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Finkelstein v. Bowen

filed: March 3, 1989; As Amended May 19, 1989.

MARILYN FINKELSTEIN, APPELLEE
v.
OTIS R. BOWEN, M.D., SECRETARY OF HEALTH AND HUMAN SERVICES, APPELLANT



On Appeal from the United States District Court for the District of New Jersey, D.C. Civil Action No. 85-0345.

Becker, Hutchinson and Scirica, Circuit Judges.

Author: Hutchinson

Opinion OF THE COURT

HUTCHINSON, Circuit Judge.

The Secretary of Health and Human Services (Secretary) appeals an order of the United States District Court for the District of New Jersey. The district court had remanded this action for widow's disability benefits under the Social Security Act to the Secretary for consideration of the applicant's residual functional capacity. That order is not final for purposes of appellate review. We will therefore dismiss this appeal for lack of jurisdiction.

I.

On November 25, 1983, Mrs. Marilyn Finkelstein applied for disabled widow's benefits pursuant to 42 U.S.C.A. § 423(d)(2)(B) (West Supp. 1988). Her application was denied both initially and on reconsideration. After a hearing on September 28, 1984, an Administrative Law Judge (ALJ) determined that Mrs. Finkelstein's heart ailment did not meet or equal an impairment listed in the regulations*fn1 and denied benefits. That denial became the Secretary's final decision on December 11, 1984, when the Appeals Council denied Mrs. Finkelstein's request for review.

Pursuant to 42 U.S.C.A. § 405(g)(West 1983), Mrs. Finkelstein filed suit in the district court, claiming that the ALJ's decision was not supported by substantial evidence. The district court rejected this argument, but nevertheless remanded the case to the Secretary "for reasons other than those cited by [the] plaintiff." Finkelstein v. Bowen, No. 85-0345, slip op. at 5 (D.N.J. Feb. 18, 1988). It directed the Secretary to consider "the functional impact of plaintiff's ailment," id., in order to determine whether, beyond the issue of equivalence of impairments, Mrs. Finkelstein could yet engage in any gainful activity. Id. at 6. This appeal followed.

On the merits, the Secretary argues that, in the case of widow's disability benefits, the statute and applicable regulations require him to look only to whether an applicant's impairment meets or equals an impairment listed in the regulations.*fn2 The inquiry, he contends, does not extend, as in the case of a wage earner's disability, to examination of residual functional capacity.*fn3 Instead, the Secretary argues, a widow's disability is governed by a stricter standard*fn4 and a denial of benefits is required if her impairment is not equivalent to one listed in the regulations.

II.

At the threshold, we are faced with the question of appellate jurisdiction. Both parties initially asserted*fn5 that we have jurisdiction under 28 U.S.C.A. § 1291 (West Supp. 1988). That section gives us the authority to review "final orders" of the federal district courts. We have said that "remands to administrative agencies are not ordinarily appealable under section 1291." United Steelworkers of America Local 1913 v. Union R.R., 648 F.2d 905, 909 (3d Cir. 1981). Such a remand is typically an interlocutory step in the adjudicative process and, therefore, not a final order. Id. Therefore, we can exercise appellate jurisdiction over this case only if it comes within an exception to the ordinary rule.

Case law does provide examples of a narrow exception to the normal rule of non-appealability. Application of this exception is limited to 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. See, e.g., AJA Assocs. v. Army Corps of Eng'rs, 817 F.2d 1070, 1073 (3d Cir. 1987). Whether applying the normal rule or the exception, our inquiry focuses on "the particular order brought to this court." Bachowski v. Usery, 545 F.2d 363, 372 (3d Cir. 1976); see also United Steelworkers, 648 F.2d at 909 ("To assess these contentions, we must consider the nature of the district court's order.").

After examining the circumstances of the cases applying the normal rule of non-appealability and those holding that appellate jurisdiction over particular remand orders is available, we have concluded that the exception to the normal ...


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