Doughty v. Bowen

• Decision Date: 08 February 1988
• Docket Number: No. 85-2767,85-2767
• Citation: 839 F.2d 644
• Parties: , 20 Soc.Sec.Rep.Ser. 507, Unempl.Ins.Rep. CCH 17,890 Homer W. DOUGHTY, Plaintiff-Appellee, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 644

839 F.2d 644

56 USLW 2463, 20 Soc.Sec.Rep.Ser. 507,

Unempl.Ins.Rep. CCH 17,890

Homer W. DOUGHTY, Plaintiff-Appellee, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services Defendant-Appellant.

No. 85-2767.

United States Court of Appeals Tenth Circuit.

Feb. 8, 1988.

John S. Koppel, Attorney, Appellate Staff, Civ. Div., Dept. of Justice (Richard K. Willard, Asst. Atty. Gen., and William Kanter, Attorney, Appellate Staff, Civ. Div., Dept. of Justice; and Benjamin L. Burgess, Jr., U.S. Atty., D. Kan., with him on the briefs), Washington, D.C., for defendant-appellant.

Dennis L. Phelps, Wichita, Kan., for plaintiff-appellee.

Before McKAY and McWILLIAMS, Circuit Judges, and BOHANON, District Judge ^*.

McKAY, Circuit Judge.

The question presented on appeal is whether a district court may order interim benefit payments to a claimant pending his appeal from an initial denial of disability benefits under Title II of the Social Security Act.

On November 18, 1981, plaintiff applied for disability insurance benefits pursuant to Title II of the Social Security Act. The administrative law judge (ALJ) found that plaintiff suffered only exertional limitations and, after applying the grid regulations, 20 C.F.R. Part 404, subpt. P, app. 2 (1982), denied plaintiff any benefits. Plaintiff exhausted his administrative appeals and on April 29, 1983, filed an action with the district court seeking review of the Secretary of Health and Human Service's (the Secretary's) denial of benefits. On October 5, 1984, the district court concluded that "there was substantial evidence of several non-exertional limitations" and reversed the Secretary's decision, remanding the case for further proceedings. Record, vol. 1, doc. 19, at 3.

The Secretary remanded the case to the ALJ and requested a new recommendation based on additional medical records and the testimony of vocational experts. In a revised recommendation dated June 25, 1985, the ALJ found the plaintiff to be disabled. However, the ALJ concluded that plaintiff became disabled in July 1983 when he turned fifty and not in July 1981 as plaintiff claimed. Plaintiff contested this recommendation before the Appeals Council, claiming that the ALJ had applied the grid regulations too rigidly. The Appeals Council agreed with plaintiff, and on August 29, 1985, remanded the case to the ALJ with directions to apply the grid regulations less stringently and to hear testimony from a vocational expert.

On September 16, 1985, plaintiff moved the district court to (1) direct the Secretary to comply with the court's remand order and (2) impose sanctions on the Secretary for creating unnecessary delays. The district court found that "the case was still pending before the ALJ [and that there was] no final determination of the Secretary ... to review." Record, vol. 1, doc. 23, at 2. Nevertheless, the district court concluded that it was authorized to order the Secretary to pay interim benefits until there was a final judicial resolution. The court ordered not only prospective interim payments but also retroactive interim payments from the date of plaintiff's application for benefits, November 18, 1981.

The Secretary objected to the order to pay interim benefits and filed a motion on November 19, 1985, to vacate the court's ruling, under Rule 60(b) of the Federal Rules of Civil Procedure. On November 21, 1985, the Secretary appealed the interim payment order to this court. The Rule 60(b) motion is still pending in district court; and while the Secretary has made prospective interim payments, he has not made retroactive payments. All administrative proceedings have been stayed pending resolution of this appeal.

I.

We first consider whether this court has jurisdiction to hear an appeal from a district court order to remand for further proceedings and to pay interim benefits. "This Court has jurisdiction to hear appeals from final decisions of the district court." Blondin v. Winner, 822 F.2d 969, 973 (10th Cir.1987); see 28 U.S.C. Sec. 1291 (1982). A final decision of the district court is an order that "end[s] the litigation and leave[s] nothing to be done except execute the judgment." First Bank v. Albuquerque Nat'l Bank (In Re Glover, Inc.), 697 F.2d 907, 909 (10th Cir.1983) (citing Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633-34, 89 L.Ed. 911 (1945)).

Generally, an order remanding a case to the Secretary for further proceedings does not end the litigation. Rather, it is a non-final, collateral order and therefore is not appealable under 28 U.S.C. Sec. 1291 (1982). Beach v. Bowen, 788 F.2d 1399, 1401 (8th Cir.1986); Huie v. Bowen, 788 F.2d 698, 699, 701 (11th Cir.1986); Memorial Hospital System v. Heckler, 769 F.2d 1043, 1044 (5th Cir.1985); Biddle v. Heckler, 721 F.2d 1321 (11th Cir.1983). However, a remand order is appealable if it comes within an exception to the final-order rule. The Supreme Court established the exception in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); and in Coopers & Lybrand v. Livesay, 437 U.S. 463, 468-69, 98 S.Ct. 2454, 2557-58, 57 L.Ed.2d 351 (1978), the Court explained that the Cohen exception applies to non-final collateral orders that (1) "conclusively determine a disputed question," (2) "resolve an important issue completely separate from the merits of the action," and (3) are "effectively unreviewable on appeal from final judgment."

Recently, in Huie v. Bowen, 788 F.2d 698, 701-02 (11th Cir.1986), the Eleventh Circuit examined whether a remand order to the Secretary to pay interim benefits satisfies the Cohen requirements. The court found that all three elements of Cohen were satisfied: (1) "whether a court may order the Secretary to pay retroactive benefits prior to the determination of whether the claimants were improperly taken off the rolls is separable from the issue of whether the claimants have experienced a medical improvement"; (2) the case involves unsettled and "significant interests of the Secretary in protecting the public fisc" and important interests of the claimant in protecting his "financial well-being and, perhaps, survival"; and (3) "a review at a later time [would] be meaningless" if the parties had to wait. Huie, 788 F.2d at 703.

We note that Huie substantively differs from the present matter in that the Huie remand order ensues from the termination of benefits rather than from the initial denial of benefits. Despite this distinction, remand orders ensuing from the termination of benefits and from the initial denial of benefits are procedurally similar since they both address the appealability of a remand order to the Secretary. The rationale underlying the application of the Cohen doctrine in Huie is applicable to the present case, and we find that the Cohen elements are established in the present case. First, whether the district court may order the Secretary to pay interim benefits prior to a final determination that the plaintiff is entitled to such benefits is a completely separate issue from whether the plaintiff is disabled. Second, the present matter involves important, unsettled interests in protecting the public fisc and the plaintiff's financial well-being. Third, review at a later time will not be effective. If the plaintiff is found to be disabled and is awarded benefits on remand to the Secretary, the Secretary will not subsequently address the interim payments issue. If the plaintiff is not found to be disabled, the Secretary will be unable to present the interim payment issue unless the plaintiff opts to appeal the new determination. See generally Huie, 788 F.2d at 703.

We conclude that a remand order to pay interim benefits satisfies the Cohen doctrine and thus gives this court jurisdiction to hear the merits. ^**

II.

Although a remand order to pay interim benefits in a case involving the termination of benefits and a remand order from the initial denial of benefits both satisfy the Cohen elements for appealability, the propriety of awarding interim benefits in these two types of cases is substantively distinct. In a termination case, the individual, at one time, necessarily received a final judgment pursuant to 42 U.S.C. 405(i) (1982) certifying his right to payment of benefits. In an initial denial case, the individual has never obtained a final judgment finding him disabled and entitled to benefits.

Section 2(e) of the Social Security Disability...