Amicus Curiae Brief — Forney v. Apfel

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Petitioner,

BRIEF OF AMICUS CURIAE

IN SUPPORT OF THE JUDGMENT BELOW

a ALLEN R. SNYDER

: (Amicus Curiae, invited by Court,

| we per Order of January 26, 1998)

Grecory G. GARRE

HOGAN & HARTSON L.L.P.

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5741

Co., Inc. - 769-0096 - WasHINeTON. D.C. 20001

"BEST AVAILABLE COPY

QUESTION PRESENTED

Whether a social security claimant who succeeds in

winning a district court judgment pursuant to 42 U.S.C.

§ 405(g), setting aside an agency decision to deny bene-

fits and remanding to give the claimant an opportunity to

secure all of the benefits she seeks, is entitled to bring

an appeal seeking reversal of the agency decision for

additional reasons not relied upon by the district court

in entering judgment in the claimant’s favor.

(i)

TABLE OF CONTENTS

QUESTION PRESENTED ......2.-...-20.0--cc-ccecenssecesseesosees

INTEREST OF AMICUS CURIAE ..............................-..

STATEMENT OF THE CASE ...............-..-..-c--c-eceeeeeeneees :

SUMMARY OF ARGUMENT 000022...

I cctcientinnnatninccinnncnnsemntancussssttienaneimesesscenccsccsees

Il.

ITI.

SECTION 405(g) JUDGMENTS ARE “SUB-

JECT TO REVIEW IN THE SAME MANNER

AS * * * JUDGMENT{[S] IN OTHER CIVIL

SE | cetrnctnctnresstcntenarcettsmncstengenatpamsennenseccces

IN OTHER CIVIL ACTIONS, THE JUDG-

MENT ENTERED BELOW WOULD NOT BE

APPEALABLE BY A PARTY IN FORNEY’S

A. Forney Is Not Aggrieved By The District

Court Judgment, And Thus Lacks Standing

FP |) a

B. Forney Does Not Challenge The District

Court Judgment, But Rather Statements Un-

necessary To That Judgment .....................

C. The Challenged Statements Are Reviewable

In Later Proceedings If Forney Does Not

PRACTICAL AND INSTITUTIONAL CON-

SIDERATIONS COUNSEL IN FAVOR OF

HOLDING THAT A PARTY IN FORNEY’S

POSITION MAY NOT APPEAL ....0

ED ceasecscenssremmnscscntesmniscenrreceseccmnemsenesmenccctseenassenss

oc 41 @

TABLE OF AUTHORITIES

Cases: Page

Affiliated Ute Citizens of Utah v. Ute Indian Tribe

of Uintah & Ouray Reservation, 22 F.3d 254

9. OO y————————————————————— 14

Allstate Ins. Co. v. A.A. McNamara & Sons, Inc., 1

MD TD _y——————————EEE 20

Arizonans for Official English v. Arizona, 117 8. Ct.

CS ——————————— 14

Baker v. General Motors Corp., 86 F.3d 811 (8th

Cir. 1996), rev’d on other grounds, 118 S. Ct.

0 _>yyy————————————— 23

Balcom v. Lynn Ladder & Scaffolding Co., 806

F.2d 1127 (ist Cir. 1986) (per curiam) .............. 27, 28

Bath Iron Works Corp. v. Coulombe, 888 F.2d 179

(1st Cir. 1989) (per curiam) ............................... 12

Board of Trustees v. Sweeney, 439 U.S. 24 (1978)

(0 32

Bohms v. Gardner, 381 F.2d 283 (8th Cir. 1967),

cert. denied, 390 U.S. 964 (1968) —........................ 11

Brown Shoe Co. Vv. United States, 370 U.S. 294

CUD .ccconcncvisnnstnnsnnnntiiasitteiapesiimssataietimninianiipaaisdieanaiadiaitiien 27

California v. Rooney, 483 U.S. 307 (1987) (per

es passim

CH2M Hill Central, Inc. v. Herman, 131 F.3d 1244

CBR Glin, TOD ccccccccssocsccescetnescnstniccnenistitestanmen .. 17, 23

Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984) .................... 19-20

Colvin v. Sullivan, 939 F.2d 153 (4th Cir. 1991) .... 11

Concerned Citizens of Cohocton Valley, Inc. v. New

York State Dep’t of Envt’l Conservation, 127

2 | ©. | 4 as = 12, 20, 24-25

Connecticut Nat’l Bank v. Germain, 503 U.S. 249

— 10

Coopers & Lybrand v. Livesay, 437 U.S. 463

> a ll

Deposit Guaranty Nat’l Bank v. Roper, 445 U.S.

|. SS a passim

Director, Office of Workers’ Compensation Pro-

grams V. Bath Iron Works Corp., 853 F.2d 11

6G SS DYSS — 11,17

TABLE OF AUTHORITIES—Continued

Page

Donlon Indus., Inc. Vv. Forte, 402 F.2d 935 (2d

EE Sy 34

Electrical Fittings Corp. v. Thomas & Betts Co.,

EES Se 24, 25

Farr v. Gruber, 950 F.2d 399 (7th Cir. 1991)... 12

Faucher v. Secretary of Health & Human Servs.,

17 F.3d 171 (6th Cir. 1994) .................... 19

Firestone Tire & Rubber Co. v. Risjord, 449 U.S.

EE ee 11

Fletcher Vv. Atez, Inc., 68 F.3d 1451 (2d Cir. 1995) .. 21

FPC v. Idaho Power Co., 344 U.S. 17 (1952) _........ 19

FTC v. Standard Oil Co. of Cal., 449 U.S. 232

EE OS ee ae 35

Gelb v. Royal Globe Ins. Co., 798 F.2d 38 (2d Cir.

1986), cert. denied, 480 U.S. 948 (1987) ............ 28

Goatcher v. Chater, 57 F.3d 980 (10th Cir. 1995). 10

Gunn Vv. University Comm. to End the War in

Viet Nam, 399 U.S. 383 (1970) —.....0 12

Hays Vv. Sullivan, 907 F.2d 1453 (4th Cir. 1990). 19

Hutto v. Davis, 454 U.S. 370 (1982) (per curiam). 20

In re DES Litig., 7 F.3d 20 (2d Cir. 1993) ....12, 23, 25, 27

In re Sims, 994 F.2d 210 (5th Cir. 1993), cert

denied, 510 U.S. 1049 (1994) 0. 12

In re Yarn Processing Patent Validity Litig., 530

| LE Se 15

Jefferson V. City of Tarrant, 118 S. Ct. 481 (1997). 23

Manufacturers Credit Corp. v. SEC, 395 F.2d 833

(3d Cir. 1968) .. aes RE pisaielies 15

McCarthy v. Madigan, 503 US. 140 (1992) . ie 35

Monongahela Valley Hosp., Inc. v. Sullivan, 945

EE A Ea 11

Moses H. Cone Mem’l Hosp. v. Mercury Constr.

Corp., 460 U.S. 1 (1983) ... 27

Nelson Vv. Apfel, 131 F.3d 1228 (7th Cir. 1997)... 19

O’Connor V. Shalala, 23 F.3d 1232 (7th Cir. 1994) . 10, 24

Occidental Petroleum Corp. v. SEC, 873 F.2d 325

EEN . 0 Ee Lear 11

Owens-Illinois, Inc. v. Aetna Cas. & Sur. Co., 990

F.2d 865 (6th Cir. 1993) . SS ST 20

TABLE OF AUTHORITIES—Continued

Page

Parr v. United States, 351 U.S. 513 (1956) —........... passim

Partmar Corp. V. Paramount Pictures Theatres

Corp., 347 U.S. 89 (1954) _............----.-----.----ee--e-- 28, 31

Penda Corp. v. United States, 44 F.3d 967 (Fed.

Cir. 1994), cert. denied, 514 U.S. 1110 (1995)... 20

Perez v. Ledesma, 401 U.S. 82 (1971) —................... 12

Public Serv. Comm'n Vv. Brashear Freight Lines,

Inc., 306 U.S. 204 (1989) (per curiam) ............ 12

Shalala v. Schaefer, 509 U.S. 292 (1993) ............... 13, 26

Showtime Networks Inc. v. FCC, 932 F.2d 1 (D.C.

RN ES a eS ee 12

Southern Natural Gas Co. v. FERC, 877 F.2d 1066

IQ, xa =n, Ee 15

Star Fin. Servs., Inc. v. AASTAR Mortgage Corp.,

89 F.3d 5 (ist Cir. 1996) ......---. ne. 15

Steel Co. v. Citizens for a Better Env’t, 66 U.S.L.W.

SS ee 14

Stripe-A-Zone Vv. Occupational Safety & Health Re-

view Comm'rs, 643 F.2d 230 (5th Cir. 1981)

ED Gt inecensneitiiislipeieneimanatatienisibianiniaieustes aiseeontn 17-18

Sullivan v. Finklestein, 496 U.S. 617 (1990) .......... passim

Travelstead v. Derwinski, 978 F.2d 1244 (Fed.

I ee 11

Travis V. Sullivan, 985 F.2d 919 (7th Cir. 1993). 11

United States Office of Personnel Management Vv.

FLRA, 905 F.2d 430 (D.C. Cir. 1990) 0... 17

United States v. Jose, 117 S. Ct. 463 (1996) (per

EE ee ee aS CN 25, 26

United States v. Ligori, 658 F.2d 130 (3d Cir.

ER NE ar 15

Virginia Military Inst. v. United States, 508 U.S.

Ri Se A ES Re a 23

Constitution:

ee 14

Statutes:

Social Security Act, 42 U.S.C. § 401 et seq. .............. 3

ENE ENE TLE passim

vii

TABLE OF AUTHORITIES—Continued

: Page

Social Security Independence and Program Im-

provements Act of 1994, Pub. L. No. 103-296,

od 2

LST ee 12

RESETS a ee 17

Rule:

ee nee sinsnuaidididadnaini 14, 15

Legislative Materials:

ER. Rep. No. 76-728 (1989) ..........................<......<..- 10

8 10

Other Authorities:

Diana G. Culp, Fixing the Federal Courts, 76

A.B.A. J. 63 (Jume 1990) 2.022... ccc. 32

Division of Appeal Assessment of the Office of Pol-

icy & Procedures, Social Security Administration

Office of Hearings & Appeals, Court Remands:

Analysis & Recommendations (Dec. 1987)... 32

Jerry L. Mashaw et al., Social Security Hearings

EEE Sa Se 32

James W. Moore, Moore’s Federal Practice and

Procedure (3d ed. 1997) 22.0.0... 21-22, 28

Restatement (Second) of Judgments (1982) ........... 28

Hon. William H. Rehnquist, 1997 Year-End Report

on the Federal Judiciary (Jan. 1, 1998) .............. 31

Social Security Administration, Annual Statistical

Supplement, 1997 (Dec. 1997) .. 32

Charles A. Wright, Arthur R. Miller & Edward

H. Cooper, Federal Practice and Procedure (ist

ed. 1981 & 2d ed. 1992) ............. ieasiaiiadidiieanued 12, 21, 28, 29

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

No. 97-5737

SANDRA K. FORNEY,

7 Petitioner,

KENNETH S. APFEL,

COMMISSIONER OF SOCIAL SECURITY,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICUS CURIAE

iN SUPPORT OF THE JUDGMENT BELOW

INTEREST OF AMICUS CURIAE

On January 26, 1998, this Court invited Allen R.

Snyder to brief and argue this case, as amicus curiae, in

support of the judgment below. 118 S. Ct. 902. This brief

is submitted in accordance with the Court’s order.

INTRODUCTION

The Social Security Act vests primary responsibility

for distributing benefits in the executive agency charged

with administering the program (the Social Security Ad-

ministration, or SSA), but gives claimants the right to

challenge adverse, final agency decisions in federal court.

See 42 U.S.C. § 405(g).’ A district court entertaining

such a challenge has the “power to enter * * * a judg-

ment affirming, modifying, or reversing the decision of

the Commissioner of [SSA], with or without remanding

the cause for a rehearing.” Id. “The judgment of the

court [is] final except that it [is] subject to review in the

same manner as a judgment in other civil actions.” Id.

The question presented is whether a claimant who wins

a favorable district court judgment pursuant to Section

405(g), setting aside the Commissioner’s decision to deny

benefits and remanding to give the claimant another op-

portunity to secure the claimed benefits, is entitled to

appeal on the ground that the Commissioner’s decision is

erroneous for additional or alternative reasons.

In Sullivan vy. Finklestein, 496 U.S. 617, 624-625

(1990), this Court held that the Secretary of Health ard

Human Services* was entitled to appeal a district court

judgment entered pursuant to Section 405(g), where the

judgment set aside the agency decision to deny benefits

and remanded for further consideration of that issue. Rec-

ognizing that “[t]here is, of course, a great variety in

remands, reflecting in turn the variety of ways in which

agency action may be challenged in the district courts and

the possible outcomes of such challenges,” the Court ex-

pressly limited its holding to the particular circumstances

in Finklestein. Id. at 623 & n.3. Of particular importance

was the fact that, if the Secretary were not permitted to

bring an immediate appeal, the agency likely would be

denied any opportunity to challenge the district court judg-

ment—which “essentially invalidated * * * [agency] regu-

1 Section 405(g) is reproduced in the addendum hereto.

2In 1994 Congress transferred the administration of the social

security program from the Secretary of Health and Human Services

to the Commissioner of SSA. See Social Security Independence and

Program Improvements Act of 1994, Pub. L. No. 103-296, § 106(d),

108 Stat. 1476.

lations,” id. at 624—in the event the claimant prevailed

on remand. /d. at 625.

This case is a variant of Finklestein, but with the rele-

vant procedural circumstances turned essentially inside

out. The appellant in this case is the disability claimant,

not the agency, and, quite unlike the Secretary in Finkle-

stein, the appellant here won in the District Court. As

she prayed for in her complaint, the District Court set

aside the agency decision to deny the claimed benefits and

remanded to give her an opportunity to secure those bene-

fits. In addition, unlike the Secretary in Finklestein, the

appellant here would not be prevented from obtaining re-

view of any aspect of the district court decision below fol-

lowing the remand, in the event she does not obtain the

claimed benefits on remand. And, unlike the Secretary in

Finklestein, the appellant here does not seek reversal or

even vacatur of the district court judgment, but instead

seeks reversal of the agency decision, for reasons different

than those stated in the district court opinion.

The Court of Appeals below concluded that—in these

starkly different circumstances from Finklestein—the ap-

peal by the claimant in this case should be dismissed. As

we explain, that ruling comports with Section 405(g), as

well as with settled principles governing the review of

judgments in other civil actions, and accordingly should be

affirmed.

STATEMENT OF THE CASE

' Petitioner Sandra K. Forney (“Forney”) applied to SSA

in November 1991 for “isability insurance benefits pursu-

ant to Title II of the Social Security Act, as amended, 42

U.S.C. § 401 et seq. Forney claimed that she had been dis-

abled since June 7, 1991, due to fibrositis, a condition

which allegedly prevented her from holding or obtaining

substantial gainful employment. J.A. 11. Following a

hearing, an Administrative "aw Judge (“ALJ”) found—

based on physician testimony that Forney’s condition did

not preclude all work, and the ALJ’s own doubts as to the

credibility of Forney’s pain testimony—that Forney was

not disabled, and denied her benefits claim. Forney ap-

pealed to the SSA Appeals Council, which remanded to

the ALJ for further proceedings, including another med-

ical examination. Following a second hearing, the ALJ

denied Forney’s disability claim, and this time the Appeals

Council denied review. Pet. App. 4, 16.

In September 1994, Forney filed a complaint pursuant

to 42 U.S.C. § 405(g) in the United States District Court

for the District of Oregon. J.A. 34-38. In her prayer for

relief, Forney requested that “judgment” be entered in her

favor, and that the “court reverse and set aside the deci-

sion of [the Commissioner] denying [her] claim for dis-

ability benefits,” or, “[i]n the alternative, that th{e] court

remand the case back to the [Commissioner] for proper

evaluation of the evidence or a hearing de novo.” Id. 37

(emphasis added). See also id. (“Plaintiff files this action

requesting the Court to reverse said decision or, in the

a:ternative, to remand this case for proper evaluation of

the evidence or a rehearing de novo * * *.”). The Dis-

trict Court granted outright the latter of the two forms of

alternative relief pleaded; it entered a judgment in favor

of Forney, setting aside the agency decision and remanding

for further proceedings to “determin[e] whether claimant

is entitled to benefits.” Pet. App. 25; see id. 14.

In support of her Section 405(g) claim, Forney argued

that the Commissioner’s decision was erroneous for four

independent, evidentiary reasons: (1) the ALJ improperly

discounted the treating physician’s testimony; (2) the ALJ

improperly discredited Forney’s pain testimony; (3) the

vocational expert's testimony was based on an erroneous

assumption about Forney’s physical ability; and (4) the

vocational expert incorrectly selected as available employ-

ment occupations requiring a residual function capacity

which Forney lacks. Jd. 21-22. Applying the “substantial

evidence” standard, the District Court rejected the first

three of these arguments. /d. 22-24. But it accepted the

fourth, and found that “the [Commissioner] has not sus-

tained [his] burden of showing that claimant can engage

in substantial gainful work in the economy, and the case

must be remanded.” /d. 25. On May 24, 1995, the Dis-

trict Court entered judgment in Forney’s favor, “remand-

nae to the [Commissioner] for further proceedings.” /d.

Although Forney secured the judgment and relief

prayed for in her complaint, she filed a timely notice of

appeal. On appeal, Forney did not request reversal or

vacatur of any aspect of the district court judgment in her

favor. Intead, she focused her attack squarely on the

Commissioner's decision to deny benefits—which, of

course, the District Court had already set aside—and ar-

gued that that decision was erroneous for the three addi-

tional reasons that Forney had advanced in the District

Court. See Pet. C.A. Br. 18. With regard to relief,

Forney requested in the appellate court that the “agency’s

decision should be reversed and remanded with instruc-

tions to find Forney disabled beginning June 7, 1991.” Jd.

35 (emphasis added). See id. 2 (“Forney appeals, and

requests a finding of disability and payment of benefits

**e *”

The Court of Appeals dismissed Forney’s appeal. It

first concluded that, under Sullivan v. Finklestein, supra,

the district court judgment must be regarded as “ ‘final,’

in a formalistic sense.” Pet. App. 10. “That fact, how-

3 As is customary, the District Court did not specify the precise

proceedings that must take place on remand. But the court stated

that the “further proceedings” should be “in accordance with [its]

opinion,” and, as noted, that opinion specifically held that the Com-

missioner had erred “in determining whether claimant is entitled

to benefits.” Pet. App. 24. As the government has indicated, it

is “likely” that the remand proceedings will involve tne presenta-

tion of “additional medical evidence or testimony in support of

[Forney’s}] application for benefits.” U.S. Br. 27.

ever, does not necessarily entitle Forney to appeal the dis-

trict court’s decision.” Jd. Indeed, as the court explained,

“{a] prevailing party normally may not appeal the deci-

sion in its favor.” Id. And there are “compelling reasons

* * * for declining to permit a claimant in Forney’s posi-

tion from appealing the remand order she succeeded in

obtaining,” including that such a claimant “may, on re-

mand, secure all of the relief she seeks,” rendering appel-

late review of the district court decision “wholly unnec-

essary.” Id. 11 (emphasis added).* At the same time,

the court cautioned, processing such an appeal could

“waste judicial effort, interfere unduly with the * * *

administrative agenc[y], and require * * * adjudicat[ion]

on a less than full record.” /d.

The only remaining issue was whether Forney—like the

Secretary in Finklestein—‘“must be allowed to appeal

th{e] issues now or [risk] forever los[ing] her right to

contest them.” Jd. 12. “The answer is ‘no.’” Id. If

Forney is denied benefits on remand, she may file an

action pursuant to Section 405(g), contesting any aspect

of the district court decision in this proceeding. Id. “It

is not surprising or unfair that, should Forney return to

district court after being denied benefits on remand, the

district court likely will adhere to its prior rulings.” Jd.

But, the court emphasized, Forney would not be barred

by preclusion principles from challenging those rulings in

an appeal in the subsequent action, because none of those

4 The Court of Appeals was careful to add that it was not pre-

sented with a situation where “a claimant is foreclosed by the

district court’s remand decision from part of the benefits sought.”

Pet. App. 10 n.5. Neither, of course, is this Court. As the Court of

Appeals emphasized, “the remand order [in this case] does not

foreclose the possibility of the claimant obtaining all of the relief

sought [on remand].” Jd. (emphasis in original). See id. 9

(“Forney possibly may obtain all the relief she seeks in the admin-

istrative proceeding on remand.”). See also U.S. Br. 25 (“[T]he

district court’s remand might ultimately result in an award of all

of the benefits claimed.”) (internal quotation marks omitted) ; U.S.

Cert. Resp. 9 (same).

rulings was necessary to the district court judgment in

this case. /d.° Thus, in the event she does not obtain the

claimed benefits on remand, Forney may obtain review of

the same “rulings that we do not permit her to appeal

today.” Id. 13.

On January 16, 1998, this Court granted a writ of cer-

tiorari. 118 S. Ct. 751. Shortly thereafter, it invited

amicus curiae to present argument in support of the judg-

ment below. /d. at 902.

SUMMARY OF ARGUMENT

Judgments entered pursuant to Section 405(g) are

“subject to review” according to the same principles gov-

erning the review of “judgment[s] in other civil actions.”

42 U.S.C. § 405(g). One of those principles is that “only

a party aggrieved by a judgment or order of a district

court” has standing to appeal it. Deposit Guaranty Nat'l

Bank v. Roper, 445 U.S. 326, 333 (1980). A related

principle is that courts “review[] judgments, not state-

ments in opinions.” California v. Rooney, 483 U.S. 307,

311 (1987) (per curiam) (internal quotation marks

omitted). These principles prevent a party who has se-

cured a judgment in her favor from appealing rulings or

findings unnecessary to that judgment, even if they could

possibly be adverse to the party’s long-term interests.

Application of these principles to Section 405(g) judg-

ments requires the dismissal of Forney’s appeal, and those

like it .

' The court explained: “The judgment that Forney has just

secured is a sentence-four remand to the Secretary. The district

court’s rulings against Forney on the issues of rejection of physi-

cian’s testimony, discrediting of Forney’s pain testimony, and inclu-

sion of Forney’s physical limitations in the expert’s hypothetical

questions, were all unnecessary to the remand. The remand was

based solely on the error of the vocational expert in testifying that

Forney could perform occupations requiring frequent or constant

reaching.” Pet. App. 13.

To begin with, Forney is not aggrieved by the district

court judgment and, thus, lacks standing to appeal it.

That judgment is entirely in Forney’s favor, and grants

outright one of the two forms of alternative relief prayed

for in her complaint. The district court’s refusal to grant

the other alternative, and to order the award of the

claimed benefits at this time, does not, in any event, in-

jure Forney because it is undisputed that she may yet

secure those benefits on remand. The testing of the effect

of the district court judgment must abide the proceedings

on remand; “only then,” if Forney is denied benefits,

“will [she] have been aggrieved.” Parr v. United States,

351 U.S. 513, 517 (1956). The time and expense of

litigating on remand—as opposed to pursuing an appeal

—does not confer standing upon Forney to appeal the

favorable district court judgment now. That is a neces-

sary, if non-utopian, consequence of attempting to secure

government benefits in a judicial system that lacks in-

exhaustible appellate resources.

Because Forney emphatically does not challenge the

judgment in her favor, her appeal also runs afoul of the

rule that courts review judgments, not statements in opin-

ions. She seeks to appeal the District Court’s refusal to

adopt the three additional reasons she gave in support of

setting aside the Commissioner’s decision. But those rul-

ings—embodied only by statements in the district court

opinion—are not necessary to the district court judgment

setting aside the agency decision and remanding for the

fourth reason given by Forney, and accordingly are not

subject to review in this proceeding. Moreover, the fact

that these statements may be regarded on remand as “law

of the case” does not make “review appropriate at this

stage.” California v. Rooney, 483 U.S. at 312-313. Be-

cause the challenged statements are not necessary to the

district court judgment, Forney will not be precluded from

challenging them in subsequent proceedings, which Forney

is free to initiate if she does not obtain the claimed bene-

fits on remand.

Practical and institutional considerations also counsel

in favor of barring appeals by claimants in Forney’s posi-

tion. Claimants who win Section 405(g) remand orders

are far more likely to secure the claimed benefits on

remand than in an appeal. If they do not prevail on

remand, they may obtain federal appellate review in a

subsequent Section 405(g) proceeding. On the other

hand, permitting immediate appeals will give hundreds or

even thousands of individuals each year the option to file

factually intensive and, in most cases, legally meritless

appeals. There is no compelling reason to saddle the

federal courts with such appeals, especially when they

are likely to be rendered “wholly unnecessary” (Pet. App.

11) if claimants are required to return to the agency

first. Requiring claimants who win Section 405(g) re-

mands to follow this course also accords proper respect to

SSA, the coordinate branch of government charged by

Congress with the responsibility for making social security

benefits determinations in the first instance.

The judgment of the Court of Appeals should be

affirmed.

ARGUMENT

I. SECTION 405(g) JUDGMENTS ARE “SUBJECT TO

REVIEW IN THE SAME MANNER AS * * * JUDG-

MENT([S] IN OTHER CIVIL ACTIONS.”

A district court judgment remanding to SSA for fur-

ther proceedings pursuant to sentence four of Section

405(g) is “subject to review in the same manner as a

judgment in other civil actions.” 42 U.S.C. § 405(g).

That follows from the express terms of sentence four of

Section 405(g)—which authorizes district courts “to en-

ter * * * a judgment affirming, modifying, or reversing

the decision of the Commissioner * * *, with or without

remanding the cause for a rehearing,” id. (emphasis

added)—and sentence eight of that provision—which

States that “[t]he judgment of the court shall be final

except that it shall be subject to review in the same man-

ner as a judgment in other civil actions,” id. (emphasis

added). See Goatcher v. Chater, 57 F.3d 980, 981 (10th

Cir. 1995) (adopting plain meaning construction of Sec-

tion 405(g)); O'Connor v. Shalala, 23 F.3d 1232, 1233

(7th Cir. 1994) (same); see also Connecticut Nat'l Bank

v. Germain, 503 U.S. 249, 254 (1992) (Congress “says

in a statute what it means and means in a statute what it

says”).°

Thus, as both Forney and the government acknowledge

in their cpening briefs, under the express terms of Section

405(g), the pertinent inquiry in determining whether

Forney may appeal the district court judgment in this case

is whether the judgment would be appealable by a party

in Forney’s position “in other civil actions.” 42 U.S.C.

§ 405(g). See U.S. Br. 17 (“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 judg-

ment in other civil actions.” Thus, proceedings under the

provision are subject to general principles of appellate

review, including the requirement that a party have stand-

ing to appeal.”); Pet. Br. 10-11, 12 (applying same con-

struction); U.S. Cert. Resp. 9 (looking to “princi

generally applicable to ‘other civil actions’”) (quoting

Section 405(g) ).”

* While legislative history is least probative when, as here, the

meaning of the statute is plain on its face, we note that the legisla-

tive history of Section 405(g) is silent on this particular point. See

H.R. Rep. No. 76-728, at 43 (1939); S. Rep. No. 76-734, at 52

(1939).

7In light of this Court’s decision in Finklestein, 496 U.S. at

624-628, it is unclear whether sentence eight’s “except” clause may

be construed to qualify whether a Section 405(g) judgment is

“final” in the first place. We note, however, that in other civil

actions the type of remand order entered below plainly would not

be final or appealable by a party in Forney’s position. “The courts

of appeals * * * have uniformly held that, as a general rule, a

remand order {to an agency] is ‘interlocutory’ rather than ‘final,’

and thus may not be appealed immediately (unless, of course, it is

_ As we explain below, that inquiry leads to the conclu-

sion that the Court of Appeals correctly dismissed Forney’s

certified pursuant to § 1292)."” Occidental Petroleum Corp. v. SEC,

873 F.2d 325, 329 (D.C. Cir. 1989); Director, Office of Worker.’

Compensation Programs v. Bath Iron Works Corp., 853 F.2d 1},

13-15 (1st Cir. 1988) (per curiam) (same); Bohms v. Gardner, 381

F.2d 283, 285 (8th Cir. 1967) (opinion by Blackmun, J.). Tha!

conclusion accords with this Court’s own finality precedents. Sve,

e.g., Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373

(1981); Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978).

The result in Finklestein is not to the contrary because it fits

within a corollary line of cases holding, primarily for practical rea-

sons, that administrative remand orders should be treated as if thev

were final when denying an immediate appeal could prevent the

agency from obtaining review altogether. See 496 U.S. at 625 (ex-

pressing “grave doubt” as to whether agency could obtain review of

adverse judgment if claimant prevailed on remand) ; see also, e.y.,

Travis v. Sullivan, 985 F.2d 919, 921-923 (7th Cir. 1993) ; Travelstead

V. Derwinski, 978 F.2d 1244, 1247-49 (Fed. Cir. 1992) ; Monongahela

Valley Hosp., Inc. v. Sullivan, 945 F.2d 576, 586 (3d Cir. 1991);

Colvin v. Sullivan, 939 F.2d 153, 155 (4th Cir. 1991). These cases

are the “exception to th{e] general rule” that remand orders are

not final or appealable. Occidental Petroleum Corp., 873 F.2d

at 330. The instant case falls outside the exception because it is

clear that Forney may obtain review if she does not prevail on

remand. See Part II.C, infra. Thus, quite unlike the Finklestein

paradigm, there is no compelling practical reason to treat the type

of remand order here as final.

Because of the settled rule in other civil actions that administra-

tive remand orders are not final or appealable except in the narrow

Finklestein context, we do not agree that holding that the judg-

ment below is non-final would be “analytically untidy.” Pet. App.

9. Quite the contrary, such a ruling would square perfectly with

existing precedent in other actions. Moreover, Congress’ use of the

qualifier “except,” rather than the conjunctive “and” (or the like)

immediately following “final” in the eighth sentence of Section

405(g) arguably indicates that it intended the finality of sentence-

four remands to be gauged in the same manner as the finality of

remands “in other civil actions.” The result, if not all the language.

in Finklestein accords with such a construction because, as ex-

plained, the type of remand in that case is appealable in other civil

actions. In any event, even assuming the judgment below must be

regarded as final under Section 405(g) and Finklestein, it still is

not subject to review for the reasons explained in Part Il, infra.

appeal because, in other civil actions, the judgment below

would not be subject to review by a party in Forney’s

position.

Il. IN OTHER CIVIL ACTIONS, THE JUDGMENT

ENTERED BELOW WOULD NOT BE APPEAL-

ABLE BY A PARTY IN FORNEY’S POSITION.

A. Forney Is Not Aggrieved By The District Court

Judgment, And Thus Lacks Standing To Appeal It.

As the government acknowledges (Br. 17-18), in other

civil actions it is well settled that “only a party aggrieved

by a judgment or order of a district court may exercise

the statutory right to appeal therefrom {under 28 U.S.C.

§ 1291].” Deposit Guaranty Nat'l Bank v. Roper, 445

U.S. at 333. “Th{is] rule is one of federal appellate

practice, * * * derived from the federal statutes granting

appellate jurisdiction and the historic practices of the

appellate courts.” /d. Under it, winning parties lack

“standing” to appeal judgments in their favor, and ap-

pellate courts, in turn, lack jurisdiction to hear such ap-

peals under Section 1291. See id.; Perez v. Ledesma, 401

U.S. 82, 87 n.3 (1971); Gunn v. University Comm. to

End the War in Viet Nam, 399 U.S. 383, 390 n.5 (1970);

Public Serv. Comm'n v. Brashear Freight Lines, Inc., 306

U.S. 204, 206-207 (1939) (per curiam); 15A Charles

A. Wright, Arthur R. Miller & Edward H. Cooper, Fed-

eral Practice and Procedure § 3902 (2d ed. 1992).*

Applying this settled rule, the Court of Appeals below

correctly held that Forney lacks standing to appeal. See

* Scores of lower court precedents are to the same effect. See,

e.q., Concerned Citizens of Cohocton Valley, Inc. v. New York State

Dep't of Envt’l Conservation, 127 F.3d 201, 204 (2d Cir. 1997);

In re DES Litig., 7 F.3d 20, 23-25 (2d Cir. 1993); In re Sims,

994 F.2d 210, 214 (5th Cir. 1993), cert. denied, 510 U.S. 1049

(1994): Showtime Networks Inc. v. FCC, 932 F.2d 1, 4-5 (D.C.

Cir. 1991); Farr v. Gruber, 950 F.2d 399, 401 (7th Cir. 1991);

Bath Iron Works Corp. v. Coulombe, 888 F.2d 179, 180 (ist Cir.

1989) (per curiam).

Pet. App. 10-13. To begin with, Forney indisputably

“won” in the District Court. In her complaint, she asked

the District Court “to reverse said decision or, in the

alternative, to remand this case for proper evaluation of

the evidence or a rehearing de novo.” J.A. 37. The Dis-

trict Court granted the alternative relief outright, entering

a judgment setting aside the agency decision and remand-

ing for further proceedings. Pet. App. 14, 25. This is,

to borrow a phrase, a “substantial victory.” See U.S. Br.

in Sullivan v. Finklestein, No. 89-504, at 21 n.17 (“[T]he

district court’s order finding the Secretary’s decision to

have been legally erroneous and remanding the cause to

the Secretary for further proceedings generally represents

a substantial victory for a claimant.”) (emphasis added) ;

see also Shalala v. Schaefer, 509 U.S. 292, 302 (1993)

(“A sentence-four remand, of course, is a judgment for

the plaintiff.”) (emphasis in original) .°

It is easy to see why this is so. It is undisputed that

the “remand might ultimately ‘result in an award of all

of the benefits claimed.’” U.S. Br. 25 (quoting Pet. App.

10) (emphasis added); see U.S. Cert. Resp. 9 (same).

The receipt of such benefits, moreover, is not simply pos-

sible, it is—as the government emphasizes—probable. See

U.S. Br. 28 (“claimants historically have very good pros-

pects of fully prevailing on remand”). Statistics show that

“following additional development of the record on re-

mand, benefits are awarded in approximately 65% of

Social Security cases that are remanded to the Secretary.”

U.S. Cert. Resp. 10 (internal quotation marks omitted);

U.S. Br. 28 (“benefits are awarded in approximately 60%

of Social Security cases remanded”). Furthermore, as

explained below, in the event Forney does not obtain the

*In this regard, Forney stands in an entirely different position

than the Secretary in Finklestein. Forney won her action: the

Secretary in Finklestein lost. Indeed, the judgment in Finklestein

not only set aside the Secretary's disability determination, but also

“essentially invalidated * * * the Secretary’s regulations.” 496 U.S.

at 623-625.

claimed benefits on remand, she may return to federal

court and obtain review of the district court rulings she

seeks to challenge here. See Part II.C, infra.

Under a common sense approach to the appellate stand-

ing inquiry, therefore, it follows that Forney was not ag-

grieved by the district court judgment in her favor and,

accordingly, may not “exercise the statutory right to ap-

peal therefrom.” Roper, 445 U.S. at 333.”

Forney and the government nevertheless insist that For-

ney is aggrieved by the ruling below, and thus has standing

to appeal it, because the District Court did not reverse

“outright.” Pet. Br. 18; U.S. Br. 22-23. There are several

problems with this position, beginning with the fact that,

at least as a matter of pleading, Forney got everything she

asked for when the District Court set aside the agency

decision and remanded. Federal Rule of Civil Procedure

8(a) gives plaintiffs the right to seek “[rJelief in the alter-

‘© In addition to meeting the requirements of “the [federal] stat-

utes granting appellate jurisdiction and the historic practices of

the appellate court,” Roper, 445 U.S. at 333, Forney—like all federal

court litigants—must also satisfy the requirements of Article III

of the Constitution. See 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”). Because, for

the reasons discussed, Forney is not aggrieved by the substantial

victory she secured, she no longer meets Article III's “injury in

fact” requirement. See Steel Co. v. Citizens for a Better Env’t, 66

U.S.L.W. 4174, 4179 (U.S. Mar. 4, 1998) (Article III requires

“{flirst and foremost, [that] there must be alleged (and ultimately

proven) an ‘injury in fact’—a harm suffered by the plaintiff that is

‘concrete’ and ‘actual or imminent, not conjectural or ‘hypotheti-

cal.’") (internal quotation marks omitted) ; Affiliated Ute Citizens

of State of Utah v. Ute Indian Tribe of Uintah & Ouray Reservation,

22 F.3d 254, 256 (10th Cir. 1994) (prevailing party lacks Article III

standing to appeal judgment in its favor). But this Court need not

reach that constitutional question because, as we explain, Forney

lacks standing to appeal under the non-constitutional principles rec-

ognized in Roper. See 445 U.S. at 333 (rule that prevailing par-

ties may not appeal “does not have its source * * * in Art, III,”

but rather in statutory and common law principles).

native.” Fed. R. Civ. P. 8(a). Forney did just that: she

asked the court “to reverse * * * or, in the alternative,

to remand * * *.” J.A. 37 (emphasis added). “[Hjaving

received the alternative relief [she] requested, [Forney]

cannot now complain that the court did not grant [the

other alternative].” Star Fin. Servs., Inc. vy. AASTAR

Mortgage Corp., 89 F.3d 5, 12 (1st Cir. 1996)." Because

Forney in fact “receive[d] all that [s]he has sought,” she

“is not aggrieved by the judgment affording relief and

cannot appeal from it.” Roper, 445 U.S. at 333."

In any event, Forney is not aggrieved by the District

Court’s refusal to grant the other form of alternative relief

and to order that she is entitled to the requested benefits

outright because, as all agree, she may yet secure those

benefits on remand. Unless or until Forney is denied those

" See also Southern Natural Gas Co. v. FERC, 877 F.2d 1066,

1070 (D.C. Cir. 1989) (petitioner that received one of two forms of

alternative relief was not “aggrieved by [fagency|]’s rejection cf

fone alternative] in any way that is redressible by this court’) ;

United States v. Ligori, 658 F.2d 180, 134 (3d Cir. 1981) ( Higgin-

botham, J., concurring) (“[party] received the alternative relief

which he requested and is entitled to no more”); Jn re Yarn Proc-

essing Patent Validity Litig., 530 F.2d 83, 88 (5th Cir. 1976)

(“motion [was] moot because [movant] had obtained the full

measure of the alternative relief requested”); Manufacturers Credit

Corp. Vv. SEC, 395 F.2d 833, 846 (3d Cir. 1968) (parties lack stand-

ing to appeal order that grants one form of alternative relief,

while preserving opportunity to secure other alternative in later

proceedings).

'’ Both Forney (Br. n.4) and the government (Br. 22) belatedly

and self-servingly characterize Forney’s remand request as “alter-

native and lesser” relief. (Emphasis edded.) No such characteri-

zation was made in Forney’s actual prayer for relief; in pertinent

part, the complaint simply requests one of two alternative forms of

relief—(A) reversal, or (B) an order setting aside the agency

decision and remanding for another hearing. See J.A. 37. Only

after the District Court granted alternative B did Forney insist

upon alternative A.

benefits on remand, she is not injured by a judgment

that presents her with the opportunity to secure the re-

quested relief in its entirety.

This is the lesson of Parr v. Uni. 4 States, supra. In

that case, a criminal defendant (Parr) sought to appeal

the dismissal of an indictment, over his “vigorous opposi-

tion,” with the dismissal followed by a subsequent indict-

ment and trial in a foreign district. 351 U.S. at 515 &

n.7. Emphasizing that “[o]nly one injured by the judg-

ment sought to be reviewed can appeal,” Justice Harlan,

writing for the Court, explained that “an appeal from [the

indictment’s] dismissal will not lie.” /d. at 516. Parr was

not “injured” by the dismissal order because it was “in his

favor.” Id. at 517. “So far as [Parr]’s standing to appeal

is concerned,” the Court explained, “it makes no differ-

ence [that] the dismissal still leaves him open to further

prosecution.” Jd. “The testing of the effect of the dis-

missal order must abide [Parr]’s trial, and only then, if

convicted, will he have been aggrieved.” /d. (emphasis

added). The fact that this forced Parr “to hazard a trial

under the [second] indictment before he can get a review

of whether he should have been tried * * * under the

[first] indictment” did not alter the result. /d. at 519.

Here, too, the testing of the effect of the district court

judgment in Forney’s favor must abide the proceedings

on remand. “[O]nly then,” if Forney is denied the bene-

fits she claims the District Court should have awarded out-

right, “will [s]he have been aggrieved” by the judgment.

Id. at 517. Moreover, as in Parr, the fact that this con-

clusion subjects Forney to the time and expense of addi-

tional proceedings on remand does not confer standing

upon her to appeal from the judgment setting aside

the agency decision. Indeed, any burden borne by Forney

in this regard is slight in comparison to the “discomfiture

and costs of a prosecution for crime,” which Parr faced

before he would possess standing to obtain review of the

favorable order he claimed aggrieved him. Jd. at 519-

520 (emphasis added). At this point, in other words, any

“injury” stemming from the District Court’s refusal to

order an immediate award of the claimed benefits is simply

too speculative to confer standing upon Forney to appeal.

The rationale of Parr accords with lower court decisions

holding that parties who succeed in obtaining an agency

decision reversing and remanding for further administra-

tive proceedings are not sufficiently “aggrieved” to obtain

federal court review. Thus, for example, in CH2M Hill

Central, Inc. v. Herman, 131 F.3d 1244 (7th Cir. 1997),

a company petitioned under 29 U.S.C. § 660(a) for re-

view of an order issued by the Occupational Safety and

Health Review Commission (Commission), reversing an

ALJ ruling that the company was not subject to penalties

and remanding for further proceedings that might result in

imposition of penalties. Section 660(a) permits “[a]ny

person adversely affected or aggrieved by an order of the

Commission” to appeal the order directly to a federal cir-

cuit court. Jd. Writing for the court, Judge Easterbrook

had little difficulty in concluding that the company did not

meet that standard. As he put it, “[fJor all we know [the

company] will prevail on remand, and the Commission’s

opinion will cause it no injury—none, that is, beyond the

cost of litigation (which does not permit review) * * *.”

131 F.3d at 1247. The same, of course, is true with re-

spect to Forney’s situation here.”

18Cf. Director, Office of Workers’ Compensation Programs V.

Bath Iron Works Corp., 853 F.2d at 14 (“Because the [arency] did

not purport definitively to resolve the controversy between the

parties, but instead remanded to the ALJ for further proceedings,

the present order did not close out the case. No legal consequences

flowed directly and inexorably from it. To the contrary, the order

contemplated that something further needed to be done.”) ; United

States Office of Personnel Management v. FLRA, 905 F.2d 430, 435 —

(D.C. Cir. 1990) (Silberman, J., concurring) (parties successful

before the agency did not become aggrieved until agency in fact

changed its position after remand) ; Stripe-A-Zone v. Occupational

While relegating Parr to a naked “But cf.” citation

(U.S. Br. 21 n.11), the government cites several lower

court cases for the proposition that courts “routinely enter-

tain appeals by parties who prevailed on the merits but

were nonetheless aggrieved because they did not obtain all

the relief they requested.” Jd. 21 n.12. In none of these

cases, however, did the appellant still have the opportunity

to secure the denied relief on remand, or in other proceed-

ings yet to come. Instead, in each of the cited cases, the

district court had denied the requested relief, there was no

opportunity left to obtain that relief, and the only avenue

of challenging the denial was immediate appellate review.

These cases are wholly inapposite where, as here, the chal-

lenged decision affords the appellant an opportunity to

secure all the relief to which she claims she is entitled in

further proceedings expressly contemplated by the chal-

lenged decision.* Accordingly, they do not alter the con-

Safety & Health Review Comm'rs, 643 F.2d 230, 233 (5th Cir. 1981)

(per curiam) (dismissing petition for review of agency remand

order on ground that petitioner with opportunity to prevail on

remand was not “aggrieved” ).

'* Deposit Guaranty National Bank v. Roper, supra, is distin-

guishable on similar grounds. In that case, the Court held that

class action plaintiffs had standing to appeal denial of class certifi-

cation, even though judgment had been entered in the plaintiffs’

favor. The Court grounded its standing holding on the fact that,

if the class were certified, plaintiffs would be able to shift part of

the litigation costs to other class members. Sce 445 U.S. at 334

n.6. The significant financial consequences of the order denying

certification were fixed; there was no opportunity for the plaintiffs

in Roper to challenge that ruling in further proceedings yet to come.

Roper is distinguishable in two additional respects. First, the

judgment in that case was entered “over [plaintiffs’] continued

objections,” as the result of the defendant’s decision to tender the

requested relief to plaintiffs individually, rather than face a class

action. 7d. at 332. The appellant in this case, by contrast, spe-

cifically requested the judgment she received, albeit in the alterna-

tive. Second, the plaintiffs in Reper sought to appeal only to obtain

review of a “procedural error, not for the purpose of | challenging |

the merits of the substantive controversy,” and the Court spe-

cifically limited plaintiffs’ right to appeal as such. Jd. at 336 (em-

clusion that Forney lacks standing to cliallenge the remand

order she secured.”

B. Forney Does Not Challenge The District Court

Judgment, But Rather Statements Unnecessary To

That Judgment.

Forney’s appeal also runs afoul of another basic princi-

ple governing appeals in other civil actions: courts “re-

view[] judgments, not statements in opinions.” California

Vv. Rooney, 483 U.S. at 311 (internal quotation marks

omitted). See U.S. Br. 18; Chevron U.S.A., Inc. Vv.

phasis added). The appellant here, by contrast, seeks review only

of issues going to the “substantive controversy.”

Contrary to the suggestion of Forney (Br. 24), it is by no

means clear that outright reversal is even available relief in this

case, In reviewing a decision to deny benefits under Section 405(g),

a federal court may not reweigh the evidence or make sua sponte

disability determinations; Congress vested that responsibility in the

agency. See, e.g., Nelson v. Apfel, 181 F.3d 1228, 1234 (7th Cir.

1997) ; Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Thus,

as the government observes (Br. 29), outright reversal is available

“only in limited circumstances,” such as where “all essential factual

issues have been resolved.” Faucher v. Secretary of Health &

Human Servs., 17 F.3d 171, 176 (6th Cir. 1994). Due to the nature

of the challenges made and the record developed in this case, out-

right reversal—as the government has argued all along—is simply

not feasible. See U.S. Br. 25 n.15; U.S. C.A. Br. 14-22. Indeed,

even with respect to the argument that Forney won below, a remand

is plainly necessary so that additional evidence may be taken on

whether employment opportunities exist for someone with Forney’s

ability. A federal court (especially an appellate one) may not sim-

ply make that determination de novo. See FPC v. Idaho Power Co.,

344 U.S. 17, 21 (1952) (court lacks “power to exercise an essen-

tially administrative function”) ; Faucher, 17 F.3d at 176 (remand

required where vocational expert's testimony was based on errone-

ous assumption as to claimant’s ability). Similarly, the other issues

raised by Forney—especially those concerning witness credibility

findings, see Pet. App. 21-22—are scarcely the type of challenges

that, even when credited, lend themselves to outright reversal by a

court lacking the authority to reweigh the evidence.

NRDC, Inc., 467 U.S. 837, 842 (1984) (“since this

Court reviews judgments, not opinions, we must determine

whether the Court of Appeals’ legal error resulted in an

erroneous judgment”) (footnote omitted); Hutto v. Davis,

454 U.S. 370, 384-385 n.2 (1982) (per curiam) (“[T)his

Court reviews judgments, not opinions, and therefore can

reverse [a] judgment * * * only if it is not sustainable on

any basis.”); accord Owens-Illinois, Inc. v. Aetna Cas. &

Sur. Co., 990 F.2d 865, 875 (6th Cir. 1993). This rule

prevents a party such as Forney who has secured a favor-

able judgment from bringing an appeal arguing that the

court should have decided the case based on additional or

alternative reasons than those set forth in the opinion

accompanying the judgment.”*

Thus, in Californa ¥. Rooney, supra, this Court de-

clined to review a state court decision holding that evi-

dence found in a trash bin was insufficient to establish

probable cause for a search warrant, where the decision

held that probable cause was established on other grounds.

As the Court observed, “the judgment of the Court of

Appeal was-enfirely in the State’s favor—the search war-

rant which was the sole focus of the litigation was deemed

valid.” 483 U.S. at 311. “The fact that the Court of

same principles undergirding the appellate standing doctrine. As

a result, courts often invoke both principles in dismissing appeals.

See, e.g., Concerned Citizens of Cohocton Valley, Inc. v. New York

State Dep't of Envt’'l Conservation, 127 F.3d at 204 (“[I]f a court

grants the ultimate relief a party requested, even though on grounds

other than those urged by the prevailing party, that party is

generally not ‘aggrieved’ by the judgment and may not appeal.’’)

(citation omitted) ; Penda Corp. v. United States, 44 F.3d 967, 972

(Fed, Cir. 1994) (“Courts * * * have not recognized standing to

appeal where a party does not seek reversal of the judgment but

asks only for review of unfavorable findings.”’), cert. denied, 514

U.S. 1110 (1995) ; Allstate Ins. Co. v. A.A. McNamara & Sons, Inc.,

1 F.3d 133, 187 (2d Cir. 1998) (appellant lacks standing where she

“is not urging that we alter the judgment in any way, but rather

that we alter the reasons underlying it’).

Appeal reached its decision through analysis different than

this Court might have used does not make it appropriate

* * * for the prevailing party to request us to review it.”

Id. Moreover, the fact that the reasons given by the lower

court for reaching its judgment “may [be] adverse to the

State’s long-term interests does not allow the State to

claim status as a losing party for purposes of th[{e] Court's

review.” Id.

Forney’s appeal fails under the reasoning of Rooney

and similar cases because she emphatically does not seek

to appeal the district court judgment in her favor. See

Pet. Br. 28 (“Petitioner seeks to appeal not from the

remand order itself, but from the adverse rulings on issues

upon which the district court declined to grant relief.”)

(emphasis in original). The “adverse rulings on issues”

(id.) that Forney does seek to appeal consist of the Dis-

trict Court’s refusal to credit the three additional, eviden-

tiary arguments she made in support of her claim. But

those rulings are not found in—and are not necessary to

—the district court judgment setting aside the Commis-

sioner’s decision based on the fourth argument Forney

made for doing so. See Pet. App. 14." Rather, they are

'T As the Court of Appeals found, the district court judgment

“was based solely on the error of the vocational expert in testifying

that Forney could perform occupations requiring frequent or con-

stant reaching,” Pet. App. 13, just as the judgment in Rooney was

based solely on the non-trash evidence offered to establish probable

cause. None of the findings or rulings that Forney seeks to chal-

lenge here was necessary to that judgment; indeed, those rulings—

which reaffirm aspects of the Commissioner’s decision—are contrary

to the judgment setting aside that decision. See id., quoted note 4,

supra; Fletcher v. Atex, Inc., 68 F.3d 1451, 1458 (2d Cir. 1995).

See also 18 Wright & Miller, supra, § 4421, at 199 (“findings that

are contrary to the judgment in the sense that, standing alone, they

would conduce to an opposite judgment * * * have long been

accepted as paradigms of * * * unnecessary conclusions [to the

judgment)”) (emphasis added). This should come as little surprise:

“a finding adverse to an otherwise fully prevailing party will rarely

be necessary to the judgment.” 20 James W. Moore, Moore’s Fed-

22.

simply statements in the district court opinion, which,

under the settled rule, are not by themselves appealable.

Forney argues (Br. 18, 28 & n.16) that she must be

permitted to appeal these statements because they may

adversely affect her on remand.”* That is to say, if Forney

does not obtain the claimed benefits on remand, and if

she then tries to argue that she is entitled to those bene-

fits for the three additional reasons the District Court

rejected, she contends she is likely to be barred from doing

so under the “law of the case” doctrine. Pet. Br. 28 n.16;

see U.S. Br. 24. As this Court held when confronted with

essentially the same argument in Rooney, however, “|{t}here

are two too many ‘ifs’ in that proposition to make * * *

review appropriate at this stage.” 483 U.S. at 312-313.

Moreover, as in Rooney, “[e]ven if everything [Forney]

fears comes to bear,” id., she will have an opportunity to

seek review in subsequent proceedings. See Part II.C,

infra. The fact that the district court decision is likely to

be treated as “law-of-the-case” in the meantime “provides

no justification for * * * granting review at this stage.”

483 U.S. at 312 n.2. .

Furthermore, the notion that a party is entitled to imme-

diate review of any ruling that may “affect the character

of * * * further proceedings” (U.S. Br. 23) is far-fetched.

Courts routinely make rulings that have as much and, in-

eral Practice and Procedure § 308.10[2][b], at 303-20 to 303-21 (2d

ed. 1997) (emphasis added).

'*The government seems to take conflicting positions on this

point: on the one hand, it argues that Forney has standing to

appeal because she will be “adversely affected by the[] rulings in

the course of further proceedings,” U.S. Br. 24, but, on the other

hand, it posits that Forney “is entitled to appeal the court’s remand

order, not because of putative preclusive effects, but because

[Forney] challenges a final judgment that did not grant her all the

relief she requested.” Jd. 31 (emphasis added). It is unclear which

of these seemingly juxtaposed positions is the government’s bottom

line.

deed, far greater impact on the course of future proceed-

ings than the type of evidentiary rulings Forney seeks to

challenge here, including rulings dismissing claims out-

right, e.g., Jefferson v. City of Tarrant, 118 S. Ct. 481

(1997), and directing dispositive findings, e.g., Baker Vv.

General Motors Corp., 86 F.3d 811 (8th Cir. 1996),

rev'd on other grounds, 118 S. Ct. 657 (1998). Yet the

fact that this requires parties to endure the time and ex-

pense of having to litigate under such terms before obtain-

ing appellate review is invariably deemed to be insufficient

to render their objections immediately appealable, so long

as the parties eventually will have an opportunity to ob-

tain such review, as all agree Forney will here.” The ever

burgeoning workload of the appellate courts demands

such a rule. See infra at 31-32.

The particular manner in which Forney framed her

appeal also underscores the impropriety of that appeal

under the rule that courts only review judgments. No-

where in her appellate brief did she ask the Court of

Appeals to reverse or vacate the district court judgment.

Cf. In re DES Litig., 7 F.3d at 25 (dismissing appeal

where, as here, “appellate brief does not ask [court] to

” Cf. Jefferson v. City of Tarrant, 118 S. Ct. at 486 (“however

incorrect” state court's dismissal of federal civil rights claim may

be, plaintiffs must proceed with trial on state law count before they

may challenge in Supreme Court dismissal of the federal count) ;

Parr v. United States, 351 U.S. at 519 (plaintiff must “hazard a

trial under the [second] indictment before he can get a review of

whether he should have been tried in [his home district] under

the [first] indictment”) ; Virginia Military Inst. v. United States,

508 U.S. 946 (1993) (Opinion of Scalia, J., respecting denial of

petition for writ of certiorari) (state must complete elaborate

trocess of developing plan to cure constitutional violation before it

may obtain review of question whether vioiation exists in first

place); CH2M Hill Central, Inc. v. Herman, 131 F.3d at 1247 (com-

pany facing administrative penalties must complete remand proceed-

ings before it may obtain review of standard under which remand is

conducted).

vacate any portion of the judgment”) (emphasis in origi-

nal). The reason is simple: the judgment was entirely in

her favor. Instead, Forney directed her appeal to the Com-

missioner’s decision to deny benefits and, when it came

to stating the requested relief, she asked that the “agency's

decision be reversed and remanded with instructions

to find Forney disabled beginning June 7, 1991.” Pet.

C.A. Br. 35 (emphasis added). But the Court of Ap-

peals could do no such thing. Except where Congress

directs otherwise, the federal courts of appeals sit to re-

view district court judgments, not agency decisions. That

is the case here. Section 405(g) is addressed explicitly

to the “district court[s]”; it confers no special powers on

the courts of appeals. 42 U.S.C. §$ 405(g). See O’Con-

nor V. Shalala, 23 F.3d at 1234 (Section 405(2) confers

remedial authority on district courts, not courts of appeals).

Finally, contrary to the suggestion of the government

(Br. 31-32), this Court’s decision in Electrical Fittings

Corp. Vv. Thomas & Betts Co., 307 U.S. 241 (1939), is

of no avail to Forney. In that case, the Court held that

a prevailing party may have standing to appeal a judg-

ment in its favor in the narrow circumstance where the

“decree itself” purports to adjudicate an issue adversely

to the prevailing party. Jd. at 242. In such circumstances,

the Court held. the prevailing party may appeal “to have

this portion of the decree eliminated,” and the court of

appeals has “jurisdiction * * * to entertain the appeal,

not for the purpose of passing on the merits, but to direct

reformation of the decree.” Jd. (emphases added).

Forney does not come within, or even close to, the rule

of Electrical Fittings because she does not challenge any

aspect of the district court judgment (and the rulings she

does challenge are neither contained within nor necessary

to that judgment), but instead seeks to appeal solely for

the purpose of having the court “pass{] on the merits”

(id.) of her benefits claim. See supra at 21; Concerned

Citizens of Cohocton Valley, Inc., 127 F.3d at 205 n.3

(distinguishing Electrical Fittings on similar grounds) ; In

re DES Litig., 7 F.3d at 25 (same).”

This Court's decision in Electrical Fittings is neverthe-

less instructive because it helps explain why Forney’s (Br.

17-18) and the government’s (Br. 19-20) reliance on

United States v. Jose, 117 S. Ct. 463 (1996) (per

curiam), is misplaced. In Jose the Court reinstated an

appeal by the Internal Revenue Service (“IRS”) from a

district court decree which, while upholding the agency’s

authority to enforce a summons, “ ‘require[d] [it] to give

[the subject of the summons] five days notice if it decides

to circulate or transfer the summonsed documents.’” Pet.

App. in United States v. Jose, No. 95-2082, at 19a (dis-

trict court decree); see 117 S. Ct. at 464. The appeal

was aimed solely at the five-day notice requirement. Be-

cause that requirement was not only necessary to but con-

tained within the “decree itself,” the IRS was entitled to

bring an appeal “to have this portion of the decree elimi-

nated.” Electrical Fittings, 307 U.S. at 242. That result,

however, does nothing to advance Forney’s case: the rul-

ings she challenges are neither contained within nor neces-

sary to the judgment in her favor. See Pet. App. 14.

Jose is distinguishable in another significant respect.

The appellant in Jose was obviously aggrieved by the dis-

trict court decree imposing the notice requirement. As the

government explained in its petition for a writ of certiorari

2° As this Court observed in Roper, the result in Electrical Fit-

tings is explainable on an alternative basis, which also distinguishes

it from this case: “[i]n a sense, the petitioner in Electrical Fittings

sought review of * * * [a] procedural error,” “not * * * the merits

of the substantive controversy,” and the Court determined that it

was important, “for policy reasons,” to allow the appeal to proceed.

445 U.S. at 335-336 & n.7. The appeal in this case, by contrast, is

directed squarely to the merits of the “substantive controversy”

—not any procedural error—and, as discussed in Part III, infra,

policy considerations cut decisively against allowing it.

in that case, the decree’s notice requirement “imposes in-

junctive restrictions on the internal use of summoned in-

formation by the [IRS].” Pet. 10. “If the government does

not comply with the injunction, its attempt[] to disclose

the documents would be punishable by contempt.” Id. 13

n.4 (internal quotation marks and emphasis omitted;

brackets in original). The district court judgment in this

case, by contrast, imposes absolutely no restrictions (in-

junctive or otherwise) on Forney, and certainly does not

subject her to possible criminal liability. Quite the con-

trary, the judgment presents her with an opportunity to

secure the very benefits she seeks. Thus, to the extent that

Jose sheds any light on the appellate standing question in

this case, it simply underscores that Forney is not ag-

grieved.™

C. The Challenged Statements Are Reviewable In

Later Proceedings If Forney Does Not Prevail

On Remand.

Forney (Br. 13-14, 25) argues that she must be en-

titled to bring the instant appeal because a sentence-four

remand “terminate[s] the civil action.” Sullivan v. Finkle-

stein, 496 U.S. at 625; accord Shalala v. Schaefer, 509

U.S. at 299. While it is true that the judgment below

terminates this action, this should have no bearing on

Forney’s standing to appeal it. If a party lacks standing

to appeal because she is not aggrieved by a judgment, or

impermissibly seeks to challenge findings or rulings unnec-

essary to that judgment, standing is not automatically con-

ferred simply because dismissal of the appeal will result in

the termination of the underlying action. See, e.g., Parr

21 While Jose is instructive in this regard, we note that the

Court’s summary disposition in that case was in fact based on

“ripeness,” not appellate standing principles. See 117 S. Ct. at

464-465. Indeed, the government itself framed the question pre-

sented in Jose solely in terms of “ripeness.” See Pet. (1). The

government’s and Forney’s reliance on Jose in the instant case is

misplaced for this reason, too.

v. United States, 351 U.S. 513 (no standing to appeal

order that results in termination of criminal proceeding) ;

In re DES Litig., 7 F.3d 20 (no standing to appeal order

that results in termination of civil action); Balcom v.

Lynn Ladder & Scaffolding Co., 806 F.2d 1127 (1st Cir.

1986) (per curiam) (same). The appellate standing doc-

trine, in other words, is not subject to the exception that

every party is entitled to one appeal per action; such an

exception would swallow the rule.”

The pertinent point—which is not disputed by Forney

or the government, and which distinguishes this case from

Finklestein—is that, in the event Forney is aggrieved by

the subsequent rulings below (i.e., if she does not obtain

the claimed benefits on remand), she will have an oppor-

tunity at that time to obtain review of the unnecessary

Statements or rulings she seeks to appeal here. As the

Court of Appeals explained, if Forney does not obtain

the requested benefits on remand, she may initiate a sec-

ond Section 405(g) action challenging the Commissioner’s

decision. See Pet. App. 12-13. In that proceeding, “the

district court will likely adhere to its prior rulings.” Pet.

App. 12; see supra at 22. But nothing will prevent

Forney from obtaining appellate review in the second ac-

= Forney (Br. 18, 22) cites Moses H. Cone Memorial Hospital

v. Mercury Construction Corp., 460 U.S. 1, 12 (1988), and Brown

Shoe Co. Vv. United States, 370 U.S. 294 (1962), in support of her

argument that, because the district court judgment terminates the

action, she must be entitled to review here. But those cases turned

in relevant part on finality—not standing—principles. There was

no question in either case that the parties seeking to appeal were

aggrieved by the lower court judgments at issue. See 460 U.S. at

7, 12 (refusing appellant's request to stay arbitration and stay fed-

eral action for completion of state proceedings that would dispose of

federal action) ; 370 U.S. at 304 (ordering appellant to divest itself

of merged assets). In Moses H. Cone, moreover, the Court empha-

sized that “the order [at issue] would be entirely unreviewable if not

appealed now.” 460 U.S. at 12. Neither case, accordingly, sheds any

light on the question whether a prevailing party in Forney’s position

is entitled to appeal the judgment in this case.

tion of “the issues decided against her in her first, final

civil action, in which she ‘prevailed.’” Pet. App. 12.

This follows from two settled principles of preclusion

law: first, a party may not be bound by rulings she was

not permitted to appeal, see id.; Restatement (Second) of

Judgments § 28(1) (1982) (preclusion unavailable where

“party against whom preclusion is sought could not, as a

matter of law, have obtained review of the judgment in

the initial action”) (collecting cases); and, second, a

party may only be bound by rulings that are necessary to

the judgment in the prior case, see Pet. App. 12-13; 18

Moore, supra, § 132.03[4][a], at 132-105 (“Relitigation

of an issue * * * in a prior case * * * is not foreclosed if

the decision of the issue was not necessary to the judg-

ment reached in the prior litigation.”) (collecting cases).

In light of these principles, it is settled that a prevailing

party may not be bound in a subsequent action by un-

necessary rulings or findings contained in the decision re-

sulting in judgment in the party’s favor in the prior ac-

tion.”

The fact that the opportunity for review would arise in

a “new civil action” (Pet. Br. 13) does not alter the con-

clusion that Forney lacks standing to appeal in this pro-

ceeding. Cf. Parr v. United States, 351 U.S. at 515 (de-

23 See, e.g., Partmar Corp. v. Paramount Pictures Theatres Corp.,

347 U.S. 89, 99 n.6 (1954) (“when a finding of law or fact is not

necessary for a decree * * * the prevailing party may not appeal

and the finding does not form the basis for collateral estoppel’’) ;

Gelb v. Royal Globe Ins. Co., 798 F.2d 38, 44 (2d Cir. 1986) (“a

winning party may not appeal issues determined adversely to it by

the trial court and, as a consequence, is not barred from relitigating

such issues [later]”), cert. denied, 480 U.S. 948 (1987); Balcom

v. Lynn Ladder & Scaffolding Co., 806 F.2d at 1127 (“short and

conclusive answer” to winning party’s concern about adverse find-

ing in favorable judgment “is that the challenged finding has no

collateral estoppel effect, for it was not essential to the favorable

judgment”) ; 18 Wright & Miller, supra, § 4433, at 317 (1st ed. 1981)

(same).

fendant lacks standing to appeal from dismissal of crim-

inal indictment, even though any challenge to that dis-

missal would have to be brought in an appeal from a

“new indictment” in a separate proceeding). Indeed, it

is invariably the case that, unless a prevailing party is

entitled to immediate review of unnecessary rulings or

findings contained in an opinion accompanying a final,

appealable judgment in its favor, the party will be forced

to challenge them in a separate action—in the event, that

is, such rulings or findings in fact are later asserted against

the party. See, e.g., cases cited at note 23, supra. But “it

has been concluded that it is better to deny appeal and

forbid preclusion than to permit appeal in order to sup-

port preclusion.” See 15A Wright & Miller, supra, § 3902,

at 83 & n.43 (1992). There is no reason to adopt a dif-

ferent practice here.”

Ill. PRACTICAL AND INSTITUTIONAL CONSIDERA-

TIONS COUNSEL IN FAVOR OF HOLDING THAT

A PARTY IN FORNEY’S POSITION MAY NOT

APPEAL.

Because the district court judgment below is not ap-

pealable under the principles governing the review of judg-

ments in other civil actions, it is not appealable in this

Section 405(g) action either. See Part I, supra. The

Court need not go any further and, indeed, in light of

Congress’ express direction that Section 405(g) judgments

are “subject to review in the same manner as a judgment

* Forney’s argument also elevates form over substance. As

the government has observed, “[a]lthough 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.” See U.S. Br. 33 (emphasis

added). In other words, while the two Section 405(g) actions may

be distinct, there is no practical reason to treat the second action

any differently, for present purposes, than a second appeal in the

same administrative proceeding concerning the same application for

social security benefits.

in other civil actions,” 42 U.S.C. § 405(2) (emphasis

added), should not go any further in deciding ah te.

Nevertheless, contrary to the suggestion of the govern-

ment (Br. 26-34), policy considerations support, not

undermine, the conclusion that a party in Forney’s posi-

tion may not appeal.

After devoting most of its efforts to arguing that claim-

ants in Forney’s position should be entitled to appeal, the

government switches its tack and argues that the practical

consequences of such a ruling would be negligible because

virtually no claimant in Forney’s position would want to

appeal. See U.S. Br. 26-29. Thus, for example, the gov-

ernment observes that claimants who win sentence-four

remands are far more likely to obtain the claimed bene-

fits ~ remand ( ecg of such claimants do) than they

are to secure outright reversal in an appeal (very few do),

id. 27; U.S. Cert. Resp. 10;* and that such pe. deer =

likely to obtain the requested benefits “more quickly

through the [remand] proceedings,” U.S. Br. 27-28, than

through “a time-consuming appeal,” U.S. Cert. Resp. 10

(internal quotation marks omitted). These considera-

*5 One of the factors accounting for this success rate is the fact

that remand proceedings—quite unlike federal court appeals—not

only allow the decisionmaker to reweigh the facts, but typically

permit an opportunity for the claimant to present new or additional

evidence in support of her claim. See U.S. Br. 27. As the govern-

ment has explained, the opportunity to present such evidence—

which Forney herself is “likely” to have—often is of “substantial

strategic or practical” value to claimants. U.S. Br. 27.

** For example, the appeal in this case was noticed on June }

1995 (C.A. E.R. 258) and was not finally disposed of by A vie

of Appeals until May 29, 1997 (Pet. App. 41), nearly two years

later. By contrast, sentence-four remands are, according to the

government, typically processed “within a year.” U.S. Br. 28

Given this discrepancy, the claimant in Finklestein strenuously

opposed the Secretary's effort to appeal and, thus, “to inject yet a

sixth level of routine proceedings into the Social Security process,”

adding that “[t])he burden imposed by * * * delay during [such]

appellate review * * * [would be] unbearable.” Resp. Br. in

Sullivan v. Finklestein, No, 89-504, at 47 (emphasis added).

tions, however, cut in favor of, not against, requiring

claimants in Forney’s position to return to the agency to

secure their benefits before burdening the courts of ap-

peals with factually intensive but, most commonly, legally

meritless appeals. Presumably, that is why the government

proclaims that a rule requiring claimants in Forney’s posi-

tion to appeal would be “unfair.” U.S. Br. 34 n.20.

The government (Br. 29-34) also hypothesizes that

claimants in Forney’s position normally will forego avail-

able appeals because they should not have to worry about

the preclusive effect of the district court judgment in their

favor in subsequent proceedings. Here again, however,

the government has it backwards. Under settled doctrine,

a party who foregoes an available appeal risks being pre-

cluded by the judgment in subsequent proceedings. See

Partmar Corp. Vv. Paramount Pictures Theatres Corp.,

347 U.S. at 99 & n.6; supra at 28. And the prospect of

such preclusion of course provides a powerful incentive

to appeal. The government recognizes this fact (see Br.

29-30) and, to remedy it, urges this Court to exercise its

“equitable * * * discretion” and establish a special excep-

tion to existing preclusion doctrine, so that claimants in

Forney’s position will not feel compelled to appeal judg-

ments in their favor. Jd. 32 (internal quotation marks

omitted). It is, however, entirely unnecessary to compli-

cate existing preclusion rules by the creation of such an

exception if the Court simply applies the settled principles

applicable in other civil actions, and holds that a party in

Forney’s position may not appeal.

In any event, it is obvious why the government urges the

Court to go to such lengths to ensure that claimants in For-

ney’s position do not routinely pursue appeals of sentence-

four remands. If they did, it could lead to a significant

influx of new appeals in an already overburdened appel-

late court system. See Hon. William H. Rehnquist, 1997

Year-End Report on the Federal Judiciary 4 (Jan. 1,

1998) (“Since December 1990, * * * the number of

cases filed in courts of appeals has grown by 21%

* * *”): id. at 11 n.4 (in 1997, “a record level of more

than 52,300” appeals were filed, including a 56% in-

crease in “administrative agency appeals”); see also Diana

G. Culp, Fixing the Federal Courts, 76 A.B.A. J. 63, 63

(June 1990) (“Since 1945 * * * the number of appeals

{in the federal courts] has risen nearly 15-fold, by 1,355

percent.”); Board of Trustees v. Sweeney, 439 U.S. 24,

26 (1978) (Stevens, J., dissenting) (noting that “circuit

judges—more than any other segment of the federal judi-

ciary—are struggling desperately to keep afloat in the

flood of federal litigation”).

“The Social Security Administration (SSA) hearing sys-

tem * * * is probably the largest adjudicative agency in

the western world.” Jerry L. Mashaw et al., Social Secu-

rity Hearings and Appeals xi (1978). Hundreds of thou-

sands of claims for social security benefits are processed

by SSA each year, an amount that exceeds the total num-

ber of civil and criminal actions closed by the entire fed-

eral judicial system each year. Jd.; SSA, Annual Statisti-

cal Supplement, 1997 137, Table 2.F9 (Dec. 1997)

(605,000 hearing dispositions in 1997 in all SSA cases;

188,737 in disability cases). Thousands of those agency

decisions, in turn, are challenged each year in federal dis-

trict courts across the country pursuant to 42 U.S.C.

§ 405(g). See Statistical Supplement, supra, at 137,

Table 2.F10.

In fiscal year 1996, for example, 8,556 new civil ac-

tions were filed in federal district court challenging the

denial of social security benefits, virtually all of which

involved challenges to the denial of disability benefits. Id.

While precise data on the number of remands issued in

such actions apparently does not exist, see id., other SSA

reports indicate that remand orders are commonly issued

in Section 405(g) actions. See Div. of App. Assessment

of the Off. of Policy & Procedures, SSA Off. of Hearings

& App.. Court Remands: Analysis & Recommendations 4

(Dec. 1987) (between 1984 and 1989, remands com-

prised 43-63% of district court dispositions).” In other

words, the available statistics suggest that each year there

are apparently thousands of parties in Forney’s position,

who have secured a sentence-four remand and, if the gov-

ernment and Forney are correct, are entitled to bring an

immediate appeal.

We have been unable to locate statistics on the number

of parties in Forney’s position who have actually filed

such appeals in the past. (The government suggests the

number is quite small. See U.S. Br. 27 n.16.) But such

statistics would be of little moment in any event, since

the pertinent question is how many claimants in Forney’s

position are likely to file appeals if the Supreme Court of

the United States issues a decision holding that such par-

ties are entitled to bring an appeal taking another shot

(however far-fetched) at outright reversal. Unlike the

government, we believe this number could be substantial,

especially from the perspective of the already-overburdened

courts of appeals that would be forced to process these

appeals. Cause for concern is heightened if the Court does

not establish the new, “equitable” exception to preclusion

principles that the government urges it to create in order

to stem the tide of such appeals. Indeed, even the govern-

ment acknowledges that any ruling that “encourage[s] liti-

gants to seek immediate judicial review of sentence-four

remand orders * * * would promote unnecessary appellate

litigation.” U.S. Br. 34.

From the standpoint of judicial economy, there seems

to be little reason to subject the federal courts of appeals

to this additional workload. Appeals in social security

disability are typically factually intensive, as the briefs

filed by the parties below aptly illustrate. At the same

time, claimants “face an uphill battle” in the courts of

appeals, since, by the time such cases reach the appellate

27 This report does not differentiate between sentence-four and

sentence-six remands, but, according to the government (Br. 11

n.6), “the vast majority of remands ordered under Section 405(g)

are entered pursuant to sentence four.”

court, “the Commissioner and the district court [already]

have each concluded that the existing administrative rec-

ord was insufficient to warrant an immediate award of

benefits,” U.S. Br. 28, and review of such matters is only

available under the deferential, substantial-evidence stand-

ard. There is good reason to conclude, therefore, that—

as Judge Friendly observed in a similar vein—“the likeli-

hood of reversal is too negligible to justify the delay and

expense incident (> an appeal and the consequent burden

on hardpressed appellate courts.” Donlon Indus., Inc. v.

Forte, 402 F.2d 935, 937 (2d Cir. 1968). The fact that

many, if not most, of these appeals would be rendered

“wholly unnecessary” (Pet. App. 11) if claimants were

required *o complete remand proceedings first provides

another—independently compelling—treason to deny the

type of appeal filed here.

On the other hand, neither the government nor Forney

has offered any compelling practical reason for permitting

such appeals to go forward, and we are aware of none.

Having secured a Section 405(g) remand order, parties

in Forney’s position not only are entitled to attorney’s

fees and expenses, see Shalala v. Schaefer, 509 U.S. at 303,

but stand a 60-65% chance of obtaining the claimed

benefits before the agency on remand, compared with

very little chance of succeeding in the court of appeals,

and are even likely to obtain those benefits “more quickly”

by returning to the agency first. See U.S. Br. 27; supra

at 30. There is, moreover, little practical disadvantage

to pursuing the remand route first, since, if a claimant

does not secure the claimed benefits on remand, she may

then return to federal court and challenge the district

court rulings in the prior proceeding, as well as the Com-

missioner’s decision to deny benefits on remand. And, if

she is successful in doing so, she may obtain attorney’s fees

and expenses for the additional proceedings on remand.

There is, of course, time and expense associated with

litigating a claim for benefits on remand. In similar con-

texts, however, this Court has made clear that such con-

siderations are secondary to the overriding institutional

interest in judicial economy—even when that means re-

quiring an individual to “hazard” a criminal trial with no

less than his personal liberty at stake. Parr v. United

States, 351 U.S. at 519; supra at 23. Cf. FTC v. Stand-

ard Oil Co. of Cal., 449 U.S. 232, 244 (1980) (“[T]he

expense and annoyance of litigation is part of the social

burden of living under government.”) (internal quota-

tion marks omitted). Especially when weighed against

the countervailing considerations discussed above—not to

mention the time and expense involved with prosecuting

“uphill battle[s]” in the courts of appeals, U.S. Br. 28—

this cost, in itself, does not warrant allowing appeals by

parties in Forney’s position.

There is a final consideration, which the government

astonishingly neglects to mention: requiring parties in

Forney’s position to return to the agency first accords

proper respect to SSA as the instrument of a coordinate

branch of government charged by Congress with the re-

sponsibility for making social security benefits determina-

tions. As this Court has observed in other contexts,

“agencies, not the courts, * * * have primary responsi-

bility for the programs that Congress has charged them

to administer,” and, thus, “agenc[ies] ought to have an

opportunity to correct [their] own mistakes with respect

to the programs [they] administer[]” before the federal

courts look over their shoulders. McCarthy v. Madigan,

503 U.S. 140, 144-145 (1992); accord FTC v. Standard

Oil Co. of Cal., 449 U.S. at 242. Affording SSA the

opportunity te correct its mistakes on remand from Sec-

tion 405(g) judgments setting aside the Commissioner’s

disability determinations advances this important institu-

tional interest; subjecting SSA to a second round of what

may very well be entirely unnecessary federal court review

plainly does not.

This is all the more reason to adhere to the settled

rules governing the review of judgment. in other civil

actions, and to hold that parties in Forney’s position may

not appeal prior to taking advantage of the remand they

have won.

CONCLUSION

For the foregoing reasons, the judgment of the Court of

Appeals below should be affirmed.

Respectfully submitted,

ALLEN R. SNYDER

(Amicus Curiae, invited by Court,

per Order of January 26, 1998)

GREGORY G. GARRE

HOGAN & HARTSON L.L.P.

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5741

ADDENDUM

42 U.S.C. 405(g) provides:

[1] Any individual, after any final decision of the

Commissioner of Social Security made after a hear-

ing 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 deci-

sion 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 reversing the decision of the

Commissioner of Social Security, with or without re-

manding the cause for a rehearing. [5] The findings

of the Commissioner of Social Security as to any fact,

if supported by substantial evidence, shall be con-

clusive, and where a claim has been denied by the

Commissioner of Social Security or a decision is ren-

dered under subsection (b) of this section which is

adverse to an individual who was a party to the hear-

ing before the Commissioner of Social Security, be-

cause of failure of the claimant or such individual to

submit proof in conformity with any regulation pre-

scribed 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 Commisssioner’s answer, re-

mand the case to the Commissioner of Social Security

for further action by the Commissioner of Social Se-

curity, and it may at any time order additional evi-

dence to be taken before the Commissioner 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 record in a prior proceeding; and the Com-

missioner of Social Security shall, after the case is

remanded, 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 decision, and a tran-

script of the additional record and testimony upon

which the Commissioner’s action in modifying or af-

firming was based. [7] Such additional or modified

findings of fact and decision shall be reviewable only

to the extent provided for review of the original find-

ings 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 subsection shall survive notwithstanding any

change in the person occupying the office of Commis-

sioner of Social Security or any vacancy in such

office. [(Bracketed numerals added.) ]

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.