# Drg Funding Corporation v. Secretary of Housing and Urban Development > Court of Appeals for the D.C. Circuit · February 20, 1996 · 76 F.3d 1212 URL: https://www.frixlaw.com/law-library/cases/9488910 ## Case - **Full name:** DRG FUNDING CORPORATION, Appellant v. SECRETARY OF HOUSING AND URBAN DEVELOPMENT, Et Al., Appellees - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** February 20, 1996 - **Citations:** 76 F.3d 1212; 316 U.S. App. D.C. 159; 1996 U.S. App. LEXIS 2562; 1996 WL 69839 - **Precedential status:** Published - **Opinion:** Concurrence by Ginsburg - **Judges:** Williams, Ginsburg, Randolph - **Cited by:** 87 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9488910 ## How later opinions describe it (automated extraction) - concluding that an agency’s decision to collect a debt by offset was not final because if the agency’s “administrative review ends with the conclusion that the corporation has no debt to [the agency], the corporation will have no reason to seek a judicial determination of the … - holding that a determination by an HUD official affirming an administrative law judge’s decision that HUD could collect debts by administrative offset was not sufficiently final to confer subject matter jurisdiction - holding unreviewable an agency order that "does not itself adversely affect complainant but only affects his rights adversely on the contingency of future administrative action" (internal quotation omitted) - stating that the requirement of a final agency action “has been considered jurisdictional,” and if the agency action is not final, “the court therefore cannot reach the merits of the dispute.” - rejecting the plaintiffs' petition for a writ of mandamus to enforce a judgment against the Secretary of Housing and Urban Development, on the ground that the plaintiffs could also obtain payment through the administrative process, followed by a lawsuit if neces-saiy ## Opinion text GINSBURG, Circuit Judge, concurring: To the extent that the appellant argues that HUD’s decision to effect a prior administrative offset was itself a “final agency action,” I agree with Judge Randolph’s emphatic rejection of the point. The appellant raises an additional argument, however, that the court gives too short shrift; the appellant’s alternative argument is that the agency action is reviewable under the collateral order doctrine laid out in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 , 69 S.Ct. 1221 , 93 L.Ed. 1528 (1949). I write separately to address that argument, though I think it ultimately unavailing. In Cohen , the Supreme Court adopted a “practical” construction of the concept of finality, holding that under limited circumstances an order that does not actually end a litigation may nonetheless be reviewed as a “final” order. 337 U.S. at 546 , 69 S.Ct. at 1225-26 . To be appealable under Cohen , an order must “conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 , 98 S.Ct. 2454, 2458 , 57 L.Ed.2d 351 (1978). These requirements “help qualify for immediate appeal classes of orders in which the considerations that favor immediate appeals seem comparatively strong and those that disfavor such appeals seem comparatively weak. The requirement that the issue underlying the order be ‘effectively unreviewable’ later on, for example, means that failure to review immediately may well cause significant harm.” Johnson v. Jones, — U.S. -,-, 115 S.Ct. 2151, 2155 , 132 L.Ed.2d 238 (1995). As the Supreme Court has explained in its recent commentaries on Cohen , the collateral order doctrine “is best understood not as an exception to the final decision rule ... but as a practical construction of it.” Swint v. Chambers County Commn., — U.S. -, -, 115 S.Ct. 1203, 1207-08 , 131 L.Ed.2d 60 (1995); Digital Equipment Corp. v. Desktop Direct, Inc., — U.S.-,-, 114 S.Ct. 1992, 1995 , 128 L.Ed.2d 842 (1994). Accordingly, we review the collateral order of a district court as a “final decision” under 28 U.S.C. § 1291 , not as an interlocutory order under § 1292(b). See Swint, — U.S. at -, 115 S.Ct. at 1208. The counterpart to § 1291 in the Administrative Procedure Act is 5 U.S.C. § 704 , which provides that “final agency action for which there is no other adequate remedy in a court [is] subject to judicial review.” Our analysis of the finality requirement imposed by the APA is properly informed by our analysis of that requirement in § 1291. As we noted in an analogous situation, comparing § 1291 and the provision of the Communications Act that authorizes judicial review of “final orders” of the FCC, “[b]oth provisions reflect the reasoned policy judgment that the judicial and administrative processes should proceed with a minimum of interruption. To effectuate this common purpose, courts have permitted interlocutory appeals under both statutes only in exceptional cases, a requirement that partakes of similar meanings in both contexts.” Community Broadcasting of Boston, Inc. v. FCC, 546 F.2d 1022 , 1024 (D.C.Cir.1976). Although one circuit has questioned whether the collateral order doctrine has a place in administrative law, see R.R. Donnelley & Sons Co. v. FTC, 931 F.2d 430, 432 (7th Cir.1991) (Easterbrook, J.), it seems to me that the Supreme Court foreshadowed just that when it transplanted the practical construction of finality in Cohen to the finality requirement of the Social Security Act: [T]he nature of the claim being asserted and the consequences of deferment of judicial review are important factors in determining whether a statutory requirement of finality has been satisfied. The role these factors may play is illustrated by the intensely “practical” approach which the court has adopted, Cohen v. Beneficial Industrial Loan Corp., ... when applying *1221 the finf-’ity requirements of 28 U.S.C. § 1291 ... and 28 U.S.C. § 1257 , which empowers this Court to review only “final judgments” of state courts. [Citations omitted.] To be sure, certain of the policy considerations implicated in §§ 1257 and 1291 eases are different from those that are relevant here. [Citations omitted.] But the core principle that statutorily created finality requirements should, if possible, be construed so as not to cause crucial collateral claims to be lost and potentially irreparable injuries to be suffered remains applicable. Mathews v. Eldridge, 424 U.S. 319 , 331 n. 11, 96 S.Ct. 893 , 901 n. 11, 47 L.Ed.2d 18 (1976); see also Federal Trade Commn. v. Standard Oil Co., 449 U.S. 232, 246 , 101 S.Ct. 488, 496 , 66 L.Ed.2d 416 (1980) (APA case holding not collateral an order that did not involve “claims of right separable from, and collateral to, rights asserted in the action” (quoting Cohen, 337 U.S. at 546 , 69 S.Ct. at 1226 )); Community Broadcasting, 546 F.2d at 1024-28 (Communications Act case holding order not reviewable under Cohen because not “effectively unreviewable” at later stage). To the extent that Cohen may be applied in the administrative law context, then, the conclusion that an agency order does not terminate the underlying administrative proceedings — in other words, that it is interlocutory — does not resolve the question of finality. If the interlocutory decision nonetheless satisfies the elements set out in Cohen , the decision may be deemed “final” for the purpose of judicial review. If DRG were an operating business, then the agency’s decision to effect a prior administrative offset in this case might well satisfy the requirements of Cohen . The determination by the Secretary’s designee that the judgment owed by HUD was not “a judgment against the United States Government presented to the Comptroller General” under 31 U.S.C. § 3728 resolved an important issue entirely separate from the merits of DRG’s indebtedness, and counsel for the Government as much as assured us that this determination is “conclusive.” In fact, however, DRG is not operating. It is in liquidation pursuant to Chapter 7 of the Bankruptcy Code. This is fatal to its argument under the collateral order doctrine because DRG presently suffers no harm by reason of judicial review being deferred. The question whether HUD could effect the offset without complying with § 3728 may therefore be reviewed just as well at the conclusion of the underlying proceeding — if DRG is aggrieved by the outcome. Because DRG has not shown that the agency order at issue either has the ordinary indicia of finality or meets the requirements of the collateral order doctrine, that order is presently unreviewable. I therefore concur in the judgment affirming the district court’s dismissal of DRG’s petition for a writ of mandamus. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9488910. Public record. Not legal advice.