SSR 68-57c: SECTIONS 205(g), 216(i), 223. -- JUDICIAL REVIEW -- JURISDICTION OF UNITED STATES COURT OF APPEALS TO REVIEW REMAND ORDER OF UNITED STATES DISTRICT COURT

20 CFR 404.951

SSR 68-57c

BOHMS v . GARDNER, 381 F.2d 283 (8th Cir., 1967), Cert. Denied 390

U.S. 964 U.S. March 4, (1968)

Before VAN OOSTERHOFT, BLACKMAN and LAY, Circuit Judges .

BLACKMAN, Circuit Judge .

Alfred F. Bohms, pursuant to § 205(g) of the Social Security Act 42

U.S.C. § 405(g), instituted this action for review of the Secretary's

final decision disallowing Bohms' claim for a period of disability and for

disability insurance benefits under the definitions in § 216(i)(1)(A) and

§ 223(c)(2) of the Act, 42 U.S.C. § 416(i)(1)(A) and 423(c)(2).

The claimant's application, filed in August 1963, was initially denied

administratively and was denied again on reconsideration. He asked for a

hearing. One was held but the examiner's decision was also adverse. Then

the Appeals Council denied Bohm's request for review.

At that point the claimant retained an attorney and this suit was

brought. The defendant-Secretary filed with his answer, as required by §

205(g), a certified copy of the transcript of the administrative record.

Both sides moved for summary jurisdiction. (sic) Judge Nichol denied these

motions and entered judgment reversing the decision of the Secretary and

remanding the case to the Secretary "for the purpose of rehearing" and for

the taking of such additional evidence as the respective parties deemed

appropriate. The court's unreported supporting memorandum reveals that he

entertained reservations about the correctness of the standard of

disability employed by the hearing examiner; about the claimant's

confusion, in a proceeding where he was not represented by counsel, as to

his burden of proof and his right to cross examine; and about the absence

in the record of possibly pertinent documentary evidence.

t's unreported supporting memorandum reveals that he

entertained reservations about the correctness of the standard of

disability employed by the hearing examiner; about the claimant's

confusion, in a proceeding where he was not represented by counsel, as to

his burden of proof and his right to cross examine; and about the absence

in the record of possibly pertinent documentary evidence.

Bohms appeals from those parts of the district court's judgment which

remand the matter to the Secretary and which fail "to adjudicate that the

Secretary be ordered to forthwith pay to the plaintiff disability

insurance benefits as prayed for." His motion for leave to appeal in forma

pauperis was denied by the district court on the grounds that the appeal

was not taken in good faith, within the meaning of 28 U.S.C. § 1915(a),

and that the "judgment . . . is not an appealable order." Judge Nichol

also expressly refused to issue the certificate which is required for an

appeal under 28 U.S.C. § 1292(b). This court waived the printing of the

record and authorized the filing of typewritten briefs.

We are immediately and obviously confronted with an issue as to our

appellate jurisdiction. The Secretary urges that bohms' appeal should be

dismissed because the judgment appealed from is not a final decision of

the district court.

Our jurisdiction of appeals from federal district courts is based on the

statutory concept of finality: "The courts of appeals shall have

jurisdiction of appeals from all final decisions of the district courts of

the United States. . . ." 28 U.S.C. § 1291. Although the Supreme Court has

been liberal and pragmatic, and necessarily so, in its approach to this

statute and has given it a "practical rather than a technical

construction," see Cohen v. Beneficial Industrial Loan Corp ., 337

U.S. 541, 545-47 (1949); Gillespie v. United States Steel Corp., 379 U.S. 148, 152-53 (1964); Brown Shoe Co. v. United States , 370

U.S

. ." 28 U.S.C. § 1291. Although the Supreme Court has

been liberal and pragmatic, and necessarily so, in its approach to this

statute and has given it a "practical rather than a technical

construction," see Cohen v. Beneficial Industrial Loan Corp ., 337

U.S. 541, 545-47 (1949); Gillespie v. United States Steel Corp., 379 U.S. 148, 152-53 (1964); Brown Shoe Co. v. United States , 370

U.S. 294, 306 (1962), finality (subject to exceptions, not applicable

here, such as those provided by 28 U.S.C. § 1292(b), 28 U.S.C. § 1651, and

Rule 54(b), Fed. R. Civ. P.) is the firmly established requirement.

Section 1291 has its origin in § 22 of the Judiciary Act of 1789, 1 Stat.

73, 84. The Supreme Court has observed that by it "Congress has lone

expressed a policy against piecemeal appeals." Baltimore Contractors,

Inc. v. Bodinger , 348 U.S. 176, 178-79 (1955). See Switzerland

Cheese, Ass'n v. E. Horne's Market, Inc. , 385 U.S. 23, 24 (1966); Di Bella v. United States, 369 U.S. 121, 124-27 (1962); Cobbledick v. United States , 309 U.S. 323, 324-27 (1940); McLish

v. Roff , 141 U.S. 661, 665-66 (1891); United States v. Bailey ,

9 Pet. (34 U.S.) 267, 272 (1835); 6 Moore's Federal Practice (Second Edition, 1966), par. 54.11 and

.12 [1] .

The Supreme Court, in Catlin v. United States, 324 U.S. 229, 233

(1945), has given us a definition:

This court, of course, has accepted and utilized that definition, Smith v. Sherman , 349 F.2d 547, 551-52 (8 Cir. 1965). See Directory Services, Inc. v. United States , 353 F.2d 299 (8 Cir.

1965).

.) 267, 272 (1835); 6 Moore's Federal Practice (Second Edition, 1966), par. 54.11 and

.12 [1] .

The Supreme Court, in Catlin v. United States, 324 U.S. 229, 233

(1945), has given us a definition:

This court, of course, has accepted and utilized that definition, Smith v. Sherman , 349 F.2d 547, 551-52 (8 Cir. 1965). See Directory Services, Inc. v. United States , 353 F.2d 299 (8 Cir.

1965).

From this it inevitably follows, we feel, that the present appeal must be

dismissed. Although the Secretary made a final administrative decision for

purposes of court review under 205(g), Cody v. Ribicoff , 289 F.2d

394, 395 (8 Cir. 1961); Murphy v. Gardner , . . . F.2d . . . (8 Cir.

1967), no such decision was made at the district court level. And it is

district court action which measures our appellate jurisdiction under §

1291. The district court merely vacated the Secretary's decision and

remanded the case for reconsideration and, possibly, the reception of

additional evidence. It neither granted nor denied the relief the claimant

seeks. The adverse agency decision so vacated may of course be reinstated

in due course but it may go the other way. Until the Secretary acts on the

remand we have no insight as to what his eventual decision will be. Thus,

in the words of Catlin v. United , supra, the litigation had not

reached its end on the merits and there is more for the court to do than

execute the judgment, or, as Judge Ridge said, in Smith v. Sherman ,

supra, p. 551 of 349 F.2d, the district court's action by no means was

"the last word of the law."

Neither we nor counsel have found a case precisely in point. Because

remand is statutorily authorized by § 205(g) and is common, see, for

example, Brasher v. Celebrezze , 340 F.2d 413, 414 (8 Cir. 1965),

and Celebrezze v. Bolas , 316 F.2d 498, 500 (8 Cir. 1963), the very

absence of precise authority may be indicative of general acceptance of

the proposition that a district court's remand is not a final decision.

ve found a case precisely in point. Because

remand is statutorily authorized by § 205(g) and is common, see, for

example, Brasher v. Celebrezze , 340 F.2d 413, 414 (8 Cir. 1965),

and Celebrezze v. Bolas , 316 F.2d 498, 500 (8 Cir. 1963), the very

absence of precise authority may be indicative of general acceptance of

the proposition that a district court's remand is not a final decision.

Two recent cases in the Third Circuit, however, are scarcely

distinguishable. In each of these the Secretary, before filing his answer,

and as permitted by § 205(g), moved to remand for the taking of additional

testimony. His motion was granted. The appeal therefrom was dismissed on

the ground that the remand order was not final within the meaning of §

1291. Marshall v. Celebrezze , 351 F.2d 467 (3 Cir. 1965); Mayersky v. Celebrezze , 353 F.2d 89 (3 Cir. 1965). Although the

district court in the present case effected the remand on its own motion,

after the Secretary's answer had been filed and after study of the merits,

we see no distinction whatsoever, so far as legal precept is concerned,

between the Third Circuit case and this one. Those cases are precedent

here and, furthermore, we agree with them. Gulfport Shipbuilding Corp.

v. Vallot , 334 F.2d 358, 360 (5 Cir. 1964), cert. den. 380 U.S. 974,

affords further support.

The appeal is not saved by any theory that the district court was without

power to remand or that it had legally insufficient reasons for sending

the case back. The very language of § 205 provides the answer to the

question of basic power, for remand is specifically authorized, either on

motion of the Secretary before answer or "at any time, on good cause

shown." And we cannot say that the district court's remand was without

good cause (a) when the court possessed a reasonable desire for existing

documentary evidence and reports omitted from the record, Flemming v.

Rhoades , 276 F.2d 788 (5 Cir. 1960); Angell v. Flemming , 291

F.2d 72, 75 (4 Cir

y authorized, either on

motion of the Secretary before answer or "at any time, on good cause

shown." And we cannot say that the district court's remand was without

good cause (a) when the court possessed a reasonable desire for existing

documentary evidence and reports omitted from the record, Flemming v.

Rhoades , 276 F.2d 788 (5 Cir. 1960); Angell v. Flemming , 291

F.2d 72, 75 (4 Cir. 1961); Sage v. Celebrezze , 246 F. Supp. 285,

288 (W.D. Va. 1965); Wray v. Folsom , 166 F. Supp. 390, 394-96 (W.D.

Ark. 1958); (b) when it felt unsure about the adequacy and fairness of the

administrative hearing because of the claimant's unfamiliarity with

procedure, see Arms v. Gardner , 353 F.2d 197, 199 (6 Cir. 1965);

(c) when, after the Secretary's decision became final on November 4, 1964,

the statutory definitions of disability contained in § 216(i)(1)(A) and in

§ 223(c)(2), 42 U.S.C. § 416(i)(1)(A) and § 423(c)(2), were amended, made

less stringent, and made applicable to this case (Pub. L. 89-97, §

303(f)(1), 79 Stat. 368); Nichols v. Gardner , 361 F.2d 963, 967 (8

Cir. 1966); Byrd v. Gardner , 358 F.2d 291 (5 Cir. 1966); Sergeant v. Gardner , 361 F.2d 334 (6 Cir. 1966); and (d) when it

felt that an improper standard may have been applied by the hearing

examiner, Moncrief v. Gardner , 357 F.2d 651, 652 (5 Cir. 1966).

* * * * * * *

The appeal is dismissed.