VINCENT HOWELL, PLAINTIFF-APPELLANT,
v.
RICHARD S. SCHWEIKER, SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT-APPELLEE

11th Cir. | 1983-03-03
No. 82-5217
Before RONEY, VANCE and ANDERSON, Circuit Judges.
699 F.2d 524 Court of Appeals for the Eleventh Circuit (1983) Positive Treatment
Cited by 35 cases

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Holding

The court held that an order remanding a Social Security disability case to the Secretary for further proceedings is not a final decision and is therefore not immediately appealable under 28 U.S.C. § 1291.


Facts & Procedural History

A claimant injured his back and was denied disability benefits. The district court remanded the case to the agency to determine if the claimant could …

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Opinion of the Court
RONEY, Circuit Judge: PER CURIAM:

PER CURIAM:

The Secretary of the Department of Health, Education and Welfare (HEW) appeals the district court’s order remanding to the administrative law judge (ALJ) Mr. Charlie Tookes claim for disability benefits. We dismiss the appeal.

Charlie C. Tookes is a fifty-nine year old man with a fourth grade education. Mr. Tookes, without benefit of counsel, filed an application for disability benefits because of his heart trouble, high blood pressure, and diabetes.1 The Social Security Administration denied the application initially and on reconsideration. After a hearing de novo the ALJ determined that Tookes was not under a disability. The HEW Appeals Council affirmed that decision, which then became final. Disability as defined in section 223 of the Social Security Act means:

inability to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.

The district court acknowledged that its role was limited to determining whether substantial evidence on the record as a whole existed to support the Secretary’s decision.42 U.S.C. § 405(g) (1976). The court concluded, however, that the record before it was insufficient for a finding that substantial evidence supported the ALJ. The court therefore remanded the case to the AU “to determine whether-substantial gainful activity is available for this plaintiff in the Montezuma, Georgia area and to determine the basis for the AU’s categorization of textile knitter as light and sedentary work.” The Secretary appeals the order of remand.2

A threshold question is whether this court has jurisdiction to entertain the appeal.3 Courts of appeal have jurisdiction to hear appeals from “all final decisions of the district courts.” 28 U.S.A. § 1291 (1976). Generally a final decision is one that terminates the litigation. Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978), quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945); Southern Methodist University Ass’n of Women Law Students v. Wynne & Jaffe, 599 F. 2d 707, 711-12 (5th Cir.1979). Cf. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 171, 94 S.Ct. 2140, 2149, 40 L.Ed.2d 732 (1974) and Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949) (Congress allows some appeals from final judgments that do not terminate action). If the order does not end the litigation, it must fall within an exception to the final-judgment rule. Coopers & Lybrand v. Livesay, 437 U.S. at 467, 98 S.Ct. at 2457. This rule is based on the policies against piecemeal review, against disrupting proceedings with interlocutory appeals, favoring judicial efficiency, and favoring the hastened termination of litigation. Coopers & Lybrand v. Livesay, 437 U.S. at 471, 98 S.Ct. at 2459; United States v. MacDonald, 435 U.S. 850, 853, 98 S.Ct. 1547, 1548, 56 L.Ed.2d 18 (1978); Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); United States v. Nixon, 418 U.S. 683, 690, 94 S.Ct. 3090, 3098, 41 L.Ed.2d 1039 (1974); Eisen v. Carlisle & Jacquelin, 417 U.S. at 170-71, 94 S.Ct. at 2149. Competing with these policies is “the danger of denying justice by delay.” Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511, 70 S.Ct. 322, 324, 94 L.Ed. 299 (1950).

We hold that the district court’s order is not final. A district judge can remand a case to the Secretary in three situations.42 U.S.C. § 405(g) (1976). First, the court can remand for rehearing as part of its judgment affirming, modifying, or reversing the Secretary’s decision. Second, the court can remand if the Secretary moves for remand before she files an answer. Third, the court “may, at any time, on good cause shown, order additional evidence.” Id. The question is whether the district court’s order is of the first or third type. If it is the former, it is final; if the latter, it is not appealable. See Cohen v. Perales, 412 F. 2d 44, 48 (5th Cir.1969), rev’d on other grounds, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1970).

The district court outlined a two-step analysis: first, is there a medically determinable impairment; and second, does the impairment render the claimant unable to engage in substantial gainful employment. Because Tookes showed, at the first step, that he was unable to return to his former job as a welder, the court held that the burden shifted to the Secretary to prove that Tookes could perform other substantial gainful employment. Record at 42. See White v. Harris, 605 F. 2d 867 (5th Cir.1979). On this second step, the court stated:

The court holds that the second step— the ability of plaintiff to engage in any substantial gainful activity for a period of twelve months — does not rise to the level of substantial evidence. This court therefore orders that this case be remanded to determine whether substantial gainful activity is available for this plaintiff in the Montezuma, Georgia area and to determine the basis for the ALJ’s categorization of textile knitter as light and sedentary work.

Id. at 44. Despite the phrasing of the court’s decision, we do not see the order as one of the first type, reversing the Secretary and remanding. Not only was the remand not for “rehearing” as the statute provides,4 but the court’s specific questions indicate that the present decision is but a step towards the final judgment. See Eluska v. Andrus, 587 F. 2d 996 (9th Cir.1978); Barfield v. Weinberger, 485 F. 2d 696, 698 (5th Cir.1973). Review at this time would be intervention in an open, unfinished, and inconclusive matter. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. at 546, 69 S.Ct. at 1225.

Nor does this order meet the criteria of the collateral order exception. A collateral order is one separable from the ingredients of the claim. Eisen v. Carlisle & Jacquelin, 417 U.S. at 171-72, 94 S.Ct. at 2149-50; Cohen v. Beneficial Indus. Loan Corp., 337 U.S. at 546-47, 69 S.Ct. at 1225-26. The order must not (1) be subject to district court revision, (2) involve issues intertwined with those comprising the cause of action, or (3) be subject to effective review after final judgment. Coopers & Lybrand v. Livesay, 437 U.S. at 469, 98 S.Ct. at 2458; Southern Methodist University Ass’n of Women Law Students v. Wynne & Jaffe, 599 F. 2d at 711-12; North American Acceptance Corporation Securities Cases v. Arnall, Golden & Gregory, 593 F. 2d 642 (5th Cir.1979); Zylstra v. Safeway Stores, Inc., 578 F. 2d 102, 104 n. 1 (5th Cir.1978). The present order fails to meet these standards in at least two ways. First, it is clear that the court might decide after the remand that substantial evidence supports the ALJ. If it affirms the AU, the Secretary need not appeal. Second, the Secretary’s whole basis for contesting the remand is that substantial evidence exists in the present administrative record. Obviously, such a review of the remand order is intertwined with a review of the merits.5

The cases cited by the Secretary as mandating review all involve a final order or a collateral evidentiary ruling. Gold v. Weinberger, 473 F. 2d 1376 (5th Cir.1973) (court denied summary judgment and determined burden of proof on remand); Peoples v. Richardson, 468 F. 2d 601 (5th Cir.1972) (Secretary did not object to remand but to restrictions in manner in which expert testimony could be received); Cohen v. Perales, 412 F. 2d at 48, rev’d, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1970) (on evidentiary question) (district court denied summary judgment and gave direction on weight to be accorded unsworn, contested medical reports).6 This ease is closer to Barfield v. Weinberger, in which this court held that an order remanding to determine whether a claimant’s hearing met requirements enunciated by the Supreme Court was not appealable. 485 F. 2d at 69.7 — 98.

As Judge Goldberg noted in North American Acceptance, “[W]e must be parsimonious in our analysis of appealability,” but the “safety valve” in 28 U.S.C. § 1292(b), which allows district courts to certify questions for appeal, cushions any injustice which might result from the final-judgment rule. 593 F. 2d at 645. In section 405(g), Congress gave the district court the power to ask the administrators for additional information before finally determining whether a finding on disability is supported by substantial evidence. To allow the Secretary to appeal from this type of remand order would frustrate the policies of both section 405(g) and section 1291. The appeal is DISMISSED.

*

Fed.R.App.P. 34(a); 5th Cir.R. 18.

. The Social Security Administration denied an earlier application claiming disability from high blood pressure, obesity, and kidney stones, and Tookes did not pursue his remedies within the statutory appeal period.

. Both parties agree that the availability of gainful activity in the Montezuma, Georgia area is irrelevant after the 1967 amendment to the Social Security Act.42 U.S.C. § 423(d)(2)(A) (1976). The cases relied upon by the district court preceded the amendment. Because the textile knitter categorization arguably is a valid basis for remand, we consider the appealability of the court’s order. . The Secretary summarily claims that this appeal is from a final order. Brief of Appellant at 8 n. 1. Appellee does not contest the appealability of the order. This issue, of course, can be raised sua sponte by the court. See United States v. Deutsch, 599 F. 2d 46 (5th Cir.1979).

. We also note that appellee has not cross-appealed the failure to remand for a full rehearing.

. The sole inquiry on appeal to the district court is whether the administrative determination is supported by substantial evidence.42 U.S.C. § 405(g) (1976). As to the third requirement, it may be true that the procedural aspect of the remand order will not be reviewed. The Secretary’s grounds for avoiding remand, however, are the same as those on the merits; therefore, the substance of her claims can be reviewed should the court find substantial evidence is lacking.

. Neither party moved for summary judgment or dismissal in this case. The only motion outstanding at the time of the court’s order was claimant’s motion to remand for a full hearing. The district court does have, however, power to decide these cases based solely on the pleadings and administrative transcript.42 U.S.C. § 405(g) (1976).

Footnotes
42 U.S.C. § 223 (1976). The ALJ concluded that Tookes retained the residual functional capacity to perform a wide range of activities consistent with his occupational background. The ALJ also found that Tookes failed to establish a medically determinable impairment or combination of impairments of a severity which precluded him from engaging in any substantial gainful activity for a continuous period of twelve months.

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Cited By (18 total)

  • In re Caryl W. Riggsby v. Caryl W. Riggsby, 745 F.2d 1153 (7th Cir. 1984)
    …tion Programs, 721 F. 2d 629 (7th Cir.1983); United Transportation Union v. Illinois Central R.R., 433 F. 2d 566, 568 (7th Cir.1970); Newpark Shipbuilding & Repair, Inc. v. Roundtree, 723 F. 2d 399, 404 (5th Cir.1984) (en banc); Howell v. Schweiker, 699 F. 2d 524, 526-27 (11th Cir.1983); McCoy v. Schweiker, 683 F. 2d 1138, 1141 n. 2 (8th Cir.1982) (en banc); United States v. Alcon Laboratories, 636 F. 2d 876, 884 (1st Cir. 1981), provided the order is effectively reviewable on appeal from the agency’s (here,…
  • United States v. Rosenthal, 763 F.2d 1291 (11th Cir. 1985)
    …entical to that presented by the instant case, but also because it reinforced strong dicta expressed in the court’s prior published decision. United States v. Dorfman, 690 F. 2d 1230, 1234 (7th Cir.1982) (discussed in text). Cf. Howell v. Schweiker, 699 F. 2d 524, 526-27 (11th Cir.1983) (in the Eleventh Circuit, unpublished opinions are binding precedent). . Of course, the ability of the defendant to get a fair trial if access is granted is the primary ultimate value to be weighed on the non-access side of…
  • Taylor v. Heckler, 778 F.2d 674 (11th Cir. 1985)
    …se it was filed more than thirty days after the remand order was entered. We are not writing on a clean slate, however. This circuit treats all remand orders to the Secretary as interlocutory orders, not as final judgments. See Howell v. Sckweiker, 699 F. 2d 524 (11th Cir.1983); Tookes v. Harris, 614 F. 2d 1296 (5th Cir. 1980) (published as an appendix in Howell). In Howell, we held that the “district court’s [remand] ... [does] not end the litigation” because the Secretary may thereafter grant or deny be…

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