Respondents Brief — Forney v. Apfel
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No. 97-5737 00
In the Supreme Court of the Unity States —
OCTOBER TERM, 1997
SANDRA K. FORNEY, PETITIONER
U.
KENNETH S. APFEL, COMMISSIONER
OF SOCIAL SECURITY
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE RESPONDENT
IN SUPPORT OF REVERSAL
SETH P. WAXMAN
Solicitor General
FRANK W. HUNGER
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
LISA SCHIAVO BLATT
Assistant to the Solicitor
General
WILLIAM KANTER
MARY K. DOYLE
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether an order of remand by a district court
under the fourth sentence of 42 U.S.C. 405(g) is
subject to appeal by a Social Security claimant who is
aggrieved by that order in that she sought outright
reversal of the underlying administrative decision
without remanding for further rehearing.
(I)
TABLE OF CONTENTS
Z . .
The court of appeals has jurisdietion over peti-
tioner's challenge to the district court’s order of
remand under the fourth sentence of 42 U.S.C.
J —
A. The district court’s sentence- four judgment
is a final decision that is appealable under
.
B. Petitioner may appeal because she is aggrieved
by the district court’s judgment
C. The practical consequences of a claimant's
appeal of a district court’s final judgment re-
manding to the Commissioner are limited and
do not furnish a basis for an exception to
Se
TABLE OF AUTHORITIES
Cases:
Agostini v. Felton, 117 S. Ct. 1997 (1997) ..............
Allen v. McCurry, 449 U.S. 90 (1980) .
Arizonans For Official English v. Arizona, 117
e
Atkins v. Chater, 70 F.3d 529 (9th Cir. 1995)
Barrett v. Shalala, 38 F.3d 1019 (8th Cir. 1994) ...
Bean v. Chater, 77 F.3d 1210 (10th Cir. 1995) .......
(III)
Page
aN N= =
10
10
16
sa &
R K 22
IV
Cases—Continued: Page
Bohms v. Gardner, 381 F.2d 283 (8th Cir. 1967),
cert. denied, 390 U.S. 964 (1968) .... . 12
Bowen v. Yuckert, 482 U.S. 137 (1987) .................. 3
Bryant v. Yellen, 447 U.S. 352 (1980) ... 17
Buzzard v. Shalala, 36 F.3d 1102 (9th Cir. 1994) . 23
California v. Rooney, 483 U.S. 307 (1987) ............ 18, 32
Carrigan v. Exxon Co., 877 F.2d 1237 (5th Cir.
— ——— 7 7˙Ü /. — p — —— 21
Castle v. Rubin, 78 F.3d 654 (D.C. Cir. 1996) ........ 21
Chavez v. Department of Health & Human Servs.,
103 F.3d 849 (Sth Cir. 1906) . . 25
Concerned Citizens of Cohocton Valley, Inc. v.
New York Dep't of Envt’'l Conserv., 127 F.3d
ee 31
Davis v. Shalala, 985 F.2d 528 (11th Cir. 1993) .... 29
Deposit Guaranty Nat'l Bank v. Roper, 445 U.S.
Te 8, 17, 18, 19, 31
Diamond v. Charles, 476 U.S. 54 (1986) ................ 17
Disher v. Information Resources, Inc., 873 F.2d
ot 03 | — 21
Electrical Fittings Corp. v. Thomas & Betts Co.,
GO ——— 18, 31
EEOC v. Chicago Club, 86 F.3d 1423 (7th Cir.
SERED ecececsesqpesecnssnssemnanesnssevensssussenemensapingueamtenenmss 31
. —K— 2 ͤ—ñ 24, 34
FPC v. Idaho Power Co., 344 U.S. 17 (1952) ........ 34
FPC v. Pacific Power & Light Co., 307 U.S. 156
. —.————5r 23
Faucher v. Secretary of Health & Human
Servs., 17 F.3d 171 (6th Cir. 1994) ...... .. 29
Gargoyles, Inc. v. United States, 113 F.3d 1572
GR, GR GED ——————— —„—.4̊ 21
Gifford v. Chater, 77 F.3d 488 (9th Cir. 1996) ....... 22
Gilliland v. Heckler, 786 F.2d 178 (3d Cir. 1986) ... 29
Cases—Continued:
Graziano v. Harrison, 950 F.2d 107 (3d Cir.
——— ———
Gunn v. University Comm. to End the War in
Vietnam, 399 U.S. 383 (1970) .........cccccccccceeeeneeeeees
Heckler v. Campbell, 461 U.S. 458 (1983) ..............
ICC v. Brotherhood of Locomotive Engineers,
1 ͤ———
IVS v. Chadha, 462 U.S. 919 (1983) .
Ingram v. Chater 107 F.3d 598 (8th Cir. 1997) .....
JM Muniz, Inc. v. Mercantile Texas Credit Corp.,
833 F.2d 641 (Gth Cir. 160
Jean v. Nelson, 863 F.2d 759 (11th Cir. 1988),
aff d on other grounds, 496 U.S. 154 (1990) ..........
Joyal v. Department of Health & Human Servs.,
7 F.3d 1506 (Sth Cir. 1996)
Kendrick v. Shalala, 998 F.2d 455 (7th Cir.
1 —— —
LaBuhn v. Bulkmatic Transport Co., 865 F. 2d
ü ũñ ⁰ — ——
La Plante v. American Honda Motor Co., 27 F.3d
2000. — —
Melkonyan v. Sullivan, 501 U.S. 89 (1991) ............
Monongahela Valley Hospital, Inc. v. Sullivan,
946 F’Dd STE (Od Cir. o ———————
Nguyen v. Shalala, 43 F.3d 1400 (10th Cir.
——— —
Parker v. Harris, 626 F.2d 225 (2d Cir. 1980) ......
Parklane Hosiery Co. v. Shore, 439 U.S. 322
6 ———— — —: —
Parr v. United States, 351 U.S. 513 (1956) ...........
Perez v. Ledesma, 401 U.S. 82 (1971)
Podedworny v. Harris, 745 F.2d 210 (3d Cir.
GD ——
Ragen Corp. v. Kearney & Trecker Corp., 912
?- 44
VI
Cases Continued: Page
Ragland v. Shalala, 992 F.2d 1056 (10th Cir.
. ——-„—-— n 28
Rodriguez v. Bowen, 876 F.2d 759 (9th Cir. 1989) . 29
Rueda-Menicucci v. INS, 132 F.3d 498 (9th Cir.
— 8 —— 14
Shalala v. Schaefer, 509 U.S. 292 (1993) 8, 13, 14,
15, 23, 27
Springer v. Chater, 91 F.3d 155 (9th Cir. 1996) .... 22
Stone v. Heckler, 761 F.2d 530 (9th Cir. 1985) ...... 28
Sullivan v. Finkelstein, 496 U.S. 617 (1990). 6, 8, 10, 11,
12, 13, 14, 15, 16
Sullivan v. Zebley, 493 U.S. 521 (1990) .................. 3
Swint v. Chambers County Comm'n, 514 U.S. 35
as ü———ꝛ— — — 16
Taylor v. Chater, 118 F.3d 1274 (8th Cir. 1997) .... 29
Travelstead v. Derwinski, 978 F.2d 1244 (Fed.
Ge — — —b—— 14
United States v. Jose:
? 19, 20, 23. 26
nee 19
United States v. McAndrews, 12 F.3d 273 (Ist
21... — — 20
United States v. Mendoza, 464 U.S. 154 (1984).... 33, 34
United States v. Zolin, 491 U.S. 554 (1989) .......... 20
Vermont Yankee Nuclear Power Corp. v. NRDC,
1 . 13
Waggoner v. Chater, 81 F.3d 171 (9th Cir. 1996) 22
Weaver v. Chater, 67 F.3d 310 (9th Cir. 1998) ....... 22
Constitution, statutes, regulations and rules:
1e 8. 17, 19
Administrative Procedure Act, 5 U.S.C. 701
GB GBB, covecceascencccsecesnsecesesenescossceacnnscceavensescsenscascesess 13
Vil
Statutes, regulations and rules—Continued: Page
Equal Access to Justice Act, 28 U.S.C. 2412 et seg.
1 27
4 — ̃ ͤ1.ü— 23
2 ET 13
Hobbs Act, 28 U.S.C. 2841 et Se. . .... 13
. „„ 13
Social Security Act, 42 U.S.C. 301 et seg.
Title II:
$ 205(b), 42 U.S.C. 4050b) . . . 3
Le passim
§ 216(i)(1A), 42 U.S.C. 416(i) 1A) ................ 2
Le 3
§ 223(aX1D), 42 U.S.C. 423(aX1(D) .............. 2
§ 22B(d), 42 U.S. C. d) . 3
§ 223(d)(1A), 42 U.S.C. 423(d)(1)(A) .............. 2
§ 223(d)(5), 42 U.S.C. 423(d)(5) . . 24
Title XVI:
16110, 42 U.S.C. 188) . . . . . . 2
Title XVIII (Medicare Act):
§ 1878, 42 U.S.C. 13950001) . . . . 14
Social Security Independence and Program Improve-
ments Act of 1994, Pub. L. No. 103-296, § 106d),
K . 2
1 ?—— passim
TEST 0 en
VIII
Regulations and rules Continued: Page
00 — 24
. —— — 24-25
Pt. 404, Subpt. P, App. 1 (pt. A) .....ccccccccceeceeseeeeees 3
, 93 A en 18
IIe 20
Miscellaneous:
Robert Bennett, M.D., Fibrosititis: Does it exist
and can it be treated ?, The Journal of Muscu-
loskeletal Medicine (June 1994) 4
Bruce C. Gilliland, Relapsing Polychondritis and
Other Arthritides, 2 Harrison’s Principles of
Internal Medicine (14th ed. 1998) . . 4
Don Goldberg, M.D., Fibromyalgia Syndrome,
257 Journal of American Medical Ass’n (1987) ...... 4
20 Moores Federal Practice (3d ed. 1997) ............... 17
Restatement (Second) of Judgments (1982) ...... 30, 31, 33-34
15A Charles A. Wright, Arthur R. Miller & Edward
H. Cooper, Federal Practice and Procedure
GBS GE, GRRE —————ĩ 17, 30
In the Supreme Court of the United States
OCTOBER TERM, 1997
No. 97-5737
SANDRA K. FORNEY, PETITIONER
*.
KENNETH S. APFEL, COMMISSIONER
OF SOCIAL SECURITY
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE RESPONDENT
IN SUPPORT OF REVERSAL
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1-13)
is reported at 108 F.3d 228. The opinion and order of
the district court (Pet. App. 15-25) is unreported.
JURISDICTION
The judgment of the court of appeals was entered
on March 4, 1997. A petition for rehearing was denied
on May 29, 1997. Pet. App. 41. The petition for a writ
of certiorari was filed on August 25, 1997, and was
granted on January 16, 1998. The jurisdiction of this
Court rests on 28 U.S.C. 1254(1).
(1)
STATUTORY PROVISIONS INVOLVED
Section 205(g) of the Social Security Act, as
codified at 42 U.S.C. 405(g), and 28 U.S.C. 1291 are set
forth in an Appendix to this brief. App., infra, la-3a.
STATEMENT
1. Title II of the Social Security Act, 42 U.S.C.
423(a)(1)(D), provides for the payment of insurance
benefits to persons who have contributed to the
program and who are “under a disability.“ The Act
defines “disability” as the “inability to engage in any
substantial gainful activity by reason of any medi-
cally determinable physical or mental impairment
which can be expected to result in death or which has
lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C.
423(d)(1)(A); 42 U.S.C. 416(()(1)(A).
The Commissioner of Social Security* has estab-
lished a five-step sequential evaluation process for
determining whether an adult person is disabled. See
20 C. F. R. 404.1520-404.1576. “The first two steps
involve threshold determinations that the claimant is
not presently working and has an impairment which
is of the required duration and which significantly
limits his ability to work. [20 C.F.R. 404.1520(b) and
Title XVI of the Act provides for the payment of
disability benefits to certain indigent persons under the
Supplemental Security Income program. 42 U.S.C. 1382(a).
2 The Social Security Independence and Program Im-
provements Act of 1994, Pub. L. No. 108-296, § 106(d), 108 Stat.
1476, transferred the administration of the social security pro-
gram from the Secretary of Health and Human Services
(HHS) to the Commissioner of Social Security. During the
course of this litigation, the Commissioner of Social Security
was substituted as the defendant for the Secretary of HHS.
3
(e)] In the third step, the medical evidence of the
claimant’s impairment is compared to a list of impair-
ments presumed severe enough to preclude any gain-
ful work. [20 C. F. R. Pt. 404, Subpt. P, App. 1 (pt. A).]
If the claimant’s impairment matches or is ‘equal’ to
one of the listed impairments, he qualifies for benefits
without further inquiry. [20 C. F. R. 404. 15 200d).] If
the claimant cannot qualify under the listings, the
analysis proceeds to the fourth and fifth steps. At
these steps, the inquiry is whether the elaimant can
do his own past work or any other work that exists in
the national economy, in view of his age, education,
and work experience. If the claimant cannot do his
past work or other work, he qualifies for benefits. [20
C. F. R. 404.1520(e) and (f).]” Sullivan v. Zebley, 493
U.S. 521, 525-526 (1990); see also Bowen v. Yuckert,
482 U.S. 137, 140-142 (1987); Heckler v. Campbell, 461
U.S. 458, 459-461 (1983).
The initial disability determination is made by a
state agency acting under the authority of the Com-
missioner. 42 U.S.C. 421(a). If the state agency
denies the disability claim, the claimant is entitled to
a hearing before an administrative law judge (ALJ)
and may request review by the Social Security Ad-
ministration’s (SSA) Appeals Council. 42 U.SC.
405(b); 20 C.F.R. 404.929-404.982. After a claimant
exhausts those administrative procedures, he may
seek judicial review in federal court. 42 U.S.C. 405(g).
See Bowen v. Yuckert, 482 U.S. at 142.
2. In 1991, petitioner applied for disability benefits
under 42 U.S.C. 423(d) alleging disability due to fi-
bromyalgia and depression. Pet. App. 17, 26.“ After
8’ Fibromyalgia is a condition characterized by muscu-
loskeletal pain. Because of the general presence of normal
4
extensive proceedings, an ALJ denied petitioner's
claim on the ground that, although she was incapable
of returning to her former line of work as a cook and
kitchen manager, she was able “to perform a wide
range of sedentary [jobs] existing in significant num-
bers in the national economy.” /d. at 35. In making
that determination, the ALJ rejected the medical
opinion of petitioner’s treating physician (which had
supported her disability claim); found that petitioner’s
own testimony lacked credibility in critical respects;
drew conclusions from a vocational expert’s answers
to hypothetical questions concerning petitioner’s im-
pairments; and accepted that expert’s testimony as to
the kinds of work that petitioner was able to perform.
Id. at 26-38; see also id. at 21-25. After SSA’s Appeals
Council denied petitioner’s request for review, id. at
39, the ALJ’s denial of benefits became the final deci-
sion of the Commissioner. 20 C.F.R. 404.981.
3. Petitioner sought judicial review in federal
district court under 42 U.S.C. 405(g), requesting, as
relief, At hat thle] court reverse and set aside the
decision of [the Commissioner of Social Security]
denying [petitioner’s] claim for disability benefits.”
C.A. E.R. 242. Petitioner also requested, Ain the
alternative, that thle] court remand the case back
physical findings and laboratory results in patients with fi-
bromyalgia, its diagnosis in large measure depends on an
evaluation of the symptoms as reported by the patient. See
generally Bruce C. Gilliland, Relapsing Polychondritis and
Other Arthritides, 2 Harrison’s Principles of Internal Medicine
1955-1957 (14th ed. 1998); Don Goldberg, M.D., Fibromyalgia
Syndrome, 257 Journal of American Medical Ass’n 2782-2786
(1987); Robert Bennett, M.D., Fibrosititis: Does it exist and
can it be treated?, The Journal of Musculoskeletal Medicine 57-
72 (June 1984) (reprinted at C. A. E.R. 82-91).
5
to the [Commissioner] for proper evaluation of the
evidence or a hearing de novo.” Ibid. She contended,
inter alia, that the ALJ should not have rejected
either her treating physician’s opinion or her own
testimony concerning her disability, and that the
ALJ’s hypothetical questions to the vocational expert
were improper. The district court rejected each of
those arguments. Pet. App. 22-24.
The district court nonetheless determined, as peti-
tioner had argued, that the record did not support the
ALJ’s finding that petitioner was capable of perform-
ing certain identified jobs existing in the national
economy. Those jobs, the court observed, required
“frequent or constant reaching,” and the ALJ had
not rejected another physician’s “assessment that
[petitioner’s] ability to reach is impaired.” Pet. App.
24. Thus, because “the [Commissioner] has not
sustained [his] burden of showing that claimant can
engage in substantial gainful work in the economy,”
the court remanded the case to SSA for further
proceedings “in accordance with” the court’s opinion.
Id. at 25. That order was issued pursuant to the
fourth sentence of 42 U.S.C. 405(g), which authorizes
a district court to enter “a judgment affirming,
modifying, or reversing the decision of the Commis-
sioner of Social Security, with or without remanding
the cause for a rehearing.” On May 24, 1995, the
court entered its judgment “remand[ing] to the
[Commissioner] for further proceedings.” Pet. App.
14.
4. Petitioner appealed the district court’s order,
contending that she should prevail on the issues the
district court had resolved against her and that, on
that basis, the agency’s decision should be reversed
outright and the case should be remanded solely for
6
payment of benefits, not for additional administrative
proceedings on the merits. See Pet. C.A. Br. 18 (“the
agency’s decision should be reversed and [petitioner]
should be found disabled”); see also id. at 21, 27-28, 35;
Pet. 2, 10.
The court of appeals dismissed the appeal on pro-
cedural grounds. Pet. App. 1-13.“ The court acknowl-
edged that, under Sullivan v. Finkelstein, 496 U.S.
617 (1990), an order under sentence four that sets
aside the Commissioner’s decision denying benefits
and remands to the Commissioner for further pro-
ceedings on the merits of the claim is “‘final,’ in a
formalistic sense, for all parties to it.” Pet. App. 10.
Moreover, under sentence eight of 42 U.S.C. 405(g),
that order “shall be subject to review in the same
manner as a judgment in other civil actions.” See
Finkelstein, 496 U.S. at 625.
The court nonetheless held that the finality of
the district court’s judgment in this case “does not
necessarily entitle [petitioner] to appeal the district
court’s decision,” because Aa] prevailing party
normally may not appeal the decision in its favor.”
Pet. App. 10. “There can be little doubt,” the court
continued, “that a claimant ‘prevails’ * * * when he
or she succeeds in securing a sentence-four remand
that may result in an award of all of the benefits
In its brief, the government had asked the court of
appeals to address petitioner's claims on the merits. See Gov't
C.A. Br. 1 (asserting that the district court’s remand order is
a “final” and “appealable” order, “over which this court
has jurisdiction pursuant to 28 U.S.C. § 1291”). We have been
informed, however, that at oral argument, after the court had
given notice of its intent to address the issue, counsel for the
government contended that petitioner’s appeal should be dis-
missed for lack of jurisdiction.
7
claimed.” Ibid. The court reasoned that, on remand,
petitioner might secure all the relief she seeks and,
“lilf she does, our decision on the merits of this appeal
will have been wholly unnecessary. Review at this
point would be subject to all of the disadvantages
of piecemeal appeals; unnecessary decisions waste
judicial effort, interfere unduly with the district
courts or administrative agencies, and require us to
adjudicate on less than a full record.” Id. at 11.°
Finally, the court of appeals rejected petitioner’s
argument that, if she were awarded no benefits on
remand and brought an entirely new civil action to
challenge that adverse decision, principles of pre-
clusion would bar her from challenging the district
court’s adverse rulings in the present action. Pet.
App. 12. The court explained that, even though the
district court might well adhere to its earlier rul-
ings in the subsequent action, the critical question is
whether petitioner could challenge those rulings
on appeal. The court concluded that she would be
entitled to do so, both because it would be “inap-
propriate to hold [her] to rulings that she was pre-
cluded from appealing,” and because, in its view, the
issues as to which she would seek appellate review in
the subsequent action would not have been “essential
to the judgment in the prior case.” /bid.
The court of appeals acknowledged that “there may be
instances when a claimant is foreclosed by the district court's
remand decision from part of the benefits sought, and would
then seek an appeal from the remand decision on the ground
that broader relief should have been awarded. See Finkel-
tein, 496 U.S. at 623 n. 3.“ Pet. App. 10 n.5. The court ex-
pressed no view as to the claimant’s right to appeal in that
context. Ibid.
8
SUMMARY OF ARGUMENT
A. Under the express terms of the fourth and
eighth sentences of 42 U.S.C. 405(g), as well as under
Sullivan v. Finkelstein, 496 U.S. 617 (1990), and
Shalala v. Schaefer, 509 U.S. 292 (1993), the district
court’s order and judgment in this case, which re-
manded the Commissioner’s decision denying benefits
to the agency for rehearing, was an appealable final
judgment under 28 U.S.C. 1291. That conclusion does
not depend on whether it is the Commissioner or the
claimant who seeks review in the court of appeals. In
either case, a district court’s order that is entered
pursuant to the fourth sentence of 42 U.S.C. 405(g)
ends the litigation before the court and results in the
entry of a final, appealable judgment.
B. The court of appeals erred in holding that, al-
though the district court’s judgment in this case is
final under 28 U.S.C. 1291, petitioner may not appeal
the district court’s judgment because she success-
fully obtained an order reversing the Commissioner’s
decision and remanding for further administrative
proceedings. A party has standing to seek judicial
review in the court of appeals if the party retains a
stake in the outcome of the appeal sufficient to satisfy
the requirements of Article III. Deposit Guaranty
Nat“ Bank v. Roper, 445 U.S. 326, 334 (1980). Simi-
larly, the appellant must be “aggrieved” by the final
decision of the district court. Jd. at 333. That rule
ensures that a party does not exercise a statutory
right of appeal when the decision being appealed has
afforded all of the relief sought by the party. Id. at
333-334.
Consistent with those principles, petitioner may
appeal the district court’s sentence-four judgment.
9
Petitioner has been aggrieved by that judgment
insofar as it orders a remand for further rehearing by
the agency. In petitioner’s view, the district court
should have entered, under the fourth sentence of
Section 405(g), a judgment “reversing the decision of
the Commissioner * * * without remanding the
cause for a rehearing.” 42 U.S.C. 405(g) (emphasis
added). Because petitioner seeks an immediate award
of benefits without further rehearing by the agency
on her application for benefits, petitioner has not
prevailed fully upon her asserted claim for relief
before the district court.
Petitioner also is aggrieved by the adverse portions
of the district court’s decision, which rejected her
contentions of administrative error concerning the
medical opinion of her treating physician, her
credibility, and the testimony of the vocational expert
who testified adversely to petitioner. A victory in the
court of appeals on one or more of the district court’s
rulings could significantly affect the administrative
proceedings on remand concerning petitioner’s en-
titlement to benefits.
C. The policy concerns expressed by the court
below do not furnish a basis for carving out an
except on to the general rule under 28 U.S.C. 1291
that a party who is aggrieved by the final judgment of
a district court has a right of appeal. The courts of
appeals will not be unduly burdened with appeals by
claimants of sentence-four remand orders. Because of
a variety of practical and legal considerations, the
vast majority of claimants who obtain sentence-four
remand orders are likely to forgo an immediate appeal
and pursue administrative proceedings. Given the
existing considerations motivating claimants to re-
turn initially to the agency for a rehearing on their
10
applications for benefits, equitable principles of issue
preclusion should not be applied rigidly to create
incentives for claimants to resort in the first
instance to the courts of appeals.
ARGUWAENT
THE COURT OF APPEALS HAS JURISDICTION
OVER PETITIONER’S CHALLENGE TO THE DIS-
TRICT COURT’S ORDER OF REMAND UNDER THE
FOURTH SENTENCE OF 42 U.S.C. 40508)
A. The District Court's Sentence-Four Judgment Is A
Final Decision That Is Appealable Under 28 U.S.C.
1291
The fourth sentence of 42 U.S.C. 405(g) provides
that the district court “shall have [the] power to
enter, upon the pleadings and transcript of the record,
a judgment affirming, modifying, or reversing the
decision of the Commissioner of Social Security, with
or without remanding the cause for rehearing.”
There is no dispute that the district court’s order
in this case remanding the Commissioner’s denial of
benefits to the Commissioner for rehearing was en-
tered pursuant to the fourth sentence of 42 U.S.C.
405(g). Pet. App. 4-5, 8 n.1.° The eighth sentence of
A sentence-four remand is “entirely different” from a
remand under the sixth sentence of Section 405(g). Sullivan v.
Finkelstein, 496 U.S. 617, 626 (1990). Sentence six provides,
inter alia, that the district court may remand the case to the
agency either when (for good cause) the Commissioner re-
quests the remand before filing an answer or when the district
court is presented with material new evidence that was not
available to the claimant at the time of the prior administrative
proceeding. A district court that has granted a sentence-six
remand retains jurisdiction of the case while the administrative
11
Section 405(g) in turn provides that such a judgment
“shall be final except that it shall be subject to review
in the same manner as a judgment in other civil
actions.“ The express terms of those provisions
confirm that the district court’s order of remand in
this case was a final decision appealable under 28
U.S.C. 1291.
1. In Sullivan v. Finkelstein, 496 U.S. 617 (1990),
this Court held that the Secretary of Health and
Human Services could appeal immediately an order
entered under sentence four of Section 405(g) that set
aside the Secretary’s denial of benefits (in the process
essentially holding invalid the regulations on which
the Secretary had relied in denying benefits) and
remanded the cause to the Secretary for further
proceedings on the merits of the claim without regard
to the challenged regulations. Id. at 624. This Court
explained that a contrary ruling would produce an
anomalous result: “should 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. The Court also noted that it “express/ed]
no opinion about appealability” where “the person
seeking judicial review seeks] to appeal on the
proceedings are pending. Sentences four and six of 42 U.S.C.
405(g) provide the exclusive means by which a district court
reviewing a final agency decision denying Social Security
benefits may remand the case to the agency for further pro-
ceedings. See generally Melkonyan v. Sullivan, 501 U.S. 89, 97-
98 (1991). We have been informed by SSA that the vast
majority of remands ordered under Section 405(g) are entered
pursuant to sentence four.
12
ground that broader relief should have been granted
by the district court.” Id. at 623 n.3.
Nonetheless, the Court did not limit its reasoning
in Finkelstein concerning the finality of sentence-
four remand orders to circumstances in which judi-
cial review might otherwise be foreclosed. To the
contrary, the Court focused on the express language
of Section 405(g) and found that it categorically pro-
vides that the district court’s action under sentence
four is a final judgment and appealable as such under
28 U.S.C. 1291. 496 U.S. at 625.
The Court explained that the use of the term “a
civil action” in the first sentence of Section 405(g)
“suggests that at least in the context of § 405(g), each
final decision of the Secretary will be reviewable by
a separate piece of litigation.” 496 U.S. at 625. The
Court also relied on the fact that a sentence-four
remand results in a “judgment,” and, under sentence
eight of Section 405(g), that judgment “shall be final.”
Ibid. Accordingly, the Court concluded that “the
fourth sentence directs the entry of a final, appeal-
able judgment even though that judgment may be
accompanied by a remand order.“ Id. at 629 (emphases
added); see also id. at 628 (“Final judgments’ are
at the core of matters appealable under § 1291, and
7 In reserving the question of whether a claimant could
appeal a district court’s remand order, the Court cited Bohms
v. Gardner, 381 F.2d 283 (8th Cir. 1967), cert. denied, 390 U.S.
964 (1968). In Bohms, a claimant had sought appellate review
of a district court’s decision remanding the case for further
proceedings under the sixth sentence of 42 U.S.C. 405(g). 381
F.2d at 284 n. 1, 286. See note-6, supra. In an opinion by then-
Circuit Judge Blackmun, the court dismissed the claimant’s ap-
peal for lack of a final judgment under 28 U.S.C. 1291. Bohms,
381 F.2d at 285-286.
13
respondent does not contest the power of Congress to
define a class of orders as ‘final judgments’ that by
inference would be appealable under § 1291. This is
what Congress has done in the fourth sentence of
§ 405(g).”) (citation omitted).*
In Shalala v. Schaefer, 509 U.S. 292 (1993), the
Court reiterated Finkelstein’s conclusion that “‘each
final decision of the Secretary [is] reviewable by a
separate piece of litigation,’ and a sentence-four
remand order terminate ſs / the civil action’ seeking
judicial review of the Secretary’s final decision.” /d.
at 299 (quoting Finkelstein, 496 U.S. at 624-625). The
Court in Schaefer held that the 30-day period for
filing an application for attorney’s fees under the
Equal Access to Justice Act (EAJA), 28 U.S.C.
2412(d)(1)(B), which must be filed “within thirty days
of final judgment in the action,” begins immedi-
ately upon expiration of the time for an appeal of a
In addition to relying on the language of 42 U.S.C. 405(g),
we argued in Finkelstein that the finality of a district court’s
order of remand for further administrative proceedings is
analogous to this Court’s implicit recognition of jurisdiction to
review remand orders from the courts of appeals to admin-
istrative agencies under the Hobbs Act, 28 U.S.C. 2341 et seq.,
which authorizes this Court to review “final judgmentis]” of
the courts of appeals, 28 U.S.C 2350. See, e.g., Vermont Yankee
Nuclear Power Corp. v. NRDC, 435 U.S. 519, 535-536 (1978);
ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270
(1987). We similarly argued that our position is consistent with
general principles of judicial review under the Administrative
Procedure Act, 5 U.S.C. 701 et seq., under which an appellate
court may review a decision that finally rejects a particular
agency decision and remands all matters before the court to an
official in another Branch of government who is responsible for
administering the government program. See Finkelstein, 89-
504 U.S. Br. at 29-30, 34-35; 89-504 U.S. Reply Br. at 12-14.
14
sentence-four remand order and not upon the comple-
tion of the administrative proceedings on remand. 509
U.S. at 298. In so holding, the Court rejected the
notion that the fourth sentence of Section 405(g)
permits a court to “postpone” entry of a final judg-
ment and “retain jurisdiction pending completion of
the administrative proceedings.” Id. at 297.
2. Under the express terms of sentences four and
eight of Section 405(g), as well as under this Court’s
decisions in Finkelstein and Schaefer, the finality
of a district court’s judgment entered pursuant to
sentence four does not depend on whether the
appeal is filed by the Commissioner or the claimant.
Although Finkelstein discussed the practicalities
involved when the government is aggrieved by a
sentence-four remand order, see 496 U.S. at 625, the
Court did not state that the gevernment may appeal
only where a practical need exists. Moreover, the
Court in Finkelstein did not rely on the alternative
“collateral order” theory that was also advanced by
the government, see id. at 632 (Blackmun, J., con-
curring in the judgment), which would more evidently
Lower courts have concluded that a remand for further
administrative proceedings results in a final judgment in set-
tings other than Section 405(g). See Travelstead v. Derwinski,
978 F.2d 1244, 1248 (Fed. Cir. 1992) (decision by Court of
Veterans Appeals remanding to Board of Veterans’ Appeals
under 38 U.S.C. 7261 is a final, appealable order); Monongahela
Valley Hospital, Inc. v. Sullivan, 945 F.2d 576, 586 (3d Cir.
1991) (district court decision remanding to Secretary of HHS
under Medicare Act, 42 U.S.C. 139500(f)(1), is a final, appeal-
able order); see also Rueda-Menicucci v. INS, 132 F.3d 493, 495
(9th Cir. 1997) (permitting party to seek fees under EAJA
after obtaining a final order of remand to Board of Immigra-
tion Appeals). See also note 8, supra.
15
have afforded a right of appeal only to the Commis-
sioner. Instead, the court concluded in Finkelstein
that a remand under the fourth sentence of Section
405(g) terminates the litigation and results in the
entry of a final, appealable judgment. Id. at 624-629;
see also Schaefer, 509 U.S. 297-298.
In the present case, the district court held that
although the Commissioner had substantial evidence
for some of his findings, Pet. App. 22-24, he had not
sustained his burden of demonstrating that petitioner
could perform a type of employment existing in the
national economy, id. at 24-25. The court then “re-
manded to the [Commissioner] for further proceed-
ings” consistent with the court’s opinion, id. at 25,
and entered a “judgment” to that effect, id. at 14.
That judgment “terminated the civil action challeng-
ing the [Commissioner's] final determination that
[the claimant] was not entitled to benefits, set aside
that determination, and finally decided” the con-
tentions raised by petitioner. Finkelstein, 496 U.S.
at 625. Further, if the Commissioner’s decision on
remand again denies the claimant’s application for
benefits, that decision will be subject to judicial
review in a “separate piece of litigation” instituted by
the claimant pursuant to Section 405(g). Jd. at 625.
Thus, as the court of appeals itself recognized, “to
conclude that a sentence-four remand is not final
for the claimant is analytically untidy; it is flatly
inconsistent with the Supreme Court’s insistence in
Finkelstein that a sentence-four remand terminates
the civil action.” Pet. App. 9-10.
Moreover, it is clear that, under Finkelstein, the
Commissioner could have sought appellate review of
the district court’s order in this case on the ground
that the district court erroneously held that the Com-
16
missioner lacked substantial evidence to conclude
that petitioner could perform other jobs that exist in
the national economy. See Kendrick v. Shalala, 998
F.2d 455, 458 (7th Cir. 1993). If a sentence-four
remand is a “final, appealable judgment” (Finkelstein,
496 U.S. at 629) as to only the Commissioner, how-
ever, petitioner could not have filed a cross-appeal to
assert legal errors in the district court’s final
decision or otherwise to alter the court’s judgment in
the claimant’s favor. Cf. Swint v. Chambers County
Comm'n, 514 U.S. 35, 50-51 (1995) (leaving open
question “whether or when it may be proper for court
of appeals with jurisdiction over one ruling to review,
conjunctively, related rulings that are not themselves
independently appealable”). Nothing in the language
of Section 405(g) supports that anomalous and in-
equitable result. Indeed, the language of the fourth
and eighth sentences of Section 405(g) compels the
contrary conclusion that “(t]he civil action ending in
a sentence-four remand * * * must be ‘final,’ in a
formalistic sense, for all parties to it.” Pet. App. 10.
B. Petitioner May Appeal Decause She Is Aggrieved By
The District Court’s Judgment
Although the court of appeals recognized the final-
ity of the district court’s judgment, it nonetheless
dismissed petitioner’s appeal on the grounds that Ja]
prevailing party normally may not appeal the decision
in its favor” and that “[tJhere can be little doubt that a
claimant ‘prevails’ * * * when he or she succeeds in
securing a sentence-four remand that may result in
an award of all of the benefits claimed.” Pet. App. 10.
In our view, that principle is framed too broadly, and
the-court of appeals erred in applying it to dismiss the
appeal in this case.
17
1. Under the eighth sentence of 42 U.S.C. 405(g), a
sentence-four final judgment is subject to judicial
review “in the same manner as a judgment in other
civil actions.” Thus, proceedings under that pro-
vision are subject to general principles of appellate
review, including the requirement that a party have
standing to appeal. See generally 20 Moore’s Federal
Practice § 303.10 (3d ed. 1997); 15A Charles A. Wright,
Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure § 3902 (2d ed. 1992).
This Court has observed that, “[ojrdinarily, only a
party aggrieved by a judgment or order of a district
0 There can be no doubt that petitioner possessed Article III
standing to bring this action in federal district court in the first
instance, because the final decision of the Commissioner denied
the benefits to which she claimed she was entitled. This Court
has held that a person who has intervened in a case brought by
someone else must independently satisfy Article III standing
requirements in order to appeal a judgment. Arizonans for
Official English v. Arizona, 117 S. Ct. 1055, 1067 (1997) (“The
standing Article III requires must be met by persons seeking
appellate review, just as it must be met by persons appearing in
courts of first instance.”); Diamond v. Charles, 476 U.S. 54, 62-
69 (1986); Bryant v. Yellen, 447 U.S. 352, 368 (1980). Here,
however, petitioner is the original plaintiff, and she had
standing to invoke the jurisdiction of the district court in the
first instance. In any event, there can be no doubt that
petitioner satisfies whatever further Article III standing
requirement there may be for an appeal by a plaintiff, because
the district court’s final judgment, like the Commissioner’s
final decision, did not order an immediate award of the benefits
she claims. In these circumstances, petitioner clearly has “a
continuing stake in the outcome of the appeal.” Deposit
Guaranty Nat'l Bank v. Roper, 445 U.S. 326, 336 (1980); see
also Arizonans For Official English, 117 S. Ct. at 1067
(“litigant [must] possess ‘a direct stake in the outcome’ ”) (quot-
ing Diamond v. Charles, 476 U.S. at 62).
18
court may exercise the statutory right to appeal
therefrom. A party who receives all that he has
sought generally is not aggrieved by the judgment
affording the relief and cannot appeal from it.”
Deposit Guaranty Nat! Bank v. Roper, 445 U.S. 326,
333 (1980); see also INS v. Chadha, 462 U.S. 919, 930
(1983); Perez v. Ledesma, 401 U.S. 82, 87 n.3 (1971);
Gunn v. University Comm. to End the War in
Vietnam, 399 U.S. 383, 390 n.5 (1970); Electrical
Fittings Corp. v. Thomas & Betts Co., 307 U.S. 241,
242 (1939). The rule that a fully prevailing party may
not appeal its victory is “derived from the statutes
granting appellate jurisdiction and the historic prac-
tices of the appellate courts; it does not have its
source in the jurisdictional limitations of Artlicle]
III.“ Roper, 445 U.S. at 333-334. That rule also is
consistent with the general principle that appellate
proceedings are confined to “reviews [of] judgments,
not statements in opinions.” California v. Rooney,
483 U.S. 307, 311 (1987) (per curiam) (internal quota-
tion marks omitted) (dismissing writ of certiorari as
improvidently granted because state court judgment
“was entirely in the State’s favor”).
In Deposit Guaranty National Bank v. Roper, this
Court found that credit card holders could appeal a
district court’s denial of class certification under
Federal Rule of Civil Procedure 23, even though the
defendant had tendered to the named plaintiffs the
maximum amount each could have recovered and the
district court had entered judgment in the plaintiffs’
favor. 445 U.S. at 332-336. The plaintiffs had sought
appellate review of the denial of class certificat-
ion in order to shift part of the litigation costs to
other class members. Id. at 334 n.6, 336. The Court
found that the plaintiffs’ interest in the appeal was
19
sufficient to confer Article III standing to appeal, id.
at 336, and that the denial of class certification was
a “procedural ruling, collateral to the merits of a
litigation, that is appealable after the entry of final
judgment,” ibid. The Court therefore held that At jhe
denial of class certification stands as an adjudicat-
ion of one of the issues litigated,” and the plaintiffs,
“who assert a continuing stake in the outcome of the
appeal, were entitled to have this portion of the
District Court’s judgment reviewed.” Ibid.
More recently, in United States v. Jose, 117 S. Ct.
463 (1996), this Court held in a per curiam opinion
that the Ninth Circuit had jurisdiction to entertain
an appeal by the Internal Revenue Service (IRS) of
a district court’s final order that enforced two IRS
summonses but placed restrictions on the circulation
within the agency of the summoned documents. The
Ninth Circuit had held that “the IRS’s appeal is not
ripe for review,” reasoning that, because the IRS had
neither attempted to disclose any documents nor
instituted a criminal investigation, “any detrimental
impact the district court’s order may have on the
IRS’s investigation is, at this time, purely specula-
tive.” 117 S. Ct. at 464-465 (quoting United States v.
Jose, 71 F.3d 1484, 1485 (9th Cir. 1995)).
This Court reversed, holding that the IRS could
“gain access to appeal from the District Court’s final
decision to the extent that it disfavored the Service.”
117 S: Ct. at 465. The Court explained that the dis-
trict court’s final order “is a decision dispositively
granting in part and denying in part the remedy
requested. The IRS prevailed to the extent that the
District Court enforced the summons. The Service
did not prevail to the extent that the District Court
imposed a condition.” Jbid. In holding that the
20
district court’s order was a final, appealable order, the
Court also stated that “appellate jurisdiction over
final decisions does not turn on which side prevailed
in the District Court,” and that “[flinality, not ripe-
ness, is the doctrine governing appeals from District
Court to Circuit Court.” Ibid.
Although the Court’s decision in Jose framed the
issues in that case in terms of ripeness, because
that was the doctrine “interject[ed]” by the court
of appeals, 117 S. Ct. at 465, the Court’s decision
necessarily assumed that the IRS had standing to
appeal because the agency was aggrieved by the dis-
trict court’s order. The Court in Jose observed that
it previously had granted a writ of certiorari when
the government similarly had been “[a]ggrieved” by
a conditional enforcement order upheld by the Ninth
Circuit. Jbid. Noting that the Court had affirmed the
court of appeals’ decision in that case by an equally
divided Court, ibid. (citing United States v. Zolin, 491
U.S. 554, 561 (1989)), the Court explained that “[wle
hardly would have done so had we considered the
matter unfit for review,” ibid.
This Court’s decision in Jose therefore strongly
supports the proposition that a party may appeal 2
district court’s decision that “dispositively * *
den{ies] in part the remedy requested.” 117 S. Ct. at
465. Indeed, lower courts expressly have recognized
the principle that an otherwise prevailing party may
appeal any portion of a court’s final decision on which
she did not prevail. See, eg., United States v.
McAndrews, 12 F.3d 273, 278 (Ist Cir. 1993)
(defendant could appeal adequacy of sentence
reduction under Federal Rule of Criminal Procedure
35(b); court reasoned that Aa] prevailing party
dissatisfied with the quantum of relief obtained—say,
—
21
a personal injury plaintiff who receives a favorable
liability finding but a paltry damage award —
ordinarily can seek appellate review“); Dis her v.
Information Resources, Inc. 873 F.2d 136, 138 (7th
Cir. 1989) (a “dismissal without prejudice, by su-
jecting the defendant to the risk * * * of further
litigation, is not entirely in the defendant’s favor any
more than a judgment for $1 million would be entirely
in favor of a plaintiff who believed he was entitled to a
judgment for $1,236,000”)"; LaBuhn v. Bulkmatic
Transport Co., 865 F.2d 119, 121-122 (7th Cir. 1988)
(“[oJbviously you can’t appeal from a decision that is
entirely in your favor. * * * But you can appeal from
the parts of a generally favorable order that are
unfavorable to you”).”
2. Consistent with the above principles, petitioner
is aggrieved by, and therefore may appeal, the district
1 But ef. Parr v. United States, 351 U.S. 513 (1956) (order
granting government’s motion to dismiss indictment without
prejudice not appealable by defendant).
2 Courts of appeals routinely entertain appeals by parties
who prevailed on the merits but were nonetheless aggrieved
because they did not obtain all of the relief they requested.
See, e.g., Gargoyles, Inc. v. United States, 113 F.3d 1572 (Fed.
Cir. 1997) (prevailing party recovered reasonable royalty but
was denied lost profits); Castle v. Rubin, 78 F.3d 654 (D.C. Cir.
1996) (per curiam) (prevailing party awarded partial back
pay but denied reinstatement and front pay); La Plante v.
American Honda Motor Co., 27 F.3d 731 (Ist Cir. 1994) (pre-
vailing party awarded compensatory damages but not punitive
damages); Graziano v. Harrison, 950 F.2d 107 (3d Cir. 1991)
(prevailing party awarded damages but denied attorney’s fees);
Ragen Corp. v. Kearney & Trecker Corp., 912 F.2d 619 (3d
Cir. 1990) (prevailing party denied consequential damages);
Carrigan v. Exxon Co., 877 F.2d 1237 (5th Cir. 1989) (pre-
vailing party awarded damages but not injunctive relief).
22
court’s judgment under the fourth sentence of 42
U.S.C. 405(g). The district court “ordered that this
case be remanded to the [Commissioner] for fur-
ther proceedings” consistent with the district court’s
opinion. Pet. App. 25; see also id. at 14 (final judgment
remanding case). Petitioner, however, sought out-
right reversal of the Commissioner’s denial of dis-
ability benefits and an affirmative determination that
she was entitled to an immediate award of benefits;
only as alternative and lesser relief did she seek a
remand for further administrative proceedings on the
merits of her claim. C.A. E.R. 242. Indeed, the fourth
sentence of Section 405(g) expressly authorizes a
district court to enter “a judgment * * * revers-
ing the decision of the Commissioner for Social
Security with or without remanding the cause for a
rehearing.” 42 U.S.C. 405(g) (emphasis added). Al-
8 Before the court of appeals’ decision in this case, the
Ninth Circuit had entertained appeals brought by claimants
challenging a sentence-four remand order on the ground that
the district court should have determined that the claimant
was entitled to an immediate award of benefits without further
rehearing before the agency. See Springer v. Chater, 91 F.3d
155 (1996) (unpublished disposition) (affirming district court’s
order of remand); Waggoner v. Chater, 81 F.3d 171 (1996)
(unpublished disposition) (modifying district court’s order of
remand); Gifford v. Chater, 77 F.3d 488 (1996) (unpublished
disposition) (holding that claimant “is entitled to an immediate
finding of disability and award of benefits” when ALJ failed to
provide reasons for rejecting credibility of claimant’s pain
testimony and reports of examining physician); Atkins v.
Chater, 70 F.3d 529 (1995) (affirming district court’s order of
remand); Weaver v. Chater, 67 F.3d 310 (1995) (unpublished
disposition) (reversing and remanding for an award of benefits
based on opinions of treating physician); Joyal v. Department
of Health & Human Servs., 37 F.3d 1505 (1994) (unpublished
disposition) (reversing district court’s order for further pro-
23
though petitioner clearly “prevailed” in the sense
that she obtained a reversal and remand for further
administrative p oceedings on the merits, she did not
prevail to the extent that she requested a reversal
with an outright award of benefits.“ Petitioner
plainly is aggrieved by the district court’s judgment
“dispositively * * * denying in part the remedy
requested,” Jose, 117 S. Ct. at 465, and therefore may
seek appellate review to alter the terms of that
judgment.
Furthermore, any sentence-four judgment that in-
cludes a remand necessarily comprises the court’s
disposition of legal disputes raised by the parties, and
that judgment will affect the character of the further
proceedings on the merits on remand. See FPC v.
Pacific Power & Light Co., 307 U.S. 156, 160 (1939)
ceedings and remanding for an award of benefits); Buzzard v.
Shalala, 36 F.3d 1102 (1994) (unpublished disposition) (affirm-
ing district court’s order of remand).
Under this Court's decision in Schaefer, 509 U.S. at 300-
302, petitioner is a “prevailing party” for purposes of an award
of attorney’s fees under EAJA, 28 U.S.C. 2412(d)(1)(A). As
the court of appeals recognized, however, “the status of pre-
vailing party for purposes of attorney’s fees * * * does not
automatically equate with status as prevailing party for
purposes of appeal.” Pet. App. 11. For the latter purpose, the
issue is not whether the party in some fashion “prevailed” in
the district court, but whether she is “aggrieved” by that
court’s judgment. For example, if the district court had re-
solved every legal issue in this case on the merits in petitioner’s
favor but had determined that petitioner was entitled to some
but not all of the benefits she had sought, petitioner would
qualify as a “prevailing party” for purposes of attorney's fees,
but she also would have a right to appeal the judgment to seek
additional benefits. See note 12, supra; cf. 20 C.F.R. 404.902(c)
(Commissioner’s determination of amount of disability benefits
is seperately subject to administrative and judicial review).
24
(“The court has power to pass judgment upon
challenged principles of law insofar as they are
relevant to the disposition made by the Commission.
[A] judgment rendered will be a final and indisputable
basis of action between the commission and the
defendant.”) (internal quotation marks omitted); see
also FCC v. Pottsville Broadcasting Co., 309 U.S. 134,
145 (1940) (“On review the court may * * * correct
errors of law and on remand the Commission is bound
to act upon the correction.”).
Here, the district court expressly remanded the
cause for further proceedings before the agency “in
accordance with” the court’s decision. Pet. App. 25.
That decision rejected petitioner’s contentions that
the ALJ erred (1) in rejecting the medical opinion of
petitioner’s treating physician regarding the number
of hours she could work each day (id. at 22-23); (2) in
finding that petitioner’s allegations of pain were not
credible (id. at 23-24); and (3) in posing questions to a
vocational expert about petitioner’s ability to work
with specified medical impairments without incor-
porating into the questions the report of petitioner’s
treating physician regarding the extent of those
impairments (id. at 24). Petitioner will be adversely
affected by those rulings in the course of further
proceedings, because the ALJ who rehears the cause
will be free to do so “in accordance with” the court’s
opinion, without revisiting the treating physician,
pain, and vocational expert issues. Id. at 25.
A treating physician’s medical opinion and the
subjective testimony of the claimant regarding pain
are often critical factors in determining whether a
claimant is disabled and entitled to benefits. See 42
U.S.C. 423(d)(5); 20 C. F. R. 404.1527 (standards for
evaluating opinion of treating physician); 20 C.F.R.
—
25
404.1529 (standards for evaluating claimant’s symp-
toms, including pain); see also note 3, supra. More-
over, courts have held that the Commissioner’s
decision to reject either the medical opinion of the
claimant’s treating physician or the testimony of the
claimant herself must be supported by substantial
evidence. See, ¢.g., Chavez v. Department of Health
& Human Servs., 103 F.3d 849, 853 (9th Cir. 1996);
Bean v. Chater, 77 F.3d 1210, 1213-1214 (10th Cir.
1995); Barrett v. Shalala, 38 F.3d 1019, 1023-1024 (8th
Cir. 1994). Thus, a resolution in petitioner’s favor by
the court of appeals on one or more of petitioner’s
contentions of error by the ALJ could significantly
affect whether the ALJ awards petitioner benefits on
remand.5
To be sure, as the court of appeals observed (Pet.
App. 10), the district court’s remand might ultimately
“result in an award of all of the benefits claimed.”
The district court’s remand order, however, deprives
petitioner of the immediate and certain benefits to
which she would now be entitled if the district court
had granted her the outright reversal she had re-
It was petitioner’s contention in the court of appeals that,
but for the district court’s adverse rulings, petitioner would be
entitled to an immediate award of benefits without further
consideration by the agency. See Pet. C.A. Br. 21-31. The
Commissioner disputes that contention, on the grounds that the
ALJ’s rulings were based on substantial evidence (see Gov't
C.A. Br. 14-22) and that, if the court of appeals found to the
contrary, the appropriate relief would be a remand to the
agency to reweigh the evidence in light of the court of appeals’
decision. See infra, pp. 28-29. Regardless of the ultimate
outcome of that 2 however, petitioner at least has
standing to argue on appeal both that she is entitled to an
immediate award of benefits or, in the alternative, that she is
entitled to a remand on more favorable terms than those
provided by the district court.
26
quested. The fact that she might receive benefits
later, after further proceedings on remand, does not
detract from the fact that she will not receive benefits
now under the district court’s judgment. Thus, under
principles generally applicable to “other civil ac-
tions,” 42 U.S.C. 405(g), petitioner is sufficiently
aggrieved by the district court’s disposition of this
case that she is entitled to appellate review of the
judgment. See Jose, 117 S. Ct. at 465 (“Nor is the IRS
required to provide notice of its intention to transfer
documents internally, for this is the very condition
the IRS seeks to attack on appeal.”).
C. The Practical Consequences Of A Claimant's Appeal
Of A District Court’s Final Judgment Remanding
To The Commissioner Are Limited And Do Not
Furnish A Basis For An Exception To Appealability
1. The Ninth Circuit concluded that it “ought not
to entertain [petitioner’s] present appeal” because
“[rjeview at this point would be subject to all of
the disadvantages of piecemeal appeals; unnecessary
decisions waste judicial effort, interfere unduly with
the district courts or administrative agencies, and
require [the court of appeals] to adjudicate on less
than a full record.” Pet. App. 11. Although the court
of appeals’ concerns cannot be rejected out of hand, we
believe that they do not furnish a basis for carving out
such appeals by Social Security claimants from the
usual rule under 28 U.S.C. 1291 that a party
aggrieved by the final judgment of a district court is
entitled to take an appeal.
In the first place, appeals of sentence-four remand
orders by claimants are likely to be rare, because
a district court’s judgment holding that the Commis-
sioner’s decision is legally erroneous and remanding
27
the matter to the Commissioner for further proceed-
ings represents a substantial, albeit partial, victory
for a claimant.” The further administrative pro-
ceedings ordered by the district court may then offer
a claimant substantial strategic or practical advant-
ages. For example, the claimant is likely on remand
to have an opportunity to present to the agency
additional medical evidence or testimony in support of
her application for benefits. Additionally, a claimant
who is awarded and accepts a sentence-four remand
may immediately seek attorney’s fees and expenses
under EAJA, see Schaefer, 509 U.S. at 303, while an
appeal by the claimant at that point could delay the
receipt of fees and expenses until after appellate
review is completed.”
Moreover, resolution of the ultimate issue of the
claimant’s entitlement to benefits may occur more
quickly through the administrative proceedings.
We are aware of only two other reported lower court
decisions in which a claimant has appealed a sentence-four
remand order. Nguyen v. Shalala, 43 F.3d 1400, 1402 n.2 (10th
Cir. 1994); Atkins v. Chater, supra (entertaining appeal with-
out discussion of jurisdiction). It is our understanding that
petitioner’s counsel was involved in Atkins, as well as all of the
unpublished decisions cited in note 13, supra.
For several reasons, a district court might wish to defer
its ruling on a fee application pending the outcome of appellate
proceedings. The claimant may lose her status as a prevailing
party on appeal, see Nguyen, 43 F.3d at 1403-1404, or the court
of appeals’ decision may bear on whether the government’s
position was substantially justified under 28 U.S.C. 2412(d).
Moreover, because the claimant may be entitled to additional
fees incurred on appeal, see Jean v. Nelson, 863 F.2d 759, 770
(11th Cir. 1988), aff’d on other grounds, 496 U.S. 154 (1990),
the district court may want to postpone its ruling until after
the claimant has submitted all potential fee applications.
28
Sentence-four remand orders are directly sent to
SSA’s Appeals Council for immediate resolution or
assignment to an ALJ. 20 C.F.R. 404.983. We have
been informed by SSA that the ALJ issues a decis-
ion, on average, within a year. More significantly,
claimants historically have very good prospects of
fully prevailing on remand. Thus, we have been
informed by SSA that, following additional develop-
ment of the record on remand, benefits are awarded in
approximately 60% of Social Security cases remanded
to the Commissioner.
The frequency with which claimants may be
expected to appeal district court decisions is reduced
further by several additional factors. For instance,
the claimant might risk a cross-appeal by the
Commissioner that could eviscerate the claimant’s
partial victory of remand ordered by the district
court. And a claimant likely will face an uphill battle
on appeal, since the Commissioner and the district
court have each concluded that the existing adminis-
trative record was insufficient to warrant an immedi-
ate award of benefits.
Finally, even if the court of appeals were to find
that the district court’s legal rulings adverse to the
claimant were erroneous, the court of appeals might
nevertheless conclude that it should order a remand
to the agency for further administrative proceedings
on the merits, rather than reverse the Commis-
sioner’s decision outright and direct an award of
benefits. See, e.g., Ingram v. Chater, 107 F.3d 598, 605
(8th Cir. 1997); see also Ragland v. Shalala, 992 F.2d
1056, 1060 (10th Cir. 1993) (decision whether to
remand for additional evidence or simply to award
benefits is within court’s discretion); accord Stone v.
Heckler, 761 F.2d 530, 533 (9th Cir. 1985); Poded-
29
worny v. Harris, 745 F.2d 210, 221 (3d Cir. 1984).
Indeed, courts of appeals order immediate awards of
benefits only in limited circumstances. See, e. g.,
Taylor v. Chater, 118 F.3d 1274, 1279 (8th Cir. 1997)
(“record overwhelmingly supports a finding of dis-
ability”); Faucher v. Secretary of Health & Human
Servs., 17 F.3d 171, 176 (6th Cir. 1994) (“all essential
factual issues have been resolved”); Davis v. Shalala,
985 F.2d 528, 534 (11th Cir. 1993) (“cumulative effect
of the evidence establishes disability without any
doubt”); Rodriguez v. Bowen, 876 F.2d 759, 763 (9th
Cir. 1989) (“no useful purpose would be served by
further administrative proceedings” or “remand
would only delay the receipt of benefits”); Gilliland v.
Heckler, 786 F.2d 178, 184 (8d Cir. 1986) (“the
administrative record * * * has been fully developed
and * * * substantial evidence * * * as a whole
indicates that the Claimant is disabled and entitled to
benefits”); Parker v. Harris, 626 F.2d 225, 235 (2d Cir.
1980) (“record provides persuasive proof of disability
and a remand for further evidentiary proceedings
would serve no purpose”).
For the foregoing reasons, it is far more likely that
claimants generally will accept the remand order and
seek to adduce additional evidence and urge a different
weighing of the record in the administrative proceed-
ings. Thus, the practical consequences of appellate
jurisdiction over claimant appeals should be limited.
2. Nor in our view should the availability of
appellate review prompt claimants to appeal adverse
findings in the district court’s decision out of fear
that they will be precluded from contesting them
in a subsequent proceeding under Section 405(g).
Although equitable principles of issue preclusion
normally apply when appellate “review is available but
30
is not sought” (Restatement (Second) of Judgments
§ 28 comment a (1982)), those principles should not, in
our view, be applied to force claimants to take appeals
they otherwise would not take simply to preserve
their challenges to certain aspects of the district
court’s decision, when existing practical and policy
considerations already counsel claimants not to seek
an immediate appeal. Indeed, the rigid imposition of
principles of issue preclusion would frustrate their
purpose to guard against unnecessary litigation.
a. In holding that it “ought not to entertain [the]
present appeal,” Pet. App. 11, the court of appeals
rejected petitioner’s contention that she would be
barred by principles of issue preclusion from con-
testing the district court’s adverse rulings against
her in a subsequent judicial proceeding following the
administrative proceedings on remand. The court
explained that “it is inappropriate to hold [petitioner]
to rulings that she was precluded from appealing.” Id.
at 12. That general proposition naturally flows from
the court of appeals’ refusal to consider petitioner’s
appeal. See Restatement (Second) of Judgments
§ 28(1) (1982) (issue preclusion does not apply when
“(t]he party against whom preclusion is sought could
not, as a matter of law, have obtained review of the
judgment in the initial action”); Wright, Miller &
Cooper, supra, § 3902, at 84 (“if appeal is denied, pre-
clusion also should be denied”).
The court of appeals’ conclusion that petitioner’s
dilemma is “false,” Pet. App. 12, however, does not re-
solve the antecedent question whether petitioner is
aggrieved by the district court’s judgment, any more
than did petitioner’s original contention that she
must be permitted to. appeal the district court’s
adverse rulings to avoid the effects of preclusion. See
31
EEOC v. Chicago Club, 86 F.3d 1423, 1431 n.2 (7th Cir.
1996) (noting “potential circularity” of a requirement
that a decision must bar a party from readjudication
in order for that party to be aggrieved by the
decision); see also Concerned Citizens of Cohocton
Valley, Inc. v. New York Dep't of Envt’l Conserv.,
127 F.3d 201, 205 (2d Cir. 1997); LaBuhn, 865 F.2d at
122. Here, petitioner is entitled to appeal the court’s
remand order, not because of putative preclusive
effects, but because petitioner challenges a final
judgment that did not grant her all the relief she
requested.
The court of appeals also erred in concluding
that the district court’s rulings that are adverse to
petitioner are “unnecessary to the remand” and thus
not “essential to the judgment.” Pet. App. 12-13. The
court relied (id. at 13) on comment h to Section 27 of
the Restatement (Second) of Judgments, which ex-
plains that determinations not essential to the judg-
ment “have the characteristics of dicta, and may not
ordinarily be the subject of an appeal by the party
against whom they were made.“ The district court’s
8 The court of appeals recited (Pet. App. 13) an illustration
to Section 27, which states that an alleged trademark infringer
is not precluded from defending an infringement action on
invalidity grounds even though in a prior proceeding a court
found a trademark valid be that it was not infringed. Re-
statement (Second) of Judgments § 27 comment h, illust. 14
(1982). The facts of the prior proceeding so described, how-
ever, are virtually identical to the facts in Electrical Fittings,
in which the Court permitted an appeal urging the court of
appeals to remove the finding of validity from the district
court’s decree. 307 U.S. at 242-243; see also Roper, 445 U.S. at
335-336 n.7 (discussing Electrical Fittings and explaining that
“petitioners could take the appeal to correct this error because
there had been an adverse decision on a litigated issue, they
32
rulings adverse to petitioner, however, are not dicta
but “stand[] as an adjudication of one of the issues
litigated.” Roper, 445 U.S. at 336; see also Electrical
Fittings, 307 U.S. at 242. As discussed above, peti-
tioner contends on appeal that, had the district court
ruled to the contrary on one or more of the issues
that she sought to raise on appeal, the administrative
record in this case warranted a judgment of reversal
without a remand for further administrative pro-
ceedings on the merits. See Pet. C.A. Br. 18, 21, 27-
28, and 35. Because the judgment is not fully favor-
able to petitioner (in light of the remand for further
proceedings on the merits), petitioner is entitled to
challenge those rulings that, in her submission,
underlie the unfavorable portion of the judgment.
Compare California v. Rooney, 483 U.S. at 311.
b. Despite the foregoing errors in the court of
appeals’ analysis, we nonetheless believe that the
availability of the option to appeal should not preclude
claimants who choose not to exercise that option
from challenging the district court’s findings in a
subsequent judicial proceeding. Issue preclusion, or
collateral estoppel, is “an equitable doctrine resting
within the [courts’] broad discretion.” JM Muniz,
Inc. v. Mercantile Texas Credit Corp., 833 F.2d 541,
543 (5th Cir. 1987); ef. Parklane Hosiery Co. v.
Shore, 438 U.S. 322, 331 (1979) (courts have “broad
discretion” to apply offensive collateral estoppel). As
a judge-made doctrine, it is designed to “relieve
parties of the cost and vexation of multiple lawsuits,
conserve judicial resources, and, by preventing
continued to assert an interest in the outcome of that issue, and
for policy reasons this Court considered the procedural ques-
tion of sufficient importance to allow an appeal”).
33
inconsistent decisions, encourage reliance on adjudi-
cation.” United States v. Mendoza, 464 U.S. 154, 158
(1984) (quoting Allen v. McCurry, 449 U.S. 90, 94
(1980)); see also Parklane Hosiery Co., 439 U.S. at
326 (collateral estoppel “protect[s] litigants from the
burden of relitigating an identical issue with the
same rarty or his privy and promotſes] judicial econ-
omy by preventing needless litigation”).
Concerns of judicial efficiency and the settled
expectations of litigants, however, are not implicated
when a claimant forgoes immediate appellate review
of a sentence-four judgment containing a remand
order, and instead follows the district court’s order
and seeks redress from the agency. If the claimant is
unsuccessful on remand, and she files a subsequent
action under Section 405(g) seeking judicial review of
the Commissioner’s new decision, no sufficient pur-
pose would be served by altogether barring the
claimant from raising issues resolved against her in
the first district court action.” Although the second
round of judicial review would be a new civil action in
court, there is but one underlying administrative
proceeding before the Commissioner on but one
application for benefits. In those circumstances, the
second round of judicial review neither presents a
risk of inconsistent judicial decisions nor burdens the
parties or the courts with vexatious litigation.”
19 The district court, in the second round of judicial review,
may apply law-of-the-case type principles. See Pet. App. 12;
Agostini v. Felton, 117 S. Ct. 1997, 2017 (1997).
A system in which claimants are permitted to forgo an
immediate appeal without fear of preclusive effects also is con-
sistent with a recognized exception to issue preclusion for an
issue of law when “a new determination is warranted in order
* * * to avoid inequitable administration of the laws.“ Re-
34 35
Additionally, to the extent that a rule of issue pre- CONCLUSION
clusion would encourage litigants to seek immediate ,
judicial review of sentence-four remand orders, the The judgment of the court of appeals should be
application of such a rule would promote unnecessary Wann
appellate litigation. As previously discussed (pp. 26- Respectfully submitted.
29, supra), most remanded claimants will forgo an
ag peal in favor of further administrative proceedings, — k: ——
because that is the fastest and most effective path to 1 segs HU a
obtaining Social Security benefits. By contrast, a Assistant —— Senet
fixed rule of preclusion would create undesirable EDWIN S. KNEEDLER
incentives to avoid administrative proceedings on Deputy Solicitor General
remand, even though such proceedings can provide LISA SCHIAVO BLATT
the most efficient means of resolving a given dispute. Assistant to the Solicitor
For those reasons—and in light of the special General
WILLIAM KANTER
attributes of judicial review of agency action, in
which the agency has primary jurisdiction and the 1 4 a
matter ordinarily should be returned to the agency if
the court finds a flaw in its decision, see FPC v.
Idaho Power Co., 344 U.S. 17, 20-21 (1952); Potts-
ville Broadcasting Co., 309 U.S. at 141—the relevant
policy considerations do not, on balance, support appli-
cation of issue preclusion. See generally Parklane
Hosiery Co., 439 U.S. at 326-333 (discussing central-
ity of policy concerns in determining scope of
collateral estoppel doctrine); Mendoza, 464 U.S. at
159-162 (discussing policy concerns counseling
against applying non-mutual collateral estoppel to the
government).
FEBRUARY 1998
statement (Second) of Judgments § 28(2) (1982). It would be
unfair to require claimants to seek immediate appellate review
of sentence-four remand orders when the most expeditious
avenue of obtaining benefits may be pursuing an administrative
proceeding.
APPENDIX
STATUTORY PROVISIONS INVOLVED
1. Section 205(g) of the Social Security Act, 42
U.S.C. 405(g), provides:
[1] Any individual, after any final decision of
the Commissioner of Social Security made after a
hearing to which he was a party, irrespective of
the amount in controversy, may obtain a review of
such decision by a civil action commenced within
sixty days after the mailing to him of notice of
such decision or within such further time as the
Commissioner of Social Security may allow. [2]
Such action shall be brought in the district court
of the United States for the judicial district in
which the plaintiff resides, or has his principal
place of business, or, if he does not reside or have
his principal place of business, within any such
judicial district, in the United States District
Court for the District of Columbia. [3] As part of
the Commissioner’s answer the Commissioner of
Social Security shall file a certified copy of the
transcript of the record including the evidence
upon which the findings and decision complained
of are based. [4] The court shall have power to
enter, upon the pleadings and transcript of the
record, a judgment affirming, modifying, or re-
versing the decision of the Commissioner of
Social Security, with or without remanding the
cause for a rehearing. [5] The findings of the
! Because of the length of 42 U.S.C. 405(g), we have insert-
ed numbers in brackets to identify its separate sentences.
(la)
2a
Commissioner of Social Security as to any fact,
if supported by substantial evidence, shall be
conclusive, and where a claim has been denied by
the Commissioner of Social Security or a decision
is rendered under subsection (b) of this section
which is adverse to an individual who was a party
to the hearing before the Commissioner of Social
Security, because of failure of the claimant or
such individual to submit proof in conformity with
any regulation prescribed under subsection (a)
of this section, the court shall review only the
question of conformity with such regulations and
the validity of such regulations. [6] The court
may, on motion of the Commissioner of Social
Security made for good cause shown before the
Commissioner files the Commissioner’s answer,
remand the case to the Commissioner of Social
Security for further action by the Commissioner
of Social Security, and it may at any time order
additional evidence to be taken before the Com-
missioner of Social Security, but only upon a
showing that there is new evidence which is
material and that there is good cause for the
failure to incorporate such evidence into the re-
cord in a prior proceeding; and the Commissioner
of Social Security shall, after the case is remand-
ed, and after hearing such additional evidence if
so ordered, modify or affirm the Commissioner’s
findings of fact or the Commissioner’s decision
or both, and shall file with the court any such
additional and modified findings of fact and de-
cision, and a transcript of the additional record
and testimony upon which the Commissioner's
action in modifying or affirming was based. [7]
Such additional or modified findings of fact and
3a
decision shall be reviewable only to the extent
provided for review of the original findings of fact
and decision. [8] The judgment of the court shall
be final except that it shall be subject to review in
the same manner as a judgment in other civil
actions. [9] Any action instituted in accordance
with this subs ‘ction shall survive notwithstand-
ing any change in the person occupying the office
of Commissioner of Social Security or any va-
cancy in such office.
2. Section 1291 of Title 28 of the United States
Code provides:
The courts of appeals (other than the United
States Court of Appeals for the Federal Circuit)
shall have jurisdiction of appeals from all final
decisions of the district courts of the United
States, the United States District Court for the
District of the Canal Zone, the District Court
of Guam, and the District Court of the Virgin
Islands, except where a direct review may be had
in the Supreme Court. The jurisdiction of the
United States Court of Appeals for the Federal
Circuit shall be limited to the jurisdiction de-
= in sections 1292(c) and (d) and 1295 of this
title.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.