LOUIS W. SULLIVAN, SECRETARY OF HEALTH AND HUMAN SERVICES,
PETITIONER V. MARILYN FINKELSTEIN

   No. 89-504

   In The Supreme Court Of The United States

   October Term, 1989

   On Writ Of Certiorari To The United States Court Of Appeals For The
Third Circuit

   Brief For The Petitioner

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statutory provisions involved
   Statement
   Summary of Argument
   Argument:
      The court of appeals had jurisdiction of the Secretary's
      appeal
      I. The text and structure of 42 U.S.C. 405(g)
         establish that the district court's order is a
         final judgment from which the Secretary may
         appeal under 28 U.S.C. 1291
     II. The right of the Secretary to appeal is supported
         by general principles governing the construction
         of 28 U.S.C. 1291 and the scope of
         judicial review of agency action
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals, as amended by order dated May
19, 1989 (Pet. App. 1a-12a), is reported at 869 F.2d 215, and the
opinion of Judge Becker dissenting from the denial of rehearing en
banc (Pet. App. 23a-24a) is reported at 869 F.2d 220.  The opinion of
the district court (Pet. App. 13a-18a) is unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on March 3, 1989
(Pet. App. 19a-20a), and a petition for rehearing was denied on May
24, 1989 (Pet. App. 21a-22a).  By order dated August 9, 1989 Justice
Brennan extended the time within which to file a petition for a writ
of certiorari to and including September 21, 1989.  The petition was
filed on that date and was granted on January 22, 1990.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                     STATUTORY PROVISIONS INVOLVED

   28 U.S.C. 1291 and Section 205(g) of the Social Security Act, as
codified at 42 U.S.C. 405(g), are set forth in an Appendix to this
brief.  App., infra, 1a-2a.

                          QUESTION PRESENTED

   Whether, in an action under 42 U.S.C. 405(g) for judicial review of
the final decision of the Secretary of Health and Human Services
denying a claim for Social Security disability benefits, the Secretary
may appeal an order of the district court that rejects the legal basis
for the Secretary's decision and, as a consequence, remands the cause
to the Secretary for a rehearing under a different legal standard.

                               STATEMENT

   1. Respondent is the widow of a wage earner who died on August 27,
1980, while fully insured under Title II of the Social Security Act,
42 U.S.C. 401 et seq.  On November 25, 1983, respondent applied for
widow's disabiilty benefits under Title II.

   The statutory standard of disability for the widow, widower, or
surviving divorced spouse of a wage earner /1/ is different from and
more stringent than that for the wage earner.  In the case of a wage
earner, the Social Security Act provides that the term "disability"
means the "inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months."
42 U.S.C. 423(d)(1)(A).  The Act further provides that a wage earner
shall be determined to be under a disability only if his impairment is
"of such severity that he is not only unable to do his previous work
but cannot, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which exists in
the national economy" (42 U.S.C. 423(d)(2)(A)).  By contrast, under 42
U.S.C. 423(d)(2)(B), which was enacted in 1968, /2/ a surviving spouse
shall not be determined to be disabled unless his or her impairment is
"of a level of severity which under regulations prescribed by the
Secretary is deemed to be sufficient to preclude an individual from
engaging in any gainful activity." See Sullivan v. Zebley, No. 88-1377
(Feb. 20, 1990), slip op. 14-15.

   The regulations implementing the latter statutory section, which
were promulgated soon after passage of 42 U.S.C. 423(d)(2)(B) in 1968,
/3/ provide that a surviving spouse's impairment is deemed to be of
sufficient severity to preclude gainful activity only if it meets or
equals the severity of an impairment included in the Listing of
Impairments in App. 1 to 20 C.F.R. Pt. 404, Subpt. P.  See 20 C.F.R.
404.1525(a), 404.1577, 404.1578(a).  Thus, under the regulations
prescribed by the Secretary, a surviving spouse's impairment is
evaluated solely on the basis of the medical severity of that
impairment.  The Secretary does not consider any further limitations
on the surviving spouse's ability to work that may result from the
adverse effects of age, education, or work experience, as he would in
the case of a wage earner.  20 C.F.R. 404.1577, 404.1578(a);  see
Sullivan v. Zebley, slip op. 15;  Bowen v. Yuckert, 482 U.S. 137, 149
n.7 (1987);  id. at 163-164 & n.3 (Blackmun, J., dissenting).  /4/

   2. Respondent's application for surviving spouse's disability
benefits under 42 U.S.C. 423(d)(2)(B) was denied at all four levels of
the administrative process on the ground that her coronary condition
did not meet or equal an impairment contained in the Listing.  Pet.
App. 16a.  /5/ After respondent exhausted her administrative remedies
through the Appeals Council, she sought judicial review of the
Secretary's final decision, pursuant to 42 U.S.C. 405(g), in the
United States District Court for the District of New Jersey.

   The district court upheld, as supported by substantial evidence,
the Secretary's decision that respondent's coronary impairment did not
meet or equal an impairment contained in the Listing.  Pet. App.
15a-16a.  It further held, however, that the Secretary may not deny a
surviving spouse's claim for disability benefits on that basis alone,
but instead must make an individualized determination of the
functional impact of the impairment on the claimant in order to
determine whether she in fact retains sufficient residual functional
capacity to perform any gainful activity.  Id. at 17a-18a.  The effect
of this ruling was to invalidate the Secretary's longstanding
regulations to the extent that they require an applicant for surviving
spouse's disability benefits to show an impairment that meets or
equals a listed impairment.  /6/ The court therefore "directed" the
Secretary "to inquire whether (respondent) may or may not engage in
any gainful activity, as contemplated by the Act" (id. at 18a), and
ordered "that the matter be remanded to the Secretary for further
proceedings in accordance with (the) Court's opinion." Id. at 25a.

   3. The Secretary appealed the district court's order.  He defended
the validity of the regulations requiring an applicant for surviving
spouse's disability benefits to show an impairment that meets or
equals the Listing, and argued that the district court therefore
should have affirmed the Secretary's final decision because the court
correctly upheld, as supported by substantial evidence, the
Secretary's finding that respondent did not have such an impairment.
Pet. App. 2a-4a.  /7/ On March 3, 1989, the court of appeals dismissed
the Secretary's appeal for lack of jurisdiction, holding that the
district court's order was an interlocutory order, not a "final
decision," for purposes of 28 U.S.C. 1291.  Pet. App. 1a-12a, 19a-20.

   The court of appeals first noted its previous articulation of a
general rule that "'remands to administrative agencies are not
ordinarily appealable under section 1291,'" because "(s)uch a remand
is typically an interlocutory step in the adjudicative process and,
therefore, not a final order." Pet. App. 4a (quoting United
Steelworkers, Local 1913 v. Union R.R. 648 F.2d 905, 909 (3d Cir.
1981)).  The court acknowledged that its prior decisions established
an exception to that general rule 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." Pet. App. 4a-5a.  But after reviewing those decisions
(id. at 7a-9a), the court found that exception inapplicable here,
because, in the court's view, "'it is not inexorably so'" that the
legal ruling on which the district court's order was based would
escape appellate review.  Id. at 9a (quoting Bachowski v. Usery, 545
F.2d 363, 373 (3d Cir. 1976)).  See generally Pet. App. 9a-12a.  The
court reasoned that the question whether the district court had made
an error of law would be subject to review by the court of appeals if
events subsequent to the district court's order at issue here unfolded
in a particular way, namely:  (a) if the Secretary, after considering
respondent's residual functional capacity on remand, made an
individualized determination that respondent is not precluded from
engaging in any gainful activity;  (b) if respondent sought judicial
review of that decision of the Secretary;  (c) if the district court
reversed the Secretary's new decision and ordered an award of
benefits;  and (d) if the Secretary appealed that subsequent order of
the district court to the court of appeals.  Id. at 9a-11a;  see also
id. at 7a.

   The court candidly proceeded on the assumption that the Secretary
would be denied any opportunity for appellate review of the district
court's legal ruling if events did not unfold in the manner just
described -- specifically if, on remand, the ALJ or Appeals Council
was required to find respondent disabled and award her benefits under
the district court's view of the controlling standards.  Pet. App.
9a-10a, 11a.  But the court concluded that this possible preclusion of
any opportunity for the Secretary to obtain appellate review of the
central legal issue in the case was "of no more significance" than it
was in another Third Circuit case (Brotherhood of Maintenance of Way
Employees v. Consolidated Rail Corp., 864 F.2d 283 (1988)) in which it
had dismissed an appeal even though the appellant might be deprived of
any opportunity to challenge the legal ruling that led to the remand.
Pet. App. 11a.

   The court of appeals also acknowledged that, in a number of prior
cases, it had found appellate jurisdiction over similar district court
orders on the theory that the order constituted a final rejection of
the agency's position that under the governing law, no further
administrative hearing or other proceedings were required.  Pet. App.
7a-9a, 12a.  But the court found that rationale inapposite in this
case because, in its view, the legal issue presented here is not
whether the governing statute or regulations require a hearing, but
whether an additional factor (respondent's residual functional
capacity) must be considered by the Secretary before he makes a final
administrative adjudication of the benefits claim.  Id. at 12a.
Finally, although the appeal in this case was taken not by respondent
but by the Secretary, who was seeking reinstatement of his final
decision, the court of appeals found it significant that respondent
"ha(d) no vested right in anything" and that the district court's
order therefore "did not take away something which she had already
been given," but rather "postponed final disposition in her case until
the Secretary had considered an additional factor." Ibid.  /8/

   4. The Secretary's petition for rehearing en banc was denied, with
three judges dissenting.  Pet. App. 21a-22a.  Judge Becker, who was a
member of the panel, explained his vote for rehearing en banc in a
statement joined by Judges Sloviter and Stapleton.  Id. at 23a-24a.
Judge Becker stated that he had joined the panel's opinion because he
felt bound to do so by the Third Circuit's decision in Bachowski v.
Usery, 545 F.2d 363 (1976), even though Bachowski "seems inconsistent
at least with the spirit of (the Third Circuit's) later
jurisprudence." Pet. App. 23a.  But Judge Becker explained that if
free to do so, he would follow the reasoning of the recent decision in
Occidental Petroleum Corp. v. SEC, 873 F.2d 325, 328-332 (D.C. Cir.
1989), and hold that the court of appeals had appellate jurisdiction
in this case.  Judge Becker elaborated (Pet. App. 23a):

         In (Occidental Petroleum), Judge (Douglas) Ginsburg, speaking
      for the court, expressed the view that Congress did not intend
      that the final order rule place an agency in a position of
      dependence upon the self-interest of others in order to get
      review of a legal decision that dictates the standards and
      procedures to be applied by the agency in making its decisions.
      Here, as in Occidental, the Secretary is between the proverbial
      rock and a hard place.  If the Secretary, bound by the district
      court's opinion, grants benefits on remand to (respondent), he
      cannot appeal.  If the Secretary does not grant benefits on
      remand, whether or not the legal issue will be reviewed depends
      on whether (respondent) decides to press an appeal.  /9/

                          SUMMARY OF ARGUMENT

   The court of appeals had jurisdiction of the Secretary's appeal
under 28 U.S.C. 1291.  The district court's order in this case was a
"final decision" for purposes of that provision because it constituted
a final rejection of the particular decision of the Secretary that was
before the district court on judicial review.

   1. The jurisdiction of the court of appeals is established by the
text and structure of 42 U.S.C. 405(g).  That provision makes it clear
that the district court's decision here -- which rejected on the
merits the legal standard underlying the Secretary's decision -- is a
"judgment" that is "final" and subject to appellate review even
though, as an aspect of its relief, the court remanded the cause to
the Secretary for rehearing under a different legal standard.  That
conclusion is reinforced by Congress's identification in Section
405(g) of certain other remands that are interlocutory in nature and
that do not constitute final judgments.  This Court's decision in
Sullivan v. Hudson, 109 S. Ct. 2248 (1989), relied on by respondent,
is not to the contrary, since it dealt only with the very different
question of an award of attorney's fees, under the Equal Access to
Justice Act (EAJA), 28 U.S.C. 2412, for legal services rendered to a
claimant on remand.

   2. The conclusion that 42 U.S.C. 405(g) renders the district
court's order appealable is strongly supported by established
principles governing judicial review of agency action and the
appealability of district court orders under 28 U.S.C. 1291.  Indeed,
this Court has previously granted review on the merits of court of
appeals decisions in situations indistinguishable from that presented
here.  And it has itself reviewed decisions under the Hobbs Act, 28
U.S.C. 2341 et seq., which authorizes such review of "final" judgments
of the courts of appeals, 28 U.S.C. 2350, in instances in which the
court of appeals' judgment has included a remand to the agency for
further proceedings.

   This Court has recognized in a variety of instances that Section
1291 is addressed to the maintenance of a healthy legal system, that
it must be given a practical and not a technical construction, and
that it is therefore not limited to orders that terminate the
proceedings in all respects.  Instances in which appeals have been
allowed include cases involving "collateral orders," e.g., Cohen v.
Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), and cases in
which, as a practical matter, there would be no further litigation of
the issue in the federal system, e.g., Moses H. Cone Memorial Hospital
v. Mercury Construction Corp., 460 U.S. 7 (1983).

   This case differs from prior cases in which the Court has
considered the appealability question because the order at issue here
was not entered in the course of ordinary civil or criminal
litigation.  It was entered, instead, in the context of judicial
review of final agency action.  In that context, when a district court
holds an agency's decision unlawful, a coordinate Branch of government
is immediately aggrieved.  Moreover, the nature of judicial review of
agency action is such that the district court's judgment effectively
ends the judicial proceeding on the merits;  in this case, the matter
before the district court was the agency decision under review, not
respondent's underlying claim for benefits.  The division of functions
between agency and reviewing court leaves the resolution of that claim
to the agency.

   Even if the proceedings before the district court and those before
the Secretary are viewed as aspects of a broader controversy over
respondent's claim to benefits, the principles informing the
"collateral order" doctrine support appellate review here.  The
Secretary's appeal of the district court order does not interfere with
any on-going proceedings in the district court or undermine the
independence of the district judge.  On the contrary, allowance of an
appeal is necessary to vindicate the special role and distinct
responsibilities of the Secretary, who is the Executive Branch officer
responsible for administering the Social Security Act.

   Indeed, the Secretary's right to appeal is consistent with the
three factors the Court has identified in applying the collateral
order doctrine.  See Coopers & Lybrand v. Livesay, 437 U.S. 463, 468
(1978).  First, the district court has conclusively determined a
disputed question of law.  Second, the district court order is
"completely separate" from the merits in the relevant sense because
there will be no further devlopment of legal or factual issues by the
district court at a trial -- the further proceeding contemplated will,
instead, take place in another Branch under a different legal standard
-- and because the issue resolved by the district court cannot be
reconsidered by the Secretary on remand.  Finally, the district
court's ruling is not effectively reviewable on appeal from a later
judgment because, if respondent prevails on remand or does not pursue
her claim, the Secretary will be unable to appeal from that decision.

                               ARGUMENT

   THE COURT OF APPEALS HAD JURISDICTION OF THE SECRETARY'S APPEAL

   Section 1291 of Title 28 provides that "(t)he courts of appeals * *
* shall have jurisdiction of appeals from all final decisions of the
district courts * * * except where a direct review may be had in the
Supreme Court." This provision is a descendant of Section 22 of the
Judiciary Act of 1789, ch. 20, 1 Stat. 84, which provided that "final
decrees and judgments" in civil actions in a district court could be
reexamined and affirmed or reversed by the circuit court.  For these
purposes, a final judgment is normally deemed not to have been entered
"'until there has been a decision by the District Court that "ends the
litigation on the merits and leaves nothing for the court to do but
execute its judgment."'" Midland Asphalt Corp. v. United States, 109
S. Ct. 1494, 1497 (1989) (quoting Van Cauwenberghe v. Biard, 108 S.
Ct. 1945, 1949 (1988), and Catlin v. United States, 324 U.S. 229, 233
(1945)).

   The Court has recognized, however, that under Section 1291, "it is
a final decision that Congress has made reviewable," not a final
judgment.  Stack v. Boyle, 342 U.S. 1, 12 (1951) (opinion of Jackson,
J.).  As a result, "'a decision 'final' within the meaning of Section
1291 does not necessarily mean the last order possible to be made in a
case.'" Mitchell v. Forsyth, 472 U.S. 511, 524 (1985) (quoting
Gillespie v. United States Steel Corp., 379 U.S. 148, 152 (1964)).
And in determining whether a particular type of order is immediately
appealable under Section 1291, the requirement of finality must be
given a "practical rather than a technical construction." Cohen v.
Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949).

   The district court's order in this case is a "final decision" for
purposes of 28 U.S.C. 1291 because it constituted a final rejection of
the particular decision of the Secretary that was before the district
court on judicial review;  the district court's decision therefore
terminated the relevant judicial proceedings.  The administrative
decision before the court denied respondent's application for
surviving spouse's disability benefits on the ground that she had not
satisfied the pertinent regulatory requirement (that her impairment
meet or equal an impairment in the Listing).  The district court
sustained, as supported by substantial evidence, the Secretary's
finding that respondent had not satisfied that requirement.  Pet. App.
16a.  But instead of affirming the Secretary's decision based on that
determination, in accordance with governing regulations, the court
held that the Secretary must inquire into whether respondent is in
fact unable to perform any gainful activity, taking into account her
residual functional capacity.  Id. at 17a-18a, 25a.

   Neither the court of appeals nor respondent disputes that the
district court's order effectively invalidated the Secretary's
regulations in this case.  Compare Heckler v. Campbell, 461 U.S. 458,
465-466 (1983).  A district court order having that effect is a "final
decision" from which the Secretary may take an appeal pursuant to 28
U.S.C. 1291.  The Secretary is not divested of his right to appeal the
order simply because the district court, in addition to and as a
consequence of those rulings, remanded the cause to the Secretary for
a rehearing under different legal standards that the court itself
imposed.  The subject of the Secretary's appeal is the district
court's rejection of the final decision of the Secretary that was
before the court on judicial review, not the court's further action in
remanding the matter to the Secretary to render a new decision.  This
case therefore differs from those in which a court remands a matter to
an agency for the receipt of new evidence before the court addresses
the merits of the particular administrative decision that is pending
on judicial review.  /10/ A remand of the latter sort occurs at an
interlocutory stage of the judicial proceeding;  it is nonappealable
because it precedes the court's final adjudication of the subject of
the civil action (the validity of the administrative decision).  An
appeal at that stage could challenge only the remand itself, not any
legal rulings by the court on the merits of the administrative
decision.

   The Secretary's right of appeal in circumstances like those
presented here is supported by the text and structure of 42 U.S.C.
405(g), as well as by the principles that govern judicial review of
agency action and inform this Court's construction of 28 U.S.C. 1291.

   I. THE TEXT AND STRUCTURE OF 42 U.S.C. 405(g) ESTABLISH THAT THE
DISTRICT COURT'S ORDER IS A FINAL JUDGMENT FROM WHICH THE SECRETARY
MAY APPEAL UNDER 28 U.S.C. 1291

   The text and structure of 42 U.S.C. 405(g) establish that the court
of appeals had jurisdiction of the Secretary's appeal in this case.
Indeed, Congress has specified in Section 405(g) that a district court
decision such as that at issue here is a "judgment" that is "final"
and subject to appellate review "in the same manner as the judgment in
other civil cases," even though the court, as an aspect of its relief,
remands the cause to the Secretary for a hearing under different legal
or evidentiary standards.  This conclusion is reinforced by Congress's
identification in Section 405(g) of certain other remands that do not
follow from the court's ruling on the validity of the Secretary's
decision, but instead are intended to furnish an opportunity for
supplementation or clarification of the administrative record and
decision.  The Secretary, like the claimant, may not appeal the latter
type of order under 28 U.S.C. 1291 because it does not dispose of the
merits of the cause of action for judicial review of the Secretary's
decision.  The text of Section 405(g) thus furnishes a bright line
between those district court orders the Secretary may appeal and those
he may not.  That bright line should be given effect in this case.

   A. Section 405(g) establishes a simple, expeditious, and carefully
tailored procedure by which claimants may invoke the jurisdiction of
district courts in Social Security cases.  That procedure serves to
circumscribe the role of the courts in matters arising under the
Social Security Act and, correspondingly, to preserve and respect the
primary jurisdiction of the Secretary in administering the massive
benefit programs established by the Act -- both in the formulation of
broad policies (see 42 U.S.C. 405(a);  Bowen v. Yuckert, 482 U.S. at
145) and in the adjudication of individual claims for benefits.
Weinberger v. Salfi, 422 U.S. 749, 765-767 (1975).

   Consistent with this legislative scheme, Section 405(g) does not
create an ordinary civil cause of action against the United States for
a money judgment in the amount of benefits allegedly owing under the
Social Security Act.  Nor does the statute authorize a trial de novo
of the sort that would be conducted in the adjudication of an ordinary
civil cause of action.  To the contrary, Section 405(g) authorizes a
special and limited form of civil action:  an action for judicial
review of the Secretary's final decision on the plaintiff's claim for
benefits.  The court's review and decision must be based on the record
developed by and presented to the Secretary during the four-stage
administrative review process.  It is during that administrative
review process, not on judicial review, that the claimant has an
opportunity for a de novo evidentiary hearing.  42 U.S.C. 402(b)(1)
(1982 & Supp. IV 1986).  As a result, the subject matter of the civil
action authorized by 42 U.S.C. 405(g) is not the plaintiff's
underlying monetary claim for benefits under the Social Security Act,
but rather the validity of the Secretary's final decision disposing of
that claim.

   This character of a civil action under Section 405(g) is
demonstrated by the statutory text in a number of respects.  /11/ The
first sentence of Section 405(g) provides that "(a)ny individual,
after any final decision of the Secretary made after a hearing to
which he was a party, * * * may obtain a review of such decision by a
civil action commenced within sixty days after the mailing to him of
notice of such decision or within such further time as the Secretary
may allow." The third sentence requires the Secretary, as part of his
answer to the complaint, to "file a certified copy of the transcript
of the (administrative) record including the evidence upon which the
findings and decision complained of are based." These two sentences
confirm that (i) the subject of the civil action is the "final
decision" (and supporting findings) of the Secretary that the
plaintiff has "complained of," (ii) the scope of the civil action is
limited to "a review of such decision," and (iii) the only record on
which the court may base its review is the record relied upon by the
Secretary and furnished by him to the court.  /12/

   The fourth sentence of Section 405(g) both confers adjudicatory
power on the court and limits that power.  This sentence states that
the district court "shall have power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Secretary, with or without remanding the
cause for a rehearing." This language aptly describes what the
district court did in this case:  the court "affirm(ed)" the
Secretary's decision insofar as it found that respondent did not
satisfy the requirement of the governing regulations by showing an
impairment that meets or equals the Listing;  the court "modif(ied)"
or "revers(ed)" the Secretary's decision insofar as it denied
respondent's claim on that basis;  and the court then "remand(ed) the
cause for a rehearing," in which the Secretary must apply a legal
standard other than the one set forth in the regulations.  The text
and background of Section 405(g) indicate that the Secretary may
appeal such an order.

   As an initial matter, Congress's use of the term "judgment" in the
fourth sentence of Section 405(g) to describe the disposition that the
district court is empowered to make indicates in itself that the
Secretary may appeal such an order under 28 U.S.C. 1291.  The word
"judgment" is a term of art that typically connotes the final
disposition of a case, see 6 J. Moore, W. Taggart & J. Wicker, Moore's
Federal Practice Paragraph 54.02, at p. 54-22 & nn. 2, 3 (2d ed.
1988), and an order that so "ends the litigation on the merits" may be
appealed by the party aggrieved, pursuant to 28 U.S.C. 1291.  Catlin
v. United States, 324 U.S. at 233.

   There is, moreover, particular reason to believe that Congress
understood when it enacted Section 405(g) in 1939 /13/ that the term
"judgment" connotes an order from which an appeal lies.  Rule 54(a) of
the Federal Rules of Civil Procedure expressly provides that the term
"judgment" "includes a decree and any order from which an appeal
lies." The Federal Rules, including Rule 54(a), became effective in
1938 (Fed. R. Civ. P. 86(a);  308 U.S. at 653, 732, 766), less than
one year before Congress enacted Section 405(g).  Rule 1 of the Civil
Rules provides, as it did in 1938 (308 U.S. at 663), that the Rules
govern the procedure "in all suits of a civil nature," language
necessarily encompassing the suits under the Social Security Act that
Congress authorized when it enacted Section 405(g) in 1939.  See
Califano v. Yamasaki, 442 U.S. 682, 700 (1979).  Furthermore, under
the Rules Enabling Act, the Rules did not take effect until the close
of the 1938 Session of Congress, the Session in which they had been
reported to Congress by the Attorney General.  See Act of June 19,
1934, ch. 651 Section 2, 48 Stat. 1064, codified as amended at 28
U.S.C. 2072-2074.  It is therefore reasonable to conclude that
Congress intended the term "judgment" in Section 405(g) to have the
same meaning as that term had recently and definitively been given
under the Rules governing procedure in civil actions generally.  See
Sibbach v. Wilson & Co., 312 U.S. 1, 14-16 (1941).  Thus, the
straightforward reading of the fourth sentence of Section 405(g) is
that a district court has power to enter a "judgment" modifying or
reversing the decision of the Secretary, and that the judgment is an
appealable order even if the court, as a consequence of its legal
ruling, also remands the cause to the Secretary for a rehearing.

   Any doubt on this question would appear to be eliminated by the
eighth sentence of 42 U.S.C. 405(g).  The eighth sentence provides
that "(t)he 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." Because the fourth sentence of Section 405(g) makes clear
that the term "judgment" encompasses an order modifying or reversing
the Secretary's decision whether or not the court also remands the
cause to the Secretary, the existence of a remand does not detract
from the "final(ity)" of the judgment for purposes of the eighth
sentence.  As noted above, it is undisputed that a final judgment is
an appealable "final decision" within the meaning of 28 U.S.C. 1291.
See Midland Asphalt Corp. v. United States, 109 S. Ct. at 1497.

   In any event, the eighth sentence further states that a judgment
under 42 U.S.C. 405(g) "shall be subject to review in the same manner
as a judgment in other civil actions." While the legislative history
does not elaborate on this provision, /14/ it apparently was intended
only to clarify where an appeal of the district court's concededly
final judgment may be taken, not whether an appeal lies.  At the time
Section 405(g) was enacted, the usual "manner" in which a party
obtained review of a judgment in a civil action was by appeal to the
court of appeals pursuant to what is now 28 U.S.C. 1291.  But when a
district court held a provision of the Social Security Act
unconstitutional, review was by direct appeal to this Court, pursuant
to the special jurisdictional statute passed in 1937, only two years
before 42 U.S.C. 405(g) was enacted.  Act of Aug. 24, 1937, Section 2,
ch. 754, 50 Stat. 752, 28 U.S.C. 1252 (1982);  see, e.g., Fleming v.
Nester, 363 U.S. 603, 604 (1960);  Bowen v. Owens, 476 U.S. 340, 345
(1986).  /15/ Thus, the eighth sentence of Section 405(g) preserved
the alternative avenues of appellate review, /16/ and, read in
connection with the fourth sentence, firmly establishes that the
Secretary may appeal the district court's order here.

   This conclusion is supported by the other provisions of Section
405(g) that describe the nature and scope of the civil action it
authorizes.  As explained above, those provisions make clear that it
is not the underlying claim for benefits, but rather the particular
final decision of the Secretary that the claimant has "complained of"
in his action for judicial review, that is the subject of the civil
action.  Accordingly, where, as here, the district court enters an
order holding that particular decision to have been erroneous and then
remands to the Secretary for a rehearing, the court's order ends the
relevant litigation on the merits.  After the further proceedings on
remand, the Secretary will render a new decision (based on new
findings), in conformity with the legal rulings in the district
court's order, and it is that new decision, not the one the district
court previously set aside, that will be the subject of any further
proceedings for judicial review that the claimant may institute under
Section 405(g).  Because the two rounds of judicial proceedings are
conceptually and legally distinct (despite their relation to the same
underlying claim for benefits), it is not surprising that Congress, in
enacting Section 405(g), deemed the order that ends the first round to
be a final judgment that is "subject to review in the same manner as a
judgment in other civil actions." /17/

   B. Respondent ignores the fourth and eighth sentences of 42 U.S.C.
405(g), which speak directly to the appeal-ability issue, and focuses
instead (Br. in Opp. 22-27, 29-31, 52-55) on the sixth sentence.  In
her view, the sixth sentence suggests that all orders including a
remand to the Secretary are interlocutory and nonappealable because in
any remand to the Secretary governed by that sentence, the Secretary
is required to file his amended findings and decision with the court.
Respondent misapprehends the statutory scheme.  In fact, the sixth
sentence of Section 405(g) supports our position.  It identifies
district court orders that (in contrast to the category of orders
characterized as a "judgment" and exemplified by that at issue here)
are not appealable under 28 U.S.C. 1291 because they only remand the
case to the Secretary (for the receipt of new evidence or for a
comparably interlocutory undertaking) and do not reach the validity of
the Secretary's decision on the merits.

   The sixth sentence of Section 405(g) contains two distinct
authorizations for the district court to order a remand to the
Secretary in circumstances other than those encompassed by the fourth
sentence -- i.e., other than those in which the court reaches the
merits of the validity of the Secretary's decision.  The first permits
the district court, "on motion of the Secretary made for good cause
shown before he files his answers," to remand the case to the
Secretary for "further action." This mechanism affords the Secretary
an opportunity to respond to new evidence or allegations that have
come to light since the Appeals Council rendered its decision denying
the claim.  It also permits the Secretary to correct deficiencies in
the record or in his findings and decision that are noticed during
preparation of the defense of the administrative decision.  Compare
Ford Motor Co. v. NLRB, 305 U.S. 364, 372-373 (1939).

   The other authorization in the sixth sentence permits the court, at
any time, to order that "additional evidence" be taken before the
Secretary, but only if there is a showing of "new" and "material"
evidence and of good cause for the failure to incorporate it into the
record in a prior proceeding.  Because all evidence bearing on the
claim for benefits is received and weighed by the Secretary in the
first instance at all stages of the claims-adjudication process, it is
consistent with the statutory scheme for a case pending on judicial
review to be remanded to the Secretary for any necessary
supplementation of the record -- and for the Secretary to make
additional or modified findings and to render a modified decision in
light of that evidence -- rather than to have the court itself receive
and weigh the new evidence in the first instance.

   The concluding portion of the sixth sentence of Section 405(g)
requires the Secretary, on a remand covered by that sentence, to file
with the court any additional or modified findings of fact or
decision.  Only after such reconsideration can the court properly pass
on the validity of the Secretary's decision (as so modified) and
affirm, modify, or reverse it.  An order remanding a case to the
Secretary pursuant to the sixth sentence that is entered before the
court passes on the validity of the Secretary's decision is not a
"final decision" and is therefore not subject to appeal by either the
Secretary or the claimant under 28 U.S.C. 1291.  Cohen v. Perales, 412
F.2d 44, 48 (5th Cir. 1969), rev'd on other grounds, 402 U.S. 389
(1971);  Dalto v. Richardson, 434 F.2d 1018 (2d Cir. 1970), cert.
denied, 401 U.S. 979 (1971);  see also cases cited in note 10, supra.

   Contrary to respondent's contention (Br. in Opp. 25, 27, 52-53),
the order in the instant case was not governed by the limited remand
authority in the sixth sentence of Section 405(g).  Instead, the
district court remanded the case to the Secretary only as a
consequence of its holding on the merits that the Secretary's decision
was legally erroneous.  The Secretary therefore was entitled to appeal
that order, as contemplated by the fourth and eighth sentences of
Section 405(g).  Other courts of appeals have consistently recognized
the distinction between those orders remanding the entire cause to the
Secretary as a consequence of the court's ruling that the Secretary's
decision was unlawful, and pure remand orders, which are governed by
and subject to the distinct limitations in the sixth sentence of
Section 405(g).  Aubeuf v. Schweiker, 649 F.2d 107, 115-116 (2d Cir.
1981);  Carter v. Schweiker, 649 F.2d 937, 942 (2d Cir. 1981);  Kane
v. Heckler, 731 F.2d 1216, 1220 (5th Cir. 1984);  Garfield v.
Schweiker, 732 F.2d 605, 610 n.8 (7th Cir. 1984);  Bauzo v. Bowen, 803
F.2d 917, 926 (7th Cir. 1986);  Diorio v. Heckler, 721 F.2d 726, 729
(11th Cir. 1983).  See also J. Mashaw, et al., Social Security
Hearings and Appeals 130 (1978) (hereinafter Social Security Hearings
and Appeals) (the fourth sentence of Section 405(g) differs from the
sixth sentence and "gives the court discretion to remand in cases
where the Secretary's decision is found to be unsupported by
substantial evidence or where some legal error, substantive or
procedural, has been committed");  H.R. Rep. No. 100, 96th Cong., 1st
Sess. 13 (1979) (report on 1980 amendments to the sixth sentence of
Section 405(g)).  /18/

   In respondent's view (Br. in Opp. 22-23, 29-32, 39-40), our
submission that the order in this case is a final judgment subject to
appeal by the Secretary is inconsistent with Sullivan v. Hudson, 109
S. Ct. 2248 (1989).  That case, however, involved the award of
attorney's fees under the Equal Access to Justice Act (EAJA), 28
U.S.C. 2412(d)(1)(A), not appellate jurisdiction.  The Court held in
Sullivan v. Hudson that proceedings before the Secretary on remand
from a district court are sufficiently related to the civil action for
judicial review under 42 U.S.C. 405(g) to permit a court, as part of
an attorney's fees award under EAJA, to award fees for services
rendered before the Secretary on remand.  The Court held that a
claimant is not, as a general matter, a prevailing party when a
district court remands the matter to the Secretary, and it noted that
under EAJA, an application for attorney's fees must be filed "within
thirty days of final judgment in the action." 28 U.S.C. 2412(d)(1)(B).
 109 S. Ct. at 2254-2255.  In these circumstances, the Court noted
that "for purposes of the EAJA," the claimant's status as a prevailing
party and the final judgment in the civil action would often be
dependent on the successful completion of the proceedings on remand to
the Secretary.  Id. at 2255.

   The Court in Sullivan v. Hudson did not address the distinct
question whether an order effectively setting aside the Secretary's
decision and remanding the cause to the Secretary for redetermination
is a final judgment for purposes of appealability under 28 U.S.C.
1291.  Nor did it address the specific language in the fourth and
eighth sentences of Section 405(g) that refers to such an order as a
"judgment" that is "final" and "subject to review in the same manner
as a judgment in other civil actions." There is, accordingly, no
inconsistency between the holding in Sullivan v. Hudson that
attorney's fees may be awarded after a remand and our submission here
that the district court's order is a final judgment within the meaning
of 42 U.S.C. 405(g) and is, for that reason, appealable under 28
U.S.C. 1291.  See Budinich v. Becton Dickinson & Co., 486 U.S. 199
(1988) (decision on merits is appealable under 28 U.S.C. 1291 even
though recoverability of attorney's fees remains to be decided).  /19/

   II. THE RIGHT OF THE SECRETARY TO APPEAL IS SUPPORTED BY GENERAL
PRINCIPLES GOVERNING THE CONSTRUCTION OF 28 U.S.C. 1291 AND THE SCOPE
OF JUDICIAL REVIEW OF AGENCY ACTION

   The conclusion that 42 U.S.C. 405(g) renders the district court's
order in this case a final, appealable judgment is strongly supported
by established principles governing judicial review of agency action
and the appealability of district court orders under 28 U.S.C. 1291
generally.  Indeed, Section 405(g) is but a particular statutory
expression of those general principles.  The common and preferred
practice, when a court finds agency action unlawful and sets it aside,
is for the court to remand the matter to the agency for further
proceedings.  That practice limits judicial intrusion into the
administrative process and assures respect for the autonomy and
distinct responsibilities of the agency charged by Congress with
administering the statute.  It would be a perverse result if a court's
inclusion of a remand to the agency in its order holding the agency's
action unlawful were to divest the agency of its right to seek
appellate review of the court's order, especially since such an order
may have seriously adverse consequences for the agency and the public.
 Fortunately, although the Court has not specifically addressed the
jurisdictional issue, the actual practice of the courts, including
this Court, has been to entertain appeals in such cases.

   Of particular relevance here, the Court previously has granted
review and decided the merits in a Social Security case in which the
district court held erroneous the Secretary's decision denying
benefits and remanded for a new hearing.  See Richardson v. Perales,
402 U.S. 389 (1971).  Although the Court recited the facts of the
district court's ruling and remand, id. at 397-398, it did not discuss
the jurisdictional issue.  But because this Court's jurisdiction under
28 U.S.C. 1254(1) depended on whether the case was properly "in" the
court of appeals under 28 U.S.C. 1291 (see United States v. Nixon, 418
U.S. 683, 690, 692 (1974)) -- and because the jurisdictional issue was
extensively discussed by the court of appeals (Cohen v. Perales, 412
F.2d 44, 48-49 (5th Cir. 1969)) -- the Court presumably would have
felt obligated to address the issue if it had reservations about the
court of appeals' jurisdictional holding.  /20/ Consistent with
Perales, which is virtually indistinguishable from this case, the
courts of appeals have, until quite recently, been unanimous in their
view that the Secretary may appeal such an order in an action under 42
U.S.C. 405(g).  /21/

   Equally significant are decisions involving judicial review of
agency action directly in a court of appeals under the Hobbs Act, 28
U.S.C. 2341 et seq., which authorizes this Court to review the "final
judgment" of the court of appeals, 28 U.S.C. 2350.  /22/ The Court,
without questioning the finality of the decision below or the Court's
jurisdiction to review it, has on a number of occasions granted review
of decisions in which the court of appeals held the particular agency
action unlawful and remanded the cause to the agency for further
proceedings.  See, e.g., Vermont Yankee Nuclear Power Corp. v. NRDC,
435 U.S. 519, 535-536 (1978);  ICC v. Brotherhood of Locomotive
Engineers, 482 U.S. 270 (1987), reversing 761 F.2d 714, 725 (D.C. Cir.
1985).  The Court should not "disregard the implications of an
exercise of judicial authority assumed to be proper for (many) years."
Brown Shoe Co. v. United States, 370 U.S. 294, 307 (1962).  This
Court's practical experience in the exercise of its authority to
review "final judgment(s)" under 28 U.S.C. 2350 therefore weighs
heavily in favor of recognizing a comparable authority in the courts
of appeals under 28 U.S.C. 1291 to review district court decisions
holding agency action unlawful and remanding to the agency for further
proceedings.  Moreover, the Court's articulation and application of
the finality requirement of 28 U.S.C. 1291 and of similar statutes in
other settings firmly buttress that result.

   A. By its terms, Section 1291 is not limited to orders that
constitute the final judgment in the case.  It vests the courts of
appeals with jurisdiction of appeals from "all final decisions" of the
district courts, a category that includes more than final judgments.
Congress's use of the inclusive term "all" /23/ manifests an intent to
reach every order that, in context, possesses the requisite "indicia
of finality" (Brown Shoe Co. v. United States, 370 U.S. 294, 308
(1962)) with respect to the party aggrieved and the matter disposed of
by the order.  Accordingly, the Court has made clear that "'a decision
'final' within the meaning of Section 1291 does not necessarily mean
the last order possible to be made in a case,'" Mitchell v. Forsyth,
472 U.S. at 524 (quoting Gillespie v. United States Steel Corp., 379
U.S. at 152) and that the requirement of finality must be given a
"practical rather than a technical construction." Cohen v. Beneficial
Industrial Loan Corp., 337 U.S. at 546.  The principle of finality, in
short, "is not a technical concept of temporal or physical
termination," but "the means for achieving a healthy legal system."
Cobbledick v. United States, 309 U.S. 323, 326 (1940).  And "'(t)he
considerations that determine finality are not abstractions but have
reference to very real interests -- not merely of the immediate
parties, but, more particularly, those that pertain to the smooth
functioning of our judicial system.'" Budinich v. Becton Dickinson &
Co., 486 U.S. at 201 (quoting Republic Natural Gas Co. v. Oklahoma,
334 U.S. 62, 69 (1948)).

   Heretofore, the Court has considered the finality requirement of 28
U.S.C. 1291 only in the context of orders entered by a district court
during or at the conclusion of ordinary civil or criminal litigation
conducted entirely before the district court itself.  In that setting,
the "practical" rather than "technical" construction of Section 1291
has been most evident in the "collateral order" doctrine, which
recognizes a small class of decisions immediately appealable under
Section 1291 even though they do not terminate the proceedings in the
district court.  The class consists of decisions that "finally
determine claims of right separate from, and collateral to, rights
asserted in the action, too important to be denied review and too
independent of the cause itself to require that appellate
consideration be deferred until the whole case is adjudicated." Cohen
v. Beneficial Industrial Loan Corp., 337 U.S. at 546.  See, e.g.,
Midland Asphalt Corp. v. United States, 109 S. Ct. at 1497.  Under the
common formulation of the collateral order doctrine, an order is
immediately appealable if it (1) "conclusively determine(s) the
disputed question," (2) "resolve(s) an important issue completely
separate from the merits of the action," and (3) is "effectively
unreviewable on appeal from a final judgment." Coopers & Lybrand v.
Livesay, 437 U.S. at 468.

   The Court has also made clear, however, that orders satisfying the
three specific requirements of the collateral order doctrine do not
constitute the only instances in which the principle of practical
finality permits an appeal from an order that does not completely or
formally terminate the litigation.  For example, in Moses H. Cone
Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 (1983),
the Court held that the court of appeals had jurisdiction of an appeal
from a district court order staying proceedings pending resolution of
a state-court suit raising the identical issue.  The Court found the
order to be a "final decision" because, as a practical matter, it
meant there would be no further litigation of the issue in the federal
forum, and the plaintiff therefore was "effectively out of court." 460
U.S. at 9-10.  /24/ The Court relied on its similar ruling in Idlewild
Liquor Corp. v. Epstein, 370 U.S. 713, 715 n.2 (1962), that the court
of appeals had jurisdiction over a district court order granting a
stay under the Pullman abstention doctrine, /25/ even though such an
order is entered with the expectation that the federal litigation will
resume if the plaintiff does not obtain relief in state court on
state-law grounds.  460 U.S. at 9-10.  /26/

   B. This case differs from the cases just discussed.  The order at
issue here was not entered in the course of ordinary civil or criminal
litigation, in which the courts determine all legal and factual issues
in the first instance and in which the trial and reviewing bodies are
both components of the judicial system.  Instead, the order was
entered in the different context of judicial review of final agency
action, in which the primary adjudicatory proceedings take place
before the agency, subject to judicial review limited in both scope
and time.  The formulation of principles of appellate jurisdiction in
this setting must, accordingly, respect the "division of function
which the legislature has made between the administrative body and the
court of review." Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 10
(1942).

   The agency action under review in this case -- the "final decision"
of the Secretary (rendered through the ALJ and Appeals Council) on
respondent's claim for benefits -- was itself the end product of
distinct adjudicatory proceedings, and it embodied the Social Security
Administration's considered judgment on all issues of fact and law
bearing on respondent's claim for benefits.  When a court holds such a
decision unlawful, the agency is immediately aggrieved, whether or not
the court remands the cause to the agency for further proceedings.
Due respect for a coordinate Branch -- and for its formal and
considered decisions -- calls for the agency to have a correspondingly
immediate right of appeal, so it may seek reinstatement, affirmance,
and effectuation of its decision.  /27/ Standards of finality under 28
U.S.C. 1291, as applied in conjunction with principles of judicial
review of agency action, require that result as well:  the district
court's order in this case is appealable both because it terminates
the proceedings for judicial review of the particular decision of the
Secretary, and because recognition of the Secretary's right of appeal
is consistent with the principles of practical finality underlying the
collateral order doctrine and the Court's holdings in related
contexts.

   1. The subject of an action for judicial review under 42 U.S.C.
405(g) is the "final decision" of the Secretary that the plaintiff has
"complained of," not the claim for benefits that was disposed of by
the Secretary's decision.  See pages 15-16, 20, supra.  The
Administrative Procedure Act (APA) embodies a similar principle with
respect to judicial review of agency action generally.  The APA, like
42 U.S.C. 405(g), does not create an ordinary cause of action in which
all relevant proceedings concerning rates, licenses, benefit claims,
rules, and other matters within the jurisdiction of an Executive
Agency are conducted by the court itself as an original matter.  The
APA only affords a right to judicial review of "agency action"
regarding those matters.  5 U.S.C. 702.  In defining the scope of
review, the APA states that "(t)he reviewing court shall * * * hold
unlawful and set aside agency action, findings and conclusions" that
fail to satisfy the standards specified in the APA itself.  5 U.S.C.
706(2).  It does not grant the courts authority to reach and decide
the merits of the controversy underlying the agency action that has
been set aside.  Camp v. Pitts, 411 U.S. 138, 142 (1973).  See also
Burlington Northern, Inc. v. United States, 459 U.S. 131, 141 (1982)
("federal court authority to reject Commission rate orders for
whatever reason extends to the orders alone, and not to the rates
themselves").

   Consistent with this limited scope of judicial review, the Court
has repeatedly held in a variety of administrative law settings that
"the function of the reviewing court ends when an error of law is laid
bare," because "(a)t that point the matter once more goes to the
(agency) for reconsideration." FPC v. Idaho Power Co., 344 U.S. 17, 20
(1952);  accord FPC v. National Citizens Committee for Broadcasting,
436 U.S. 775, 793 n.15 (1978);  FCC v. Pottsville Broadcasting Co.,
309 U.S. 134, 145 (1940);  ICC v. Clyde S.S. Co., 181 U.S. 29, 32-33
(1901).  A district court order faithful to this command therefore
"ends the litigation on the merits and leaves nothing for the court to
do but execute the judgment.'" Van Cauwenberghe v. Biard, 108 S. Ct.
at 1949 (citation omitted).  Accordingly, general principles of
administrative law under the APA and of finality under 28 U.S.C. 1291
reinforce the conclusion evident from the text of 42 U.S.C. 405(g)
standing alone -- that the district court's order in this case was a
"final decision" for purposes of 28 U.S.C. 1291 because it finally
determined that the particular decision of the Secretary before the
court on review was contrary to law.

   If respondent's claim is again denied on remand and she seeks
judicial review of that new decision, the district court may have
occasion to consider issues bearing on respondent's claim for benefits
again at a later date.  But there can be no assurance that events will
unfold in that manner.  For one thing, respondent may be awarded
benefits on remand under the legal standards mandated by the district
court.  And even if respondent's claim is again denied and she seeks
judicial review of that denial, the focus of the judicial proceedings
at that point will be on the validity of the Secretary's second
decision, not the first (which the court previously held unlawful);
nor will it focus on respondent's underlying monetary claim for
benefits.  Any subsequent judicial proceedings will therefore be, in
substance, a new civil action for judicial review under 42 U.S.C.
405(g).  And the result would be no different if the district court,
as a matter of judicial convenience, sought to keep the action open or
even to "retain jurisdiction" so that any request by respondent for
judicial review of the Secretary's new decision on remand would be
treated as part of the prior action.  /28/ The particular form in
which a court chooses to dispose of a case under 42 U.S.C. 405(g) and
similar statutes cannot control the rights of the parties.
Appealability under 28 U.S.C. 1291 is defined "in terms of
categories," Carroll v. United States, 354 U.S. 394, 405 (1957), and
"operational consistency and predictability in the overall operation
of Section 1291" require a "uniform rule." Budinich v. Becton
Dickinson & Co., 486 U.S. at 202.  Under 42 U.S.C. 405(g), as well as
general principles of administrative law, the category of judicial
orders that hold agency action unlawful and set it aside end the
relevant litigation for purposes of appeal.  This is so even if the
court then remands the matter to the agency for further proceedings,
because in that event, the Secretary is "'effectively out of court.'"
Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460
U.S. at 9, 10 (quoting Idlewild Liquor Corp. v. Epstein, 370 U.S. at
715 n.2).

   2. The Secretary's right to appeal remains clear even if the
proceedings before the Secretary and those before the court are
regarded as separate chapters in the broader controversy over
respondent's underlying claim for benefits.  Viewed from that
perspective, the district court's order is appealable by reference to
the factors the Court has articulated in fashioning the "collateral
order" doctrine.  Specifically, the district court's order has the
requisite "indicia of finality" (Brown Shoe Co. v. United States, 370
U.S. at 308) because (i) it finally resolves the important legal issue
of the validity of the Secretary's regulations governing surviving
spouses' disability claims;  (ii) that issue is separate from the
factual issues (concerning respondent's residual functional capacity
to perform gainful activity) that will be considered in the
administrative proceedings ordered by the court;  and (iii) there is
no readily available and effective opportunity for the Secretary to
challenge the court's invalidation of his regulatory approach at a
later date.

   a. In elaborating upon the collateral order doctrine, the Court has
explained that the requirement of finality avoids the disruption of
on-going proceedings in the trial court that would be occasioned by
"piecemeal appellate review," and thereby promotes the "efficient
administration of justice." Flanagan v. United States, 465 U.S. 259,
264 (1984).  In addition, the rule "emphasizes the deference that
appellate courts owe to the trial judge as the individual initially
called upon to decide the many questions of law and fact that occur in
the course of a trial," thereby respecting the "independence of the
district judge, as well as the special role that individual plays in
our judicial system." Firestone Tire & Rubber Co. v. Risjord, 449 U.S.
368, 374 (1981).

   The weight of these considerations is different in the context of
judicial review of agency action.  Because the order in this case
constitutes a final rejection of the Secretary's reliance on the
Listing as a basis for rejecting respondent's claim -- and because the
rehearing mandated by the district court will take place before the
Secretary, not the court -- the Secretary's appeal of the district
court's order does not interfere with any on-going proceedings in the
district court or undermine the independence or special role of the
district judge.  Conversely, a refusal to allow the Secretary to
appeal the order invalidating his longstanding regulatory requirement
would undermine the special role and distinct responsibilities of the
Secretary, the Executive Branch officer in whom Congress has vested
the primary responsibility for implementing the Social Security Act.
Such a refusal also would impose an unwarranted burden on an "already
overburdened agency" (Heckler v. Campbell, 461 U.S. at 468) because it
would require the Secretary to conduct additional proceedings that are
both unnecessary and wasteful of scarce resources if (as the Secretary
firmly believes) the regulations governing surviving spouses'
disability claims are valid.  See Occidental Petroleum Corp. v. SEC,
873 F.2d 325, 329 (D.C. Cir. 1989);  Stone v. Heckler, 722 F.2d 464,
467 (9th Cir. 1983).

   The governmental and public interests favoring a right to an
immediate appeal extend well beyond this particular claim, because the
Secretary, claimants generally, and the public would be served by
prompt appellate resolution of the validity of longstanding
regulations governing the adjudication of thousands of claims
annually.  /29/ The interests favoring appeal also extend far beyond
the Social Security disability program:  "operational consistency and
predictability" require a "uniform rule" governing the appealability
of district court orders holding agency action unlawful and remanding
for further proceedings.  Budinich v. Becton Dickinson & Co., 486 U.S.
at 202.  In many areas of regulatory, ratemaking, and othere
administrative activity, the agency action may involve an important
rule or implicate an important policy of broad application in the
conduct of private affairs.  The uncertainty occasioned by a lower
court's invalidation of such a rule or policy would pose special
difficulties for an agency if it was forced in all instances to
develop new evidence and assess alternative measures under the
requirements of the court's remand order, with only the possibility
that a second action for review might lead to a definitive ruling from
an appellate court on the validity of the agency's original approach.
/30/ Thus, recognition of an agency's right to appeal an order such as
that at issue here will promote, not undermine, the "efficient
administration of justice" (Flanagan v. United States, 465 U.S. at
264).  /31/

   b. The Secretary's right of appeal is further illuminated by
consideration of the three factors the Court has identified in
applying the collateral order doctrine.  First, it is undisputed that
the district court has "conclusively determine(d) a disputed question"
concerning the validity of the Secretary's regulatory approach to the
evaluation of claims for surviving spouse's disability benefits.
Coopers & Lybrand v. Livesay, 437 U.S. at 468.

   As to the second factor, respondent argues that the district
court's order is not appealable because the issue it resolves is not
"completely separate" from the merits of her claim for benefits.  Br.
in Opp. 18-19, 20-21 (quoting Coopers & Lybrand v. Livesay, 437 U.S.
at 468).  But respondent disregards the significant legal and
practical distinctions, for appealability purposes, between an order
remanding a matter to an agency for a new round of administrative
proceedings and an order entered in the middle of on-going proceedings
in the district court itself.  The district court order at issue here
removed all matters concerning respondent's claim for benefits from
the immediate cognizance of the court and returned them to the
jurisdiction of the officer of a coordinate Branch.  As this Court has
observed (FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 141
(1940)):

         A review by a federal court of the action of a lower court is
      only one phase of a single unified process.  * * * The technical
      rules derived from the interrelationship of judicial tribunals
      forming a hierarchical system are taken out of their environment
      when mechanically applied to determine the extent to which
      Congressional power, exercised through a delegated agency, can
      be controlled within the limited scope of "judicial power"
      conferred by Congress under the Constitution.

   The second factor in the Coopers & Lybrand test, like the first, is
designed to prevent an appeal before all related legal and factual
issues have been fully developed and resolved at trial;  if the legal
issue addressed by the district court's order is separate, there is
much less chance that subsequent developments at trial will cast new
light on the issue or prompt the court to reconsider it.  In the
instant case, there will be no further development of legal or factual
issues by the district court, since the further proceedings ordered by
that court will be conducted in an administrative forum.  Moreover,
because any deviation by the Secretary from the legal standard imposed
by the district court's remand order would itself be legal error
(Sullivan v. Hudson, 109 S. Ct. at 2254), the validity of the
surviving spouse's disability regulations will not be open for
consideration in the administrative proceedings on remand (or,
presumably, in any future proceedings in the district court on
judicial review of the Secretary's new decision).  See Cohen v.
Perales, 412 F.2d at 48.  Thus, the very nature of judicial review of
agency action -- and of an order remanding a matter to the agency for
further proceedings under a different legal standard -- ensures that
the legal issue resolved by the court's order will be separate from
the issues open for resolution on remand to the Secretary.  Compare
Mitchell v. Forsyth, 472 U.S. at 527-528.  /32/

   With respect to the third Coopers & Lybrand factor, respondent
asserts (Br. in Opp. 28-36) that the Secretary should not be permitted
to take an appeal now because appellate consideration of the validity
of the surviving spouse's disability regulations might not be entirely
forclosed following the remand, and that the issue is therefore not
"effectively unreviewable on appeal from a final judgment." 437 U.S.
at 468.  There can be no assurance, however, that further judicial
proceedings of substance in the district court will follow the remand.
 It may be, for example, that the factual record before the ALJ and
Appeals Council on remand will require them to find respondent
disabled and to award her benefits under the legal standards imposed
by the district court.  Section 405(g) does not afford the Secretary a
right to seek judicial review of such a decision in favor of the
claimant by an ALJ or the Appeals Council.  /33/ And if, for this or
any other reason, the matter does not return to the district court on
the merits at a later date, the Secretary will not have an opportunity
to seek review of the district court's ruling in the court of appeals.
 Indeed, the court of appeals assumed that if respondent is awarded
benefits on remand, its construction of 28 U.S.C. 1291 will require
the Secretary to forgo all opportunity for appellate review of the
district court's invalidation of his regulatory requirement in this
case.  Pet. App. 11a.

   The court of appeals nevertheless sought to justify its
jurisdictional ruling by observing that "'it is not inexorably so'"
that the district court's ruling will escape appellate review.  Pet.
App. 9a.  Presumably, the court meant that review may be available if
respondent's claim is denied on remand.  That possibility is not only
speculative;  it is also of little help to the Secretary, because the
district court's ruling will have continuing force with respect to
respondent's individual claim only if she is awarded benefits on
remand under the legal standards mandated by the district court.  Yet,
it is in that very situation that further review would be unavailable
to the Secretary.  See Crowder v. Sullivan, No. 89-2681 (7th Cir. Mar.
5, 1990), slip op. 2.  In order for a district court ruling to be
effectively reviewable on appeal from a subsequent judgment of the
district court within the meaning of the third Coopers & Lybrand
factor, the party aggrieved must at least be assured that, if the
other party prevails, a final judgment will be entered from which the
aggrieved party can appeal.

   Respondent seeks to avoid this defect in her position by suggesting
(Br. in Opp. 28-33) that the Secretary may obtain court of appeals
review by filing his new decision on remand with the district court,
requesting the court to enter a judgment affirming that decision, and
then appealing the judgment that affirms his own decision.  This
argument is unavailing.  In the first place, nothing in Section 405(g)
authorizes the Secretary to seek judicial review (including appellate
review) of the decision of his own Appeals Council if the Council
determines on remand that the claimant must be awarded benefits under
the legal standards imposed by the district court.  Cf. Cox
Broadcasting Corp. v. Cohn, 420 U.S. at 481.  /34/ As we have
explained (see pages 21-23, supra), the sixth sentence of Section
405(g) provides for the Secretary to file his amended findings and
decision with the court only where the case has been remanded for the
limited purposes described in that sentence.  /35/

   At the very least, nothing in Section 405(g) requires the Secretary
to pursue the novel and awkward course suggested by respondent, and
thereby to accept the burden of a remand in all cases before obtaining
appellate review on a dispositive legal issue.  To the contrary, the
fourth and eighth sentences of Section 405(g) expressly contemplate
that the Secretary may take an immediate appeal from a district court
order holding the Secretary's decision legally erroneous, even though
the court has remanded the cause to the Secretary for a rehearing.
Respondent's proposal to postpone all appellate review until the
Secretary has rendered a new decision on remand therefore fails to
accord the respect due both the Act itself and the official of a
coordinate Branch who is charged with its administration.

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   STUART M. GERSON

      Assistant Attorney General

   DAVID L. SHAPIRO

      Deputy Solicitor General

   EDWIN S. KNEEDLER

      Assistant to the Solicitor General

   ROBERT M. LOEB

      Attorney

   MARCH 1990

   /1/ For convenience, we shall hereafter refer to this class of
persons as "surviving spouses."

   /2/ Social Security Amendments of 1967, Pub. L. No. 90-248, Section
158(b), 81 Stat. 868.

   /3/ 33 Fed. Reg. 11,749, 11,751, 11,755 (1968), adding 20 C.F.R.
404.1504, 404.1506(a)(1).

   /4/ The Senate Report on the 1968 amendments that added 42 U.S.C.
423(d)(2)(B) stated that "(t)he determination of disability in the
case of a widow or widower would be based solely on the level of
severity of the impairment";  that such a determination "would be made
without regard to nonmedical factors such as age, education, and work
experience, which was considered in disabled worker cases";  and that
"individuals whose impairments do not meet this level of severity may
not in any case be found disabled." S. Rep. No. 744, 90th Cong., 1st
Sess. 49-50 (1967).

   /5/ The initial determination of disability is made by a state
agency acting under the authority and supervison of the Secretary.  42
U.S.C. 421(a);  20 C.F.R. 404.1503.  If the claimant is dissatisfied
with the initial determination, he may request a de novo
reconsideration by the state agency.  20 C.F.R. 404.909(a).  If the
claim is denied on reconsideration, the claimant may then request a de
novo hearing before an administrative law judge (ALJ) in the Office of
Hearings and Appeals of the Social Security Administration.  42 U.S.C.
405(b)(1) (1982 & Supp. IV 1986);  20 C.F.R. 404.929.  Finally, the
claimant may seek review by the Appeals Council.  20 C.F.R. 404.967.
See Bowen v. Yuckert, 482 U.S. at 142;  Bowen v. City of New York, 476
U.S. 467, 472 (1986).  If the Appeals Council denies review, or grants
review and affirms the denial of benefits, the claimant may then seek
judicial review of that "final decision" pursuant to 42 U.S.C. 405(g).
 20 C.F.R. 404.981.  The Act contains no provision for the Secretary
to seek judicial review of a decision by his own Appeals Council in
favor of the claimant.

   /6/ A claimant's "residual functional capacity" is "what (the
claimant) can still do despite (his) impairments" (20 C.F.R. 404.1545)
(emphasis added).  Under governing regulations, the Secretary measures
this capacity only for the purpose of determining, at steps four and
five of the sequential evaluation process utilized for wage earners,
whether a claimant whose impairment does not meet or equal a listed
impairment nevertheless is disabled because he cannot perform his past
work or other work in the national economy, in light of his age,
education, and work experience.  20 C.F.R. 404.1520(e) and (f),
404.1545(a), 404.1561;  Bowen v. City of New York, 476 U.S. at 471.
Because the eligibility of a surviving spouse is based on the severity
of the impairment itself, and not on what the claimant can do despite
that impairment, the regulations do not provide for an assessment of a
surviving spouse's residual functional capacity.

   /7/ In Sullivan v. Zebley, this Court considered the Secretary's
regulations requiring a claimant for children's disability benefits
(under Title XVI of the Social Security Act, 42 U.S.C. 1381 et seq.
(1982 & Supp. IV 1986)) to show an impairment that meets or equals an
impairment in the Listing.  The Court held that the regulations were
inconsistent with the relevant statutory provision governing
children's benefits, 42 U.S.C. 1383c(a)(3)(A) (1982 & Supp. IV 1986).
Slip op. 19.  However, in so ruling, the Court expressly distinguished
the statutory provision governing surviving spouse's benefits under
Title II.  See slip op. 14-15.  Zebley thus in no way moots the
underlying legal issue that formed the basis of the Secretary's appeal
in this case.  Indeed, the decision in Zebley reinforces our position
on the merits in this case -- that the district court erred in holding
invalid the Listing-only rule for surviving spouses.

   /8/ In light of its jurisdictional holding, the court of appeals
did not express an opinion on the district court's ruling that "a
widow whose impairment does not meet or equal any in the listing is
entitled to have her residual functional capacity considered." Pet.
App. 3a-4a n.4.  But the court did note its prior holding that "a
stricter standard does apply in widow's disability cases." Id. at 4a
n.4 (citing Smith v. Schweiker, 671 F.2d 789, 790 (3d Cir. 1982)).

   /9/ On September 7, 1989, the district court, with respondent's
consent, stayed its order of remand pending this Court's disposition
of the instant petition for a writ of certiorari.

   /10/ The prior Third Circuit cases cited by the panel below in
which jurisdiction under 28 U.S.C. 1291 was found lacking involved
appeals from such orders, which remanded the case to the Secretary
pursuant to the sixth sentence of 42 U.S.C. 405(g), discussed at pages
21-22, infra.  See Pet. App. 5a, citing Mayersky v. Celebrezze, 353
F.2d 89 (3d Cir. 1965), and Marshall v. Celebrezze, 351 F.2d 467 (3d
Cir. 1965).

   /11/ Section 405(g) is reproduced in an appendix to this brief.  In
that appendix, we have numbered the sentences of Section 405(g)
sequentially, setting off by brackets the numerical designations we
have added.  See App., infra, 1a-2a.

   /12/ Consistent with those provisions and the language in the
fourth sentence of Section 405(g) authorizing a district to enter
judgment only "upon the pleadings and transcript of the record," the
district courts typically decide cases under Section 405(g) on
cross-motions for summary judgment or a substantially equivalent
procedure.  See 4 Social Security Law and Practice Sections
56:26-56:31 (1987).

   /13/ Act of Aug. 10, 1939, ch. 666, Section 201, 53 Stat. 1368.

   /14/ The House and Senate Reports on the 1939 amendments summarized
the provisions of Section 405(g) in identical terms, without specific
reference to the eighth sentence.  The Reports explained the need for
Section 405(g) by noting that the then-present provisions of the Act
"(did) not specify what remedy, if any, is open to a claimant in the
event his claim to benefits is denied by the (Social Security) Board,"
and that "(t)he provisions of this subsection are similar to those
made for the review of decisions of many administrative bodies." H.R.
Rep. No. 728, 76th Cong., 1st Sess. 43 (1939);  S. Rep. No. 734, 76th
Cong., 1st Sess. 52 (1939).

   /15/ This interpretation of the eighth sentence as relating to the
court to which an appeal may be taken is supported by a
section-by-section analysis prepared by the responsible House
Subcommittee following enactment of the Social Security Amendments of
1977, Pub. L. No. 95-216, 91 Stat. 1509.  In describing Section
405(g), which was not amended by the 1977 amendments, the Subcommittee
stated:  "The judgment shall be final except that it shall be subject
to review in the same manner as other civil actions;  in a court of
appeals and in the Supreme Court under certain circumstances."
Subcomm. on Social Security of the House Comm. on Ways & Means, 95th
Cong., 2d Sess., The Social Security Amendments of 1977:  Brief
Summary of Major Provisions and Detailed Comparison With Prior Law 26
(Comm. Print 1977).

   /16/ Because the direct appeal statute was repealed by the Act of
June 27, 1988, Pub. L. No. 100-352, Section 1, 102 Stat. 662, the
exclusive "manner" by which the Secretary now may obtain appellate
review of the district court's order in a Social Security case is in
the court of appeals, pursuant to 28 U.S.C. 1291.

   /17/ A number of courts have held that a Social Security claimant
may not take an appeal under 28 U.S.C. 1291 even from an order that
remands the cause to the Secretary after reaching the merits of the
Secretary's decision, since the claimant may seek judicial review of
the new decision rendered by the Secretary on remand if that decision
is adverse to him.  Bohms v. Gardner, 381 F.2d 283 (8th Cir. 1967),
cert. denied, 390 U.S. 964 (1968);  Beach v. Bowen, 788 F.2d 1399 (8th
Cir. 1986);  Farr v. Heckler, 729 F.2d 1426 (11th Cir. 1984);  Howell
v. Schweiker, 699 F.2d 524 (11th Cir. 1983).  In doing so, the courts
were agreeing with the government's position in those cases that no
appeal would lie.

   Under the rationale presented in this part of our brief, which
relies on the language of Section 405(g) deeming an order like that
entered here to be a final judgment subject to appeal in the same
manner as a judgment in other civil actions, such decisions may well
be appealable by a claimant who could show that he was aggrieved by a
ruling of law by the district court -- e.g., that if the court's
ruling was in error he was entitled to outright reversal of the
Secretary's decision.  Such appeals, however, would surely be
infrequent.  (In this case, for instance, respondent did not
cross-appeal from the district court's decision upholding the
Secretary's determination that she did not show an impairment that met
or equaled the Listing.) This is so for three reasons.  First, the
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.
 Second, any additional gains from a time-consuming appeal are
unlikely, because a district court's conclusion that further
proceedings should be conducted by the Secretary before there is a
final resolution of the claim for benefits would be subject to only
the most limited review by a court of appeals.  Third, and by way of
contrast, the claimant has a very good prospect of prevailing in the
proceedings on remand:  we have been informed by the Department of
Health and Human Services that, following additional development of
the record on remand, benefits are awarded in approximately 65% of
Social Security cases that are remanded to the Secretary.

   /18/ The volume Social Security Hearings and Appeals, upon which
this Court has relied (see Heckler v. Campbell, 461 U.S. at 461 &
n.2), is essentially identical to a report on the claims-adjudication
process that led to the amendment of the sixth sentence of Section
405(g) in 1980.  Center for Administrative Justice, Final Report:
Study of Social Security Administration Hearing System 262 (Oct.
1977).  Prior to 1980, the sixth sentence did not require a showing of
good cause for a remand on the Secretary's motion and did not require
a showing of materiality or good cause for the claimant's failure to
introduce new evidence in a prior proceeding.  See 42 U.S.C. 405(g)
(1976).  The report recommended (Center for Administrative Justice,
supra, at 263-273) that the sixth sentence be amended to restrict such
remands, in order to improve the quality of decision-making by the
ALJs and the Appeals Council and to encourage timely production of
evidence by claimants.  Accord Social Security Hearings and Appeals at
130-136.

   Congress adopted this recommendation by amending the first portion
of the sixth sentence to read as it now does.  Social Security
Disability Amendments of 1980, Pub. L. No. 96-265, Section 307, 94
Stat. 458.  The House Report expalined that this amendment of the
sixth sentence was "not to be construed as a limitation of judicial
remands currently recognized under the law in cases in which the
Secretary has failed to provide a full and fair hearing, to make
explicit findings, or to have correctly apply (sic) the law and
regulations." H.R. Rep. No. 100, supra, at 13.  In at least the first
and third of these examples, the district court has held the
Secretary's decision unlawful, and those examples therefore would be
covered by the fourth sentence of Section 405(g).

   /19/ The Court took the Secretary to have conceded in Sullivan v.
Hudson (apparently on the basis of the sixth sentence of Section
405(g)) that a district court order that includes a remand to the
Secretary is not a final determination of the civil action and that
the district court "'retains jurisdiction to review any determination
rendered on remand.'" 109 S. Ct. at 2255, quoting Pet. Br. 16-17.  The
cited sentences of our opening brief, which essentially restated the
respondent's position, were somewhat ambiguous.  But we specifically
argued in our reply brief (at 14-16) that an order holding the
Secretary's decision unlawful and remanding for new proceedings under
a different legal standard is governed not by the sixth sentence, but
by the fourth and eighth sentences, which render the order a "final
judgment" that effectively terminates the judicial proceedings for
review of the particular decision of the Secretary before the court.
We also stated (Reply Br. 16-17 n.8) our position that the Secretary
may appeal such an order.  As a result, our submission in Sullivan v.
Hudson, taken as a whole, did not concede that an order such as that
at issue here is a non-final decision, especially for purposes of the
Secretary's right of appeal.  Nor did it concede that, by operation of
the sixth sentence of Section 405(g), the district court automatically
retains jurisdiction to conduct plenary review of any new
determination rendered by the Secretary after a remand that is not
governed by that sentence.  Although a district court may inherently
retain some jurisdiction for limited purposes after a remand -- e.g.,
to assure that its prior mandate is carried out or to award attorney's
fees if the claimant prevails in the proceedings on remand (109 S. Ct.
at 2254-2255) -- that jurisdiction does not confer power on the court
to award relief "of a different kind or on a different principle."
Dugas v. American Surety Co., 300 U.S. 414, 428 (1937);  see Chemical
Leaman Tank Lines, Inc. v. United States, 446 F. Supp. 721, 724
(D.D.C. 1978) (three-judge court).  Any such retention of jurisdiction
therefore cannot cut off the Secretary's right to appeal the order
insofar as it held his prior decision unlawful.

   /20/ Similarly, in Traynor v. Turnage, 485 U.S. 535 (1988), one of
the appellate decisions before the Court was rendered on an appeal by
the Administrator of Veterans Affairs from a district court order that
held the Administrator's order unlawful and remanded to the
Administrator for further proceedings.  Id. at 540;  see McKelvey v.
Walters, 596 F. Supp. 1317, 1325 (D.D.C. 1984).

   /21/ See Lopez Lopez v. Secretary of HEW, 512 F.2d 1155, 1156 (1st
Cir. 1975);  Colon v. Secretary of HHS, 877 F.2d 148, 149-151 (1st
Cir. 1989);  McGill v. Secretary of HHS, 712 F.2d 28, 29-30 (2d Cir.
1983) (dictum), cert. denied, 465 U.S. 1068 (1984);  Souch v.
Califano, 599 F.2d 577, 578 n.1 (4th Cir. 1979) (but see Harper v.
Bowen, 854 F.2d 678 (4th Cir. 1988) (dismissing appeal in particular
circumstances));  Gold v. Weinberger, 473 F.2d 1376, 1378 (5th Cir.
1973) (but see Haywood v. Bowen, No. 88-1280 (Nov. 30, 1988), 862 F.2d
873 (1988) (Table) (dismissing appeal without discussing court's own
prior decision in Perales));  Edmond v. Secretary of HHS, No. 89-3161
(6th Cir. Apr. 19, 1989);  Jamieson v. Folsom, 311 F.2d 506, 507 (7th
Cir.), cert. denied, 374 U.S. 487 (1963);  Crowder v. Sullivan, No.
89-2681 (7th Cir. Mar. 5, 1990);  Gardner v. Moon, 360 F.2d 556, 558
n.2 (8th Cir. 1966) (but see McCoy v. Schweiker, 683 F.2d 1138, 1141
n.2 (8th Cir. 1982) (en banc) (dictum));  Stone v. Heckler, 722 F.2d
464, 466-468 (9th Cir. 1983);  Ensey v. Richardson, 469 F.2d 664 (9th
Cir. 1972);  Paluso v. Mathews, 573 F.2d 4, 7-8 (10th Cir. 1978)
(Black Lung case);  Davidson v. Secretary of HHS, No. 88-1472 (10th
Cir. Oct. 12, 1989);  Pickett v. Bowen, 833 F.2d 288, 290-291 (11th
Cir. 1987);  Huie v. Bowen, 788 F.2d 698, 701-703 (11th Cir. 1988)
(but see Jordon v. Heckler, 721 F.2d 349 (11th Cir. 1983) (dismissing
appeal without discussion of Perales, which was binding precedent in
Eleventh Circuit);  Biddle v. Heckler, 721 F.2d 1321 (11th Cir. 1983)
(same)).  Even prior to the earliest of these decisions -- Jamieson,
Gardner and Perales -- several courts of appeals, without addressing
the jurisdictional issue, entertained appeals in similar
circumstances.  See Hobby v. Hodges, 215 F.2d 754 (10th Cir. 1954);
Ewing v. Gardner, 185 F.2d 781 (6th Cir. 1950);  Social Security Board
v. Warren, 142 F.2d 974 (8th Cir. 1944).

   The courts of appeals also have entertained appeals in Medicare
cases in the identical situation under 42 U.S.C. 1395oo(f), where the
district court held erroneous the decision of the Provider
Reimbursement Review Board and remanded the cause to the Board for
further proceedings.  See, e.g., Community Hospital of Roanoke v. HHS,
770 F.2d 1257 (4th Cir. 1985);  Daviess County Hospital v. Bowen, 811
F.2d 338, 341-342 (7th Cir. 1987);  Edgewater Hospital, Inc. v. Bowen,
857 F.2d 1123 (7th Cir. 1988);  Adams House Health Care v. Bowen, 817
F.2d 587, 589 (9th Cir. 1987), vacated on other grounds, 485 U.S. 1018
(1988);  North Broward Hospital District v. Bowen, 808 F.2d 1405, 1408
n.3 (11th Cir. 1987), vacated on other grounds, 485 U.S. 1018 (1988).
See also Gueory v. Hampton, 510 F.2d 1222 (D.C. Cir. 1974) (following
Perales in case involving remand to Civil Service Comm'n), reaffirmed
in Occidental Petroleum Corp. v. SEC, 873 F.2d 325, 330-331 (D.C. Cir.
1989).

   /22/ 28 U.S.C. 2350 also permits this Court to review "(a)n order
granting or denying an interlocutory injunction" under 28 U.S.C.
2349(b).

   /23/ See United States v. Monsanto, 109 S. Ct. 2657, 2662 (1989).

   /24/ The Court concluded, in the alternative, that the order was
appealable as a collateral order.  460 U.S. at 11-12.

   /25/ Railroad Comm'n v. Pullman Co., 312 U.S. 496 (1941).

   /26/ See also Brown Shoe Co. v. United States, 370 U.S. at 307-311;
 Forgay v. Conrad, 47 U.S. (6 How.) 201, 203 (1848);  cf. Cox
Broadcasting Corp. v. Cohn, 420 U.S. 469, 477-485 (1975) (upholding
this Court's jurisdiction under 28 U.S.C. 1257 to review a state
appellate court judgment that remanded a case for trial or other
proceedings);  ASARCO Inc. v. Kadish, 109 S. Ct. 2037, 2042 (1989)
(same).

   /27/ The Secretary's right to appeal the district court order at
issue here is consistent with the origins of judicial review of agency
action and the various procedures available for obtaining it.
Judicial review is most firmly rooted in the common law writ of
mandamus, by which a court could compel an executive officer to
perform a duty.  See L. Jaffe, Judicial Control of Administrative
Action 176-192, 320-326 (1965);  see, e.g., Kendall v. United States,
37 U.S. (12 Pet.) 524 (1838).  There is little doubt that an order
granting a writ of mandamus is immediately appealable, see Columbia
Insurance Co. v. Wheelwright, 20 U.S. (7 Wheat.) 534 (1822), even if
compliance by the officer requires performance of administrative
duties similar to those conducted on "remand" under more modern and
familiar forms of judicial review.

   The district court order at issue here also closely resembles --
and indeed had the effect of -- an injunction, which is subject to
immediate appeal even at an interlocutory stage of the proceedings.
28 U.S.C. 1292(a)(1).  The order did more than simply remand the
cause;  it "directed" the Secretary to conduct further proceedings to
inquire whether respondent can engage in any gainful activity (Pet.
App. 18a).  Cf. Avery v. Secretary of HHS, 762 F.2d 158, 160-161 (1st
Cir. 1985) (class action).  The order did not simply govern the
conduct of the parties in connection with proceedings before the
district court itself on matters unrelated to substantive issues in
the case.  See Gulfstream Aerospace Corp. v. Mayacamas Corp., 108 S.
Ct. 1133, 1138 (1988).  Rather, it granted partial relief on the
merits (by reversing the Secretary's decision insofar as it denied
benefits in reliance on the Listing) and ordered further proceedings
in a different forum.  Compare Baltimore Contractors, Inc. v.
Bodinger, 348 U.S. 176, 183 (1955).

   /28/ The district court's order in this case does not manifest any
such intent.  Pet. App. 25a.  See NLRB v. Wilder Mfg. Co., 454 F.2d
995, 998 (D.C. Cir. 1971) (unless court otherwise states, remand
relinquishes jurisdiction);  Chemical Leaman Tank Lines, Inc. v.
United States, 446 F. Supp. at 724 (same);  see note 19, supra.

   /29/ These regulations have become the subject of numerous
challenges in the district courts in recent years, and the Secretary
has taken appeals from a number of district court decisions that held
the Listing requirement unlawful and remanded the cause to the
Secretary.  See Kier v. Secretary of HHS, No. H-85-830 (JAC) (D. Conn.
Feb. 27, 1989), aff'd, 888 F.2d 244 (2d Cir. 1989);  Haywood v. Bowen,
No. A-85-CV-296 (W.D. Tex. Feb. 19, 1988), appeal dismissed, No.
88-1280 (5th Cir. Nov. 30, 1988) (862 F.2d 873 (Table));  Edmond v.
HHS, No. C87-2132 (N.D. Ohio Dec. 20, 1988), appeal pending, No.
89-3161 (6th Cir.) (order finding jurisdiction dated Apr. 19, 1989);
Davidson v. Bowen, No. CIV-85-0420-C (D.N.M. Jan. 25, 1988), appeal
pending, No. 88-1472 (10th Cir.) (order making preliminary
determination of jurisdiction dated Oct. 12, 1989).

   /30/ Three recent commentaries furnish instructive accounts of the
adverse consequences of several rulings by the Federal Circuit
dismissing appeals from the Court of International Trade that
invalidated decisions of the Department of Commerce and remanded to
the Department for further proceedings (Cabot Corp. v. United States,
788 F.2d 1539, 1542 (Fed. Cir. 1986);  Badger-Powhatan v. United
States, 808 F.2d 823 (Fed. Cir. 1986)).  See Hunter & McInerney, What
Happens When the Court Reverses a Dumping or Countervailing Duty Case?
 What Should Happen?, 3 Fla. Int'l L.J. 151 (1988);  Layton,
Interlocutory Appeal of Remand Orders by the Court of International
Trade Under 28 U.S.C. Section 1292(d)(1), 3 Fla. Int'l L.J. 167
(1988);  Horgan, The Impact of Interlocutory Judicial Decisions Upon
Anti-Dumping and Countervailing Duty Proceedings, 3 Fla. Int'l L.J.
187 (1988).

   /31/ We do not perceive any risk that the courts will be flooded
with such appeals by the government, any more than they have been to
date, in view of the rigorous review required before the Solicitor
General authorizes an appeal.  See United States v. Mendoza, 464 U.S.
154, 160-161 (1984).  Statistics maintained by HHS show that appeals
were taken by the Secretary in only 65 cases under Titles II and XVI
of the Social Security Act in fiscal year 1986, 44 cases in 1987, and
a combined total of 60 cases in 1988 and 1989.  These cases
represented only a small percentage of decisions adverse to the
Secretary.  In fiscal year 1988, for example, district courts reversed
the Secretary's decision in 2255 cases (while affirming in 4700).
Social Security Administration, 1989 Annual Report to the Congress, at
34, Table 1.  Reversals of the Secretary's decisions exceeded 2000 in
preceding years as well.  See 1988 Annual Report to the Congress, at
23;  1987 Annual Report to Congress, at 33.  SSA's Annual Reports do
not include statistics on how many cases were actually remanded by
district courts in each year.  However, the 1989 Annual Report does
state that during fiscal year 1988, SSA processed 5840 cases that
previously had been remanded by a district court.  Id., Table 1, note
1.  We have been informed by HHS that this total includes all types of
remands.

   /32/ Cf. Budinich v. Becton Dickinson & Co., 486 U.S. at 199:  "A
question remaining to be decided after an order ending litigation on
the merits does not prevent finality of its resolution will not alter
the order or moot or revise decisions embodied in the order."

   /33/ In 1959, Harold Packer, the officer of the Department of
Health, Education, and Welfare who was responsible for Social Security
litigation matters, expressed this view of the statutory scheme in his
testimony during the first extensive oversight hearings concerning the
Title II disability program:

         Mr. METCALF.  Is there ever an instance when the Department
      takes an appeal to the court?

         Mr. PACKER.  No, there cannot be in a title II case.  There
      cannot be any appeal by the Department because the decision
      rendered by the Appeals Council is the decision of the
      Secretary.  If the decision is favorable to the claimant, of
      course, there can be no further action.  If it is adverse, it is
      the claimant who appeals and he becomes the plaintiff in the
      action and the Secretary is the defendant.

         Mr. METCALF.  So every appeal which is taken to the court has
      been an appeal from a denial or adverse decision?

         Mr. PACKER.  Yes;  in the first instance, to the district
      court.  Of course, if the district court decision is adverse to
      the Government, the Government then has the right to appeal
      further to the appellate court.

Administration of Social Security Disability Program:  Hearings Before
the Subcomm. on the Administration of the Social Security Laws of the
House Comm. on Ways & Means, 86th Cong., 1st Sess. 692 (1959).

   /34/ In Harper v. Bowen, 854 F.2d 678, 681 (4th Cir. 1988), the
court considered it "possible" that the Secretary might be able to
obtain appellate review in this manner.

   /35/ Of course, where the court has remanded the cause to the
Secretary for a rehearing because it has found the Secretary's first
decision denying benefits to have been unlawful, it is appropriate for
the Secretary to file any new decision awarding benefits with the
court so that the court can consider whether attorney's fees should be
awarded under the EAJA.  See Sullivan v. Hudson, 109 S. Ct. at 2255.

   Respondent also relies (Br. in Opp. 22-23) on the statement in
Hudson that the "detailed provisions for the transfer of proceedings
from the courts to the Secretary and for the filing of the Secretary's
subsequent findings with the court suggest a degree of direct
interaction between a federal court and an administrative agency alien
to traditional review of agency action under the Administrative
Procedure Act." 109 S. Ct. at 2254.  With all respect, we submit that
those provisions of the sixth sentence of Section 405(g), which are
limited to interlocutory remands, are neither unusual nor alien to
traditional APA review of agency action.  See U.S. Dep't of Justice,
Attorney General's Report on the Administrative Procedure Act 93
(1947) ("many statutes provide that where the reviewing court finds
that the taking of new evidence would be warranted, such evidence must
be presented to the agency with opportunity to modify its findings";
those provisions "continue in effect" after enactment of the APA).
Such provisions appear in the Hobbs Act, 28 U.S.C. 2347(c), and in a
number of other statutes.  See, e.g., 15 U.S.C. 45(c) (FTC);  15
U.S.C. 77i(a) (SEC);  15 U.S.C. 78y(a)(5) (SEC);  15 U.S.C. 717r
(FERC);  15 U.S.C. 1394(b) (NHTSA);  29 U.S.C. 160(e) (NLRB);  29
U.S.C. 660(a) (OSHRC);  45 U.S.C. 355(f) (Railroad Retirement Board).
Some of those statutes are cited in footnote 14 to the chapter on
judicial review in Social Security Hearings and Appeals, at 130, 162.

   The passage in Social Security Hearings and Appeals quoted by the
Court in Hudson, 109 S. Ct. at 2254, described the version of the
sixth sentence that was in effect prior to the 1980 amendments (see
note 18, supra), and it criticized that version on the ground that it
allowed courts more freedom than they had under other judicial review
statutes and thereby enmeshed the courts too much in agency affairs.
It was largely in response to that criticism that Congress amended the
sixth sentence in 1980 to bring it into conformity with similar
provisions in other statutes, and thereby to diminish the degree of
interaction to which the Court referred in Hudson.  See H.R. Rep. No.
100, supra, at 13 (quoting Center for Administrative Justice, note 18,
supra, at 270) (a provision similar to relevant portion of amended
sixth sentence "'is contained in nearly all comparable review
statutes'").  Furthermore, the Committee Reports on the 1939
amendments in which Section 405(g) was enacted make clear that
Congress intended to adopt judicial review provisions "similar to
those made for the review of decisions of many administrative bodies."
See note 14, supra.  There is, accordingly, no basis for fashioning a
special rule of appealability in Social Security cases based on the
sixth sentence of Section 405(g).

   APPENDIX