Barfield v. Weinberger, 72-3805.

• Decision Date: 17 October 1973
• Docket Number: No. 72-3805.,72-3805.
• Citation: 485 F.2d 696
• Parties: Joseph P. BARFIELD, Plaintiff-Appellee, v. Caspar W. WEINBERGER, Secretary of Health, Education and Welfare, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

485 F.2d 696 (1973)

Joseph P. BARFIELD, Plaintiff-Appellee, v. Caspar W. WEINBERGER, Secretary of Health, Education and Welfare, Defendant-Appellant.

No. 72-3805.

United States Court of Appeals, Fifth Circuit.

October 17, 1973.

John W. Stokes, Jr., U. S. Atty., Charney K. Berger, Asst. U. S. Atty., Atlanta, Ga., Kathryn H. Baldwin, Eric B. Chaikin, Eloise E. Davies, Dept. of Justice, Washington, D. C., for defendant-appellant.

H. H. Gearinger, Chattanooga, Tenn., for plaintiff-appellee.

Before GEWIN, AINSWORTH and MORGAN, Circuit Judges.

PER CURIAM:

A Social Security claimant filed this suit in the district court to review a decision of the Secretary in which he declined to reopen a claim for disability benefits. In the prior hearing on the claim the Secretary had denied further benefits to plaintiff. The present suit was predicated on the provisions of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), and section 10 of the Administrative Procedure Act, 5 U.S.C. § 704.¹ The Secretary filed a motion to dismiss and contended that his decision not to reopen claimant's application for disability benefits was not judicially reviewable. The district court below denied the motion to dismiss and remanded the case to the Secretary with instruction to determine if the hearing afforded claimant on his application to reopen the case relative to cessation of benefits was in accord with Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), and Richardson v. Wright, 405 U.S. 208, 92 S.Ct. 788, 31 L.Ed.2d 151 (1972). The Secretary then brought this appeal from the district court's order.

We required the parties to brief the threshold question of whether the district court's order remanding the case to the Secretary was an appealable final order under 28 U.S.C. § 1291. Appellant made no request in the district court to certify the matter as an interlocutory appeal under 28 U.S.C. § 1292(b), and no application was made to this Court for permission to take an appeal from the district court's order.

The Secretary contends that the district court's order is appealable as a final order because it is one contemplated by the Supreme Court's decisions in Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and Gillespie v. United States Steel Corporation, 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964), since the question presented "clearly presents a final determination of a claim of right separable and collateral to rights asserted in the action that are serious and unsettled questions too important to now be denied review." (Secretary's supp. brief p. 2.) The Secretary further contends that unless the district court's order is reviewed his right will probably be irreparably lost.

This case, however, does not come within the Cohen criteria. We are unable to agree with the Secretary's contention that "the order's review cannot, in the nature of the questions it presents, await final judgment because when that time comes, it will be too late effectively to review the order and rights conferred will have been lost, probably irreparably." See Cohen, supra, 337 U.S. at 546-547, 69 S.Ct. 1221.

No adequate reason has been suggested why the Secretary cannot respond to the district court's instruction. The matter can be determined in due course, and the aggrieved party can take an appeal to this Court for ultimate review on all of the combined issues.

Since the appeal here is from an order of the district court which is not final, and no certificate has been obtained from the district court, or permission granted by this Court as required by 28 U.S.C. § 1292(b), we do not have jurisdiction to entertain this appeal. See Alabama Lab....