ZAKHAR MELKONYAN, PETITIONER V. LOUIS W. SULLIVAN, SECRETARY OF
HEALTH AND HUMAN SERVICES

   No. 90-5538

   In The Supreme Court Of The United States

   October Term, 1990

   On Writ Of Certiorari To The United States Court Of Appeals For The
Ninth Circuit

   Brief For The Respondent

            TABLE OF CONTENTS
   Question Presented
   Statement
   Summary of argument
   Argument:
        I. In an action for judicial review under the Social
           Security Act in which the district court has remanded
           the case to the Secretary, the 30-day
           limitations period for filing an aplication for
           attorney's fees under the Equal Access to Justice
           Act begins to run if and when the Secretary's
           post-remand decision becomes final and
           not appealable
           A. Introduction
           B. It is consistent with 42 U.S.C. 405(g) and
              with EAJA to hold that a post-remand decision
              of the Secretary that is final and not
              appealable is a "final judgment" for purposes
              of EAJA
           C. The Fourth Circuit's decision in Guthrie v.
              Schweiker and cases following it do not warrant
              rejection of the Ninth Circuit's approach
              in this case
           D. The approach we propose is more practical,
              and more helpful to claimants, than any
              suggested alternative
       II. There are no grounds for this Court to exempt
           petitioner from the requirement that an EAJA
           application be filed within 30 days of a post-remand
           decision by the Secretary that has become
           final and not appealable
   Conclusion

                          QUESTION PRESENTED

   In a Social Security case that has been remanded to the agency by
the district court, does the 30-day limitations period for applying
for attorney's fees under the Equal Access to Justice Act begin to run
when an administrative decision becomes final and not appealable?

                               STATEMENT

   1.a. On May 28, 1982, petitioner filed an application for
disability benefits under the Supplemental Security Income (SSI)
program established by Title XVI of the Social Security Act, 42 U.S.C.
1381 et seq.  On January 30, 1984, an administrative law judge
determined after a hearing that petitioner did not have a "severe"
impairment and therefore was not disabled within the meaning of the
Act. Tr. 6-11;  /1/ see 20 C.F.R. 416.921;  Bowen v. Yuckert, 482 U.S.
137 (1987).  The Appeals Council denied review of the ALF's decision.
Tr. 2.  On June 8, 1984, petitioner filed a complaint in the United
States District Court for the Central District of California, seeking
judicial review of the Secretary's decision pursuant to 42 U.S.C.
1383(c)(3), which incorporates the judicial review provisions of 42
U.S.C. 405(g).  J.A. 19, 28.

   b. On May 30, 1984, shortly before filing his civil action,
petitioner filed a second application for SSI benefits, supported by
new evidence of disability.  On the basis of this second application,
petitioner was found to be disabled as of the date it was filed.  On
October 18, 1984, petitioner filed a motion for summary judgment in
his civil action for judicial review of the Secretary's decision
denying his first application.  That motion was accompanied by the new
evidence of disability filed with his second application.  J.A. 28.

   While petitioner's motion for summary judgment was pending, the
Appeals Council, after reviewing the developments in connection with
petitioner's second application, decided that it would accept a
voluntary remand of the case for further administrative proceedings.
/2/ The Secretary offered to stipulate to such a remand, but
petitioner's counsel refused to do so.  Accordingly, on December 18,
1984, the Secretary filed a motion requesting that the court,
"pursuant to (petitoner's) prayer for relief in his complaint, order
this case be remanded" to the Secretary "for further * * *
proceedings." J.A. 6;  see J.A. 19, 28.  /3/ On December 27, 1984,
petitioner filed an objection to the Secretary's motion to remand.
J.A. 7-8.  But petitioner subsequently changed his mind, and on March
28, 1985, he filed an "ex parte application for an order remanding
this case to the (Secretary,) with the belief that this (would)
expedite resolution of (petitioner's) claim." J.A. 9-10.  /4/ In
response, the district court entered its "judgment" in the case on
April 3, 1985.  J.A. 11.  The judgment read in its entirety (J.A. 11):

         Defendant's motion to remand, concurred in by plaintiff, is
      granted.  The matter is remanded to the Secretary for all
      further proceedings.

The judgment did not state that the court was retaining jurisdiction
pending the outcome of the proceedings before the Secretary, and it
did not order either party to make any further filing in the court at
the conclusion of the post-remand administrative proceedings.

   Following the remand, the Appeals Council, On May 7, 1985, rendered
a decision in which it (1) vacated its prior order refusing review of
the ALJ's January 30, 1984, denial of petitioner's first application,
(2) vacated the ALJ's decision as well, and (3) found petitioner
disabled as of the date (May 28, 1982) on which he had filed his first
application.  J.A. 14-16.  The Appeals Council determined, based on
pulmonary function studies submitted in connection with petitioner's
second application, that petitioner's impairment was "severe" and that
he had been limited to performing "medium" work since May 28, 1982.
The Appeals Council then concluded that under the medical-vocational
guidelines approved by this Court in Heckler v. Campbell, 461 U.S. 458
(1983), a finding of disability was required for a person of
petitioner's age, education, and work experience who could perform
only "medium" work.  J.A. 16 (citing 20 C.F.R. Pt. 404, Subpt. P, App.
2, Table 3, Rule 203.10 (as made applicable to the SSI program by 20
C.F.R. 416.969)).  /5/

   2. On May 19, 1986, more than one year after the Appeals Council's
decision, petitioner filed an application in the district court for
attorney's fees under the Equal Access to Justic Act (EAJA), 28 U.S.C.
2412(d).  J.A. 29.  /6/ The magistrate recommended that the fee
application be denied.  J.A. 19-21.  The magistrate concluded that the
Secretary's pre-remand decision denying petitioner's first application
was "substantially justified" within the meaning of EAJA, 28 U.S.C.
2412(d)(1)(A), because the medical reports in the original record did
not indicate that he was disabled.  J.A. 20-21.  On February 17, 1987,
the district court, following the magistrate's recommendation, entered
an order denying petitioner's application for attorney's fees.  J.A.
22.

   3. The court of appeals vacated the district court's judgment
denying petitioner's application for attorney's fees on the merits and
remanded the case with instructions to dismiss the fee application as
untimely.  J.A. 27-36.

   a. The court of appeals pointed out that under 28 U.S.C.
2412(d)(1)(B), n application for EAJA fees must be filed witin 30 days
of the "final judgment in the action," a term that is defined as "a
judgment that is final and not appealable." J.A. 30 (quoting 28 U.S.C.
2412(d)(1)(B) and (d)(2)(G)).  Applying that definition, the court of
appeals first concluded that the district court's April 5, 1985,
judgment remanding the case to the Secretary could not itself be the
"final judgment" for purposes of EAJA, because both parties
anticipated that there would be further proceedings after remand.
J.A. 30-31.  The court then noted that there was no other order of the
district court that could serve as the "final judgment" for these
purposes, since the district court did not enter a new judgment (or
any other order) after the Appeals Council rendered its decision on
remand.  J.A. 31.

   In these circumstances, the court held that the Secretary's final
decision after remand -- which was the Appeals Council's May 7, 1985,
decision finding petitioner disabled as of the onset date alleged in
his first application -- must be regarded as the "final judgment" for
purposes of commencing the 30-day period for filing a fee application
under EAJA.  In the court's view, that decision satisfied EAJA's
definition of a "final judgment," since it was "final and not
appealable" by either party.  28 U.S.C. 2412(d)(2)(G).  The court
explained that because 42 U.S.C. 405(g) authorizes judicial review
only by an "individual" who is aggrieved by the Secretary's final
decision after a hearing, "the Secretary would not have standing or
reason to complain of his own final decision." J.A. 33.  "Likewise,"
the court continued, "if a claimant wholly prevails on his claim, he
would have no reason to appeal that decision." Ibid.

   The court of appeals recognized that, under 42 U.S.C. 405(g), a
claimant ordinarily has 60 days within which to seek judicial review
of an Appeals Council decision (plus five days between the date of the
Appeals Council decision and the date on which the decision is
presumed to be received under governing regulations).  J.A. 32 (citing
20 C.F.R. 416.1401, 416.1481, 416.1483 (1988)).  Because a typical
Appeals Council decision would not be final and unreviewable until
after expiration of that 65-day period for seeking judicial review,
the court believed that the 30-day period within which to file an EAJA
application based on a post-remand decision by the Appeals Council
ordinarily would not begin to run until after that 65-day period had
passed.  /7/ But the court concluded that where, as here, the
Secretary determines that the claimant was disabled as of the onset
date alleged in the claimant's original application, the 30-day period
begins to run immediately upon the date of the Appeals Council's
decision, since that decision is "not appealable" by either the
claimant or the Secretary.  J.A. 32.  Because petitioner did not seek
EAJA fees until more than one year after the Secretary rendered his
fully favorable post-remand decision, and because in its view the
30-day filing period under EAJA is jurisdictional, the court of
appeals held that the district court lacked jurisdiction to entertain
petitioner's EAJA application.  J.A. 29, 33.

   b. In so ruling, the court of appeals declined to follow the
"different approach" adopted by the Fourth Circuit in Guthrie v.
Schweiker, 718 F.2d 104 (1983).  J.A. 33-35.  There, the Fourth
Circuit relied on language in the sixth sentence of 42 U.S.C. 405(g)
that requires the Secretary, after a remand covered by that sentence,
to file with the district court his modified findings of fact and
decision, as well as a transcript of the additional administrative
record.  718 F.2d at 106;  see Sullivan v. Finkelstein, 110 S. Ct.
2658, 2664-2665 (1990).  The Fourth Circuit reasoned in Guthrie that
after such a filing, the district court should enter an order
affirming, modifying, or reversing the Secretary's post-remand
decision;  such a judicial order could then serve as the "final
judgment" that would commence the running of the 30-day filing period
under EAJA.  See J.A. 33 (citing 718 F.2d at 106).

   The Ninth Circuit in this case found the Guthrie approach
"troublesome." J.A. 34.  It noted that 42 U.S.C. 405(g) does not
confer upon the district court independent power to review any
post-remand filing by the Secretary.  /8/ Accordingly, the court of
appeals reasoned, the merits of the Secretary's post-remand decision,
like the Secretary's original decision, may be reviewed by the
district court only if the claimant seeks judicial review of that
decision within the 60-day period allowed by 42 U.S.C. 405(g).  J.A.
34.  Unless the ordinary requirements for judicial review are met, the
court continued, it was "at a loss to find a basis for a district
court to enter any order or judgment affirming, modifying, reversing
or remanding the Secretary's post-remand filing." Ibid.  Nor could the
court below "see any advantage to such an approach," because "(i)f the
Secretary's decision is wholly in favor of the claimant," there is no
"need for overburdened district courts to deploy scare judicial
resources in a sua sponte 'affirmation' of uncontested eligibility
decisions." Ibid.

   In addition, the court of appeals found it significant that Guthrie
was decided before the 1985 amendments to EAJA, which "effectively
redefined" the term "final judgment" to mean a "judgment that is final
and not appealable." J.A. 34-35 (quoting 28 U.S.C. 2412(d)(2)(G)).
Although the Fourth Circuit had assumed in Guthrie that the term
"final judgment" referred only to an order of the sort a court may
enter, as under Fed. R. Civ. P. 54, the court below found no reason in
the amended version of EAJA to conclude that the term is so limited.
The court of appeals therefore held that the term "judgment" in this
context does not require an order by a court, but may instead consist
of a final and unreviewable administrative decision following a remand
from a court.  J.A. 34-35.

   c. Finally, the court of appeals noted that its approach "not only
sets definite limits for purposes of finality, but it also benefits
individuals seeking EAJA awards under section 2412 in similar
circumstances." J.A. 35.  "Rather than wait for the Secretary to make
a post-remand filing and wait for that filing to be affirmed by the
district court," the court explained, "such individuals may seek EAJA
awards as soon as the agency's action on remand becomes a 'final
judgment' under section 2412(d)(2)(G)." Ibid.

                          SUMMARY OF ARGUMENT

   1.a. The holding below -- that the 30-day limitations period for
filing an EAJA application begins to run when the Secretary's
post-remand decision becomes final and not appealable -- is correct.
The decision is consistent with the governing statutes and with the
analysis in this Court's decisions in Sullivan v. Hudson, 490 U.S. 877
(1989), and in Sullivan v. Finkelstein, 110 S. Ct. 2658 (1990).
Moreover, the rule adopted by the court below serves to benefit all
concerned -- the courts, private claimants, and the Secretary -- by
eliminating any need for pointless filings and rulings and by
expediting the process of considering applications for EAJA awards.

   Petitioner's approach, in contrast, would impose on the parties and
the courts a cumbersome and unnecessary procedure that finds no basis
in any governing statute.  It would require that before the
limitations period for filing an EAJA application can begin to run in
a case that has been remanded to the Secretary, the Secretary's
decision on remand must be filed with the district court, the district
court must enter some sort of order that would constitute a "final
judgment," and the time for appealing from that order must expire
without an appeal being taken.

   b. The term "final judgment," as used in EAJA, is broad enough to
encompass a post-remand administrative determination that is final an
no longer subject to appeal.  This conclusion is buttressed not only
by the definition of the term "judgment" in both standard and legal
dictionaries, but by the context in which the term is used in EAJA
itself and by the legislative history of the 1985 provisions
clarifying the meaning of the statute.  A critical aspect of that
clarification was the rejection of an "overly technical" construction
of the phrase that tied it too closely to the concept of a final
judgment of a district court.

   Moreover, the construction of EAJA adopted by the court below is
supported by this Court's decisions in Hudson and in Finkelstein.  The
Court in Hudson -- focusing on the interpretation of EAJA -- rejected
a narrow definition of "civil action" that limited its scope to
proceedings in district court and instead endorsed a definition that
embraced administrative proceedings on remand from the district court.
 By the same rationale, the term "final judgment," as used in EAJA,
should be construed to embrace a final, non-appealable decision
rendered in those same administrative proceedings.  And in
Finkelstein, the Court held that for substantive purposes (and for
purposes of determining appealability), an action in the district
court comes to an end when it is remanded to the Secretary for further
proceedings;  nothing remains to be done in the district court in
order to achieve "finality" once the proceedings before the Secretary
have terminated in a final and unreviewable administrative decision.

   The rationale of the Finkelstein decision, which strongly supports
the result below, does not directly apply to a district court order
sending a case back to the Secretary under the sixth sentence of 42
U.S.C. 405(g), and thus further action by the district court may be a
prerequisite to the existence of a "final judgment" in such cases.
But that question need not be resolved here, since the district
court's order of remand in this case was not issued pursuant to the
sixth sentence of Section 405(g).  Rather, like the order in
Finkelstein, it served to terminate the proceedings in the district
court.

   c. The court of appeals decisions relied on by petitioner do not
support his position.  Each of those cases was decided before this
Court's decisions in Hudson and Finkelstein, and the premises about
the operation of 42 U.S.C. 405(g) on which they rest have since been
shown to be false.  Moreover, the same mistaken premises underlie the
passages in the 1985 legislative history on which petitioner also
relies.

   d. Many practical considerations militate in favor of the approach
adopted below, especially if, as we urge, the approach is modified so
that the time in all cases begins to run only when the period for
seeking further review of the Secretary's decision has expired.  The
approach, as noted, has the advantage of eliminating pointless and
unnecessary steps and of expediting the consideration of EAJA
applications.  And, particularly if our modification is accepted, it
would have none of the disadvantages attributed to it in petitioner's
brief.

   2. There is no reason for this Court to exempt petitioner from the
time limits imposed by law for the filing of an EAJA application.  The
question of the retroactive application of this Court's (or the Ninth
Circuit's) ruling as a general matter may properly be left to the
lower courts in the fist instance.  And if the Court believes that
retroactivity should be addressed specifically with respect to
petitioner's application, we suggest that the Court remand to the
court of appeals for further proceedings on that issue, since it was
not addressed in the decision below.

   In any event, as petitioner recognizes, a jurisdictional ruling
must be given retroactive effect, and the time limit for filing EAJA
applications remains a jurisdictional one, even after this Court's
decision in Irwin v. Veterans Admin., 111 S. Ct. 453 (1990).
Moreover, even if equitable tolling, or a prospective ruling, were not
completely foreclosed in this context, there is no basis on this
record for excusing petitioner's filing delay of over nine months
under the retroactivity principles of Chevron Oil Co. v. Huson, 404
U.S. 97 (1971):  the Ninth Circuit did not overrule clearly
established circuit precedent in rendering the decision below;
prospective applciation is not necessary to fulfill EAJA's purpose of
removing a possble obstacle to retaining counsel to challenge
governmental action, since petitioner and other raising this issue
have had the assistance of counsel;  and retroactive application will
not produce unfair results, in light of petitioer's failure to press
his attorney's fee claim promptly.

                               ARGUMENT

   I. IN AN ACTION FOR JUDICIAL REVIEW UNDER THE SOCIAL SECURITY ACT
IN WHICH THE DISTRICT COURT HAS REMANDED THE CASE TO THE SECRETARY,
THE 30-DAY LIMITATIONS PERIOD FOR FILING AN APPLICATION FOR ATTORNEY'S
FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT BEGINS TO RUN IF AND WHEN
THE SECRETARY'S POST-REMAND DECISION BECOMES FINAL AND NOT APPEALABLE

   A. Introduction

   The court of appeals correctly held that, in circumstances where a
Social Security case is remanded to the Secretary for further
administrative proceedngs, the 30-day limitations period for filing an
application for attorney's fees under the Equal Access to Justice Act,
28 U.S.C. 2412(d)(1)(B), commences when the post-remand decision of
the Secretary become final and not appealable.  That holding comports
with the text and purposes of 42 U.S.C. 405(g) and of EAJA, as well as
with the analytical framewrk of this Court's decisions in Sullivan v.
Hudson, 490 U.S. 877 (1989), and Sullivan v. Finkelsten, 110 S. Ct.
2658 (1990).

   The three other courts of appeals that have considered the question
since Hudson and Finkelstein have agreed with the Ninth Circuit's
ruling in this case.  See Richard v. Sullivan, No. 90-4597 (5th Cir.
Feb. 28, 1991);  Buck v. Secretary of HHS, No. 89-4130 (6th Cir. Jan.
18, 1991);  /9/ Jabbay v. Sullivan, 920 F.2d 472 (7th Cir. 1990).
These decisions follow a straightforward rule that comports with the
statutory scheme and common sense.  If the claimant does not seek
further review of the Secretary's post-remand decision within the time
allowed, then all proceedings on the question of his disability (the
subject matter of the civil action) are at an end.  Since neither the
Secretary nor the claimant may seek judicial review on the merits at
that point, there is no occasion under 42 U.S.C. 405(g) for the court
to take further action.  All that remains (aside from the often
ministerial task of calculating and paying benefits) is for the
claimant to seek attorney's fees under EAJA.  /10/ The decision below
permits the claimant to file for and be awarded EAJA fees immediately
when the post-remand decision becomes final, without awaiting further
action by the Secretary and the court;  and the triggering of the
30-day filing period at that point ensures that all proceedings
concerning the claimant's disability will be brought promptly to a
close.  The decision below also properly places the burden on the
claimant -- the moving party on the EAJA question -- to invoke the
jurisdiction of the court by filing a fee petition within 30 days.

   As petitioner points out (Br. 16-19), several court of appeals
decisions prior to Hudson and Finkelstein had suggested a different
approach.  See Guthrie v. Schweiker, 718 F.2d at 106;  Brown v.
Secretary of HHS, 747 F.2d 878, 884-885 (3d Cir. 1984);  Taylor v.
Heckler, 778 F.2d 674, 677 (11th Cir. 1985).  But the essential
premises of those decisions have since been shown by Hudson and
Finkelstein to be wrong.  See pages 30-32, infra.  Moreover, those
decisions would superimpose on 42 U.S.C. 405(g) certain mandatory
procedures that have no basis in law and that may complicate and delay
the final resolution of disability claims and fee petitions.

   Under petitioner's view, if for any reason a claimant does not seek
judicial review of the Secretary's post-remand decision, and thus
allows that decision to become final and nonreviewable, there still is
no "final judgment" in the case, for purposes of EAJA, unless and
until the district court also enters some sort of order.  It follows,
under petitioner's position, that for an EAJA award to be available in
these circumstances, the Secretary must make a filing with the
district court following completion of the proceedings on remand in
every case;  and after the Secretary makes such a filing, the district
court must enter an order affirming, modifying, or reversing the
Secretary's final post-remand decision in every case.  Such an order
by the district court, once it becomes final and not appealable, could
then serve as the "final judgment" for purposes of commencing the
30-day filing period under EAJA.  See Pet. Br. 17-19, 23, 25-26,
29-31.  The Secretary and the district court apparently would have to
follow this procedure even if neither the claimant nor the Secretary
wanted to present any issue to the court concerning the merits of the
Secretary's post-remand decision, and indeed even if the claimant had
no intention of actually applying for EAJA fees.  /11/

   The elaborate construct petitioner proposes finds no basis in 42
U.S.C. 405(g), the statutory provision enacted by Congress to govern
judicial review of decisions by the Secretary on claims for Social
Security benefits.  Specifically, nothing in 42 U.S.C. 405(g) requires
a filing in court following every post-remand decision, including
those that the claimant has allowed to become final and not
appealable, nor does anything in Section 405(g) contemplate any
further role for the district court in such cases.  See pages 23-25,
infra.  /12/ Despite this statutory silence, petitioner would impose
two additional layers of mandatory procedure -- a filing with the
district court of the decision on remand, followed by an order of the
district court affirming, modifying, or reversing the Secretary's
uncontested decision on the merits -- solely to facilitate EAJA
applications.  Petitioner seeks, in other words, to make the EAJA tail
wag the Section 405(g) dog.

   The flaw in this approach is not only its cumbersomeness but its
conflict with the design of EAJA -- to take the procedures applicable
to the particular civil action as it finds them, and to effectuate the
purposes of EAJA within that statutory context See Hudson, 490 U.S. at
889 ("we must endeavor to interpret the fee statute in light of the
statutory provisions it was designed to effectuate").  It therefore is
necessary to locate within the procedures that have been independently
prescribed by statute and rule the decision that may most properly be
regarded as the "final judgment" in the case for purposes of EAJA's
30-day filing requirement.  In the present context, that decision is
the post-remand administrative decision of the Secretary, once it has
become "final and not appealable." 28 U.S.C. 2412(d)(2)(G).

   The rule petitioner proposes also presents significant practical
difficulties that can be avoided under the Ninth Circuit's
construction.  First petitioner's rule would require many pointless
post-remand filings in the district courts and pointless post-remand
orders by those courts, for in a large number of cases arising under
the vast Social Security programs, the claimant will not apply for the
EAJA fees that petitioner's proposal purports to facilitate.  /13/

   Second, even in those cases in which the claimant might ultimately
file an application for EAJA fees, petitioner's submission would
require unnecessary steps and complications in the fee-application
process.  Under the approach adopted by the Ninth Circuit and the
other courts that have followed it, the claimant initiates the EAJA
fee process by filing an application with the court -- an application
the government may then choose not to contest.  That streamlined
procedure is especially appropriate in the present context, since the
number of EAJA applications Social Security cases is substanital,
while the amount of EAJA awards in such cases is relatively small.
See Commissioner, INS v. Jean, 110 S. Ct. 2316, 2322 n.12 (1990)
(noting that 90% of EAJA fee awards in 1989 were in HHS cases and that
these awards averaged less than $3,000 each).  By contrast,
petitioner's position apparently would require a filing of the
Secretary's decision with the court as a precondition to any possible
award of fees, and the district court apparently would be required to
enter an order on the merits, constituting the "judgment" in the case,
in addition (and perhaps prior) to passing on the EAJA application.
As the court below observed, if the Secretary's post-remand decision
is fully favorable to the claimant (or if the claimant for some other
reason elects to forgo further review of that decision), there is no
"need for overburdened district courts to deploy scarce judicial
resources in a sua sponte 'affirmation' of uncontested eligibility
decisions." J.A. 34.

   Third, the steps petitioner urges this Court to madate would lead
to delay in the EAJA application process itself.  By contrast, as the
court below explained, its approach "not only sets definite limits for
purposes of finality, but it also benefits individuals seeking EAJA
awards." J.A. 35.  This is so because "(r)ather than wait for the
Secretary to make a post-remand filing and wait for that filing to be
affirmed by the district court, such individuals may seek EAJA awards
as soon as the agency's action on remand becomes a 'final judgment'
under section 2412(d)(2)(G)." Ibid.

   These practical considerations weigh strongly in favor of the Ninth
Circuit's approach, because it "comports with the intent of EAJA to
lessen the economic burden on the individual who must litigate against
the government in order to vindicate his rights." Note, EAJA:  An
Analysis of the Final Judgment Requirement As Applied to Social
Security Disability Cases, 58 Ford. L. Rev. 1269, 1285 (1990);  see
id. at 1282, 1285-1287.  Other courts of appeals have made the same
point.  See Richard v. Sullivan, slip op. 9 ("To require some process
of "certification' or 'validation' by the district court would result
only in a useless exercise wasting judicial resources.");  Jabbay v.
Sullivan, 920 F.2d at 474 (approach advocated by petitioner "leads to
unnecessary delays in litigation").  This Court has stressed the
importance of such considerations, as well as simplicity of judicial
administration, in the interpretation and application of EAJA.  See
Commissioner, INS v. Jean, 110 S. Ct. at 2321-2323 & n.14;  Sullivan
v. Hudson, 490 U.S. at 883-884;  Pierce v. Underwood, 487 U.S. 552,
559-563 (1988).

   B. It Is Consistent With 42 U.S.C. 405(g) And With EAJA To Hold
That A Post-Remand Decision Of The Secretary That Is Final And Not
Appealable Is A "Final Judgment" For Purposes Of EAJA.

   As relevant here, EAJA provides that "a court shall award to a
prevailing party * * * 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 * *
*, 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).  Section 2412(d)(1)(B) provides that
"(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." The term "final judgment" in
turn is defined to mean a judment that is "final and not appealable."
28 U.S.C. 2414(d)(2)(G).  The Ninth Circuit's decision is fully
consistent with these provisions.

   1. EAJA clearly preupposes the independent existence of an order in
a "civil action" that may also serve as the "final judgment" for
purposes of triggering the 30-day period for seeking an EAJA award.
In the present case, the court of appeals' conclusion -- that the
Appeals Council decision became the "final judgment" once it became
final and unreviewable /14/ -- seems inescapable.  As the court of
appeals pointed out, the district court's judgment remanding the case
to the Secretary was not a final judgment for EAJA purposes at the
time it was entered, since both parties and the court contemplated
that there would be further proceedings before the Secretary on the
disability issue;  /15/ and after completion of the proceedings on
remand, the district court did not enter another order that could be
deemed a "final judgment." See J.A. 31.

   Petitioner contends (Br. 12-15), however that only an oder entered
by a court can be a "final judgment" for these purposes.  Accordingly,
petitioner takes the position that even after expiration of the 60-day
period for seeking judicial review of the Appeals Council's
post-remand decision, that decision was not a "final judgment." On
this theory, there still was no "final judgment" in this case when the
Ninth Circuit rendered its decision, even though almost 4 1/2 years
had elapsed since the Appeals Council rendered its decision, because
the district court had not entered an order affirming, modifying, or
reversing the Appeals Council's decision -- the action petitioner
believes is necessary to trigger the limitations period for filing an
EAJA fee.  /16/

   Neither the term "judgment" nor EAJA's definition of a "final
judgment" (in Section 2412(d)(2)(G)) is limited to an order entered by
a court.  A leading American dictionary defines "judgment" as "a
formal decision or determination given in a cause by a court of law or
other tribunal," Webster's Third New International Dictionary 1223
(1986) (emphasis added), a definition plainly broad enough to
encompass a decision by the Appeals Council.  Petitioner objects (Br.
12-13) that this is a definition for laypersons, and in support of his
argument that the legal definition is narrower, asserts (Br. 12-13)
that nowhere in the definition of "judgment" in Black's Law Dictionary
841-842 (6th ed. 1990) is there any suggestion that the term extends
to decisions of administrative tribunals.  Yet, two sentences after
the excerpt petitioner quotes (Br. 12), the definition states that a
judgment is a "(d)ecision or sentence of law, given by a court of
justice or other competent tribunal, as the result of proceedings
instituted therein." Black's 842 (emphasis added).  And still later,
the Black's definition states that the "(t)erms 'decision' and
'judgment' are commonly used interchangeably." Ibid.

   Consistent with the dictionary definitions, an adjudicatory
decision by an administrative tribunal is often accorded the same
effect for purposes of issue and claim preclusion as the judgment of a
court.  See University of Tennessee v. Elliott, 478 U.S. 788, 796-799
(1986);  United States v. Utah Construction & Mining Co., 384 U.S.
394, 421-422 (1966) (noting that res judicata applies where an
administrative agency sits in a "judicial" capacity).  Indeed,
decisions of administrative agencies are regarded as a proper subject
of the Restatement of Judgments.  /17/

   To be sure, "judgment" may also be used as a term of art having
special application to judicial proceedings.  But in that setting, a
"judgment" typically refers to an order of a court that is appealable.
 See Fed. R. Civ. P. 54(a) ("'Judgment' as used in these rules
includes a decree and any order from which an appeal lies.");
Finkelstein, 110 S. Ct. at 2665 ("appealable" is "a meaning with which
'final' is usually coupled").  EAJA's definition fundamentally departs
from that usage by requiring that an order be "final and not
appealable" in order to be a "final judgment".  28 U.S.C.
2412(b)(2)(G) (emphasis added).  This significant departure from the
usual characteristics of a "judgment" entered by a court reinforces
the conclusion that Section 2412(b)(1)(B) should not be read
implicitly to limit the "final judgment(s)" that trigger the 30-day
filing period to orders that have been entered by courts.  Cf. Bell v.
United States, 462 U.S. 356, 360-361 (1983).

   2. Our reading of the statutory text is supported by its
legislative history.  The definition of the term "final judgment" in
28 U.S.C. 2412(d)(2)(G) was added in 1985 /18/ to resolve a conflict
in the lower courts on the question whether a "judgment" was to be
regarded as "final" for EAJA purposes when it was entered, or only
when the period for taking an appeal had lapsed.  In holding that the
30-day period began to run immediately upon entry of the court's
judgment, the Ninth Circuit in McQuiston v. Marsh, 707 F.2d 1082, 1085
(1983), had simply concluded, without analysis, that the term "final
judgment" "should be defined by its common usage in contexts such as
28 U.S.C. 1291, Fed. R. App. P. 4(a), and Fed. R. Civ. P. 54." By
contrast, in holding that a district court's judgment is not "final"
for these purposes until after the time for taking an appeal has
expired, the Seventh Circuit in McDonald v. Schweiker, 726 F.2d 311
(1983), had rejected what it regarded as McQuiston's superficial and
technical construction of "final judgment," observing that the term
"does not have a single fixed meaning" and that it therefore is
necessary to find the meaning that is "inferable from context." Id. at
313.  Viewing its choice to be whether the 30-day period "runs from
the end of the district court proceedings or from the end of all the
proceedings," the Seventh Circuit was heavily influenced by practial
considerations and chose the latter construction.  Id. at 314;  accord
Massachusetts Union of Public Housing Tenants v. Pierce, 755 F.2d 177,
179 (D.C. Cir. 1985).

   The clarification of the term "final judgment" in the 1985
amendments was expressly intended to "ratif(y) the approach taken by
the courts in" McDonald and Massachusetts Union.  See H.R. Rep. No.
120, 99th Cong., 1st Sess. Pt. II, at 6 n.26 (1985);  S. Rep. No. 586,
98th Cong., 2d Sess. 16 (1984).  By the same token, the 1985
amendments manifest a rejection of the narrow and technical
construction of the term "final judgment" in McQuiston, based on 28
U.S.C. 1291, Fed. R. App. P. 4(a), and Fed. R. Civ. P. 54 -- the types
of sources to which petitioner would look for guidance.  In fact, the
House Report explicitly states that "final judgment" and several
related terms should not be given an "overly technical" construction,
H.R. Rep. No. 120 supra, Pt. II, at 6 n.26, and stresses the need to
"give both courts and litigants clear guidance on what is expected"
and to avoid "unnecessary confusion" concerning when an application
must be filed.  Id. Pt. I, at 7.  Similarly, the Senate Report broadly
states that a prevailing party may file a fee petition within 30 days
of "the final disposition of the case on the merits." S. Rep. No. 586
supra, at 16.  The decision below is faithful to this congressional
purpose because it refrains from giving the term "final judgment" an
"overly technical" (and self-defeating) construction and furnishes
"clear guidance," and because the Appeals Council's post-remand
decision was "the final disposition of (petitioner's) case on the
merits."

   Furthermore, the result below is consistent with the congressional
purpose to fix a definite time limitation on the filing of fee
applications once all proceedings on the merits have terminated.  A
post-remand decision that the claimant declines to appeal to the next
stage of the administrative review process or (as here) to the courts
effectively ends the underlying litigation and immediately enables the
reviewing court to determine whether the claimant is a prevailing
party and d is otherwise entitled to fees under EAJA.  A construction
that would nonetheless make resolution of the attorney's fee issue
contingent upon completion of additional (yet pointless) procedural
steps in the district court would invite needless and potentially
indefinite delay in the resolution of fee questions -- a result that
is plainly at odds with the 30-day time limit on fee applications that
Congress prescribed.  /19/

   3. The Ninth Circuit's application of the 30-day filing requirement
is strongly buttressed by this Court's decisions in Hudson and
Finkelstein.

   a. In Hudson, the Court held that in a Social Security case brought
under 42 U.S.C. 405(g), the "civil action" for which attorney's fees
may be awarded under 28 U.S.C. 2412(b)(1)(A) may include the
proceedings before the Secretary following a remand from the district
court.  The Court relied on its past decisions under other
fee-shifting statutes indicating that "where administrative
proceedings are intimately tied to the resolution of the judicial
action and necessary to the attainment of the results Congress sought
to promote by providing for fees, they should be considered part and
parcel of the action for which fees may be awarded." 490 U.S. at 888;
see also id. at 892 ("administrative proceedings may * * * be
considered part of the 'civil action' for purposes of a fee award").
Accord, Commissioner, INS v. Jean, 110 S. Ct. at 2320-2321 (citing
Hudson) (EAJA "favors treating a case as an integrated whole, rather
than as atomized line-items").

   As noted above, the operative language here requires a party to
file his EAJA application "within thirty days of final judgment in the
action." 28 U.S.C. 2412(d)(1)(B).  Since, as held in Hudson, the
concept of the "civil action" in this setting may extend to the
administrative proceedings following a remand by the district court,
the "final judgment" in such a civil action similarly may consist of
the decision of the Secretary that terminates those proceedings on
remand.  Specifically, where the Secretary's decision following the
remand finds the claimant disabled (and the period for seeking
judicial review under 42 U.S.C. 405(g) has lapsed), that decision is
"final and not appealable" by either the claimant or the Secretary.
See 28 U.S.C. 2412(d)(2)(G).  Such a decision of the Secretary
terminates not only the administrative proceedings themselves, but
also the overall "civil action," of which those proceedings on remand
are the last stage.  In fact, a final, post-remand administrative
decision that the claimant has chosen not to contest eliminates any
basis for a continuing case or controversy in court, and thereby
effectively moots the case.  The decision of the Secretary therefore
is properly regarded as the "final judgment in the (civil) action"
that commences the running of the 30-day limitations period.

   Significantly, the Court in Hudson explicitly rejected the
Secretary's argument that because Black's Law Dictionary defines the
term "action" to mean "a suit brought in a court," the "civil action"
for which fees may be recovered under EAJA should not be construed to
include fees for services rendered in administrative proceedings on
remand from the court.  See 490 U.S. at 891.  The Court's rejection in
Hudson of a narrow definition of "action" lends firm support to
rejection of the narrow (and impractical) definition of "judgment"
that is advanced by petitioner.

   b. Petitioner's basic position -- that there can be no "final
judgment" terminating the civil action unless and until the district
court takes some further action subsequent to the Secretary's final
decision on remand -- also is flatly inconsistent with Finkelstein.
There, the Court held that in an action for judicial review pursuant
to 42 U.S.C. 405(g), a district court order reversing the Secretary's
denial of benefits and remanding the case to the Secretary for further
proceedings is a "final judgment" subject to immediate appeal by the
Secretary under 28 U.S.C. 1291.  The Court found in the structure of
42 U.S.C. 405(g) an indication that each final decision of the
Secretary (i.e., the first such decision and the decision rendered
after remand) "will be reviewable in a separate piece of litigation."
110 S. Ct. at 2663.  Accordingly, for purposes of Section 405(g) and
28 U.S.C. 1291, the district court's order remanding the case to the
Secretary "terminated the civil action" challenging the Secretary's
first decision denying benefits.  Id. at 2664.  Thus, there is nothing
in the nature of a civil action for judicial review under 42 U.S.C.
405(g), or of a remand order entered at the conclusion of such an
action, that requires the district court to do anything further after
the remand.

   c. In sum, Hudson held that "for purposes of the EAJA," the
administrative proceedings after remand may be considered "part and
parcel of the (civil) action for which fees may be awarded." 490 U.S.
at 888.  See Finkelstein, 110 S. Ct. at 2666.  Nothing in this holding
regarding the services for which fees may be awarded requires the
district court to take any further action, after remand, to terminate
the civil action on the merits.  To the contrary, the Court made clear
in Finkelstein that despite its prior holding in Hudson, the civil
action was terminated, insofar as any substantive role of the district
court was concerned, when it remanded the case to the Secretary.  110
S. Ct. at 2666-2667.  Thus, Hudson and Finkelstein together
contemplate that a "civil action" under 42 U.S.C. 405(g) extends (for
purposes of EAJA) to the administrative proceedings on remand, but
that the civil action, as so extended, terminates (for purposes of
EAJA) if the Secretary renders a decision on remand that becomes
"final and not appealable" by either party when the time for seeking
further review expires.  Contrary to petitioner's contention (Br.
24-33), then, the decision below is fully consistent with both Hudson
and Finkelstein.  /20/

   4.a. In arguing at the petition stage that some further action by
the district court is necessary to the existence of a "final judgment"
under EAJA, petitioner relied (Pet. 5) on the sixth and seventh
sentences of 42 U.S.C. 405(g).  /21/ Petitioner apparently was of the
view that these provisions require the Secretary to file his decision
on remand (as well as his findings and the additional record) with the
district court in every case, and that the district court must then
enter a judgment on the basis of that filing.

   It is unclear whether petitioner renews this broad reading of the
sixth and seventh sentences of Section 405(g) in his merits brief.
See Br. 17-19, 31.  In any event, the argument ignores the fact that,
as Finkelstein held, the sixth and seventh sentences do not apply to
all remands by the district court in cases under Section 405(g).  They
instead are concerned with a special category of cases:  those in
which the district court remands the case to the Secretary on the
Secretary's motion made for good cause before he files his answer, or
in which the district court orders that new evidence be taken before
the Secretary, where the evidence is material and there is good cause
for the failure to incorporate it in the record during the prior
administrative proceedings.  110 S. Ct. at 2664-2665.  /22/ In those
instances, it appears that the case formally remains within the
jurisdiction of the district court during the ancillary proceedings
before the Secretary;  but these special provisions are inapplicable
to all other remands in civil actions under Section 405(g).  For the
same reason, petitioner errs in relying (Br. 25) on the passing
reference in Hudson (490 U.S. at 887.) to the description of the sixth
sentence of Section 405(g) in Guthrie v. Schweiker, 718 F.2d at 106.
This Court subsequently recognized in Finkelstein that the sixth and
seventh sentences have a far narrower scope, and it declined to follow
the broader implications of the language in Hudson.  See 110 S. Ct. at
2666-2667.

   We therefore may put to one side petitioner's erroneous reliance on
the sixth and seventh sentences of 42 U.S.C. 405(g) to support his
contention that the Secretary is required by law to make a post-remand
filing with the district court in every case, and that the district
court must then enter an order affirming, modifying, or reversing the
Secretary's post-remand decision.  Yet if the post-remand obligations
petitioner seeks to impose on the Secretary and the district courts
are not compelled by Section 405(g), they are not compelled at all.
Petitioner never comes to grips with this complete absence of any
legal basis for the procedural framework he proposes.

   b. Perhaps appreciating this central flaw in his position in the
wake of Finkelstein, petitioner asserts (Br. 31-32) that the district
court's remand order in this case in fact was entered pursuant to the
sixth sentence of Section 405(g), and that the Secretary therefore was
required to file his post-remand decision in this case with the
district court, which could then have entered a "final judgment"
affirming, modifying or reversing that decision.  This argument is
without merit.

   Nothing in the district court's order in this case suggests that
the remand was pursuant to the sixth sentence of Section 405(g):
there is no indication that the remand was to be of only limited scope
and that the district court was retaining jurisdiction with the
intention of entering its final judgment on the merits at a later
date, after the Secretary filed modified findings and a new decision
with the court.  To the contrary, the court expressly styled its order
a "judgment" and stated that "the matter is remanded to the Secretary
for all further proceedings." J.A. 11 (emphasis added).  The district
court thus clearly contemplated that it was doing just what the
district court did in Finkelstein:  terminating all judicial
proceedings on the merits of petitioner's claim for benefits and
returning the matter entirely to the jurisdiction of the Secretary.

   Contrary to petitioner's suggestion (Br. 31), the mere fact that
the request for a remand might have been prompted by the development
of new evidence of disability in connection with petitioner's second
application does not mean that the remand was pursuant to the sixth
sentence of Section 405(g) (which permits the court to order the
Secretary to take new evidence).  The district court's judgment did
not cite the sixth sentence of Section 405(g), and the district court
did not make the findings necessary for an order directing the receipt
of evidence under the sixth sentence -- namely, that the evidence is
material and that there was a good cause for petitioner's failure to
incorporate it in the record at an earlier date.  Rather, the remand
was a stipulated and final disposition of the case, much like one to
which the parties might agree in any civil action.  /23/

   Furthermore, in light of the purposes of the sixth and seventh
sentences (to assist the court in adjudication of a case over which it
has retained jurisdiction), an order remanding a case to the Secretary
for further proceedings ordinarily should be presumed not to have been
entered pursuant to the sixth sentence unless the district court
explicitly states otherwise, and therefore explicitly retains
jurisdiction to rule on the merits.  Cf. Michigan v. Long, 463 U.S.
1032, 1037-1044 (1983).  That rule of construction would greatly
simplify litigation in this area, especially since many remand orders,
like the one in this case, are brief and are drafted without specific
reference to particular provisions of Section 405(g).  Such a rule of
construction would also recognize modern realities, in which the
Secretary finds the claimant disable in a high percentage of cases
after remand (thereby making it pointless for the court to reassume
jurisdiction over the case), see note 13, supra, and in which the
press of judicial business weighs against unnecessary adjudicationss
by the courts following a remand.  And such a rule would, in our view,
comport with the usual expectations of the parties and the district
court, all of whom typically intend the Secretary to assume full
responsibility for any further adjudication.  /24/

   C. The Fourth Circuit's Decision In Guthrie v. Schweiker And Cases
Following It Do Not Warrant Rejection Of The Ninth Circuit's Approach
In This Case

   1. Despite the compelling support for the decision below in 42
U.S.C. 405(g), in EAJA, and in this Court's decisions in Hudson and
Finkelstein, petitioner contends (Br. 16-20) that the Court should
follow the approach suggested by Guthrie v. Schweiker, 718 F.2d 104
(4th Cir. 1983);  Brown v. Secretary of HHS, 747 F.2d 878, 884-885 (3d
Cir. 1984);  and Taylor v. Heckler, 778 F.2d 674, 677 (11th Cir.
1985).  All of those decisions, however, were rendered prior to Hudson
and Finkelstein and rest on a seriously flawed view of the procedures
for adjudication of Social Security claims.

   The Fourth Circuit in Guthrie relied on three premises in holding
that the Secretary should file his new decision on remand with the
district court, that the district court should then enter a judgment
on the basis of that decision, and that the district court judgment
would trigger the 30-day period for filing a fee application under
EAJA.  Each of those premises has since been shown to be erroneous.
First, the Fourth Circuit believed, contrary to the subsequent
decision in Finkelstein, that a remand order cannot be a final
decision that terminates proceedings in the district court and that is
subject to immediate appeal.  718 F.2d at 106.  Second, in concluding
that the Appeals Council decision on remand cannot be a "final
judgment" that commences the 30-day period for filing an EAJA
application, the Fourth Circuit relied on its view that "EAJA draws a
clear distinction between final administrative actions and final
judicial actions," Ibid.  (comparing 5 U.S.C. 504(a)(2) with 28 U.S.C.
2412(d)(1)(B)).  That rationale is inconsistent with the subsequent
decision in Hudson, where the Court rejected the Secretary's similar
argument (likewise based on a comparison between 5 U.S.C. 504 and 28
U.S.C. 2412) that the administrative proceedings on remand are wholly
distinct from the "civil action" for purposes of EAJA.  490 U.S.
890-892.  Third, as noted above, Guthrie expressly relied on the
language in the sixth sentence of Section 405(g) requiring the
Secretary to file his new decision on remand with the district court
(718 F.2d at 106);  Finkelstein held, contrary to the Fourth Circuit's
apparent belief, that this provision applies only to sixth sentence
remands.  110 S. Ct. at 2664.  /25/

   In Brown, the Third Circuit, citing Guthrie and likewise relying on
the sixth sentence of Section 405(g), stated in dictum that at least
where the claimant requests the district court at the time of remand
to retain jurisdiction to award fees (which petitioner did not do
here), the Secretary should file his new decision on remand with the
district court and the district court may then affirm, modify, or
reverse that decision;  the district court's order in turn could
constitute the requisite "final judgment" triggering the 30-day EAJA
filing period.  747 F.2d at 884-885.  This analysis, like that in
Guthrie, does not survive Finkelstein.  /26/

   In Taylor, the claimant moved to dismiss the action in court after
he prevailed before the Secretary on remand, and the district court
granted that motion.  The Eleventh Circuit held that the EAJA filing
period commenced with the order of dismissal, reasoning that a
district court order remanding a case to the Secretary is not a final
judgment subject to immediate appeal;  that because the remand order
is interlocutory, the district court retains jurisdiction during
administrative proceedings on remand;  that the district court
therefore must enter an order at a later date to terminate its
jurisdiction;  and that such an order is the "final judgment" that
commences the 30-day limitations period for filing an EAJA
application.  778 F.2d at 677-678 & n.2.  The essential premise in
this chain of reasoning -- that a remand order is not appealable --
was later held erroneous in Finkelstein.

   In short, all of the decisions on which petitioner relies rest on
premises since shown by Hudson and Finkelstein to have been erroneous.
 /27/ The Court therefore should follow the post-Hudson and
Finkelstein rulings exemplified by the decision below.

   2. For similar reasons, petitioner's reliance (Br. 23) on the
reference to Guthrie in the House Report on the 1985 amendments to
EAJA is misplaced.  See H.R. Rep. No. 120, supra, at 19-20.  That
reference was in a part of the Report that discussed Section 3 of the
1985 amendments, 28 U.S.C. 2412 note, and that addressed the
interaction of EAJA and the special provision in the Social Security
Act, 42 U.S.C. 406(b), for payment of attorney's fees out of the
claimant's past-due benefits.  As part of the background for that
discussion, the Report described how some courts had resolved EAJA
issues in the Social Security context.  The Report noted that a
claimant ordinarily had not been regarded as a "prevailing party"
solely by virtue of obtaining a remand to the Secretary.  Id. at 19.
It then stated that Guthrie had "pointed to the provision of 42 U.S.C.
405(g) providing that after the HHS review upon remand the agency must
file its findings with the reviewing court." Ibid.  The Report
continued:  "Thus the remand decision is not a 'final judgment,' nor
is the agency decision after remand";  "(i)nstead, the District Court
should enter an order affirming, modifying or reversing the final HHS
decision, and this will usually be the final judgment that starts the
30 days running." Ibid.

   As the Court noted in Finkelstein (110 S. Ct. at 2665-2666 n.8),
this 1985 Report on EAJA sheds no light on the interpretation of
Section 405(g) as originally enacted in 1939, and its discussion of
the procedures required by Section 405(g) was mistaken.  The Report
therefore sheds little light on whether, once those essential but
mistaken premises are put to one side, the Secretary's decision on
remand may properly be regarded as the "final judgment" for purposes
of commencing the 30-day limitations period for seeking EAJA fees --
especially in view of the subsequent holdings in Hudson (that the
proceedings on remand are part of the civil action for purposes of
EAJA), and in Finkelstein (that a remand order terminates the
proceedings in the district court).  /28/

   D. The Approach We Propose Is More Practical, And More Helpful To
Claimants, Than Any Suggested Alternative

   Petitioner contends (Br. 33-40) that the construction of the EAJA
we propose would be "utterly unworkable." Petitioner is simply wrong.
The courts of appeals that have examined the question after Hudson and
Finkelstein have concluded that this rule makes the most practical
sense.  We think that is especially so if, as we suggest (see pages
35-38, infra), the 30-day filing period uniformly begins to run at the
end of the time during which the claimant could have sought further
review under applicable statutory and regulatory provisions.

   As we have explained, this approach has a number of practical
virtues.  First, it commences the 30-day limitations period at the
time when the proceedings are over as a practical matter.  Second, it
properly places the burden on the person seeking further relief -- the
claimant -- to take the initiative by filing an application for
attorney's fees.  Third, it saves the Secretary the burden of filing
anything further in court, and saves the court the burden of receiving
and acting upon such filings, in those cases in which the claimant may
never seek attorney's fees.  Fourth, it makes attorney's fees promptly
available by allowing the claimant to seek them on his own initiative.
 Under the rule petitioner proposes, by contrast, the district court
could do nothing unless and until there had been a filing with the
court of the decision on remand and the court had entered some sort of
(superfluous) order on the merits.

   Petitioner's practical objections to our proposed approach are
without merit.

   1. As an initial matter, a number of petitioner's objections are
tied to one aspect of the Ninth Circuit's analysis in this case with
which, on reflection, we disagree.  The narrow area of our
disagreement with the Ninth Circuit, however, does not in any way
undermine the correctness of the judgment below.

   In our view, a post-remand decision of the Secretary should be
deemed "final and not appealable," for purposes of EAJA, when the time
for seeking review of that decision has expired.  That should be so,
we believe, whether the post-remand decision is regarded as fully
favorable to the claimant (as the Appeals Council's May 7, 1985,
decision clearly was in this case), or only partially favorable to the
claimant (as would be true, for example, if the post-remand decision
in this case had found the claimant to be disabled for only part of
the period covered by his application), or indeed not favorable at
all.  The court of appeals seemed to agree that as a general rule, an
administrative decision is not final and unreviewable until after the
time for seeking review of that decision has expired.  But it carved
out an exception to that general rule for this and like cases, on the
ground that where the post-remand decision is fully favorable, the
claimant would have no reason to seek further review.  See J.A. 32-33.

   As we read the definition of the term "final judgment" in 28 U.S.C.
2412(d)(2)(G), whether a particular decision is "final and not
appealable" should turn solely on whether the time within which to
appeal the particular order has expired, not on whether the claimant
might have an interest or stake in appealing the order.  Although the
phrase "not appealable," standing alone, might carry either
connotation, when it is coupled with the term "final," the sense of
paragraph (G) as a whole is that it defines a "final judgment" in
temporal (not standing) terms.  That interpretation also is consistent
with the purpose of the definition of "final judgment," which is to
identify the time within which an application for fees must be filed.

   Moreover, this construction of paragraph (G) is confirmed by its
legislative history.  Paragraph (G) was added to 28 U.S.C. 2412(d)(2)
in 1985 to resolve a conflict in the lower courts on the question
whether a "judgment" was to be regarded as "final" for EAJA purposes
when it was entered, or only when the period for taking an appeal from
that judgment had lapsed.  See pages 20-22, supra.  Paragraph (G) was
expressly intended to ratify and codify the latter approach.  See H.R.
Rep. No. 120, 99th Cong., 1st Sess. 14 (1985) (amendments adopt
interpretation that judgment is final "when the time to appeal has
run");  id. at 18 n.26 ("if the Government does not appeal an adverse
decision, the thirty-day period would begin to run upon expiration of
the time for filing a notice of appeal or a petition for certiorari");
 /29/ id. Pet. II, at 6 & n.26 (same);  S. Rep. No. 586, 98th Cong.,
2d Sess. 16 (1984) (fee petition must be filed within 30 days of "when
a party's right to appeal the order has lapsed").  This construction
of the term "final judgment" (as defined in paragraph (G)) also makes
practical sense.  It results in a uniform, easily applied rule for all
administrative and judicial orders -- a rule that requires reference
only to the time limits for seeking further review under the
particular statutory and regulatory scheme.  By the same token, this
construction avoids the need for post hoc evaluation of a particular
order to determine whether a claimant could have sought review or
would have had any interest in doing so.

   Thus, in the present context, a post-remand decision by the
Secretary that the claimant allows to become "final and not
appealable" by failing to seek further administrative or judicial
review within the allotted time is the "final judgment" in the action
for purposes of triggering the 30-day limitations period under EAJA.
In the particular circumstances of this case, the difference between
the foregoing rule and the one adopted by the Ninth Circuit does not
affect the outcome.  Since petitioner never sought judicial review of
the Appeals Council's May 7, 1985, post-remand decision, that decision
became "final and not appealable" for purposes of EAJA 65 days later
(on July 11, 1985).  Petitioner then had 30 days (until August 10,
1985) within which to file an EAJA application.  But petitioner did
not file his EAJA application until May 16, 1986.  That was over nine
months late.  Accordingly, under the rule we propose, as well as under
the exception to that rule fashioned by the Ninth Circuit for cases
such as this, the judgment below ordering dismissal of petitioner's
EAJA application as untimely is correct.  /30/

   2. Against this background, each of petitioner's supposed
"practical" objections is insubstantial.

   a. Petitioner first argues (Pet. 34-38) that the decision below
would "create havoc" in cases in which the claimant seeks attorney's
fees from the United States under EAJA and also seeks, under 42 U.S.C.
406(b), to have the court allow an attorney's fee not exceeding 25% of
(and to be paid out of) the "past-due benefits to which the claimant
is entitled by reason of such judgment." This contention is without
merit for several reasons.

   As an initial matter, as petitioner elsewhere concedes (Br. 47),
Section 406(b) applies only in Title II cases.  It therefore is
inapplicable to this case, which arises solely under the SSI program
established by Title XVI of the Act.  See Bowen v. Galbreath, 485 U.S.
74 (1988).  Moreover, even in cases arising under Title II, there is
no inconsistency.  Contrary to petitioner's assertion (Br. 36),
Section 406(b) has not been construed to require the district court
either to award attorney's fees as part of the judgment itself, or to
enter a "judgment" following completion of administrative proceedings
on remand as a prerequisite to entertaining an application for fees
for services performed by the attorney in court prior to the remand.
/31/ Accordingly, the established practice under Section 406(b) in
fact strongly supports our position that entry of a subsequent
"judgment" by the district court likewise is not required by Section
405(g) or EAJA.  In addition, experience shows that the filing and
review of fee applications under EAJA and Section 406(b) can and has
been closely coordinated in practice.  See R. Francis, Social Security
Disability Claims:  Practice and Procedure Section 5:34, at 39-40
(1983 & Supp. 1990);  Note, 58 Ford. L. Rev. at 1285-1286;  Jankovich
v. Bowen, 868 F.2d 867 (6th Cir. 1989).  Indeed, Section 3 of the 1985
EAJA amendments, 28 U.S.C. 2412 note, expressly contemplates that
result, since it requires an offset of the two awards to prevent a
double recovery.

   b. Petitioner next complains (Br. 38) that, under the Ninth
Circuit's reasoning, "EAJA petitions will have to be filed before all
the work on the case is completed." Petitioner points out that after
the claimant is found to be disabled, SSA then must determine whether
the claimant satisfies the non-disability eligibility requirements
and, if so, the amount (if any) of benefits to which the claimant is
entitled.  Petitioner contends that any work a lawyer performs in this
process following a court remand is compensable under EAJA because it
is "'necessary . . . to the ultimate vindication of the claimant's
rights'" (Br. 38 (quoting Sullivan v. Hudson, 490 U.S. at 890)), but
that if an administrative decision that has become final and not
appealable triggers the running of the 30-day limitations period for
filing an EAJA application, a lawyer might have to file his EAJA
application before that work is completed.  As a consequence, the
lawyer would be required either to forgo fees for that additional work
or to amend his prior EAJA application.

   There are several significant problems with this analysis.  First,
the determination of the amount (if any) of SSI benefits to which a
claimant is entitled is separate from the determination of whether the
claimant is disabled.  It is therefore separately subject to review
under the multi-step administrative appeals process in 20 C.F.R. Pt.
416, Subpt. N (reconsideration, ALJ hearing, and Appeals Council
review) that was available to the claimant to challenge the
determination that he was not disabled (see 20 C.F.R. 416.1401,
416.1402(a) and (j);  see also 20 C.F.R. 404.901, 404.902(a) and (c)
(similar provisions under Title II program)) -- and, if necessary, to
judicial review under 42 U.S.C. 405(g).  /32/ Accordingly, issues
concerning benefit amounts and payment are distinct from the issues
that were before the court in the civil action for judicial review of
the Secretary's decision finding the claimant not disabled.  See Note,
58 Ford. L. Rev. at 1282-1283.  Thus, an attorney's work on those
issues is not necessary to the vindication of the rights addressed by
the district court's decision on the question of disability, and the
rationale of Hudson does not extend to such services.

   Second, even if such services were compensable under EAJA, the
approach we suggest would not cause substantial difficulties.
Contrary to petitioner's view, the computation of benefits will in
many cases be completed within 30 days of the favorable decision --
or, at least, all necessary work by the attorney in that process will
have been completed within that period.  /33/ Moreover, this objection
by petitioner (like most of his others) rests on the premise that an
administrative decision that is fully favorable to the claimant is,
upon issuance, a "final judgment" that triggers the running of the
30-day limitations period.  Under the approach we propose, however,
the 30-day EAJA period does not begin to run until after expiration of
the 60-day period for seeking further review.  As a result, there will
be at least 90 days before the EAJA application must be filed.
Presumably, the computation of the amount of benefits would be
completed within that period in virtually all cases.  /34/

   Finally, even if an attorney's work in the computation-of-benefits
process were covered by EAJA after a remand on the issue of disability
-- and even if a rare case arose in which the attorney's work in that
process were not completed within 90 days -- we see no reason why the
claimant could not file his EAJA application and then amend it when
the computation process was completed.

   c. Petitioner contends (Br. 38-39) that the administrative review
process is a "highly informal one" in which it "is often difficult, if
not impossible, to flag the finality of a decision for EAJA purposes."
This assertion is without merit.  Under the rule we propose, the
post-remand decision of the Secretary becomes "final and not
appealable" if the claimant does not seek further administrative or
judicial review within the time allowed by the governing statute and
regulations.  The claimant then knows that to avoid such finality, he
must seek further review.  /35/

   d. Petitioner contends (Br. 39-40) that the claimant not the
Secretary, is the one to decide whether an administrative decision on
remand is fully favorable.  We agree, and the approach we propose
accommodates that point.  If the claimant does not believe the
decision is fully favorable, he may seek further review within the
available time.  Once the claimant has elected to forgo his right to
seek further review, the EAJA limitations period commences.

   e. Petitioner's contention (Br. 40) that the judgment below should
be reversed to prevent other agencies from adopting similar principles
governing the finality of their decisions on remand is wholly without
merit.  Contrary to petitioner's implicit suggestion, it is a virtue
of the decision below that it provides for finality at the completion
of the post-remand administrative process for purposes of both EAJA
and the merits.  Under the approach we urge, in other words, a
post-remand decision will be deemed a final judgment for EAJA purposes
only when it has become final and not appealable on the merits, under
the statutory and regulatory provisions that govern administrative and
judicial review under the particular program at issue.  There will be,
accordingly, a readily available benchmark under each program for
determining when the 30-day limitations period for filing an EAJA
application begins to run.

   II. THERE ARE NO GROUNDS FOR THIS COURT TO EXEMPT PETITIONER FROM
THE REQUIREMENT THAT AN EAJA APPLICATION BE FILED WITHIN 30 DAYS OF A
POST-REMAND DECISION BY THE SECRETARY THAT HAS BECOME FINAL AND NOT
APPEALABLE

   Petitioner contends (Br. 40-48) that if the Court upholds the Ninth
Circuit's ruling, "it should not be applied retroactively" (Br. 40) to
render his EAJA application untimely.  There are several problems with
this argument.

   First, the Ninth Circuit's ruling on the question of when an EAJA
application must be filed was rendered in this very case, and now
petitioner has asked this Court to do the same thing.  If the Court
rejects petitioner's argument and agrees with our submission, it
necessarily will hold that the EAJA application filed by petitioner in
this case was untimely.  Thus, this is not a typical case presenting a
question of the "retroactive" application of a judicial decision, and
the circumstances would not in any event excuse petitioner's
nine-month delay in applying for fees.  Whether the Ninth Circuit's
(or this Court's) ruling here should be applied to other cases now
pending in the Ninth Circuit (or other circuits) in which the
Secretary's post-remand decision became final and unreviewable before
the date of the Ninth Circuit's (or this Court's) ruling is a question
that may properly be left to the lower courts in the first instance.
/36/ That is especially so since the Ninth Circuit did not address the
question of retroactivity in the decision below, and since no court of
appeals has addressed the impact of this Court's intervening decision
in Irwin v. Veterans Admin., 111 S. Ct. 453 (1990), discussed below,
in this setting.  For these reasons, and because the retroactivity
question might turn in large measure on whether there was controlling
precedent in a particular circuit, the Court may wish to have that
question in this case considered by the Ninth Circuit in the first
instance.

   Furthermore, as petitioner concedes, a court may not in any event
decline to give retroactive effect to a jurisdictional ruling.  See
Br. 41 (citing Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368,
379-380 (1981)).  The Ninth Circuit in this case held that the 30-day
filing period under 28 U.S.C. 2412(d)(2)(B) is jurisdictional.  J.A.
29-30 (citing Papazian v. Bowen, 856 F.2d 1455, 1455-1456 (9th Cir.
1988), and Barry v. Bowen, 825 F.2d 1324, 1327-1329 (9th Cir. 1987)).
Other courts of appeals have reached the same conclusion.  /37/

   Petitioner contends (Br. 41-42) that under Irwin v. Veterans
Admin., 111 S. Ct. 453 (1990), the 30-day filing period should now not
be regarded as jurisdictional in nature -- even though petitioner
apparently concedes (Br. 41) that it was so regarded at the time of
the events giving rise to these proceedings on petitioner's fee
application.  In Irwin, the Court held that 42 U.S.C. 2000e-16(c),
which allows a federal employee to file a Title VII action in district
court within 30 days of the administrative decision, is not
jurisdictional, but rather is subject to equitable tolling in
appropriate circumstances.  111 S. Ct. at 456-457.  The Court
recognized that it previously had construed the six-year limitations
period under 28 U.S.C. 2501 (applicable to suits in the then-Court of
Claims) as stating a jurisdictional bar to suits not filed within that
period.  111 S. Ct. at 457 (citing Soriano v. United States, 352 U.S.
270, 273 (1957)).  But the Court in Irwin chose to state a "more
general rule" that once Congress has waived the Government's sovereign
immunity, "the same rebuttable presumption of equitable tolling
applicable to suits against private defendants should also apply to
suits against the United States." 111 S. Ct. at 457.  Thus, contrary
to petitioner's suggestion (Br. 41-42), the Court stated only a
rebuttable presumption, not an absolute rule applicable to all
statutes prescribing time limits for filing suits against the
Government.  /38/

   Here, the text of 28 U.S.C. 2412(d)(1)(B) is written in mandatory
terms (a party "shall" file an application within 30 days of
judgment), and the legislative history of EAJA shows that the 30-day
filing period was understood to be jurisdictional in nature.  For
example, the Senate Report on the bill ultimately enacted as the 1985
EAJA amendments explained that the issue of when a "judgment" is
deemed "final" under 28 U.S.C. 2412(d)(2)(B) "is important since the
thirty-day deadline for filing the fee application is jurisdictional
and cannot be waived." S. Rep. No. 856, supra, at 16;  /39/ cf. H.R.
Rep. No. 120, supra, at 7 (issue important because fee petitions "must
be filed" within 30 days);  H.R. Conf. Rep. No. 1434, 96th Cong., 2d
Sess. 26 (1980) (EAJA "requires" filing within 30 days) H.R. Rep. No.
1418, 96th Cong., 2d Sess. 18 (1980) (party "must apply" within 30
days).  See generally Action on Smoking & Health v. CAB, 724 F.2d 211,
225-226 (D.C. Cir. 1984).  Furthermore, when Congress amended EAJA in
1985, a number of courts of appeals had already held that its filing
periods are jurisdictional, /40/ which reinforces the specific support
for that rule in the legislative history.  Merrill Lynch, Pierce,
Fenner & Smith v. Curran, 456 U.S. 353, 379-382 (1982).

   Even if equitable tolling and a prospective-only ruling were not
absolutely foreclosed in this context on jurisdictional grounds, there
is no warrant for excusing petitioner's delay in this case.  The
appellate decisions cited by petitioner (Br. 42) as having suggested a
contrary rule -- the Fourth Circuit's decision in Guthrie and the
Third Circuit's decision in Brown -- were not binding on the District
Court for the Central District of California.  This is therefore not a
case, like Chevron Oil Co. v. Huson, 404 U.S. 97, 107 (1971), and
Saint Francis College v. Al-Khazraji, 481 U.S. 604, 608-609 (1987),
where the court of appeals overruled established circuit precedent.
See also American Trucking Ass'ns v. Smith, 110 S. Ct. 2323, 2332
(1990) (plurality opinion);  compare Goodman v. Lukens Steel Co., 482
U.S. 656, 662-663 (1987).  Moreover, Guthrie and Brown were decided
before the 1985 amendments to the statutory scheme made it clear that
the term "final judgment" for purposes of EAJA departs substantially
from its meaning in the specific context of judicial proceedings.
/41/ In addition, the text of 42 U.S.C. 405(g) furnished adequate
notice to petitioner that (in cases not governed by the sixth
sentence), the Secretary was not required to file his decision on
remand with the district court and the district court was not required
to enter a post-remand judgment.  And the position accepted by this
Court in Finkelstein -- that remand orders are appealable -- had been
widely accepted in many previous appellate decisions.  See Gov't
Finkelstein Br. 27-29.  In these circumstances, even acknowledging the
existence of some uncertainty, petitioner cannot claim unfair
surprise.

   Nor would a prospective-only application of the decision below be
necessary to effectuate the purposes of EAJA.  See Chevron, 404 U.S.
at 107.  The overriding purpose of EAJA is to remove a potential
obstacle to obtaining the services of counsel in challenging
governmental action.  See Commissioner, INS v. Jean, 110 S. Ct. at
2322 & n.14 (quoting legislative history).  When the question
presented by this case arises, the claimants have, by definition,
obtained the assistance of counsel that EAJA was intended to promote.
A prospective ruling that excused certain existing claimants and their
counsel from considerable delay in filing a fee application therefore
is not necessary to create an incentive for those claimants to obtain
counsel.

   Finally, retroactivity would not produce substantially unfair
results, Chevron, 404 U.S. at 107-108, especially in the circumstances
of this case.  In Irwin itself, the Court noted that equitable relief
from limitations periods has been confined to situations in which the
claimant has "actively pursued his judicial remedies," and has not
been extended to situations "where the claimant failed to exercise due
diligence in preserving his legal rights." 111 S. Ct. at 457-458.
Petitioner would not be eligible for relief under these principles,
because he did not file an application for fees for more than a year
after the Appeals Council decision.  Cf. White v. New Hampshire Dep't
of Employment Services, 455 U.S. 445, 454-455 (1982) (noting that
district courts have discretion to deny applications for attorney's
fees and costs on grounds of tardiness).  /42/ Nor is there any
indication that he ever sought to effectuate either a filing with the
district court or the entry of an order by the district court on the
merits -- the events that he now claims were necessary to enable the
district court to award fees.  In fact, even when petitioner
eventually did file a fee application, he did not request the district
court to enter an order affirming the Secretary's post-remand
decision.  As a result, there is no indication that petitioner in fact
relied on the applicability of the procedural requirements he now
urges, /43/ and therefore no indication that the decision below has
worked any hardship at all.  /44/

                      * * * * *

   EAJA is only a little more than ten years old.  Especially in its
early years, before Hudson and Finkelstein, there was uncertainty on
the part of both claimants and the Secretary about how the statute
worked, and how it meshed with the review provisions of the Social
Security Act.  The Hudson and Finkelstein decisions have eliminated
much of the uncertainty.  This case presents an opportunity to clarify
a remaining question in a way that is consistent with the governing
statutes and with those decisions, and that will prove beneficial to
all concerned.

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   STUART M. GERSON

      Assistant Attorney General

   DAVID L. SHAPIRO

      Deputy Solicitor General

   EDWIN S. KNEEDLER

      Assistant to the Solicitor General

   WILLIAM KANTER

   JEFFREY A. CLAIR

      Attorneys

   MARCH 1991

   /1/ "Tr." refers to the certified copy of the transcript of the
administrative record that was filed by the Secretary with the
district court, pursuant to 42 U.S.C. 405(g), when petitioner first
sought judicial review.

   /2/ Disability benefits may not be paid under the SSI program for
any period preceding the date on which an application is filed.  20
C.F.R. 416.501;  compare 42 U.S.C. 402(j)(1) (under Title II, benefits
may be paid for period of up to 12 months before application was
filed), discussed in Schweiker v. Hansen, 450 U.S. 785, 786-787
(1981).  Thus, in finding petitioner disabled on the basis of his
second application, the Secretary could not find petitioner disabled
as of the date of his first application without further consideration
of the first application.

   /3/ In his prayer for relief, petitioner requested, inter alia,
that his "claim for supplemental security income be allowed, or in the
alternative, that the case be remanded for further proceedings." J.A.
5.

   /4/ In the alternative, petitioner requested that the magistrate
issue his report and recommendation.  J.A. 9-10.

   /5/ The Appeals Council's decision concluded by stating that "(t)he
component of the Social Security Administration responsible for
authorizing supplemental security income payments will advise the
claimant regarding the nondisability requirements and, if eligible,
the amount and month(s) for which payment will be made." J.A. 16;  see
also J.A. 12 (similar statement in cover letter to petitioner's
counsel).  In September 1985, following the necessary computations,
petitioner was paid $7,910.39 in SSI benefits for the period from May
28, 1982, to May 30, 1984 (the date of petitioner's second
application, on the basis of which he was already receiving benefits).
 J.A. 24-26.  Petitioner did not seek review of the amount of benefits
to which he was found to be entitled.  See pages 40-41, infra.

   /6/ Petitioner sought attorney's fees in the amount of $4,522.50
(59.5 hours at a rate of $75 per hour), plus $60 in costs.  The fees
were entirely for services performed by counsel prior to the district
court's judgment remanding the case to the Secretary, except for (1)
counsel's notifications to petitioner of the district court's judgment
remanding the case and of the Appeals Council's post-remand decision,
and (2) counsel's preparation of the attorney's fee application.  See
Decl. of John Ohanion, dated May 19, 1986, appended to Not. of Mot.
and Mot. of Pltf. for Award of Attorneys Fees Under The Equal Access
to Justice Act.

   /7/ The court of appeals presumably was of the view that if the
claimant did seek judicial review within the 65-day period, an EAJA
application could be filed within 30 days after the district court's
judgment terminating that component of the proceedings became final
and not appealable.

   /8/ The Ninth Circuit apparently was of the view that Section
405(g) requires the Secretary to file the post-remand decision,
findings, and transcript with the district court in all remanded
cases.  See J.A. 34.  However, this Court's subsequent decision in
Sullivan v. Finkelstein makes clear that this requirement applies only
to the limited category of cases covered by the sixth sentence of
Section 405(g).  See pages 26-27, infra.

   /9/ The Sixth Circuit previously had reached the same result in an
unpublished decision, Gordon v. Secretary of HHS, No. 90-1206 (Oct.
15, 1990).

   /10/ The attorney may also seek to recover attorney's fees from the
claimant pursuant to 42 U.S.C. 406 in Title II cases.  See pages
38-40, infra.

   /11/ Perhaps the claimant could initiate the process by filing the
decision on remand with the district court, and by requesting the
district court to enter an order affirming it, if the Secretary did
not do so.  But petitioner did not follow that course.  Moreover, as
the delay in this case illustrates, it does not appear that there
would be any time constraints on such action by the claimant (unless
the 60-day period in 42 U.S.C. 405(g) would apply to his filing).
Thus, the period for seeking an EAJA award might be indefinitely
extended.

   /12/ A subsequent filing with the district court is required only
in the special category of cases covered by the sixth sentence of
Section 405(g).  Even then, it is not clear that the filing
requirement should apply where the Secretary has rendered a fully
favorable decision on remand, since ther is no longer a live case or
controversy regarding the claimant's disability.  See pages 26-27 &
note 24, infra.

   /13/ In fiscal year 1989, 7,921 new cases were filed in the
district courts under the Social Security Act;  6,616 cases pending
during that year resulted in final court decisions (not including
remands);  and 1,856 of those dispositions were reversals.  In
addition, 6,432 remands were processed by the Appeals Council during
1989.  See Social Security Administration, Annual Report to the
Congress 29 (Apr. 1990).  Under petitioner's theory, a post-remand
filing with the district court was evidently required in all 6,432 of
the latter cases.

   By contrast, the 1990 Annual Report of the Director of the
Administrative Office of the United States Courts states (at 1-26
(Table 21)) that in 1990, 375 EAJA applications were filed in the
district courts in cases involving HHS (342 of those applications were
granted).  HHS's own statistics show a higher rate of EAJA filings.
We have been informed by HHS that data it has generated show that in
fiscal year 1990, there were 4,343 remands processed by the Appeals
Council, 2,696 (62%) of which were favorable to the claimant, and
1,377 court decisions favorable to the claimant, resulting in a total
of 4,073 favorable decision.  Further, in fiscal year 1990, EAJA fees
were awarded in 1,697 (41.7%) of those cases.  By any measure, then,
there are many post-remand administrative decisions that are favorable
to the claimant but that do not lead to an EAJA application.

   The same HHS data show that in prior years, the percentage of
favorable decisions on remand was generally higher (ranging from 68%
in 1986 and 1987 to 80% in 1989).  The percentage of favorable
decisions overall (court and post-remand) in which EAJA fees have been
awarded has grown steadily from 8.4% in 1985, to 21.4% in 1989, to
41.7% in 1990.

   /14/ As explained below (see pages 35-38, infra), we believe that
the Appeals Council's post-remand decision became "final and not
appealable" not on the date of its issuance, as the Ninth Circuit
held, but on expiration of the period within which petitioner could
have sought judicial review.  This difference, however, has no effect
on the outcome of this case.

   /15/ See note 20, infra.  When it amended EAJA in 1985, Congress
rejected provisions in the House bill that would have permitted a
claimant to apply for fees within 30 days of a remand order in an
action under 42 U.S.C. 405(g) or 1383(c)(3) and declared the claimant
a "prevailing party" at that point.  H.R. 5479, 98th Cong., 2d Sess.
Sections 2(a)(3) and (b)(3) (1984);  see H.R. Rep. No. 992, 98th
Cong., 2d Sess. 2-3, 12-13 (1984);  130 Cong. Rec. 29,276, 30,151,
30,152, 30,153-30,154, 31,406-31, 407 (1984).

   /16/ On June 27, 1990, pursuant to the Ninth Circuit's mandate, the
district court entered a judgment and order dismissing the action.

   /17/ See Restatement (Second) of Judgments Section 83, at 269
(1982) (quoted in University of Tennessee v. Elliott, 478 U.S. at 798
n.6):

         Where an administrative forum has the essential procedural
      characteristics of a court, . . . its determinations should be
      accorded the same finality that is accorded the judgment of a
      court.  The importance of bringing a legal controversy to
      conclusion is generally no less when the tribunal is an
      administrative tribunal than when it is a court.

   /18/ Pub. L. No. 99-80, Section 2(c)(2), 99 Stat. 185.

   /19/ For further discussion of the history of the 1985 Act, and
particularly of the House committee report heavily relied on by
petitioner (Br. 23), see pages 33-34, infra.

   /20/ Even if petitioner were correct that the "judgment" to which
EAJA refers must be a court order, it would not follow that
petitioner's EAJA application was timely.  As we have explained,
because EAJA takes the statutory scheme under which the particular
"civil action" arises as a given, EAJA does not require the district
court to enter a post-remand order on the merits, which could then
serve as a "judgment" for purposes of commencing the 30-day
limitations period.  Accordingly, some other order that was entered in
the case, independently of EAJA, would have to serve as the "judgment"
for these purposes.  In our view, that "judgment" would be the order
in which the court remanded the case to the Secretary;  that order
would become "final and not appealable" for purposes of commencing the
30-day limitations period under EAJA if, as in this case, the claimant
declined to seek judicial review in a timely manner following
completion of the administrative proceedings on remand.  The reasons
are as follows:

   Under Finkelstein, the order remanding the case to the Secretary is
a "judgment" that is "final" in the sense that the Secretary may take
an immediate appeal under 28 U.S.C. 1291 (except in the category of
special remands governed by the sixth sentence of 42 U.S.C. 405(g)).
But if the remand goes forward, the question of the claimant's
disability would again be before the district court if the claimant
sought judicial review of the Secretary's post-remand decision.  The
district court's disposition of that second action for judicial review
might in turn be appealed by either the Secretary or the claimant,
depending upon who was aggrieved.  Such a post-remand appeal might
raise legal issues that were addressed by the district court at the
time of the remand (to the extent those issues remain subsumed in the
district court's post-remand disposition).  In that event, the
post-remand appeal would, in substance, constitute an appeal of the
district court's order remanding the case to the Secretary.  The
district court's prior order remanding the case would remain
"appealable" in this sense as long as it was possible that the case
would return to the district court on the merits.

   Under the foregoing analysis, if the claimant does not seek
judicial review of the Secretary's post-remand decision within the
60-day period allowed by 42 U.S.C. 405(g), the possibility of any
further judicial proceedings (including an appeal to the court of
appeals) on the question of disability is terminated.  At that point,
the district court's prior order remanding the case to the Secretary
would become "final and not appealable (to the court of appeals)" for
purposes of EAJA, and the 30-day limitations period would begin to
run.  That, of course, is the same point at which the 30-day period
begins to run under our principal submission herein, because the
Secretary's post-remand decision also becomes "final and not
appealable (to the district court)" if the claimant forgoes his
opportunity to seek judicial review of that decision.

   /21/ These sentences provide, in pertinent part, that "the
Secretary shall, after the case is remanded, and after hearing such
additional evidence if so ordered, modify or affirm his findings of
fact or his decision, or both, and shall file with the court any such
additional and modified findings of fact and decision, and a
transcript of the additional record and testimony upon which his
action in modifying or affirming was based.  * * * Such additional or
modified findings of fact and decision shall be reviewable only to the
extent provided for review of the original findings of fact and
decision."

   /22/ The statute does not even refer to the latter procedure --
ordering that new evidence be taken -- as a "remand."

   /23/ Petitioner errs in contending (Br. 31-32) that because the
district court did not enter a judgment affirming, modifying, or
reversing the Secretary's initial decision on the merits, and because
the remand therefore was not a fourth sentence remand of the sort
involved in Finkelstein, the court must have remanded the case
pursuant to the sixth sentence of Section 405(g).  Sentences four and
six describe the consequences of remand orders entered in two
particular types of situations that may arise in a case under 42
U.S.C. 405(g).  They do not purport to state an exhaustive list of
such situations.  Cf. Finkelstein, 110 S. Ct. at 2662-2663.  As we
have explained, the sixth sentence prescribes a special procedure for
utilizing the assistance of the agency in cases that remain before the
district court.  That is not what the district court did here;  it
finally disposed of the case, exercising its inherent authority
(independent of both sentences four and six) to remand the case to the
Secretary "for all further proceedings." J.A. 11.

   /24/ There is much to commend the Ninth Circuit's approach even in
a case remanded to the Secretary pursuant to the sixth sentence of
Section 405(g).  Sentences six and seven obviously were designed for
situations in which a dispute regarding the claimant's eligibility
remains after the proceedings before the Secretary are completed.
Where the Secretary, after remand, renders a decision to which the
claimant does not object, there is little point in filing the decision
and transcript of proceedings with the district court or in requiring
further action by the district court as a precondition to the filing
of a fee application;  in fact, the claimant's failure to object to
the post-remand decision removes any basis for a continuing case or
controversy in court.  See Richard v. Sullivan, slip op. 6.  Following
the Ninth Circuit's approach in that setting also would have the
virtue of uniformity, thereby eliminating the need to distinguish
between different kinds of remands in construing sometimes ambiguous
district court orders.  This case, however, presents no occasion for
determining whether the 30-day limitations period for filing an EAJA
application might, in appropriate circumstances, commence with the
rendering of an administrative decision following a remand under the
sixth sentence of Section 405(g), or whether the Secretary could
promulgate new procedures providing for such treatment of sentence six
remands.

   /25/ Moreover, as the Court indicated in Finkelstein, Guthrie
itself may have involved a sixth-sentence remand.  110 S. Ct. at 2666
n.8.

   /26/ In Brown, the roles of the Secretary and the claimant were
reversed;  citing the sixth sentence of Section 405(g), the Secretary
represented that he would in all cases file the post-remand decision
with the district court, which could then enter an order that would
constitute the "final judgment" for EAJA purposes;  and the claimant
argued that Section 405(g) required such a procedure only in the
limited category of cases covered by sentence six of Section 405(g).
747 F.2d at 884.  With the case in this posture, the Third Circuit did
not independently conclude that Section 405(g) required such filings;
it deferred to the Secretary's representation.  See Buck v. Secretary
of HHS, slip op. 10 n.5.  Finkelstein of course has eliminated any
basis for the notion that the Secretary is legally required to make
post-remand filings with the district courts.  (The form appended to
petitioner's brief, which states that the papers will be furnished to
the U.S. Attorney for filing (Pet. Br. App. 2a), was developed prior
to Finkelstein.)

   For similar reasons, petitioner's quotation (Br. 29-30, 44-45) of
statements in our briefs in Hudson and Finkelstein that it would be
appropriate for the Secretary to file the post-remand decision of the
Secretary with the district court, in order to facilitate the award of
EAJA fees, is not a basis for concluding here that the Secretary is
required to follow that practice.  As explained in the text, we
believe that such a practice creates unnecessary delay and paperwork.
In light of Finkelstein, if the Court affirms the Ninth Circuit's
decision in this case, the Secretary does not propose to continue the
practice of making such post-remand filings as a general matter.

   /27/ In Myers v. Sullivan, 916 F.2d 659 (11th Cir. 1990) (see Pet.
Br. 25, 32-33), which was a consolidated opinion rendered in four
individual cases, the Secretary's decision on remand in fact was filed
with the district court, and the district court then entered an order
disposing of the case.  The court of appeals held that, even though
the district court in each case sustained the Secretary's decision on
remand (and even though the Secretary therefore would be unlikely to
appeal such an order), the orders did not become "final judgments"
that commenced the 30-day period for filing an EAJA application until
there was some affirmative indication that the Secretary would not
appeal.  In the court's view, that ordinarily would be only after the
60-day period for filing a notice of appeal under Fed. R. Civ. P. 4
had expired, unless there was some earlier, definitive statement by
the Secretary disavowing appeal.  916 F.2d at 671-672.

   Because the administrative decisions on remand in Myers had been
filed with the district court and the district court then entered an
order disposing of each case, the Eleventh Circuit had no occasion to
consider whether the Secretary's fully favorable decision on remand
would have qualified as a "final judgment." The Eleventh Circuit did,
however, describe the practice under Guthrie, Brown and its own
decision in Taylor as reflecting rules that, "(u)ntil recently," had
governed Social Security cases.  916 F.2d at 672-673.  Especially in
light of the belief expressed elsewhere in the Myers opinion that
Finkelstein had worked a substantial change in governing principles
(id. at 677-678;  but see page 48, infra), the implication of the
Eleventh Circuit's observation is that the rules of Guthrie, Brown and
Taylor no longer obtain.  The court also stressed that the term "final
judgment" is not to be given a rigid, overly technical interpretation.
 Id. at 670-671.

   /28/ Moreover, as we have explained (see pages 20-22, supra), our
submission is also supported by other aspects of the legislative
history of the 1985 amendments.

   /29/ The House Report stated (at 18 n.26) in a closely analogous
context:  "In a case remanded by a court of appeals for entry of
judgment, the time deadlines would commence on expiration of the time
for appealing the judgment on remand."

   /30/ At the time of the post-remand administrative proceedings in
this case, governing regulations provided that a case remanded by a
district court would remain within the jurisdiction of the Appeals
Council.  If an evidentiary hearing was required, or if circumstances
otherwise warranted, the Appeals Council could refer the case to an
ALJ to conduct further proceedings and make a recommended decision.
The Appeals Council, however, would render the Secretary's decision on
remand.  See 20 C.F.R. 404.983 (1985) (Title II);  id. 416.14833
(SSI).  If the claimant was dissatisfied with the Appeals Council
decision, he could then could return to court to challenge it.

   In September 1989, the Secretary published new regulations adopting
different procedures for cases remanded by a district court.  54 Fed.
Reg. 37,789.  Under the revised procedures, the Appeals Council will
ordinarily remand such a case to an ALJ, who can render his own
decision rather than preparing a recommended decision for the Appeals
Council.  The claimant then may file exceptions to the ALJ's decision
with the Appeals Council within 30 days, and the Appeals Council may
assume jurisdiction on its own motion within 60 days.  20 C.F.R.
404.983 and 404.984, 416.1483 and 416.1484.  If the Appeals Council
takes jurisdiction (on the basis of exceptions or on its own motion),
the Appeals Council's new decision "becomes the final decision of the
Secretary after remand." 20 C.F.R. 404.984(b)(3), 416.1484(b)(3).  If
the claimant does not file exceptions within 30 days and the Appeals
Council does not assume jurisdiction within 60 days, the decision of
the ALJ "becomes the final decision of the Secretary after remand." 20
C.F.R. 404.984(d), 416.1484(d).  Finkelstein makes clear that the
Secretary's final post-remand decision is then reviewable "in a
separate piece of litigation," 110 S. Ct. at 2663, pursuant, once
again, to 42 U.S.C. 405(g).  Thus, by virtue of the 60-day limitation
on judicial review under Section 405(g), the claimant would have 60
days within which to seek judicial review of whatever decision is,
under these regulations, "the final decision of the Secretary after
remand."

   /31/ Numerous appellate decisions have addressed the availability
of fees under 42 U.S.C. 406(b) where no such steps were taken.  See,
e.g., Gardner v. Melendez, 373 F.2d 488, 490 (1st Cir. 1967);
Rodriguez v. Secretary of HHS, 856 F.2d 338, 339 (1st Cir. 1988);
Conner v. Gardner, 381 F.2d 497 (4th Cir. 1967);  Ray v. Gardner, 387
F.2d 162 (4th Cir. 1967);  Brown v. Gardner, 387 F.2d 345 (4th Cir.
1967);  Morris v. SSA, 689 F.2d 495 (4th Cir. 1982);  Whitehead v.
Richardson, 446 F.2d 126, 128 (6th Cir. 1971);  Webb v. Richardson 472
F.2d 529, 534-535 (6th Cir. 1972);  Jankovich v. Bowen, 868 F.2d 867,
869 (6th Cir. 1989);  Smith v. Bowen, 815 F.2d 1152 (7th Cir. 1987);
Fenix v. Finch, 436 F.2d 831, 834-835 (8th Cir. 1971);  Burnett v.
Heckler, 756 F.2d 621, 624 (8th Cir. 1985);  MacDonald v. Weinberger,
512 F.2d 144, 145-146 (9th Cir. 1975);  Straw v. Bowen, 866 F.2d 1167,
1169 (9th Cir. 1989);  see also R. Francis, Social Security Disabilty
Claims:  Practice & Procedure Section 5.22, at 25 (1983) (stating that
fee petition must be filed with court if claimant prevails on remand,
without mentioning any requirement of a new judgment);  J. Glenn, et
al., Social Security:  Law & Practice Section 49.7, at 13 (1983 &
Supp. 1990) (remand order is favorable judgment permitting award of
fees, at least where claimant receives subsequent award by the
Secretary).

   /32/ In this case, petitioner did not seek further administrative
review or judicial review of the inital determination of the amount of
benefits to which he was found to be entitled under his first
application, J.A. 25-26, and that determination therefore became final
and binding.  See 20 C.F.R. 416.1405.

   /33/ As petitioner points out (Br. 36 n.8), the standard notice to
claimants states that ordinarily the amount of benefits will be
resolved within 60 days of the date the decision is rendered.  See
Pet. Br. App. 1a.

   /34/ We have been informed by the Department of Health and Human
Services that in fiscal year 1990, the average time required for the
computation of benefits in Title II cases was 24 days.  The Department
does not have comparable statistics concerning SSI cases.  Those cases
might take longer to determine.

   /35/ The affidavits attached to petitioner's rehearing petition in
the court of appeals, cited by petitioner (Br. 39), recounted three
attorney's experience in the limited context of whether attorneys
receive copies of award certificates.  As we have explained (see pages
40-41, supra), the award and payment process is distinct from the
adjudication of disability.

   /36/ Several such cases are now pending on appeal in the Ninth
Circuit, but the appeals have been stayed pending the Court's decision
in this case.

   /37/ American Ass'n of Retired Persons v. EEOC, 873 F.2d 402, n.7
(D.C. Cir. 1989);  Dunn v. United States, 775 F.2d 99, 103 (3d Cir.
1985);  Allen v. Secretary of HHS, 781 F.2d 92, 94 (6th Cir. 1986);
Jabbay v. Sullivan, 920 F.2d 472, 473 (7th Cir. 1990);  Olson v.
Norman, 830 F.2d 811, 821 (8th Cir. 1987);  Myers v. Sullivan, 916
F.2d 659, 666 (11th Cir. 1990);  United States v. J.H.T. Inc., 872
F.2d 373, 375 (11th Cir. 1989);  Haitian Refugee Center v. Meese, 791
F.2d 1489, 1494 (11th Cir. 1986);  Beta Systems, Inc. v. United
States, 866 F.2d 1404, 1405 (Fed. Cir. 1989);  J.M.T. Mach. Co. v.
United States, 826 F.2d 1042, 1046-1047 (Fed. Cir. 1987);  see also
cases cited in note 40, infra;  cf. Howitt v. U.S. Dep't of Commerce,
897 F.2d 583, 584 (1st Cir. 1990) (5 U.S.C. 504(c)(2));  Long Island
Radio Co. v. NLRB, 841 F.2d 474, 477-478 (2d Cir. 1988) (5 U.S.C.
504(a)(2));  see generally Note, 58 Ford. L. Rev. at 1273 & n.27.

   /38/ The Court did not expressly overrule Soriano, although it said
that it was not persuaded that the difference between the language of
28 U.S.C. 2501, at issue there, and 42 U.S.C. 2000e-16(c) was enough
to manifest a different congressional intent with respect to the
availability of equitable tolling.  111 S. Ct. at 457;  but see id. at
549 (White, J., dissenting) (stating that the Court "directly
overrules" Soriano).

   /39/ See also Equal Access to Justice Act Amendments:  Hearing on
H.R. 5059 Before the Subcomm. on Courts, Civil Liberties, & the Admin.
of Justice of the House Comm. on the Judiciary, 98th Cong., 2d Sess.
38 (1984) (Dep'ty Ass't Att'y Gen'l Kuhl) (when "final judgment"
occurs is important because the "thirty-day deadline for filing the
application is jurisdictional and cannot be waived");  Reauthorization
of Equal Access to Justice Act:  Hearing Before the Subcomm. on
Administrative Practice & Procedure of the Senate Comm. on the
Judiciary, 98th Cong., 1st Sess. 32 (1983) (statement of Ass't Att'y
Gen'l McGrath) ("thirty-day deadline for filing the application is
jurisdictional and cannot be waived by the government or even the
court");  id. at 75 (quoting Small Business Legal Defense Committee &
D. Stewart, "The Equal Access to Justice Act:  An Attorney's
Handbook") ("it has been held that the 30-day requirement from time of
final judgment is jurisdictional and may not be waived");
Implementation of the Equal Access to Justice Act:  Oversight Hearings
Before the Subcomm. on Courts, Civil Liberties & the Administration of
Justice of the House Comm. on the Judiciary, 97th Cong., 2d Sess. 3, 5
(1982) (Ass't Att'y Gen'l McGrath ("jurisdictional and cannot be
waived");  Equal Access to Justice:  Hearing Before the Subcomm. on
Agency Admin. of the Senate Comm. on the Judiciary, 97th Cong., 2d
Sess. 14 (1987) (same).

   /40/ See Action on Smoking & Health v. CAB, 724 F.2d 211, 225 (D.C.
Cir. 1984);  Premachametra v. Mitts, 753 F.2d 635, 642 n.10 (8th Cir.
1985) Clifton v. Heckler, 755 F.2d 1138, 1144-1145 (5th Cir. 1985);
see also Monark Boat Co. v. NLRB, 708 F.2d 1322, 1326-1327 (8th Cir.
1983) (5 U.S.C. 504(a)(2));  Columbia Mfg. Co. v. NLRB, 715 F.2d 1409,
1410 (9th Cir. 1983) (5 U.S.C. 504(c)(2)).

   /41/ In Taylor, the Eleventh Circuit -- relying on the explicit
terms of 42 U.S.C. 405(g) that this Court later found controlling in
Finkelstein -- questioned an important premise on which Guthrie, Brown
and Taylor itself rested:  that a remand order is not appealable.  778
F.2d at 676-677;  see Buck v. Secretary of HHS, slip op. 10 n.5.
Taylor therefore undermined any reliance petitioner might have placed
on those decisions.

   /42/ In addition, the district court, which addressed the merits of
petitioner's fee application, held (correctly in our view) that
petitioner is not entitled to EAJA fees in any event because the
government's position was substantially justified.  J.A. 19-21.

   /43/ Petitioner points out (Br. 43) that the form sent to the U.S.
Attorney after the Appeals Council decision stated:  "If appropriate,
have the action discontinued or dismissed." J.A. 17-18.  The form of
course did not state that dismissal was appropriate in this case.  Nor
did it state that dismissal by the court was a prerequisite to
commencing the 30-day filing period under EAJA.

   /44/ Although, for the reasons stated in the text, there is no
basis for application of a judicially fashioned rule of
nonretroactivity to petitioner's case, a claimant who has an EAJA
application pending in court that is out of time under the position we
urge could seek administrative relief by filing an application to
extend the period for filing an action for judicial review of the
Secretary's post-remand decision under 42 U.S.C. 405(g).  Section
405(g) and implementing regulations permit such extensions for "good
cause" shown, even after the 60-day period has elapsed.  20 C.F.R.
404.911, 404.982, 416.1411, 416.1482.  If such an extension were
granted, the post-remand decision would not be a "final judgment"
within the meaning of EAJA until the time for appeal had expired, and
the claimant would then have an opportunity to file a timely EAJA
application.