Travis v. Sullivan

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: Before CUMMINGS and MANION, Circuit Judges, and WOOD, Jr.; HARLINGTON WOOD, Jr.; MANION
• Citation: Travis v. Sullivan, 985 F.2d 919 (7th Cir. 1993)
• Decision Date: 10 February 1993
• Docket Number: No. 91-3933,91-3933
• Parties: , Unempl.Ins.Rep. (CCH) P 17257A Morris TRAVIS, Plaintiff-Appellee, v. Louis W. SULLIVAN, Secretary of Health & Human Services, Defendant-Appellant.

Page 919

985 F.2d 919

40 Soc.Sec.Rep.Ser. 106, Unempl.Ins.Rep. (CCH) P 17257A

Morris TRAVIS, Plaintiff-Appellee, v. Louis W. SULLIVAN, Secretary of Health & Human Services Defendant-Appellant.

No. 91-3933.

United States Court of Appeals Seventh Circuit.

Argued Nov. 3, 1992.

Decided Feb. 10, 1993.

Charles F. Marlowe, Hammond, IN (argued), for plaintiff-appellee.

John F. Hoehner, U.S. Atty., Robin W. Morlock, Orest S. Szewciw, Asst. U.S. Attys., Office of U.S. Atty., Dyer, IN, Michael C. Messer, Dept. of Health and Human Services, Region V, Office of the Gen. Counsel, Chicago, IL, Barbara C. Biddle, Christine N. Kohl (argued), Dept. of Justice, Civil Div., Appellate Section, Washington, DC, for defendant-appellant.

Before CUMMINGS and MANION, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.

HARLINGTON WOOD, Jr., Senior Circuit Judge.

This appeal concerns a district judge's remand order in a social security disability case. The district judge remanded the plaintiff's case to a new administrative law judge ("ALJ") for fresh findings after plaintiff's case had been in federal district court for over four years, but not before Judge Sharp, without any decision. We affirm the district judge's remand order as modified according to this opinion.

I. BACKGROUND

Plaintiff Morris Travis applied for social security disability benefits in October 1985. His claim was denied initially and on reconsideration and on appeal before an administrative law judge. The Appeals Council denied his request for review leading to his suit in federal court to review the denial of benefits.

Travis began this civil action in federal district court on June 2, 1987. Both Travis and the Secretary of Health & Human Services ("Secretary") filed motions for summary judgment in December 1987. Travis then filed a motion for remand on May 26, 1988, to take additional medical evidence pursuant to 42 U.S.C. section 405(g).

Travis offered three additional medical reports as justification for a remand. One was a Holter Monitoring report from May 21, 1987; the second was an exercise stress test done on May 22, 1987; and the third consisted of an echocardiographic report from August 3, 1987. Travis alleged in his motion that "This evidence is new material and since it did not exist at the time of the hearing constitutes good cause to reopen the decision." Travis cited, though incorrectly, the sixth sentence of section 405(g) in support of the remand for the taking of additional evidence. The district court did not decide the remand motion, as it also had not decided the summary judgment motions.

The case was then transferred to Chief Judge Sharp on September 16, 1991. Without ruling on any of the aged, pending motions, on October 2, 1991, Chief Judge Sharp ordered the case remanded to "the Secretary with the order to conduct a full and fresh proceeding before a new and different ALJ, who shall make fresh findings with regard to the essential issues involved." In the memorandum and order, the judge based his decision upon "the assertions made by the plaintiff, and the substantial bundle of discretion that reposes in the district judge, coupled with the judicial delay in addressing this case."

The Secretary appealed this order after failing to persuade the judge to reconsider this remand order.

II. ANALYSIS

A. Jurisdiction

We affirm the district court's remand order, but before we reach the merits, we must explain our basis of jurisdiction because ordinarily a remand order by a district court to an administrative agency is not appealable. This is because on appeal we can review only final decisions of district courts, 28 U.S.C. § 1291, and generally an order by a district court remanding a case to an administrative agency is not final. Crowder v. Sullivan, 897 F.2d 252 (7th Cir.1990) (per curiam); Occidental Petroleum Corp. v. SEC, 873 F.2d 325, 329 (D.C.Cir.1989). But, in fact, depending upon the nature of the remand, sometimes a remand order is a final decision for purposes of appeal. Sullivan v. Finkelstein, 496 U.S. 617, 623-25, 110 S.Ct. 2658, 2662-64, 110 L.Ed.2d 563 (1990); Damato v. Sullivan, 945 F.2d 982, 986 (7th Cir.1992). We characterized similar reasoning as the doctrine of practical finality in Richardson v. Penfold, 900 F.2d 116, 117 (7th Cir.1990). In Richardson, we held that an order can be appealed if it is final for all practical purposes. Id. at 118. Courts have also held that remand orders can be appealed under the collateral order exception to the final decision rule. Id.; Harper v. Bowen, 854 F.2d 678, 681-82 (4th Cir.1988); Doughty v. Bowen, 839 F.2d 644, 646 (10th Cir.1988); Huie v. Bowen, 788 F.2d 698, 702-03 (11th Cir.1986).

Some recent Supreme Court cases address this particular issue of the appealability of remand orders by a district court to an administrative agency. In Finkelstein, 496 U.S. at 617, 110 S.Ct. at 2658, the Court held that the Secretary may immediately appeal a remand order of a widow's disability benefits claim which effectively declared invalid a regulation promulgated by the Secretary limiting the inquiry made for widows. The Court, while not deciding the merits of the issue of a widow's residual functional capacity as proof of a disability, held the Secretary could appeal the order because it was a final judgment which was appealable under section 1291 of 28 U.S.C. The Court considered the order a sentence four remand pursuant to section 405(g) of 42 U.S.C. and "unquestionably a 'judgment,' as it terminated the civil action challenging the Secretary's final determination that respondent was not entitled to benefits, set aside that determination, and finally decided that the Secretary could not follow his own regulations in considering the disability issue." Id. at 625, 110 S.Ct. at 2664. ¹ The Court held the fourth sentence provides for entry of a final, appealable judgment even when the judgment is accompanied by a remand order. Id. at 629, 110 S.Ct. at 2666. The Court further recognized that if the Secretary could not appeal the order now, he might not have the chance to do so later. "[S]hould the Secretary on remand undertake the inquiry mandated by the District Court and award benefits, there would be grave doubt ... whether he could appeal his own order." Id. at 625, 110 S.Ct. at 2664.

In Finkelstein, the Court refused to address the broader question whether remands to administrative agencies are always immediately appealable; instead it only decided the appealability of sentence four remands like the one "of the type" entered by the district court. But the Court did offer the general principle that there is "a great variety in remands, reflecting in turn the variety of ways in which agency action may be challenged in the district courts and the possible outcomes of such challenges." Id. at 623, 110 S.Ct. at 2663.

In a recent case, Melknoyan, --- U.S. at ----, 111 S.Ct. at 2157, the Court held that remand orders pursuant to sentence four were final judgments for the purpose of the Equal Access to Justice Act ("EAJA") and an attorney fees application. Id. at ----, 111 S.Ct. at 2165. In that case, a successful applicant for supplemental security income disability benefits sought attorney fees and other expenses under EAJA. The district court in that case had remanded the case to the Secretary "for all further proceedings." The Secretary granted the applicant benefits, but the district court denied the applicant's subsequent petition for attorney fees and other expenses. The Court remanded the case to determine whether the district court's remand was pursuant to sentence six or some other dismissal of the case after agreeing that the remand was not a sentence four remand because it did not affirm, modify, or reverse the Secretary's decision. Id. at ----, ----, 111 S.Ct. at 2163, 2166. If the remand was pursuant to sentence six, the Court stated that only after post-remand proceedings are completed, and the Secretary returns to court for entry of a final judgment, and the appeal period has run, does the filing period begin for EAJA. Id. at ----, 111 S.Ct. at 2165. In other words, for EAJA purposes, a sentence six remand is not a final judgment which begins the EAJA attorney fees filing period, unlike a sentence four remand which does begin the EAJA filing period. Id.

Travis argues that these cases resolve the issue of the appealability of the order in this case because he argues generally that sentence six remands are not appealable orders. Some other courts have similarly stated in dicta that the implication of these Supreme Court cases is that sentence six orders are not immediately appealable. E.g., Myers v. Sullivan, 916 F.2d 659, 676 (11th Cir.1990).

We do not have to resolve the implications of Finkelstein and Melkonyan in deciding whether sentence six remands are always immediately appealable or not. Finkelstein emphasizes that remand orders come in many different forms, thus we will only consider whether the district court's order was final and appealable according to the circumstances of this case. Moreover, Melkonyan 's holding concerned what was a final judgment for attorney fees under EAJA, not finality for purposes of appeal. See Finkelstein, 496 U.S. at 629-30, 110 S.Ct. at 2666. The distinction is important because we believe this case is controlled by Crowder, 897 F.2d at 252, an earlier case of ours. Crowder stands for the proposition that an order which could not practically, or otherwise, be appealed in the future after the resolution of the merits may be appealed immediately.

Crowder 's doctrine of practical finality, as we characterized it in Richardson, 900 F.2d at 117, is a close cousin of the collateral order exception. The collateral order exception established by Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), has a three-pronged test. "First, the order must 'conclusively determine the disputed question.' ...