v. Shalala, 23 F.3d 1572, 1574-75 (10th Cir.1994) (per
curiam), as persuasive authority. We conclude that the decisions

in Flores, Faucher, and Pettyjohn are not persuasive as to this

appeal, because those cases did not involve dual basis remands.

In Flores, the district court had issued a sentence-four

remand that it "improperly ... treated" as a sentence-six remand,

by failing to enter judgment. 49 F.3d at 569 (citingSchaefer, 509

U.S. at 298-99, 113 S.Ct. at 2630). Unlike the present case,

Flores was not a dual basis remand case; the district court in

Flores merely failed to follow the commands of Schaefer to enter

judgment after a sentence-four remand. Therefore, the Ninth

Circuit's reasoning in Flores is inapplicable in this case, which

clearly involves a dual basis remand.

The Sixth Circuit's Faucher case is more analogous to this

case, but it is also distinguishable. In Faucher, a claimant who

had been denied benefits requested that the district court reverse

the Commissioner's decision or remand his case on sentence-four

(insufficient evidence in the record) and sentence-six (new

evidence) grounds. The district court determined that there was

insufficient evidence in the record to support the Commissioner's

decision and reversed the Commissioner's denial of benefits. It

also found that the claimant did not have good cause for his

failure to present new evidence regarding his disability at the

administrative hearing. The district court concluded that the

remand would require the taking of new and additional evidence, but

because the claimant could not show good cause for his failure to

present the evidence at his first hearing, the district court

refused to remand the case to the Commissioner. Instead, the court
awarded the claimant benefits. Faucher, 17 F.3d at 173.

The Sixth Circuit affirmed the district court's reversal of

the Commissioner's decision in Faucher, but it reversed the

district court's grant of benefits. The Court held that the

ability of a district court to remand with instructions to hear new

evidence does not depend upon the claimant demonstrating good cause

for his failure to produce new evidence earlier, so long as a

sentence-four ground for remand also exists. The sentence-four

ground is enough to send the case back to the Commissioner, and the
Commissioner can be required to hear new evidence once the case is

remanded, even in the absence of any good cause for not presenting

that evidence the first time the case was before the Commissioner.

Id. at 175.3

3
Faucher might be seen as a way out of the jurisdictional
problem created by dual basis remands. If Faucher is correct,
the district court could have remanded Jackson's case under
sentence four, while also instructing the Commissioner to hear
Jackson's new evidence while the case is on remand. The Faucher
procedure seems to allow the same result as the dual basis remand
in this case: the Commissioner is required to correct the
substantive error and to hear new evidence. Yet, Faucher 's
approach is problematic.

The Faucher Court held that a district court may order
the Commissioner to hear new evidence on remand, even though
the sentence-six requirements are not met, so long as the
court's remand order contains a valid sentence-four ground
for remand. We are not sure that Congress intended for
claimants to be able to bring in new evidence without good
cause, merely because the Commissioner (or the ALJ)
committed an error in the first hearing. Congress provided
for the Commissioner to hear new evidence only under
sentence six, which states explicitly that a district court
may only order additional evidence to be heard if the
claimant demonstrates good cause for failing to produce the
evidence earlier. See 42 U.S.C. § 405(g). Thus, Faucher
may give claimants more opportunities to bring in new
evidence than Congress intended. Maybe not.

At the same time, the Faucher approach also takes away
 In Faucher, a sentence-six remand was not entered, because the

claimant could not meet the good cause standard. Thus, the Sixth

Circuit was not presented with a dual basis remand situation.

Although the Court did hold that the district court's ruling on the

correctness of the Commissioner's decision showed that a

sentence-four remand was appropriate, instead of a sentence-six

remand, the Court did not address or consider whether a district

court could issue a dual basis remand. Faucher does not hold that,

where both bases for a remand exist, the district court should
ignore either one. Therefore, Faucher does not persuade us to

"interpret" the 1993 remand order in this case as a sentence-four

remand only.

In Pettyjohn, the Tenth Circuit held that the district court's

remand was based on the correctness of the Commissioner's decision,

and, therefore, the remand was made pursuant to sentence four. 23

F.3d at 1575. The Commissioner asks us to construe Pettyjohn to

from claimants (such as Jackson) who can show good cause,
some of the benefits of a sentence-six remand. A
sentence-six remand requires the parties to return to the
district court following the remand proceedings, so that the
court may review the agency's additional or modified
findings of fact and enter judgment in favor of one party.
See 42 U.S.C. § 405(g); Melkonyan, 501 U.S. at 98, 111
S.Ct. at 2163. The requisite filing of the findings of fact
in the district court is important for two reasons: (1) it
acts as an additional check on the Commissioner, and (2) it
produces another judgment by a court, which is relevant for
determining the filing window for an EAJA attorney's fees
application. The Faucher approach apparently fails to
require the parties to return to court after the
Commissioner hears new evidence, as the statute requires.

In any event, we need not decide whether to adopt the
Faucher approach, because in this case—in contrast to the
facts of Faucher—the district court clearly entered a dual
basis remand.
hold that any remand based partly upon the correctness of the

Commissioner's decision must be construed solely as a sentence-four

remand. We interpret the Pettyjohn decision to say something less

remarkable. Pettyjohn merely holds that because the Commissioner's

error was the only basis for remand in that case, the district

court could only have remanded under sentence four. See Melkonyan,

501 U.S. at 99-101, 111 S.Ct. at 2163-65. We know that the holding

in Pettyjohn is not any broader than that, because the district

court in Pettyjohn only remanded the claimant's case on the

sentence-four ground. See Pettyjohn v. Sullivan, 801 F.Supp. 503,

507 (W.D.Okl.1992) (holding that new evidence had been "absent from

the issues being resolved" in the action for judicial review).

Because the Tenth Circuit in Pettyjohn was not presented with

anything more than a simple sentence-four remand, it could not have

held that any remand based partly on the correctness of the

Commissioner's decision (such as a dual basis remand) must be

construed solely as a sentence-four remand. Pettyjohn 's actual

holding presents no obstacle to Jackson's argument that his remand

should be understood as both a sentence-four and a sentence-six

remand.

In sum, we are not convinced that a § 405(g) remand on both

sentence-four and sentence-six grounds should be treated as

anything other than what it is, a dual basis remand, unless the

statute or binding precedent forbids a remand on both bases. We

turn now to that question.

B. THE POSSIBILITY FOR DUAL BASIS REMANDS UNDER 42 U.S.C. § 405(g)

The Commissioner contends that the Supreme Court's decisions
in Melkonyan and Schaefer, and our decision in Newsome v. Shalala,

8 F.3d 775 (11th Cir.1993), forbid a district court from remanding

a case under both sentence four and sentence six of § 405(g). As

the Commissioner demonstrates in her brief, those three decisions

differentiate between sentence-four and sentence-six remands both

as to the requirements for a remand and as to the running of the

EAJA attorney's fees application deadline. Those decisions also

state that a sentence-four remand terminates district court

jurisdiction over a case, while a sentence-six remand continues

jurisdiction in the district court. Based on that distinction, the

Commissioner asserts that logically a court cannot remand a single

case on both bases.

Insofar as the Commissioner argues that sentence four and

sentence six of § 405(g) provide for remands with different

purposes and different jurisdictional effects, she is correct. In

essence, a sentence-four remand is based upon a determination that

the Commissioner erred in some respect in reaching the decision to

deny benefits. A sentence-four remand has been construed to be a

final and appealable order. See Sullivan v. Finkelstein, 496 U.S.

617, 625-26, 110 S.Ct. 2658, 2664, 110 L.Ed.2d 563 (1990). A

judgment of remand on sentence-four grounds is a final judgment

under the EAJA, and it usually starts the EAJA attorney's fees

application filing period running.4 Melkonyan, 501 U.S. at 102,

4
According to the EAJA, the application must be filed within
thirty days of the time the judgment is final and no longer
appealable. 28 U.S.C. §§ 2412(d)(1)(B), (d)(2)(G). A judgment
against a federal officer is appealable by that officer for sixty
days after entry of the judgment. See Fed.R.App.P. 4(a)(1).
Thus, an EAJA applicant seeking fees incurred after the wrongful
denial of disability benefits has ninety days (sixty plus thirty)
111 S.Ct. at 2165. By the same token, the district court's entry

of judgment after a sentence-four remand terminates district court

jurisdiction over the claimant's case. See Schaefer, 509 U.S. at

299, 113 S.Ct. at 2630 (holding that a district court may not

retain jurisdiction over a case remanded pursuant to sentence

four).

A sentence-six remand differs from a sentence-four remand in

both purpose and jurisdictional effect. A sentence-six remand does

not result from any error by the Commissioner. A sentence-six

remand is warranted even in the absence of any error by the

Commissioner if new, material evidence becomes available to a

claimant, and the claimant could not have presented that evidence

at his original hearing. See § 405(g). In a sentence-six remand,

the statutory provision itself specifically requires the

Commissioner to return to district court to file additional or

modified findings of fact after the new evidence is heard.

Melkonyan, 501 U.S. at 98, 111 S.Ct. at 2163. Because the parties

must return to district court after the remand proceedings to file

the Commissioner's findings of fact, the district court retains

jurisdiction over the case throughout the remand proceedings. Id.

at 98-99, 111 S.Ct. at 2163-64. Thus, unlike a sentence-four

remand, a sentence-six remand is not a final judgment under the

EAJA, and the window for filing an EAJA fee application does not

open until judgment is entered in the district court following

completion of the remand proceedings. Id. at 102, 111 S.Ct. at

to file his application, if the Commissioner does not appeal the
district court's judgment.
2165.

The Commissioner contends that the differences between the two

types of remands, especially the different times at which district

court jurisdiction is terminated, prevent a district court from

simultaneously ordering both types of remand. She argues that the

district court must choose between remanding under sentence four

which terminates its jurisdiction over the case, and remanding

under sentence six which continues its jurisdiction. By contrast,

it is the position of claimant Jackson that the district court was

not required to choose between a sentence-four remand and a

sentence-six remand. Instead, where both grounds for remand exist,

as they did in this case, the district court properly could rely on

both grounds.

If the statute forbade a dual basis remand, we would follow

that direction. But nothing in the statute indicates that a court

cannot remand the same case for both statutory reasons at one and

the same time. Not only does the statute not forbid a dual basis

remand, the Commissioner has not put forward a good policy reason

for doing so, either. Policy justifications actually point the

other way. Suppose the ALJ clearly commits an error in the course

of considering the evidence presented, and just as clearly there is

also some new evidence that the claimant is entitled to have

presented and considered, apart from any error by the ALJ. Why is

the district court required to correct only half of the problem?

Why should the district court not remand for both purposes, in

order to get everything right in one proceeding, instead of having

two remand proceedings? The answer, according to the Commissioner,
is that the case law makes a dual basis remand impossible. We

disagree.

The Commissioner relies upon the Supreme Court's decision in

Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157, 115 L.Ed.2d 78

(1991). In that case, the Supreme Court did discuss the two types

of remand permitted under § 405(g), but the Court did not hold that

a district court must choose between a sentence-four or a

sentence-six remand. When the Court stated in Melkonyan that

"these [sentence-four and sentence-six] remands were the only kinds

of remands permitted under the statute", 501 U.S. at 99, 111 S.Ct.

at 2163, the Court was not forbidding a dual basis remand.

Instead, the Court was rejecting the assertion that § 405(g) did

not limit the inherent power of the district court to remand cases

to the agency. The Supreme Court explained that Congress wanted to

curtail district court power to remand social security cases.

Therefore, it amended § 405(g) to restrict remand grounds to those

listed in the statute. 501 U.S. at 99-100, 111 S.Ct. at 2163-64.

What the Melkonyan decision holds is that where Congress amends a

statute to provide for a remand on grounds A and B, a court may not

remand on ground C. But that does not mean that a court cannot

simultaneously remand for both grounds A and B. Melkonyan does not

forbid dual basis remands.

The Commissioner also argues that dual basis remands are

forbidden, or at least illogical, under Shalala v. Schaefer, 509

U.S. at 292, 113 S.Ct. at 2625, and Newsome v. Shalala, 8 F.3d 775

(11th Cir.1993). Although the Schaefer Court did not address the

effect a dual basis remand would have on a district court's
jurisdiction, the Commissioner contends that Schaefer nonetheless

determines the result of the present case. She reasons that

Schaefer is a clear command that entry of the judgment remanding

the case cuts off jurisdiction, and that no exception may be made

to this rule. The Commissioner also contends it would be illogical

to allow dual basis remands after Schaefer, because a district

court cannot both retain jurisdiction and terminate jurisdiction at

the same time. We disagree.

In Schaefer, the Supreme Court addressed the interaction

between § 405(g) and the EAJA in the context of a pure

sentence-four remand case. The district court in Schaefer had

remanded the claimant's case pursuant to sentence-four only, but

the court had failed to enter judgment following the remand. The

claimant argued that the remand order did not constitute a "final

judgment" from which the EAJA application period could be measured.

The claimant further contended that the district court was not

required to enter judgment following the remand. See Schaefer, 509

U.S. at 296-97, 113 S.Ct. at 2629.

The Supreme Court rejected the claimant's arguments and held

that the district court must enter judgment after ordering a

sentence-four remand, because the text of § 405(g) requires that a

judgment be entered at that time. See id.; see also 42 U.S.C. §

405(g). The Schaefer court also held that, where a district court

orders a sentence-four remand and enters judgment, the judgment

remanding the case must be considered the "final judgment" from

which the EAJA application period is measured. 509 U.S. at 297-98,

113 S.Ct. at 2629. An EAJA application must be filed "within
thirty days of final judgment in the action." 28 U.S.C. §

2412(d)(1)(B) (West 1994). A "judgment" may only be entered by a

court. Melkonyan, 501 U.S. at 96, 111 S.Ct. at 2162. Thus, in a

sentence-four remand case, the judgment remanding the case must be

considered the "final judgment" for EAJA purposes. If the judgment

remanding the case were not the "final judgment," EAJA fees might

not be awarded for any part of a sentence-four remand, because it

may turn out that no other judgment by a court will be entered in

the case. Schaefer, 509 U.S. at 297-98, 113 S.Ct. at 2628-29.

That is the situation Schaefer addressed. We applied the rules of

Schaefer to a sentence-four remand case in Newsome. See 8 F.3d at

779-80.

A different situation is presented in a dual basis remand

case. In such a case, jurisdiction continues despite the entry of

judgment remanding the case, because the sentence-six part of the

remand requires the parties to return to district court. See

Melkonyan, 501 U.S. at 102, 111 S.Ct. at 2165. Moreover, the

judgment remanding the case need not constitute the final judgment

for EAJA purposes, because after the remand proceedings the parties

must return to court, and the court must enter another judgment

terminating the case insofar as it concerns the sentence-six remand

grounds. Those distinctions make a dual basis remand materially

different from a remand based on sentence-four grounds alone.

Therefore, Schaefer 's analysis of sentence-four remands does not

foreclose remands based upon both sentence-four and sentence-six

grounds.

The Commissioner contends that a dual basis remand would be
illogical under Schaefer, even if that decision does not expressly

forbid such a remand, as we hold it does not. Once again, we

disagree with the Commissioner. It is true that a district court

cannot simultaneously terminate and retain jurisdiction over a

case, but what happens with a dual basis remand is that the

district court retains jurisdiction over the case pursuant to

sentence six of § 405(g). The statute provides that a district

court must retain jurisdiction over a case remanded for

consideration of additional evidence. The entry of judgment

remanding the case does not end the jurisdiction of the district

court, so long as a sentence-six ground for remand is included in

the remand order. The entry of judgment at the time the case has

been remanded reflects the fact that the case has been remanded on

sentence-four grounds as well. Schaefer 's holding—that

jurisdiction ends in district court after a remand based on

sentence-four grounds alone—does not make the district court's

retention of jurisdiction in a dual basis remand case illogical or

improper.

C. APPLYING FOR EAJA FEES IN A DUAL REMAND CASE

The Commissioner argues that a dual basis remand cannot

exist, because it is unworkable under the EAJA framework laid out

by the Supreme Court in Melkonyan and Schaefer. We disagree. In

a dual basis remand case, the entry of judgment pursuant to

sentence four in conjunction with the remand order constitutes a

final judgment, i.e., a judgment which is a final order of the
district court. See Melkonyan, 501 U.S. at 96, 111 S.Ct. at 2162.5

Furthermore, the claimant is a prevailing party entitled to seek

fees under the EAJA; the claimant prevails by obtaining a remand

for reconsideration of his case by the Commissioner (or the ALJ).

Schaefer, 509 U.S. at 300-01, 113 S.Ct. at 2631. Because the entry

of judgment remanding the case on dual grounds is a final judgment,

a claimant who achieves such a remand can file an EAJA application

for fees within thirty days of the time the entry of judgment of

remand is final and no longer appealable. See 28 U.S.C. § 2412(d).

Jackson is not barred from filing his EAJA application,

however, even though he did not file it soon after the entry of the

judgment remanding the case. We hold that in a dual basis remand

case, where the award of benefits on remand is not based solely

upon sentence-four reasons, the claimant may file his EAJA

application after the judgment is entered in his favor following

the remand proceedings. The claimant can do that, because the

second entry of judgment constitutes a final judgment from which

the opening and closing of the EAJA filing period may be measured.

The EAJA also requires the applicant to be a prevailing party.

Because Jackson succeeded on remand, at least in part on

sentence-six grounds, judgment must be entered in his favor by the

district court, and Jackson will be a prevailing party under that

5
Because the entry of judgment is a final order of the
district court, the district court's determination that the
Commissioner committed a substantive error may be immediately
appealed to this Court. Sullivan v. Finkelstein, 496 U.S. 617,
625-26, 110 S.Ct. 2658, 2664, 110 L.Ed.2d 563 (1990). Where the
Commissioner does appeal, the remand should be stayed until the
completion of that appeal, so that piecemeal litigation may be
avoided.
judgment. Jackson may file his EAJA application for attorney's

fees within the prescribed time period after his case is reopened

and judgment is entered in his favor.6

6
It follows from what we have held that in a dual basis
remand case, the claimant would be wise to file an EAJA
application at the time of remand to cover any fees earned and
costs incurred up to that point in obtaining the sentence-four
part of the remand. If the claimant prevails on remand in part
due to the sentence-six reason for the remand, any fees and costs
to which the claimant might be entitled as a result of those
proceedings could be covered by an amendment to the EAJA
application filed after the case returns to the district court
following remand.

During oral argument, counsel for the claimant informed
us of a practice, apparently common in some courts. Under
that practice, an EAJA application, filed after a
sentence-four remand order is entered, is held in abeyance
and subject to amendment. After the completion of the
sentence-four remand proceedings, if the claimant is
successful, he is allowed to amend the earlier EAJA
application to cover fees and costs of the remand
proceedings. This practice is forbidden by Supreme Court
precedent in cases involving only a sentence-four remand.
The Supreme Court has held that the expiration of the time
to appeal a judgment remanding a case under sentence four
starts the EAJA application period, and district court
jurisdiction over an EAJA application terminates when the
filing period concludes. See Schaefer, 509 U.S. at 298-99 &
n. 4, 113 S.Ct. at 2631 & n. 4. Thus, the district court
has no jurisdiction to act on the EAJA application after the
sentence-four remand proceedings are finished. But a
different situation is presented in a sentence-six remand
case. Schaefer appears to tolerate the practice of amending
EAJA applications in sentence-six remand cases, because the
court must retain jurisdiction over the case during remand
proceedings, anyway. See id. Because a dual basis remand
contains a sentence-six prong, which continues district
court jurisdiction during the remand proceedings, we see no
reason why a claimant could not file an EAJA application
soon after a dual basis remand order is entered, and then
amend it after the remand proceedings are completed and the
case returns to district court.

However, we reiterate that Jackson was not required to
follow that practice here in order to meet the requirements
of the EAJA, because he succeeded on remand in regard to the
sentence-six prong. Jackson prevailed on remand in part due
to the ALJ's consideration of new evidence, and Jackson was
entitled to have the district court enter a final judgment
 III. CONCLUSION

To summarize, after reviewing § 405(g) and the applicable case

law, we agree with Jackson that if both sentence-four and

sentence-six grounds for remand exist in a disability case, the

case may be remanded on both grounds. District court jurisdiction

over the case continues after the entry of the remand judgment as

a result of the sentence-six prong of the remand. If a claimant

achieves a remand on both sentence-four and sentence-six grounds,

and thereafter succeeds on remand in part due to the sentence-six

ground, the claimant may return to district court to request entry

of judgment after remand proceedings have been completed. In such

a case, the claimant may wait until the postremand judgment is

entered before filing his EAJA application.

We VACATE the district court's order denying Jackson's motion

to reopen his case. We REMAND this case with instructions for the

district court to reopen Jackson's case, enter judgment in his

favor, and allow him to file an application for attorney's fees and

costs if he does so in a timely fashion after the entry of that

judgment.

in his favor after remand proceedings, as in any
sentence-six remand case. Once the district court enters
judgment in Jackson's favor, Jackson will be a prevailing
party under the EAJA. Thus, Jackson will be allowed to file
his EAJA application for all fees and costs incurred in
challenging the Commissioner's denial of benefits. Of
course, any award under EAJA is subject to the proviso that
there will be no award where "the court finds that the
position of the United States was substantially
justified...." 28 U.S.C.A. § 2412(d)(1)(A) (West 1994).