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November 20, 1995

SHIRLEY S. CHATER, Commissioner of the Social Security Administration,1 Defendant.

The opinion of the court was delivered by: RICHEY



 Before the Court is the defendant's Motion to Dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12 (b)(1), filed in the above-entitled case on September 12, 1995. The plaintiff filed an Opposition thereto on September 22, 1995, to which the plaintiff replied on October 3, 1995. Upon consideration of the entire record herein and the law applicable thereto, the Court shall grant the defendant's Motion to Dismiss.


 On September 10, 1992, pursuant to 42 U.S.C. § 405(g), the plaintiff filed a civil action in this Court, seeking judicial review of the Secretary of Health and Human Service's final decision denying his applications for disability insurance benefits and granting, in part, his application for supplemental security income. On March 29, 1994, this Court issued a Memorandum Opinion and Order remanding the case to the agency because the decision of the Secretary was not supported by substantial evidence on the basis of the record as a whole. The Court's Order provided that both parties shall have the right to re-open the case within 30 days following completion of the administrative proceedings.

 On June 8, 1995, the agency granted the plaintiff a partially favorable decision. On August 16, 1995, the plaintiff filed a Motion to Reopen the above-captioned case, along with a Motion for production of agency records under the Freedom of Information-Privacy Act ("FOIA"), and an application for costs and fees under the Equal Access to Justice Act ("EAJA"). At that time, however, it appeared to the Court that the agency proceedings were not yet complete, since the plaintiff had filed exceptions to the partially favorable decision with the agency. Accordingly, the Court held a status conference pursuant to Rule 16 of the Federal Rules of Civil Procedure to address that matter. At the status conference, counsel for both parties concurred that the agency proceedings had not yet been completed and that, therefore, any Motions filed in the above-captioned case since the Court's March 29, 1994 remand were moot.

 Also at the status conference, the defendant raised, for the first time, a challenge to the Court's jurisdiction over the above-captioned case. Specifically, the defendant asserted that the Court's March 29, 1994 remand was ordered pursuant to "sentence four" of 42 U.S.C. § 405 (g) and, according to the Supreme Court case Shalala v. Schaefer, 509 U.S. 292, 125 L. Ed. 2d 239, 113 S. Ct. 2625 (1993), a district court may not retain jurisdiction over a case remanded pursuant to sentence four of 42 U.S.C. § 405(g). Thus, the question presented to the Court is whether the Court must grant the defendant's Motion pursuant to Rule 12(b)(1) to Dismiss for lack of subject matter jurisdiction.



 The Court must be ever mindful of its duty to ensure that it has jurisdiction over the matter before it. Accord Market St. Assocs. Ltd. Partnership v. Frey, 941 F.2d 588, 590 (7th Cir. 1991) (bench and bar have "nondelegable duty to police the limits of federal jurisdiction with meticulous care"). Accordingly, a challenge to the subject matter jurisdiction of a court may be raised at any time by a party or the court. See Fed. R. Civ. P. 12 (h) (3) ("Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.").

 The Court's March 29, 1994 Remand Was Ordered Pursuant To Sentence Four Of 42 U.S.C. § 405(g).

 In cases reviewing final agency decisions on Social Security benefits, the exclusive methods by which district courts may remand are set forth in sentence four and sentence six of 42 U.S.C. § 405 (g). Schaefer, 113 S. Ct. at 2629. Those provisions of § 405(g) read:

The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing [sentence four]. . . . The 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] for further action by the [Commissioner], and it may at any time order additional evidence to be taken before the [Commissioner], but only upon a showing that there is new ...

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