Finkelstein v. Bowen, 88-5318

• Citation: 869 F.2d 215
• Decision Date: 24 May 1989
• Docket Number: No. 88-5318,88-5318
• Parties: , Unempl.Ins.Rep. CCH 14534A Marilyn FINKELSTEIN, Appellee, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 215

869 F.2d 215

25 Soc.Sec.Rep.Ser. 64, Unempl.Ins.Rep. CCH 14534A

Marilyn FINKELSTEIN, Appellee, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services,

Appellant.

No. 88-5318.

United States Court of Appeals, Third Circuit.

Argued Sept. 8, 1988.

Decided March 3, 1989.

As Amended May 19, 1989.

Rehearing and Rehearing In Banc Denied May 24, 1989.

Donald M. Harris (argued), U.S. Atty's. Office, Newark, N.J., for appellant.

John E. Biggiani (argued), Gelman & Gelman, Elmwood Park, N.J., for appellee.

Before BECKER, HUTCHINSON and SCIRICA, Circuit Judges.

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

The Secretary of Health and Human Services (Secretary) appeals an order of the United States District Court for the District of New Jersey. The district court had remanded this action for widow's disability benefits under the Social Security Act to the Secretary for consideration of the applicant's residual functional capacity. That order is not final for purposes of appellate review. We will therefore dismiss this appeal for lack of jurisdiction.

I.

On November 25, 1983, Mrs. Marilyn Finkelstein applied for disabled widow's benefits pursuant to 42 U.S.C.A. Sec. 423(d)(2)(B) (West Supp.1988). Her application was denied both initially and on reconsideration. After a hearing on September 28, 1984, an Administrative Law Judge (ALJ) determined that Mrs. Finkelstein's heart ailment did not meet or equal an impairment listed in the regulations ¹ and denied benefits. That denial became the Secretary's final decision on December 11, 1984, when the Appeals Council denied Mrs. Finkelstein's request for review.

Pursuant to 42 U.S.C.A. Sec. 405(g) (West 1983), Mrs. Finkelstein filed suit in the district court, claiming that the ALJ's decision was not supported by substantial evidence. The district court rejected this argument, but nevertheless remanded the case to the Secretary "for reasons other than those cited by [the] plaintiff." Finkelstein v. Bowen, No. 85-0345, slip op. at 5 (D.N.J. Feb. 18, 1988). It directed the Secretary to consider "the functional impact of plaintiff's ailment," id., in order to determine whether, beyond the issue of equivalence of impairments, Mrs. Finkelstein could yet engage in any gainful activity. Id. at 6. This appeal followed.

On the merits, the Secretary argues that, in the case of widow's disability benefits, the statute and applicable regulations require him to look only to whether an applicant's impairment meets or equals an impairment listed in the regulations. ² The inquiry, he contends, does not extend, as in the case of a wage earner's disability, to examination of residual functional capacity. ³ Instead, the Secretary argues, a widow's disability is governed by a stricter standard ⁴ and a denial of benefits is required if her impairment is not equivalent to one listed in the regulations.

II.

At the threshold, we are faced with the question of appellate jurisdiction. Both parties initially asserted ⁵ that we have jurisdiction under 28 U.S.C.A. Sec. 1291 (West Supp.1988). That section gives us the authority to review "final orders" of the federal district courts. We have said that "remands to administrative agencies are not ordinarily appealable under section 1291." United Steelworkers of America Local 1913 v. Union R.R., 648 F.2d 905, 909 (3d Cir.1981). Such a remand is typically an interlocutory step in the adjudicative process and, therefore, not a final order. Id. Therefore, we can exercise appellate jurisdiction over this case only if it comes within an exception to the ordinary rule.

Case law does provide examples of a narrow exception to the normal rule of non-appealability. Application of this exception is limited to cases in which an important legal issue is finally resolved and review of that issue would be foreclosed "as a practical matter" if an immediate appeal were unavailable. See, e.g., AJA Assocs. v. Army Corps of Eng'rs, 817 F.2d 1070, 1073 (3d Cir.1987). Whether applying the normal rule or the exception, our inquiry focuses on "the particular order brought to this court." Bachowski v. Usery, 545 F.2d 363, 372 (3d Cir.1976); see also United Steelworkers, 648 F.2d at 909 ("To assess these contentions, we must consider the nature of the district court's order.").

After examining the circumstances of the cases applying the normal rule of non-appealability and those holding that appellate jurisdiction over particular remand orders is available, we have concluded that the exception to the normal rule does not apply. Therefore, we lack appellate jurisdiction.

A.

We turn first to cases in which we applied the normal rule and held district court remand orders interlocutory rather than final. In Marshall v. Celebrezze, 351 F.2d 467 (3d Cir.1965) (per curiam), a Social Security disability case, the Secretary asked the district court to remand so he could take additional evidence. The district court granted the motion and the applicant appealed. We dismissed the appeal as interlocutory. See also Mayersky v. Celebrezze, 353 F.2d 89 (3d Cir.1965) (district court remand to obtain additional evidence in Social Security disability case not final).

Our decision in Bachowski is particularly relevant. Alleging violations of the Labor-Management Reporting and Disclosure Act and other irregularities, Bachowski sought to overturn the results of a union officer election. The Secretary of Labor refused to file suit to set aside the election, but gave no reasons. Bachowski filed an action against the Secretary, in district court, seeking an order compelling him to file suit. The district court dismissed the case for lack of subject matter jurisdiction. On appeal, we held that the district court did have subject matter jurisdiction and that the scope of judicial review extended to the factual basis for the Secretary's decision not to file suit as well as the factors on which he relied in reaching it. Bachowski v. Brennan, 502 F.2d 79, 90 (3d Cir.1974). On certiorari, the Supreme Court agreed that the district court had subject matter jurisdiction and that the Secretary was required to provide "a statement of reasons supporting his determination." Dunlop v. Bachowski, 421 U.S. 560, 571, 95 S.Ct. 1851, 1860, 44 L.Ed.2d 377 (1975). It held, however, that judicial review "should be confined to examination of the 'reasons' statement, and the determination whether the statement, without more, evinces that the Secretary's decision is so irrational as to constitute the decision arbitrary and capricious." Id. at 572-73, 95 S.Ct. at 1860-61. On remand, the district court ordered the Secretary to submit a supplemental reasons statement after finding the initial statement inadequate. Bachowski v. Brennan, 405 F.Supp. 1227, 1234 (W.D.Pa.1975). Upon examining the supplemental statement, the district court held that the method the Secretary used to determine whether the alleged violations affected the outcome of the election and, therefore, whether to bring suit, was irrational. It remanded for a recount with directions as to the proper counting method. Bachowski v. Brennan, 413 F.Supp. 147, 151 (W.D.Pa.1976).

On appeal, we held this remand order was interlocutory. Bachowski, 545 F.2d at 372. Ultimately, the complaint sought an order directing the Secretary to file suit. The district court remanded only for further proceedings. We distinguished "the ultimate substantive issue presented by [the] appeals" from "the final question posed by Mr. Bachowski's complaint." Id. at 372 n. 58. "It is the answer to the latter, not the former inquiry that constitutes a final judgment under the traditional test of finality." Id. We also said that the issue of the proper method for counting votes might not escape later review. "By way of illustration, if the Secretary, after remand, would continue in his refusal to bring suit, and the district court ordered him to do so, the viability of the mode of review employed by [the court] would be before us on review." Id.

B.

This case does not present circumstances analogous to the cases in which we held there was appellate jurisdiction. United Steelworkers is an example of such a case. We expressly based our holding on the peculiar circumstances of the case. There, the district court's order set aside the decision of a public law board, directed that on remand one member of the board be removed, and further directed the board to remand the case to the railroad for a de novo investigative hearing into the termination of one of its employees. United Steelworkers, 648 F.2d at 909. In analyzing the order to decide if it was "final" and therefore appealable for purposes of Sec. 1291, we held that it had "the practical effect of dismissing the present litigation" because it "permanently disposed of all findings and orders of the Board." Id. at 909, 910. We also concluded that, due to the very limited scope of judicial review over board findings under the Railway Labor Act, the railroad would probably not be able to appeal the Board's order after a remand, thereby precluding any future opportunity to challenge the district court's order. Id. at 910. Therefore, "because of the unusual circumstances of [the] case," we found the order final. Id. at 911.

Horizons Int'l, Inc. v. Baldrige, 811 F.2d 154 (3d Cir.1987), is another example illustrating the exception to the normal rule of non-appealability. It involved the issuance of a certificate of review ⁶ by the Secretary of Commerce for a proposed joint venture in the export sale of caustic soda and chlorine. Horizons challenged the issuance of the certificate and moved to limit discovery to the administrative record. The government moved for summary judgment. The district court remanded the case to the Secretary and the Attorney General to consider five specific questions "which raise genuine issues of material fact concerning whether the grant of a certificate of review ... was arbitrary, capricious,...