# Sullivan v. Finkelstein

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## Concurring Opinions

    Scalia
    Blackmun
United States Supreme Court
496 U.S. 617
Sullivan v. Finkelstein
No. 89-504 Argued: April 24, 1990. --- Decided: June 18, 1990
Opinion on Remand, 924 F.2d 483.
Syllabus
Title 42 U.S.C. § 405(g), which is not further divided into subsections, provides, inter alia, that: An individual may obtain judicial review of a final decision of the Secretary of Health and Human Services under the Social Security Act by filing "a civil action" in the district court (sentence one); in such action, that court has the power to enter "a judgment affirming, modifying, or reversing the [Secretary's] decision, with or without remanding the cause for a rehearing " (sentence four) (emphasis added); that court may order a remand for the taking of additional evidence, "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" (sentence six); that court may review the Secretary's postremand "additional or modified findings of fact and decision" (sentence seven); and that court's judgment "shall be final except that it shall be subject to review in the same manner as a judgment in other civil actions" (sentence eight). Respondent filed an application for widow's disability benefits under § 423(d)(2)(B), which authorizes an award to a widow whose impairment is of a level of severity deemed sufficient by the Secretary's regulations to preclude an individual from engaging in any gainful activity. Under those regulations, a surviving spouse who suffers from an impairment meeting or equaling the severity of an impairment included in the Secretary's Listing of Impairments is disabled. After respondent's application was denied on the ground that her heart condition did not meet or equal a listed impairment, she filed suit in the District Court, invoking § 405(g). The court sustained the Secretary's conclusion that she did not meet the regulatory definition for disability, but reversed the decision and remanded the case for a determination of her ability to engage in any gainful activity without regard to the regulation. The Court of Appeals dismissed the Secretary's appeal for lack of jurisdiction, because remands to administrative agencies are not ordinarily "final decisions" appealable under 28 U.S.C. § 1291. It held that the exception for cases in which an important legal issue is finally resolved and review of that issue would be foreclosed as a practical matter if an immediate appeal were unavailable was inapplicable because, if the Secretary persisted in refusing benefits on remand, the District Court might order that benefits be granted, thereby providing the Secretary with an appealable final decision. The court also believed that Circuit precedent foreclosed the Secretary's argument that he might not be able to obtain review at a later point if he awarded benefits on remand.
Held: The Secretary may immediately appeal a district court order effectively invalidating regulations limiting the kinds of inquiries that must be made to determine entitlement to disability insurance benefits and remanding a claim to the Secretary for consideration without those restrictions. Pp. 623-631.
(a) The District Court's order essentially invalidated, as inconsistent with the Act, regulations restricting eligibility for widow's disability benefits. Pp. 623-624.
(b) Section 405(g)'s text and structure define the court of appeals' jurisdiction. The term "a civil action" in sentence one suggests that each final decision of the Secretary is reviewable by a separate piece of litigation. Here, the District Court entered a judgment pursuant to sentence four: It reversed the Secretary's decision and "remand[ed] the cause for a rehearing." Unquestionably this is a "judgment" in § 405(g)'s terminology, as the court terminated the civil action challenging the Secretary's final decision, set aside that decision, and decided that the Secretary could not follow his own regulations on remand. Since there would be grave doubt whether the Secretary could appeal his own order if on remand he awarded benefits, the District Court's order was a "final judgment" subject to further review under sentence eight. Pp. 624-625.
(c) Respondent's several arguments countering this construction of § 405(g) are unpersuasive. First, the remand in this case was not ordered pursuant to sentence six, since a sixth-sentence remand is appropriate only when the district court learns of evidence not in existence or available to the claimant at the time of the administrative proceeding that might have changed that proceeding's outcome. Second, the postremand judicial review contemplated by sentence seven refers only to reviews in cases that were previously remanded under sentence six, and thus does not fit the kind of remand ordered in this case. Third, sentence eight does in fact compel the conclusion that a fourth-sentence judgment is immediately appealable. That Congress may have used "final" to mean conclusively decided for res judicata purposes does not preclude the construction of "final" to include "appealable," a meaning with which "final" is usually coupled. Moreover, Congress is empowered to define a class of orders that are "final judgments" within the meaning of § 1291, and that is precisely what it has done in sentence four. Fourth, sentence four does not limit a district court's power to remand a case, since it does not require the court to choose between entering a final judgment and remanding, but specifically provides that it may do both. Finally, language in Sullivan v. Hudson, 490 U.S. 877, 109 S.Ct. 2248, 104 L.Ed.2d 941 (1989), suggesting that this type of remand order is not appealable as a final decision is insufficient to sustain respondent's contentions here, since that case dealt with the interpretation of the Equal Access to Justice Act's term "any civil action," not with whether a remand order could be appealed as a "final decision" under § 1291. Pp. 625-631.
869 F.2d 215 (CA 3 1985), reversed and remanded.
WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, MARSHALL, STEVENS, O'CONNOR, and KENNEDY, JJ., joined, and in which SCALIA, J., joined except as to n. 8. SCALIA, J., filed an opinion concurring in part, post, p. 631. BLACKMUN, J., filed an opinion concurring in the judgment, post, p. 632.
David L. Shapiro, Washington, D.C., for petitioner.
Kenneth V. Handal, for respondent.
Justice WHITE delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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