# Amicus Curiae Brief — Forney v. Apfel

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0193%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1998
- **Citation:** 524 U.S. 266

## Text

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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
Oe
INTEREST OF AMICUS CURIAE ..............................-..
EE
STATEMENT OF THE CASE ...............-..-..-c--c-eceeeeeeneees :
SUMMARY OF ARGUMENT 000022...
I cctcientinnnatninccinnncnnsemntancussssttienaneimesesscenccsccsees

I.

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
ee

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
a

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 @

12

12

19

26

iv

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

v

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

vi
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.

2

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.

3

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—

4

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

5

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.

6

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).

7

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.

9

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

10

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

11

_ 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.

12

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).

13

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.

14

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).

15

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.

16

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

17

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

18

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-

19

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.

_

20

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

© The rule that courts only review judgments is based on the
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’).

21

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.

23

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).

24

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

25

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.

26

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.

27

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.

28

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).

29

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.

30

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).

31

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%

32

* * *”): 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-

33

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.”

34

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-

e

35

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

36

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

la

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

2a

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.) ]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0193%3A09. Public record. Not legal advice.