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The Honorable Ortrie D. Smith, United States District Judge for the Western

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-1658

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Burrell D. Detherage, *

*

Appellant, *

* Appeal from the United States 

v. * District Court for the

* Western District of Missouri.

Jo Anne B. Barnhart, Commissioner * [UNPUBLISHED]

of Social Security, *

*

Appellee. *

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Submitted: November 21, 2003

Filed: March 2, 2004

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Before WOLLMAN, BYE, and SMITH, Circuit Judges.

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PER CURIAM.

This is an attempted appeal from the district court’s1

 order affirming the

Commissioner of Social Security’s termination of disability insurance benefits. The

threshold issue for us is whether Detherage’s notice of appeal, filed months before the

district court’s order was entered, is sufficient to give us jurisdiction to consider the

appeal. We hold that it is not, and we therefore dismiss the appeal.
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Detherage’s September 30, 1987, application for disability insurance benefits

was approved effective September 16, 1987, on the basis of Detherage’s testicular

carcinoma, alcoholic liver cirrhosis, and major depression. Some 11 years later, after

a routine continuing disability review, the Commissioner determined that Detherage’s

disability had ceased and thus terminated his benefits. The Commissioner affirmed

that decision upon reconsideration. Following a hearing, an Administrative Law

Judge (ALJ) found that Detherage’s disability had ceased as of November 1998 and

ordered that benefits be discontinued as of January 1999. The Appeals Council of the

Social Security Administration denied Detherage’s request for review, and thus the

ALJ’s decision became the final decision of the Commissioner.

Detherage filed a complaint in the district court on May 24, 2001, arguing that

the ALJ had improperly terminated his disability benefits. After the Commissioner’s

answer was filed and the district court had disposed of some discovery motions,

Detherage filed a motion to remand under sentence six of 42 U.S.C. § 405(g) so that

the ALJ might consider a post-hearing letter from Detherage’s primary physician.

The district court denied the motion on October 6, 2002. Detherage filed a notice of

appeal of this order on December 2, 2002. On January 9, 2003, the district court

entered an order stating that the attempted appeal was interlocutory in nature because

the district court’s denial of the motion for sentence six remand was not a final

judgment. On March 10, 2003, the district court entered an order affirming the ALJ’s

determination on the merits. Detherage did not file a notice of appeal from the

judgment entered on the March 10, 2003, order.

With narrow exceptions, our jurisdiction extends only to final judgments of the

district courts. 28 U.S.C. § 1291; Powell v. Georgia-Pacific Corp., 90 F.3d 283, 284

(8th Cir. 1996). The Federal Rules of Appellate Procedure prescribe the

preconditions to our exercise of appellate jurisdiction. Rule 3 states that “[a]n appeal

permitted by law as of right from a district court to a court of appeals may be taken

only by filing a notice of appeal with the district clerk within the time allowed by
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Rule 4.” Fed. R. App. P. 3(a)(1). Rule 4 provides that the notice of appeal in a case

where, as here, the government or its officer is a party shall be filed “by any party

within 60 days after the judgment or order appealed from is entered.” Fed. R. App.

P. 4(a)(1)(B). These rules are mandatory and jurisdictional. Arnold v. Wood, 238

F.3d 992, 994 (8th Cir. 2001). 

Detherage argues that denial of his remand motion was in effect a final order

because remand under sentence six was the only relief he sought from the district

court. This is simply not true. Detherage raised a number of additional issues before

the district court. He claimed that the record was incomplete because certain portions

of the recording of the hearing were inaudible. He claimed that the ALJ had failed

properly to assess his credibility and had misapplied the Medical-Vocational

Guidelines. In a word, Detherage questioned the validity of the ALJ’s determination

on the merits and asked the district court to decide whether the termination of benefits

was supported by substantial evidence. Only with its order of March 10, 2003, did

the district court dispose of all these claims. As we recently stated, “A district court’s

decision is final if it ‘ends the litigation on the merits and leaves nothing for the court

to do but execute the judgment.’” Reinholdson v. Minnesota, 346 F.3d 847, 849 (8th

Cir. 2003) (quoting Cunningham v. Hamilton County, 527 U.S. 198, 204 (1999)).

Accordingly, Detherage’s appeal from the October 6, 2002, order denying his motion

for a sentence six remand was interlocutory because that order did not dispose of all

of the issues in the case. Jenson v. Dole, 677 F.2d 678, 679-80 (8th Cir. 1982).

There remains the question whether the purported appeal can be found to be

properly before us by virtue of the provisions of Fed. R. App. P. 4(a)(2), which

provides that “[a] notice of appeal filed after the court announces a decision or

order–but before the entry of the judgment or order–is treated as filed on the date of

and after the entry.” We conclude that it cannot, for the rule “permits a notice of

appeal from a nonfinal decision to operate as a notice of appeal from the final

judgment only when a district court announces a decision that would be appealable
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if immediately followed by the entry of judgment.” Firstier Mortgage Co. v.

Investors Mortgage Ins. Co., 498 U.S. 274, 276 (1991). Any judgment entered on the

October 6, 2002, order could not have reasonably been considered to be final for the

reasons stated above. Thus, Detherage cannot plausibly argue that he falls within the

group that the rule was designed to protect: “[T]he unskilled litigant who files a

notice of appeal from a decision that he reasonably but mistakenly believes to be a

final judgment, while failing to file a notice of appeal from the actual final judgment.”

Id.

Nor is there any other reason why Detherage should be excused from the

necessity of filing a notice of appeal from the March 10, 2003, order. The doctrine

of “unique circumstances,” which we applied to preserve the appeal in Schwartz v.

Pridy, 94 F.3d 453 (1996), is not applicable in Detherage’s case, for unlike the litigant

in Schwartz, Detherage did not rely upon any erroneous advice from the district court

that no further notice of appeal need be filed. Indeed, in contrast to the situation in

Schwartz, the district court specifically noted in its January 9, 2002, order that

Detherage’s notice of appeal was premature because it was filed with respect to a

non-final decision.

Because a timely notice of appeal has not been filed with respect to the district

court’s March 10, 2003, order, we lack jurisdiction, and thus the appeal must be

dismissed. It is so ordered.

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