Opinion
CA 00-0497-BH-C
September 27, 2001
REPORT AND RECOMMENDATION
The undersigned having granted, by concurrent order (Doc. 16), the defendant's motion for leave to file a sentence-six motion to remand (Doc. 15), now considers that motion (Doc. 17) without awaiting the previously-ordered affidavit which explains why a transcript and answer was not filed within 90 days of service of the complaint. The Commissioner has filed a motion to remand pursuant to sentence six of 42 U.S.C. § 405 (g) because he has been unable to locate the claim file and needs the additional time a sentence-six remand will provide to search for the missing file. (Doc. 17, at 2) Without a claim file, it is clear that the defendant cannot compile an administrative record to file with the answer. (See Doc. 6 ("The Commissioner of Social Security shall file an answer, together with a transcript of the administrative proceedings, within ninety (90) days after service of the complaint."))
In the motion requesting leave to file the motion to remand, counsel for plaintiff makes the following specific requests: "[T]he undersigned respectfully requests leave to file the attached Motion to Remand and leave to file the supporting affidavit as soon as it is received." (Doc. 15) Inasmuch as it is clear to the undersigned that this affidavit will simply expand upon the Commissioner's inability to locate the claim file, there is no need to await the affidavit before ruling on the motion to remand.
The first portion of sentence six of 42 U.S.C. § 405 (g) provides that "[t]he court may, on motion of the Commissioner of Social Security made for good cause shown before the Commissioner files the Commissioner's answer, remand the case to the Commissioner of Social Security for further action by the Commissioner of Social Security[.]" The Commissioner's inability to compile a complete administrative record for this Court's review establishes good cause to remand this case to the Commissioner of Social Security so that the Commissioner can find the claim file or reconstruct same and therefore, it is recommended that this case be remanded to the Commissioner pursuant to sentence six of § 405(g). Obviously, with entry of this sentence six remand, the Court "does not rule in any way as to the correctness of the administrative determination." Melkonyan v. Sullivan, 501 U.S. 89, 98, 111 S.Ct. 2157, 2163, 115 L.Ed.2d 78 (1991). Accordingly, the plaintiff is not a prevailing party for purposes of the Equal Access to Justice Act, 28 U.S.C. § 2412. See Schaefer, supra, 509 U.S. at 297-298 300-302, 113 S.Ct. at 2629 2631-2632. "In sentence six cases, the [EAJA] filing period does not begin until after the postremand proceedings are completed, the [Commissioner] returns to court, the court enters a final judgment, and the appeal period runs." Melkonyan, supra, 501 U.S. at 102, III S.Ct. at 2165.
Sentence-six remand cases may be ordered in only two situations: where, as here, the Commissioner "requests a remand before answering the complaint, or where new, material evidence is adduced that was for good cause not presented before the agency." Shalala v. Schaefer, 509 U.S. 292, 292 n. 2, 113 S.Ct. 2625, 2629 n. 2, 125 L.Ed.2d 239 (1993) (citations omitted).
Although this Court retains jurisdiction over this case, the Clerk of Court is directed to statistically close this case at this time. This case is to be statistically reopened when the defendant files an answer along with a transcript of the administrative proceedings.
For good cause shown, the Magistrate Judge recommends that this case be remanded to the Commissioner of Social Security pursuant to sentence six of 42 U.S.C. § 405 (g).
The attached sheet contains important information regarding objections to the report and recommendation of the Magistrate Judge.