I-4-3-1.Court Remand Orders — General

Last Update: 9/13/05 (Transmittal I-4-15)

A Federal district court or court of appeals may remand a case for additional administrative action. The court may issue the remand order on its own motion, on the motion of the Commissioner or the plaintiff, or on the joint motion or stipulation of both parties. Courts of appeals generally remand to the district court with directions to remand the case to the Commissioner, although occasionally, courts of appeals remand directly to the Commissioner.

The decision of the Supreme Court in Schaefer v. Shalala, 509 U.S. 292 (1993), interpreted the provisions of 42 U.S.C §405(g) pertaining to remand of a case. The Supreme Court held that a district court may remand a case to the Commissioner of Social Security only as provided in either sentence four or sentence six of 42 U.S.C. §405(g). A case may be remanded in conjunction with a judgment affirming, modifying or reversing the prior final decision under sentence four. Alternatively, a case may be remanded under sentence six in light of new evidence and without any substantive ruling (i.e., a judgment) by the court as to the correctness of the decision, but only if the moving party establishes good cause for failing to present the evidence earlier when the case was before the Administrative Law Judge (ALJ) or the Appeals Council (AC).

In sentence four remands, the judgment of the court ends the court's jurisdiction over the case and the appeal time for seeking review by a court of appeals commences on the date the judgment is entered (see Forney v. Apfel, 524 U.S. 266 (1998). If no appeal is taken, the case may be remanded by the AC to an ALJ or, if not precluded by the remand order, the Council may issue its own decision. A claimant who receives a partially favorable or unfavorable decision, as the result of a sentence four remand, must file a new complaint in the district court to obtain judicial review.

Remands under sentence six do not bring the jurisdiction of the court to an end. These remands are considered interlocutory (i.e., temporary or interim) and are generally not appealable. Upon conclusion of the proceedings on remand, the claimant is not required to file a new civil action before obtaining judicial review. In most, if not all, jurisdictions either the claimant or SSA's Office of the General Counsel (OGC) must advise the court (usually through the Office of the U.S. Attorney for the judicial district involved) that the remand proceedings have been concluded and file a motion to reopen or re-docket the case.

In many jurisdictions, Social Security cases are first referred to magistrate judges to prepare a report and recommendation to the court. After review by the court, a judge signs or initials the order of the court remanding the case to the Commissioner. In other jurisdictions, however, both parties may stipulate (i.e., agree in writing) to allow a magistrate judge to conduct all proceedings, including the entry of the court's final disposition of the case. In those cases, only the magistrate judge will sign the order (and judgment, if necessary) of the court.

When a court issues a remand order, the clerk of the court sends the order (and judgment in sentence four cases), along with any attachments such as a magistrate judge's report and recommendation or additional evidence, to the claimant's attorney and to the Office of the U.S. Attorney. The U.S. Attorney's office then sends copies to OGC office responsible for the case. OGC sends a composite list and copies of any remand orders to the appropriate Office of Appellate Operations (OAO) Court Case Preparation and Review Branch (CCPRB). The orders are date- stamped and separated by CCPRB jurisdiction. The list is annotated with the appropriate CCPRB designation and a copy of the list is returned to OGC to confirm the receipt of the orders. The staff in OGC re-checks the list and sends any remand orders not recorded on the list. The list and remand orders are sent to the appropriate CCPRB for processing.

Arrangements also have been made with a number of different court clerks' offices, U.S. Attorneys and OGC to mail copies of remand orders directly to OAO. These orders go directly from the mailroom to the CCPRBs. The U.S. Attorney or OGC may also FAX or e- mail a remand order to OAO when immediate action is required.

The remand will be reviewed by a CCPRB analyst. If the remand order can be processed without additional instructions from the AC, the analyst in the CCPRB will prepare a standard remand order and release the case to the hearing office (with a copy of the Court's remand attached). If additional instructions are needed or if additional processing is required before the case can be released with either an AC decision or a detailed remand order, the CCPRB Chief or a designee will determine if the case will be processed in the CCPRB or referred to the appropriate OAO branch. Normally, all cases remanded as a result of the request for voluntary review (RVR) process will be returned to the OAO Disability Program Branches (DPBs) or the Retirement and Survivors Insurance and Supplemental Security Income (RSI & SSI) Branch for preparation of an appropriate detailed remand order.