776 F.2d 166 (7th Cir. 1985), 85-1254, Johnson v. Heckler
|Docket Nº:||85-1254, 85-1490.|
|Citation:||776 F.2d 166|
|Party Name:||Unempl.Ins.Rep. CCH 16,379 Edna JOHNSON and Jerome Montgomery, on their own behalf and on behalf of all others similarly situated, Plaintiffs-Appellees, v. Margaret M. HECKLER, Secretary, U.S. Department of Health and Human Services, Defendant-Appellant.|
|Case Date:||October 30, 1985|
|Court:||United States Courts of Appeals, Court of Appeals for the Seventh Circuit|
Mark B. Stern, Dept. of Justice, Appellate Staff, Washington, D.C., for defendant-appellant.
Joseph A. Antolin, Legal Assistance Foundation of Chicago, Chicago, for plaintiffs-appellees.
Before BAUER and WOOD, Circuit Judges, and GRANT, Senior District Judge. [*]
On September 9, 1985, the appellant filed a petition for rehearing and suggestion of rehearing en banc in this case. All of the judges on the panel have voted to deny the petition for rehearing. One of the judges in regular active service requested a vote on the suggestion of rehearing en banc, which failed to receive the votes of a majority. Judges Eschbach, Posner, Coffey, Easterbrook, and Ripple voted to grant rehearing en banc.
The petition for rehearing is
EASTERBROOK, Circuit Judge, with whom ESCHBACH, POSNER, and COFFEY, Circuit Judges, join, dissenting.
The court denies rehearing en banc in this case by an equal division of the judges.
Our inability to proceed is not likely to be the end, however. This case has three issues: (1) whether a court may rule on substantive questions in pending disability cases prior to the Secretary's decision; (2) whether a court may order the reopening of cases when the suit is filed more than 60 days after the administrative decision became final; (3) whether the regulations (the Step Two rules) used to determine the existence of a "severe" impairment are unlawful. The Supreme Court has granted review of the first two issues. City of New York v. Heckler, 742 F.2d 729 (2d Cir.1984), cert. granted, --- U.S. ----, 106 S.Ct. 57, 88 L.Ed.2d 46 (1985); Owens v. Heckler, No. CV-2436-WMB (C.D.Cal. Aug. 28, 1984), prob. jur. noted, --- U.S. ----, 106 S.Ct. 223, 88 L.Ed.2d 223 (1985). The third issue affects tens of thousands of administrative cases every year and deserves review independently.
1. Califano v. Yamasaki, 442 U.S. 682, 701, 704, 99 S.Ct. 2545, 2557, 2559, 61 L.Ed.2d 176 (1979), holds that every member of a class must independently satisfy all requirements of suit. That means that a court must ask, with respect to the class members whose claims are pending before the Secretary, whether they could have filed individual suits seeking declaratory judgments that the Step Two rules violate the statute. The answer is no. The pertinent statute, 42 U.S.C. Sec. 405(g), states that a person may sue only after a "final decision of the Secretary". When a person still has a claim pending there is no "final decision."
The panel concluded that the final decision requirement is "waivable" by the court. 769 F.2d 1202 "Waiver" does not come naturally to a finality requirement. Finality in the sense of "the last order in the case" is familiar under 28 U.S.C. Sec. 1291, and no one thinks a court may "waive" this requirement to hear an interesting and important legal issue in mid-case. See, e.g., Richardson-Merrell, Inc. v. Koller, --- U.S. ----, 105 S.Ct. 2757, 86 L.Ed.2d 340 (1985); Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). Finality in the sense of administrative exhaustion is a bit different, for here finality is designed for the protection of the administrative process. Again a court may not excuse the lack of finality. FTC v. Standard Oil Co., 449 U.S. 232, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980). If anyone may waive the requirement, that must be the Secretary rather than the court. Weinberger v. Salfi, 422 U.S. 749, 766 & n. 9, 95 S.Ct. 2457, 2467 n. 9, 45 L.Ed.2d 522 (1975), accordingly held that the Secretary may, by regulation...
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