Crowder v. Sullivan, 89-2681
| Decision Date | 05 March 1990 |
| Docket Number | No. 89-2681,89-2681 |
| Citation | 897 F.2d 252 |
| Parties | , Unempl.Ins.Rep. CCH 15305A Erie CROWDER, Plaintiff-Appellee, v. Louis W. SULLIVAN, Secretary of Health and Human Services, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
David G. Dreis, Legal Action of Wisconsin, Milwaukee, Wis., for plaintiff-appellee.
James L. Santelle, Stephen J. Liccione, Asst. U.S. Attys., Office of the U.S. Atty., Milwaukee, Wis., Michael C. Messer, Dept. of Health and Human Services, Region V, Office of the General Counsel, Chicago, Ill., John F. Cordes, Jr., Matthew M. Collette, Dept. of Justice, Civ. Div., Appellate Section, Washington, D.C., for defendant-appellant.
Before CUDAHY, POSNER, and COFFEY, Circuit Judges.
The general rule is that a judgment by a district court remanding a case to an administrative agency is nonfinal and hence nonappealable, 28 U.S.C. Sec. 1291, unless all that remains to be done on remand is a mechanical or otherwise "ministerial" task, requiring no judgment or discretion. In re Riggsby, 745 F.2d 1153, 1156 (7th Cir.1984). We asked the parties to brief the question whether this rule requires us to dismiss the appeal. The plaintiff, Mrs. Crowder, had sought disability benefits under the Social Security Act, had been turned down by the Social Security Administration on the basis of a general standard applicable to cases of Mrs. Crowder's type, and had sued in federal district court. The district court held the standard invalid and remanded the case for an individualized assessment of Mrs. Crowder's physical capacity for gainful employment. The government appeals the district court's judgment. The judgment arguably is nonfinal, because the task required of the agency on remand is not a merely ministerial one. In Finkelstein v. Bowen, 869 F.2d 215 (3d Cir.1989), cert. granted, --- U.S. ----, 110 S.Ct. 862, 107 L.Ed.2d 947 (1990), a case materially identical to this, the Third Circuit held that such judgments are indeed not appealable. We had earlier reached a contrary conclusion, Daviess County Hospital v. Bowen, 811 F.2d 338, 341-42 (7th Cir.1987), as had the D.C. Circuit in Occidental Petroleum Corp. v. SEC, 277 U.S.App.D.C. 112, 873 F.2d 325, 328-32 (1988).
We believe Daviess and Occidental state the better view, and shall therefore adhere to those decisions; the Supreme Court has granted certiorari in Finkelstein to resolve the conflict. The reason for our position is intensely practical. If on remand the...
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