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Fong v. Colvin

United States District Court, Ninth Circuit

May 20, 2013

CALVIN OSCAR CHENG FONG, Plaintiff,
v.
CAROLYN W. COLVIN, [1] Acting Commissioner of Social Security, Defendant.

MELINDA L. HAAG, United States Attorney, GRACE M. KIM, Regional Chief Counsel, Region IX, BRENDA M. PULLIN, Special Assistant United States Attorney Social Security Administration, DAVID J. LINDEN, Attorney for Plaintiff.

BENJAMIN B. WAGNER, United States Attorney, San Francisco, California, Attorneys for Defendant.

STIPULATION AND ORDER TO REOPEN CASE FOR THE PURPOSE OF ENTERING A DISMISSAL

CHARLES R. BREYER, District Judge.

IT IS HEREBY STIPULATED by the parties, through their undersigned attorneys, and with the approval of the Court as indicated below, that this case shall be reopened for the purpose of entering a dismissal.

On August 1, 2011, the Court remanded this case for further administrative proceedings and retained jurisdiction pursuant to sentence six of 42 U.S.C. § 405(g). [Doc. Nos. 8 & 9]. The parties stipulated to remand this case because the audio tape of the administrative hearing was inaudible. Upon remand, Plaintiff was granted a new hearing and an ALJ subsequently issued an unfavorable decision on February 1, 2012. Plaintiff now agrees to dismiss this court action.

As the administrative proceedings have concluded, reopening of the instant action is necessary. In a sentence-six remand case, the Court retains jurisdiction following the remand. See Melkonyan v. Sullivan, 501 U.S. 89, 98; 111 S.Ct. 2157; 115 L.Ed. 78 (1991) (District Court retains jurisdiction over Social Security cases remanded under 42 U.S.C. § 405(g), sentence six, and where the final administrative decision is favorable to one party or the other, the Commissioner is to return to Court following completion of the administrative proceedings on remand so that the Court may enter a final judgment or, as in this case, a dismissal); see also Shalala v. Schaefer, 509 U.S. 292, 298-300; 113 S.Ct. 2625; 125 L.Ed.2d 239 (1993).

[A] sentence six remand, because of clear language in the social security statute, implies and necessarily involves a reservation of jurisdiction for the future and contemplates further proceedings in the district court and a final judgment at the conclusion thereof. A sentence six remand judgment, the Court said, is therefore always interlocutory and never a "final" judgment.

Carrol v. Sullivan, 802 F.Supp. 295, 300 (C.D. Cal. 1992) (summarizing Melkonyan. )

It is therefore appropriate to reopen this case in order to resolve the Court's sentence-six jurisdiction with the entry of a dismissal. Upon reopening, the parties stipulate that the case shall be dismissed. Defendant is filing a separate proposed order for dismissal of the case.

ORDER

IT IS SO ORDERED.


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