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. e du/thir dc ir c uit_1999/240Filed August 27, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 98-1906, 98-1982 and 98-1983

KREIDER DAIRY FARMS, INC., a Pennsylvania Family Farm Corporation

v.

DAN GLICKMAN, Secretary of the United States Department of Agriculture

Dan Glickman, Appellant in No. 98-1906 (D.C. 98-cv-00518)

KREIDER DAIRY FARMS, INC., a Pennsylvania Family Farm Corporation

v.

DAN GLICKMAN, Secretary of the United States Department of Agriculture;

AHAVA DAIRY PRODUCTS, INC.

Kreider Dairy Farms, Inc., Appellant in No. 98-1982 (D.C. 95-cv-06648)

KREIDER DAIRY FARMS, INC., a Pennsylvania Family Farm Corporation

v.

DAN GLICKMAN, Secretary of the United States Department of Agriculture

Kreider Dairy Farms, Inc., Appellant in No. 98-1983 (D.C. 98-cv-00518)Appeal from the United States District Court

for the Eastern District of Pennsylvania District Judge: Honorable Edward N. Cahn

ARGUED: June 9, 1999

Before: SLOVITER and MANSMANN, Circuit Judges, and WARD,* District Judge.

(Filed: August 27, 1999)

Marvin Beshore, Esquire (ARGUED) Dawn L. Lisi, Esquire Milspaw & Beshore

130 State Street

P.O. Box 946 Harrisburg, PA 17108-0946

COUNSEL FOR KREIDER

DAIRY FARMS

David W. Ogden, Esquire Acting Assistant Attorney General

Michael R. Stiles, Esquire United States Attorney

Barbara C. Biddle, Esquire United States Department of Justice Civil Division, Appellate Staff 10th & Pennsylvania Avenue, N.W. Washington, D.C. 20530-0001

Michael E. Robinson, Esquire United States Department of Justice Appellate Section 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530

___________________________________________________ ______________

*Honorable Robert J. Ward, United States District J udge for the Southern District of New York, sitting by designati on.

2Douglas Hallward-Driemeier, Esquire

(ARGUED) United States Department of Justice Civil Division, Appellate Staff 601 D Street, N.W. Washington, D.C. 20530-0001

COUNSEL FOR UNITED STATES

DEPARTMENT OF AGRICULTURE

OPINION OF THE COURT

MANSMANN, Circuit Judge.

These appeals implicate important issues related to our appellate jurisdiction in the context of a dispute over dairy regulations. Specifically, we must determine the ex tent to which our jurisdiction extends to District Court or ders remanding for further factual findings in administr ative proceedings in light of Forney v. Apfel, 524 U.S. 2 66, 118 S. Ct. 1984 (1998). We hold today that because the discussion on appellate jurisdiction in Forney is f ounded upon specific language located within the Social Se curity Act, the holding in Forney does not extend to all D istrict Court orders remanding for further administrative proceedings. We also reaffirm our longstanding rule that we lack jurisdiction over District Court orders remand ing for further administrative findings unless an important legal issue has been finally determined which would evade appellate review in the absence of an immediate app eal.

Applying these principles to the appeals before us, we find that we lack jurisdiction over the appealfiled by Kreider Dairy Farm, Inc. ("Kreider") in 1998 from a 1996

District Court order which remanded for further fac tual findings relating to the merits of the dairy disput e. Accordingly, we will dismiss Kreider's appeal (No. 98-1982) for lack of jurisdiction. Under these same principl es, however, we find that we do have appellate jurisdic tion over the timely appeal filed by the Secretary of the Uni ted States Department of Agriculture ("USDA") from the Distric t Court's August 10, 1998 order reversing a USDA

3determination that Kreider's administrative appeal on

remand was untimely (No. 98-1906) and remanding for further administrative proceedings on the merits.

With respect to the merits of the USDA's appeal, we hold that the District Court erred in exercising jurisdi ction over Kreider's appeal and accordingly will vacate the Di strict Court's 1998 Order. Finally, we will dismiss summar ily Kreider's "cross-appeal" from the District Court's August 10, 1998 order (No. 98-1983) as Kreider has informe d us that it never intended to cross-appeal from that or der and has not pursued that cross-appeal in its briefing o r at oral argument before us.

I.

These appeals come to us after a long and tortured procedural history that spans nearly a decade. Beca use this procedural history is central to our decision, we s hall discuss it in some detail. By contrast, because we do not reach the merits of the parties' dispute over the d airy regulations at issue in these appeals, the underlyi ng factual background that forms the basis of that dispute wil l be discussed only generally.1

A.

Kreider is a dairy farm corporation that produces a nd distributes packaged kosher fluid milk within the N ew York-New Jersey milk marketing area with the aid of two independent subdistributors. The production and sal e of milk within the New York-New Jersey milk marketing area is regulated by Order 2 which was promulgated under the Agricultural Marketing Agreement Act of 1937 ("AMAA "), 7 U.S.C. S 601 et seq. Under Order 2, certain milk pr oducers can qualify for producer-handler status which entit les them to an exemption from paying certain fees in connect ion with

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1. For a more detailed discussion of the merits of the dairy regulation dispute see Kreider Dairy Farms, Inc. v. Glickman, No. Civ. A. 95-6648, 1996 WL 472414 (E.D. Pa. August 15, 1996); In re: K reider Dairy Farms, Inc., 94 AMA Docket No. M-1-2, 1995 WL 598331 (U.S. D.A. September 28, 1995).

4the sales of milk. Kreider first applied for produc er-handler

status under Order 2 by letter dated December 19, 1 990.

The Market Administrator ("MA") responsible for administering Order 2 denied Kreider's application for producer-handler status, finding that Kreider did n ot meet the producer-handler requirements due to Kreider's use of independent subdistributors. See generally 7 C.F .R. S 1002.12(b)(1999) (setting forth exclusive control requirements for producer-handler exemption). On December 23, 1993, Kreider challenged the MA's deci sion by filing a petition with the USDA pursuant to sect ion 608c(15)(A) of the AMAA.

After a December 14, 1994 hearing, an Administrativ e Law Judge ("ALJ") issued a decision holding that Kr eider was entitled to producer-handler status under Order 2. The Agricultural Marketing Service appealed to a Judici al Officer ("JO") of the USDA, who acts on behalf of t he Secretary of Agriculture in all adjudicative matter s. See 7 C.F.R. S 2.35 (1999). The JO reversed the ALJ's dec ision, holding that Kreider was not entitled to producer-h andler status. See In re: Kreider Dairy Farms, Inc., 94 AM A Docket No. M-1-2, 1995 WL 598331 (U.S.D.A. September 28, 1995).

On October 18, 1995, Kreider filed a complaint purs uant to the AMAA in the District Court challenging the J O's decision. See AMAA, 7 U.S.C. S 608c(15)(B)(1994). B y opinion and order filed August 15, 1996 ("1996 Orde r"), the District Court denied the parties' cross motion s for summary judgment and remanded for further administrative findings on whether Kreider was"ridi ng the pool," i.e., whether Kreider was the type of dairy for which producer-handler status should be denied pursuant t o the promulgation history of the producer-handler exempt ion. See Kreider Dairy Farms, Inc. v. Glickman, No. Civ. A. 95- 6648, 1996 WL 472414 (E.D. Pa. August 15, 1996). Ne ither Kreider nor the USDA appealed the District Court's 1996

Order at that time.

B.

On remand, the ALJ held a hearing and issued a deci sion on August 12, 1997 holding that Kreider was "riding the

5pool" and therefore was not entitled to producer-ha ndler

status. Under applicable regulations, the ALJ's dec ision becomes effective thirty-five (35) days after servi ce upon the parties unless appealed to the JO thirty days (30) after service. See 7 C.F.R. SS 900.64(c), 900.65(a)(1999) . The ALJ's decision was served on Kreider on August 15, 1997.

On September 12, 1997, Kreider moved for an extensi on of time to file its appeal from the ALJ's August 12 , 1997 decision. The JO granted Kreider an extension until September 19, 1997. On September 19, 1997, Kreider sent its appeal via Federal Express next day delivery. T he Office of the Hearing Clerk stamped Kreider's appeal as re ceived on September 25, 1997.

On January 12, 1998, the JO issued an opinion denyi ng Kreider's administrative appeal as untimely because , under applicable regulations, an administrative appeal is deemed to be filed "when it is postmarked, or when it is r eceived by the hearing clerk." 7 C.F.R. S 900.69(d)(1999). The JO held that because the term "postmarked" requires a Unite d States Postal Service postmark, a date label genera ted by Federal Express does not toll the appeal period. Se e In re: Kreider Dairy Farms, Inc., No. 94 AMA Docket No. M- 1-2, 1998 WL 25746, at *8 (U.S.D.A. January 12, 1998). K reider filed a timely motion for reconsideration.

While Kreider's motion for reconsideration was pend ing before the JO, Kreider filed a complaint with the D istrict Court on February 2, 1998 challenging the ALJ's Aug ust 12, 1997 decision and noting that the JO had denied its appeal as untimely.2 The JO denied Kreider's motion for

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2. An appeal to the District Court must be taken wi thin twenty days of the entry of the administrative decision. See 7 U.S .C.A. S 608c(15)(B)(1994). If Kreider had filed a complai nt on February 2, 1998 challenging the JO's January 12, 1998 decision rath er than a motion for reconsideration, Kreider's February 2, 1998 complai nt would have constituted a timely appeal of that decision becaus e the twentieth day after entry, February 1, 1998, fell on a Sunday. As Kreider conceded before the District Court, however, the District Co urt lacked jurisdiction over Kreider's February 2, 1998 complaint challengi ng the ALJ's August 12, 1997 decision because that decision was not afi nal administrative determination. See Kreider, 1998 WL 481926 at *7; s ee also 7 C.F.R. S 900.64(c)(1999)(stating that no decision isfinal for purposes of judicial review except a final decision issued by the Secret ary pursuant to an appeal by a party to the ALJ proceeding).

6reconsideration on February 20, 1998. On April 3, 1 998,

Kreider filed an amended complaint challenging the JO's January 12, 1998 and February 20, 1998 decisions. T he

USDA filed a motion to dismiss.

By opinion and order entered August 10, 1998 ("1998 Order"), the District Court denied the USDA's motio n to dismiss, vacated the JO's January 12, 1998 and Febr uary 20, 1998 decisions, and remanded for the JO to cons ider the merits of Kreider's appeal of the ALJ's August 12, 1997 decision. See Kreider Dairy Farms, Inc. v. Glickman , No. 98- 518, 1998 WL 481926 (E.D. Pa. August 10, 1998). The District Court held that because Kreider's April 3, 1998 amended complaint challenging the JO's decisions re lated back to Kreider's initial complaint filed on Februa ry 2, 1998, Kreider's appeal of the JO's January 12, 1998 decision was timely. The District Court further det ermined that because the JO erred in holding that a United States postmark was required under applicable regulations, Kreider's appeal to the JO from the ALJ's decision was timely and should have been considered by the JO. T he District Court accordingly entered the 1998 Order remanding for the JO to consider the merits of Krei der's appeal from the ALJ's determination that Kreider wa s riding the pool and therefore was not entitled to producer -handler

status.

C.

On October 7, 1998, the USDA filed a timely appeal from

the District Court's 1998 Order which was docketed with us at 98-1906. On October 21, 1998, Kreider filed a crossappeal. In Kreider's notice of appeal, Kreider list ed the docket numbers from the District Court's two prior proceedings hoping to bring an appeal from the Dist rict Court's 1996 Order. Kreider's cross-appeal was trea ted as two separate appeals: 1) a cross-appeal from the Di strict Court's 1998 Order (docketed at 98-1983); and 2) an appeal from the District Court's 1996 Order (docketed at 9 8-1982).

On October 30, 1998, we sent a letter to the partie s questioning our jurisdiction over Kreider's appeal from the

District Court's 1996 Order. We invited submissions by the

7parties outlining the basis for our jurisdiction. B oth parties

submitted letters. In its letter, the USDA contends that we have jurisdiction over Kreider's appeal from the Di strict Court's 1996 Order under Forney v. Apfel, 524 U.S. 266 (1998) and Sullivan v. Finkelstein, 496 U.S. 617 (1 990). In addition, both the USDA and Kreider cite Forney as the basis for our jurisdiction in their briefs. Kreider also asserts various other grounds for jurisdiction in its lette r. Both parties seem to recognize that Kreider never intend ed to file a cross-appeal from the District Court's 1998 Order

.

II.

Even though Kreider and the USDA agree that we have jurisdiction over the appeals before us, it is well established that we have an independent duty to satisfy ourselv es of our appellate jurisdiction regardless of the partie s' positions. See, e.g., Collinsgru v. Palmyra Bd. of Ed., 161 F.3d 225, 229 (3d Cir. 1998). The District Court or ders from which both Kreider and the USDA have appealed are orders remanding for further administrative proceed ings. Normally, an order remanding for further proceeding s is not a final order subject to immediate appellate review under 28 U.S.C. S 1291. See AJA Assocs. v. Army Corps of Eng'rs, 817 F.2d 1070, 1073 (3d Cir. 1987)(quoting United Steelworkers of Am., Local 1913 v. Union R.R. Co., 648 F.2d 905, 909 (3d Cir. 1981)). Naturally, however, this general rule is subject to several exceptions.3

A.

We traditionally have recognized an exception to th e general finality rule for certain District Court or ders remanding for further administrative proceedings. Specifically, we have exercised appellate review wh en a District Court finally resolves an important legal issue in reviewing an administrative agency action and denia l of

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3. We refer to "exception" in its general sense tha t the order on appeal has not resolved all of the issues with respect to all of the parties. We agree with the concurrence that only Congress can s et forth the jurisdiction of the federal courts.

8appellate review before remand to the agency would

foreclose appellate review as a practical matter. S ee AJA, 817 F.2d at 1073 (citing Horizons Int'l, Inc. v. Ba ldrige, 811 F.2d 154 (3d Cir. 1987)); Union R.R., 648 F.2d at 9 09.

An example of an immediately appealable remand unde r this exception is found in AJA, 817 F.2d 1070. Afte r the Army Corps denied AJA's application for a permit, A JA filed suit in District Court. AJA, 817 F.2d at 1071-72. T he District Court denied the Corps' motion for summary judgment and remanded holding that AJA was entitled to an administrative hearing. Id. at 1072. The Corps a ppealed.

We exercised jurisdiction over the Corps' appeal ev en though the District Court's order remanding for fur ther administrative proceedings was not a final order. W e noted that the District Court had resolved an important l egal issue opening the door to arguments by all applican ts that they are entitled to a hearing prior to a permit de nial. Id. at 1073. In addition, we found that the issue may evad e appellate review; if the Corps granted AJA a permit on remand, the Corps would be unable to appeal the hea ring issue and if the Corps denied AJA a permit, the iss ue of whether AJA is entitled to a hearing would be moot. Id. For these reasons, we held that the Corps' appeal fell within our previously recognized exception to the finality rule.

B.

In addition to our well established exception to th e finality rule for certain District Court orders rem anding for further administrative proceedings, the Supreme Cou rt recently carved out a very specific exception to th e finality rule for remand orders under the Social Security Ac t. See Forney, 524 U.S. 266, and Finkelstein, 496 U.S. 617 . In Finkelstein, the Court held that the District Court 's order effectively holding that certain regulations were i nvalid and remanding for further administrative findings witho ut resort to those regulations was immediately appeala ble. The Court relied heavily upon specific language within the Social Security Act in reaching this decision.4 The Court,

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4. Specifically, the Court found that a District Co urt's order remanding for further administrative proceedings under the So cial Security Act is a

9however, also noted that if benefits were awarded o n

remand under the inquiry mandated by the District C ourt "there would be grave doubt" as to whether the Secr etary could appeal his own order. Finkelstein, 496 U.S. a t 625.

As the Court's recent decision in Forney makes clea r, however, the Finkelstein rationale is limited to th e specific language found in the Social Security Act. In Forne y, the Court held that not only can the Secretary appeal immediately an order remanding for further administ rative proceedings, but that a claimant equally is entitle d to appeal a District Court order remanding for further administrative proceedings. The Court reasoned that Finkelstein primarily was based on the language of the Social Security Act and that the reasoning in Finke lstein does not "permit an inference that `finality' turns on the order's importance, or the availability (or lack of availability) of an avenue for appeal from the different, later, agency determination that might emerge after remand." Forn ey, 524 U.S. at ___, 118 S. Ct. at 1987.

After Forney, it is clear that Finkelstein did not simply apply our general exception to finality to a social security case, but rather created a separate exception to th efinality rule based on the language of the Social Security A ct. Accordingly, Forney cannot be read to extend appell ate jurisdiction to all District Court orders remanding for further administrative proceedings as the parties c ontend, but rather speaks only to appellate jurisdiction un der statutes containing language comparable to that fou nd in the Social Security Act. This conclusion is support ed by the

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final judgment subject to immediate appeal under th e following language:

[T]he district court shall have the power to enter `a judgment affirming, modifying, or reversing the decis ion of the Secretary,

with or without remanding the cause for rehearing .'

* * *

`[t]he judgment of the court shall be final except that it shall be subject to review in the same manner as a ju dgment in other civil

actions.'

Finkelstein, 496 U.S. at 625 (emphasis in original)

.

10fact that, to date, no court has applied Forney to a case not

arising under the Social Security Act. As the USDA concedes, the AMAA does not contain language compar able to that found in the Social Security Act. Forney an d Finkelstein therefore do not control our jurisdicti on over these appeals.

C.

Given that Forney and Finkelstein do not control ou r jurisdiction over these appeals, we return to our g eneral exception to the finality rule to determine whether we have jurisdiction over either of the appeals before us. Specifically, we must determine whether either the 1996 Order or 1998 Order finally resolves an important l egal issue over which appellate review would be foreclos ed as a practical matter in the absence of an immediate app eal.

In its 1996 Order, the District Court determined th at the language relating to producer-handler status wa s ambiguous and that it was appropriate to resort to the promulgation history of the provision at issue. The District Court then remanded for further factual findings as to whether Kreider was the type of dairy the provision was meant to include. On remand, the ALJ determined tha t Kreider was not entitled to producer-handler status . This determination was subject to review by a JO and the n by

the District Court.

Under our exception to the finality rule, the 1996 Order is not subject to immediate appeal. It does notfina lly resolve a particularly important legal issue and, m ore importantly, it is not an order that will evade app ellate review. Absent an order that would evade review, ou r interest in avoiding piecemeal litigation and dupli cative efforts overrides any interest we may have in enter taining the merits of Kreider's appeal at this juncture. Ac cordingly, our traditional exception to finality in agency pro ceedings does not afford us jurisdiction over Kreider's appe al from

the 1996 Order.5

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5. At oral argument, the USDA asserted that if we i ntended to examine the merits of Kreider's appeal, the USDA could file a cross-appeal from

11Our exception, however, does provide appellate

jurisdiction over the USDA's timely appeal from the 1998

Order. This order vacated the JO's determination th at Kreider's appeal was untimely and remanded for the JO to hear the merits of Kreider's appeal from the ALJ's decision. This decision resolves an issue of law that may eva de review if immediate appeal is not permitted; should Kreider receive the relief it seeks on remand, it is doubtf ul that the USDA would be able to appeal its own decision in or der to raise the procedural issues decided by the District Court in its 1998 Order. Therefore, under our exception for agency appeals, we have jurisdiction over the USDA's appea l from

the 1998 Order.6

III.

Having established that we have jurisdiction over t he USDA's appeal of the District Court's 1998 Order, w e turn now to the merits of that appeal. The USDA asserts that the District Court erred in exercising jurisdiction ove r Kreider's appeal and in holding that Kreider's administrative appeal was timely. Because we agree that it was improper f or the District Court to exercise jurisdiction over Kreide r's appeal,

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the District Court's 1996 Order at this juncture to bring its position on the merits before us. Setting aside the obvious pro blems with the timeliness of such an appeal at this late date, we wish to make clear that

because the District Court's 1996 Order is not afin al order over which we have appellate jurisdiction, the USDA is equally precluded from appealing the 1996 Order.

6. Our exception to the finality doctrine for agenc y appeals mirrors to a large extent the collateral order doctrine, which K reider has raised as a possible basis for our jurisdiction over its appeal . Under the collateral order doctrine, an otherwise non-final order is imm ediately appealable if it finally and conclusively determines the disputed question, resolves an important issue separate from the underlying merits , and is effectively unreviewable after final judgment. See In re Tutu W ells Contamination Litig., 120 F.3d 368, 378 (3d Cir. 1997)(citing Coh en v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)). Under either exception to the finality rule, we have jurisdiction over the USDA's appeal but not Kreider's appeal. We likewise reject Kreider's othe r asserted grounds for our jurisdiction over its appeal as baseless.

12we will vacate the District Court's 1998 Order with out

reaching the issue of whether Kreider's administrat ive appeal was timely.

After the District Court's initial remand via the 1 996 Order, Kreider first filed a complaint in the Distr ict Court on February 2, 1998. In this complaint, Kreider sou ght review of the ALJ's August 12, 1997 decision on the merits. At that time, Kreider's motion for reconsideration of the JO's January 12, 1998 order, which dismissed Kreide r's administrative appeal as untimely, was still pendin g. It is clear to us that the District Court did not have ju risdiction over Kreider's February 2, 1998 complaint.

First, as the District Court recognized, it did not have jurisdiction to review the ALJ's August 12, 1997 de cision because that decision is not a final agency decisio n subject to judicial review. See Kreider, 1998 WL 481926 at *7. Second, even if Kreider's February 2, 1998 complain t had challenged the JO's January 12, 1998 decision, whic h it did not, the District Court would have lacked jurisdict ion to

review that decision at that time due to Kreider's pending motion for reconsideration. See Stone v. INS, 514 U .S. 386, 391 (1995)(noting the general rule that the timely filing of a motion to reconsider an agency's action generally renders the underlying order nonfinal for purposes of judic ial review); West Penn Power Co. v. United States Envtl

. Protection Agency, 860 F.2d 581, 584 (3d Cir. 1988) (same).7

Because the District Court lacked jurisdiction to entertain any appeal by Kreider on February 2, 1998 , the date Kreider filed its first complaint, the Distric t Court erred in exercising jurisdiction under the theory t hat Kreider's April 3, 1998 amended complaint related b ack to Kreider's February 2, 1998 complaint. An amended complaint that purports to relate back to an origin al complaint asserting an improper appeal which wasfil ed on a date upon which the District Court would have lac ked

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7. The courts have recognized a limited exception t o this rule for immigration cases based upon language found in the Immigration and Naturalization Act. See Stone, 514 U.S. at 393-95. Because the AMAA contains no comparable language, this exception doe s not apply to Kreider's appeal.

13jurisdiction over the appeal raised in the amended

complaint, must be dismissed for lack of jurisdicti on. See, e.g., Reynolds v. United States, 748 F.2d 291, 293 (5th Cir. 1984) (holding that District Court properly dismiss ed for lack of jurisdiction amended complaint that could o nly relate back to pleading filed on a date upon which the District Court would have lacked jurisdiction over the issues asserted). Absent a viable relation back the ory, Kreider's April 3, 1998 complaint is an untimely ap peal of the JO's January 12, 1998 decision.8 Accordingly, b ecause the District Court lacked jurisdiction over Kreider 's appeal of the JO's January 12, 1997 decision, we will vaca te the

District Court's 1998 Order.

IV.

For the foregoing reasons, we will dismiss summaril y Kreider's cross-appeal from the District Court's 19 98 Order (No. 98-1983), dismiss Kreider's appeal from the Di strict Court's 1996 Order (No. 98-1982) for lack of jurisd iction, and vacate the judgment of the District Court in th e USDA's appeal from the District Court's 1998 Order (No. 98-1906).

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8. Kreider does not dispute that its April 3, 1998 amended complaint was filed more than twenty days after the District Court's February 20,

1998 denial of Kreider's motion for reconsideration of the JO's January 12, 1998 decision and therefore is untimely absent a viable relation back theory. See 7 U.S.C. S 608c(15)(B)(1994).

14SLOVITER, Circuit Judge, concurring.

I concur in the opinion of Judge Mansmann. I write separately to express my concern that our opinions, and those of other courts, dealing with the issue of ap pellate jurisdiction over district court orders remanding t o an administrative agency have used language that is inconsistent with basic principles of federal juris diction. In particular, I take issue with language referring to our jurisdiction in that instance as an "exception" to the finality rule. See, e.g., Bridge v. United States Parole Com mission, 981 F.2d 97, 101-02 (3d Cir. 1992); United States v

. Spears, 859 F.2d 284, 287 (3d Cir. 1988); Perales v

. Sullivan, 948 F.2d 1348, 1353 (2d Cir. 1348). In pl ain words, there can be no judicially created "exceptio n" to the jurisdiction Congress has granted the courts of app eals.

I.

Any analysis of the jurisdiction of the courts of a ppeals must begin with the recognition that under our Constitutional separation of powers it is Congress that sets the jurisdiction of the federal courts, and the jud iciary has no power to make exceptions to the congressional determinations in that respect. See United States v

. Hollywood Motor Car Co., 458 U.S. 263, 264 (1982) ( per curiam); see also 15A Charles Alan Wright, Arthur R

. Miller, and Edward H. Cooper, Federal Practice and Procedure S 3905, at 232 (2d ed. 1991).

When Congress made its initial division of the jurisdiction between the federal trial courts and t he appellate courts, it drew the line at final decisio ns. "The general principle of federal appellate jurisdiction , derived from the common law and enacted by the First Congre ss, requires that review of nisi prius proceedings awai t their termination by final judgment." DiBella v. United S tates, 369 U.S. 121, 124 (1962) (citing First Judiciary Ac t, SS 21, 22, 25, 1 Stat. 73, 83, 84, 85 (1789)); see also 15 A Wright, Miller & Cooper, supra, S 3907, at 268 ("For two ce nturies,

15the final judgment rule has been the heart of appel late

jurisdiction in the federal system.").9

With few exceptions, that remains the touchstone to day. The Supreme Court has explained that the final judg ment rule discourages piecemeal appeals which carry with them the potential for harassment and excessive costs fo r litigants, see Cobbledick v. United States, 309 U.S . 323, 325-26 (1940); 15A Wright, Miller & Cooper, supra, S 3905, at 239, and protects the independence of the distri ct judge, see Firestone, 449 U.S. at 374. The final judgment rule has survived because it is generally believed that it"p romot[es] efficient judicial administration." Id. (citing Eis en v. Carlisle & Jacquelin, 417 U.S. 156, 170 (1974)).

Over the years, Congress has made discrete decision s "that particular policies require that private righ ts be vindicable immediately." See Digital Equip. Corp. v . Desktop Direct, Inc., 511 U.S. 863, 880 n.7 (1994) (discuss ing provision for immediate appeal under 9 U.S.C. S 16( a) when

district court declines to send case to commercial arbitrator). However, such a decision is always characterized by an express congressional judgment. See, e.g., 28 U.S.C. S 1292(a)(1) (authorizing appeal fr om interlocutory orders granting, modifying, denying e tc. injunctions); 28 U.S.C. S 1292(b) (authorizing inte rlocutory appeal on certification). The Supreme Court has cau tioned that the existence of those congressional policy ju dgments "by no means suggests that [the courts] should now be more ready to make similar judgments for themselves " and to expand the scope of appellate jurisdiction beyon d that set by Congress. Digital Equip. Corp., 511 U.S. at 880 n.7.

II.

It follows that the references to "exceptions" to o ur statutorily authorized jurisdiction are misguided. Even the Supreme Court has no power to make an exception to the

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9. A final judgment is "a decision by the District Court that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373 (1981).

16finality rule that does not have a statutory predic ate.

Nonetheless, opinions of the lower federal courts r epeatedly refer to the collateral order "exception" emanating from the holding of Cohen v. Beneficial Industrial Loan Corp ., 337 U.S. 541 (1949), that the courts of appeals have ju risdiction over "a small class of orders" that, albeit not the final decision in the case, resolve important questions c ompletely separate from the merits, which would be effectivel y unreviewable were they to wait appeal from the fina l judgment in the underlying action. The notion of an "exception" to the finality doctrine is illogical a s Congress alone establishes our appellate jurisdiction.

The collateral order doctrine was hardly a new theo ry of finality never previously comprehended. More than t wo decades earlier, the Court stated that, althoughfin al judgments are the rule,

it is well settled that an adjudication fina l in its nature as to a matter distinct from the general sub ject of the litigation and affecting only the parties to the particular controversy, may be reviewed without awaitin g the determination of the general litigation.

United States v. River Rouge Improvement Co., 269 U .S. 411, 414 (1926).

A leading treatise observes that "[t]he most certai n aspect of collateral order appeals is that they depend on 28 U.S.C. S 1291, and thus must be characterized as appeals f rom `final decisions.' " 15A Wright, Miller & Cooper, s upra, S 3911, at 347; see also id. S 3911, at 349 (emphas izing that S 1291 "remains the only available foundation" for collateral orders doctrine). Indeed, the Supreme Co urt has repeatedly adopted the view that jurisdiction to he ar an appeal from a collateral order falls within the aut hority conferred by S 1291.

In Johnson v. Fankell, 520 U.S. 911, 917 (1997), th e Court stated: "In [Cohen], as in all of our cases f ollowing it, we were construing the federal statutory language o f 28 U.S.C. S 1291." In his scholarly opinion in Digital Equipment Corp., Justice Souter explained that "[t]he collate ral order doctrine is best understood not as an exception to the `final decision' rule laid down by Congress in S 1291, but as a

17`practical construction' of it." 511 U.S. at 867. S ee also

Firestone, 449 U.S. at 368 ("Cohen did not establis h new law; rather, it continued a tradition of givingS 12 91 a `practical rather than a technical construction.' " ); Coopers & Lybrand, 437 U.S. 463, 468 (1978) ("[T]he Court h eld [the Cohen order] appealable as a `final decision' under S 1291."); Abney v. United States, 431 U.S. 651, 65 8 (1977) ("[T]his Court held [in Cohen] that the Court of Ap peals had jurisdiction under S 1291 to entertain an appeal fr om the District Court's pretrial order." (emphasis added))

.

I agree with the majority that the two cases arisin g under the Social Security Act, Sullivan v. Finkelstein, 4 96 U.S. 617 (1990), and Forney v. Apfel, 524 U.S. 266 (1998 ), represent an exception to the final judgment rule. But the exception is one made by Congress, not the courts.

In Finkelstein, the Court considered the jurisdicti on of the courts of appeals to hear an appeal by the Secr etary of

Health and Human Services from a district court's o rder invalidating regulations issued by the Secretary an d remanding to the agency for renewed consideration o f the

claim for benefits. The Court observed that the lan guage of 42 U.S.C. S 405(g) in the Social Security Act permi tted a district court to enter " `a judgment affirming, mo difying, or reversing the decision of the Secretary, with or wi thout remanding the cause for a rehearing.' " Id. at 625 (quoting S 405(g)) (emphasis omitted). Further, S 405(g) mad e clear that such a judgment was " `final except that it sh all be subject to review in the same manner as a judgment in other civil actions.' " Id. (quotingS 405(g)) (emph asis omitted). In light of this language, the Court conc luded that Congress had "define[d] a class of orders as `final judgments' that by inference would be appealable un der S 1291." Id. at 628. Justice Blackmun concurred, bu t stated he would have treated the appeal as falling within

the confines of the collateral order doctrine. Id. at 632 (Blackmun, J., concurring).

The issue arose eight years later in Forney v. Apfe l, 524 U.S. 266 (1998). There, it was an individual seekin g benefits, rather than the government, who appealed the district court's decision following a remand to the agency under S 405(g). The Court rejected the collateral o rder

18theory as the basis for appellate jurisdiction and

emphasized, in a unanimous opinion, that Congress h ad created a class of orders through S 405(g) that wer e appealable as final orders under S 1291. Thus, beca use the

district court decisions at issue in Finkelstein an d Forney were a class of orders declared "final" by Congress by construction of the language of the Social Security Act, they provide little assistance on the issue facing us no w, the appealability of an order remanding to an agency un der a statute that has no comparable provision for appeal

.

Of course, it would have facilitated our decision a s to our appellate jurisdiction over an order remanding to a n administrative agency if Congress had explicitly pr ovided for such, and it may be that cases such as this wil l lead it to consider doing so. In any event, the precedent a llowing such an appeal in appropriate circumstances, includ ing that from this court, precludes any retreat now.

The most obvious analog, and the one relied on by m any courts of appeals, is the collateral order doctrine

, notwithstanding the fact that most of the agency re mand orders would not qualify because the remand would r arely be on an issue separate from the merits. See 15B Wr ight, Miller & Cooper, supra, S 3914.32, at 240 (assertin g that "[a]n impressive number of cases" permit appeal und er the doctrine). It has been suggested that the tendency is to accept the appeals of government agencies, apparent ly because "administrative agencies, as more or less coordinate branches of government, deserve the prot ection of special appeal opportunities." Id. at 56-57 n.9 (Supp. 1999) (citing, inter alia, Bergerco Canada v. Unite d States Treasury Dep't, 129 F.3d 189, 191-92 (D.C. Cir. 199 7); Baca-Prieto v. Guigni, 95 F.3d 1006, 1008-09 (10th Cir. 1996); Hanauer v. Reich, 82 F.3d 1304, 1306-07 (4th Cir. 1996); Schuck v. Frank, 27 F.3d 194, 196-97 (6th Ci r. 1994)). But see Cotton Petrol., Inc. v. United Stat es Dep't of the Interior, 870 F.2d 1515, 1521-22 (10th Cir. 198 9); AJA Assocs. v. Army Corps of Eng'rs, 817 F.2d 1070, 107 2-73 (3d Cir. 1987)).

Wright, Miller, and Cooper have summarized the reas ons courts rely on the collateral orders doctrine. In s ome circumstances, an agency may be statutorily barred from

19appealing its own decision. In others, the agency's decision

will render the issue moot, because the agency has complied with the district court's order. Additiona lly, agencies ought not face the risk of contempt to pro mpt an immediate appeal, or the danger that the agency wil l be unable to recapture later any benefits paid in the interim. See 15B Wright, Miller & Cooper, supra , S 3914.32, at 240-

41.

I agree that a practical construction of finality s uffices to justify review of an agency remand order in appropr iate cases. Such an approach is a considerable improveme nt over viewing the basis of our jurisdiction as an"ex ception to finality."

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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