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.

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