

January 13, 1995
                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                        

No.  94-1653

                         JOHN BANKS,
                    Plaintiff, Appellant,

                              v.

  DONNA E. SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES,
                     Defendant, Appellee.

                                         

                         ERRATA SHEET

   The opinion of  this Court  issued on December  28, 1994  is
amended as follows:

   On page 2, line 5, delete "written"

   On page 3, line 9, delete "written"

   On page 7, line 13, insert ", or oral argument," between the
words briefing and schedule 

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                         

No. 94-1653

                         JOHN BANKS,

                    Plaintiff, Appellant,

                              v.

  DONNA E. SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES,

                     Defendant, Appellee.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. Edward F. Harrington, U.S. District Judge]                                                                  

                                         

                            Before

                      Cyr, Circuit Judge,                                                    
              Bownes, Senior Circuit Judge, and                                                      
                    Stahl, Circuit Judge.                                                    

                                         

Ellen N. Wallace and Sarah F. Anderson on brief for appellant.                                                  
Donald  K.  Stern,  United  States  Attorney,  Charlene  Stawicki,                                                                             
Assistant United  States Attorney,  and Robert M.  Peckrill, Assistant                                                                   
Regional Counsel, Department of Health and Human Services on brief for
appellee.

                                         

                      December 28, 1994
                                         

          Per  Curiam.   Plaintiff-appellant  John  Banks has                                 

appealed  from  the  district  court's  order  affirming  the

Secretary's  denial of  Social Security  disability benefits.

Because the  district  court  issued  its  affirmance  before

affording Banks  an opportunity to submit argument explaining

his objections  to the  Secretary's determination,  we remand

this case to the district court for further proceedings.

          Banks  applied for  disability benefits  on January

15,  1991, alleging an  inability to work due  to a number of

physical  and  mental ailments.    On October  12,  1993, the

Appeals  Council  denied Banks'  request  for  review of  the

finding of  an Administrative  Law Judge  that Banks  was not

disabled.  

          On  December 17,  1993, Banks  brought the  instant

action  in  the District  of  Massachusetts  seeking judicial

review  of the Secretary's decision.   The Secretary filed an

answer  to  Banks'  complaint,  accompanied  by  the 767-page

administrative  record of the case,  on March 22,  1994.  One

week  later, on March 29, 1994, the district court sua sponte

--  without notice  to the  parties,  and without  giving the

parties  an  opportunity  to  submit  argument  --  issued  a

memorandum and order affirming the decision of the Secretary.

Judgment for the Secretary was issued on that same date.

          On April 11, 1994, Banks filed a motion to alter or

amend the  judgment under  Fed. R.  Civ. P.  59(e).   In that

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motion Banks argued  that it  was improper  for the  district

court to enter judgment against Banks without affording Banks

an  opportunity to  brief  the issues  in  the case.    Banks

included a  proposed briefing  schedule.   On  April 14,  the

district  court   summarily  denied  Banks'  motion.    Banks

appeals, pressing this same point.

          This court has never considered the question of the

propriety of  a  district court,  on review  of a  disability

determination, affirming the  Secretary without affording the

claimant  an opportunity  to  present argument.1   The  three

circuits  that have  addressed the  issue, however,  have all

declined to sanction the practice.  

          In  Kistner v.  Califano, 579  F.2d 1004  (6th Cir.                                              

1978), the  district court  entered summary judgment  for the

                                                    

1.  Our decision in Alameda v. Secretary of Health, Education                                                                         
&amp;  Welfare, 622  F.2d  1044 (1st  Cir.  1980), cited  by  the                      
Secretary, is inapposite.   There we noted, in the  course of
ruling that the  district court may enter  a default judgment
against the  Secretary only  if the claimant  has established
his  right to  relief  by satisfactory  evidence, "that  many
social  security reviews  by  the district  court are  simple
matters, which can often be  resolved by reading the findings
of the Secretary  without recourse to  a memorandum of  facts
and law.   But  not all  social security  cases  are of  this
nature.    Moreover,  appellant  may  have   presented  legal
arguments,  or even  assertions as  to the  new circumstances
bearing  on the equities, which  the court will  want to have
answered before deciding."  Id. at 1047.  In this passage  we                                          
were referring to  the discretion of  the district court,  in
the course of affirming the Secretary, to dispense with legal
argument  from   the  Secretary  in  response  to  claimant's                                           
arguments.   Our  comments  did not  refer  to or  approve  a
practice of dismissing disability review cases without giving
the claimant an opportunity to state his or her objections to
the Secretary's determination.  

                             -3-

Secretary sua sponte, without prior notice to the parties and

without  any opportunity  for  the claimant  to file  written

argument.     The  district  court   treated  the  respective

pleadings  of  the  parties  "as cross  motions  for  summary

judgment."  Id. at 1005.  The Sixth Circuit held that Fed. R.                          

Civ. P. 56 bars a "sua sponte  grant [of] summary judgment to

one  party without  giving the  adverse party  notice  and an

opportunity  to respond in opposition to the motion."  Id. at                                                                     

1006.  The  court declined  to treat the  matter as  harmless

error and proceed to the merits on appeal, concluding instead

that the claimant  "is entitled to a full and  fair review of

the Secretary's  decision denying  her claim for  benefits in

the district  court in the first  instance."  Id.   The court                                                            

thus vacated  the district court's judgment  and remanded the

case to the district court for further proceedings.

          In Myers v. Califano, 611 F.2d 980 (4th Cir. 1980),                                          

the  district court  affirmed  the Secretary's  decision  sua

sponte based on nothing more than the pleadings.  In doing so

the  court relied  on 42  U.S.C.    405(g), which  allows the

reviewing  court to  enter judgment  "upon the  pleadings and

transcript  of record."   The  Fourth Circuit  held that  the

district  court's summary affirmance was nonetheless improper

in  the  light of  Califano v.  Yamasaki,  442 U.S.  682, 699                                                    

(1979),  in which the Supreme  Court held that    405(g) does

not exempt actions  for review of social security claims from

                             -4-

the operation of  the Federal Rules  of Civil Procedure,  but

instead  "prescribes that  judicial  review shall  be by  the

usual type  of `civil  action' brought routinely  in district

court."  Id.   Accordingly,  the court of  appeals ruled  the                       

district  court's  summary  affirmance   was  "inappropriate"

because  the Federal  Rules  of Civil  Procedure entitle  the

opposing party to notice and an opportunity to respond before

dismissal.   The court  went on to  observe, "[C]ourts derive

substantial   benefit   from   briefs  and   oral   argument.

Generally, they  should require counsel's  aid in  clarifying

and resolving issues."   Id.  Because, however,  both parties                                       

to  the appeal nonetheless urged  the court of  appeals to go

ahead and decide the merits, the court did so.  Id.                                                              

          In the third case, Flores  v. Heckler, 755 F.2d 401                                                           

(5th  Cir.  1985),  the  district court,  similarly,  entered

judgment for  the Secretary sua sponte  without affording the

claimant an opportunity to present argument.   In response to

the claimant's argument that  the district court was required

to,  and had failed to, follow the  mechanism of Fed. R. Civ.

P.  56 in  dismissing  disability review  actions, the  Fifth

Circuit  stated  that  use   of  summary  judgment,  although

permissible,  was  not  required.     The  court  of  appeals

indicated that  it was  unconcerned whether a  district court

chose  to  proceed  under  Rule 56  or  Rule  12.   What  was

important,  the court  of appeals  ruled, was  that "district

                             -5-

courts   reviewing   disability  determinations   should  not

conclude their review without an appropriate  opportunity for

the presentation of  the parties' contentions."   Id. at 403.                                                                

The court  of appeals  went  on to  find that  the error  was

harmless  in the case before it, and proceeded to the merits,

because  the claimant had presented his  arguments in full in

his  motion for  new trial,  and in  denying that  motion the

district court had "stated that it had  reviewed `the motion,

the record, and the law.'"  Id.                                            

          Like  the  Fifth Circuit  in  Flores,  we need  not                                                          

concern ourselves with whether  the district court's order is

more appropriately labelled and analyzed  as under Rule 12 or

Rule 56 of the Federal  Rules of Civil Procedure.   We simply

hold,  as   did  Flores,  that  "district   courts  reviewing                                   

disability  determinations should  not conclude  their review

without  an appropriate opportunity  for the  presentation of

the parties' contentions."  Id. at 403.  In his memorandum in                                           

support of  his Rule 59(e)  motion, Banks set  forth specific

objections  to the  Secretary's determination  that, whatever

their ultimate merit, certainly  appear substantial enough to

justify an opportunity for full briefing.

          We cannot  find, unlike  the court in  Flores, that                                                                   

the district court's error  was harmless.  For one  thing, it

is by no means clear that Banks' memorandum in support of his

Rule  59(e) motion,  which  devoted  only  three-and-one-half

                             -6-

pages to  a summary of the  claimant's substantive arguments,

constituted  a full  presentation of  those arguments  to the

district court.   The  claimant in  Flores, by  contrast, had                                                      

submitted  "a 22-page memorandum arguing that the Secretary's

decision was  not supported by substantial  evidence," id. at                                                                     

402,  which the court of appeals  deemed "fully presented his

substantive  arguments,"  id. at  403.    Also,  we  are  not                                        

satisfied that the district court, in denying  the Rule 59(e)

motion, signalled that it had given adequate consideration to

Banks'  arguments.   Whereas  the  district  court in  Flores                                                                         

specifically  stated that  it had  reviewed "the  motion, the

record,  and the law,"   id., the district  court here simply                                       

endorsed the motion with "Motion denied."   

          Accordingly, we vacate the judgment of the district                                            

court  and remand  this  case for  further  proceedings.   On                             

remand, the  district court  is to  establish a briefing,  or

oral  argument,   schedule  that  affords   the  parties   an

opportunity to  present  their  arguments  before  the  court

issues its ruling. 

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