                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-27-1999

Kreider Dairy Farms, Inc. v. Glickman
Precedential or Non-Precedential:

Docket 98-1906, 981982,98-1983




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Filed August 27, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

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

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

v.

DAN GLICKMAN, Secretary of the United
States Department of Agriculture

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

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

v.

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

AHAVA DAIRY PRODUCTS, INC.

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

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

v.

DAN GLICKMAN, Secretary of the United
States Department of Agriculture

Kreider Dairy Farms, Inc.,
       Appellant in No. 98-1983
(D.C. 98-cv-00518)
Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Judge: Honorable Edward N. Cahn

ARGUED: June 9, 1999

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

(Filed: August 27, 1999)

       Marvin Beshore, Esquire (ARGUED)
       Dawn L. Lisi, Esquire
       Milspaw & Beshore
       130 State Street
       P.O. Box 946
       Harrisburg, PA 17108-0946

        COUNSEL FOR KREIDER
        DAIRY FARMS

       David W. Ogden, Esquire
       Acting Assistant Attorney General

       Michael R. Stiles, Esquire
       United States Attorney

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

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

*Honorable Robert J. Ward, United States District Judge for the
Southern District of New York, sitting by designation.

                               2
       Douglas Hallward-Driemeier, Esquire
        (ARGUED)
       United States Department of Justice
       Civil Division, Appellate Staff
       601 D Street, N.W.
       Washington, D.C. 20530-0001

        COUNSEL FOR UNITED STATES
        DEPARTMENT OF AGRICULTURE

OPINION OF THE COURT

MANSMANN, Circuit Judge.

These appeals implicate important issues related to our
appellate jurisdiction in the context of a dispute over dairy
regulations. Specifically, we must determine the extent to
which our jurisdiction extends to District Court orders
remanding for further factual findings in administrative
proceedings in light of Forney v. Apfel, 524 U.S. 266, 118
S. Ct. 1984 (1998). We hold today that because the
discussion on appellate jurisdiction in Forney is founded
upon specific language located within the Social Security
Act, the holding in Forney does not extend to all District
Court orders remanding for further administrative
proceedings. We also reaffirm our longstanding rule that we
lack jurisdiction over District Court orders remanding for
further administrative findings unless an important legal
issue has been finally determined which would evade
appellate review in the absence of an immediate appeal.

Applying these principles to the appeals before us, we
find that we lack jurisdiction over the appealfiled by
Kreider Dairy Farm, Inc. ("Kreider") in 1998 from a 1996
District Court order which remanded for further factual
findings relating to the merits of the dairy dispute.
Accordingly, we will dismiss Kreider's appeal (No. 98-1982)
for lack of jurisdiction. Under these same principles,
however, we find that we do have appellate jurisdiction over
the timely appeal filed by the Secretary of the United States
Department of Agriculture ("USDA") from the District
Court's August 10, 1998 order reversing a USDA

                               3
determination that Kreider's administrative appeal on
remand was untimely (No. 98-1906) and remanding for
further administrative proceedings on the merits.

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

I.

These appeals come to us after a long and tortured
procedural history that spans nearly a decade. Because this
procedural history is central to our decision, we shall
discuss it in some detail. By contrast, because we do not
reach the merits of the parties' dispute over the dairy
regulations at issue in these appeals, the underlying factual
background that forms the basis of that dispute will be
discussed only generally.1

A.

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

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

                               4
the sales of milk. Kreider first applied for producer-handler
status under Order 2 by letter dated December 19, 1990.

The Market Administrator ("MA") responsible for
administering Order 2 denied Kreider's application for
producer-handler status, finding that Kreider did not meet
the producer-handler requirements due to Kreider's use
of independent subdistributors. See generally 7 C.F.R.
S 1002.12(b)(1999) (setting forth exclusive control
requirements for producer-handler exemption). On
December 23, 1993, Kreider challenged the MA's decision
by filing a petition with the USDA pursuant to section
608c(15)(A) of the AMAA.

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

On October 18, 1995, Kreider filed a complaint pursuant
to the AMAA in the District Court challenging the JO's
decision. See AMAA, 7 U.S.C. S 608c(15)(B)(1994). By
opinion and order filed August 15, 1996 ("1996 Order"),
the District Court denied the parties' cross motions for
summary judgment and remanded for further
administrative findings on whether Kreider was"riding the
pool," i.e., whether Kreider was the type of dairy for which
producer-handler status should be denied pursuant to the
promulgation history of the producer-handler exemption.
See Kreider Dairy Farms, Inc. v. Glickman, No. Civ. A. 95-
6648, 1996 WL 472414 (E.D. Pa. August 15, 1996). Neither
Kreider nor the USDA appealed the District Court's 1996
Order at that time.

B.

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

                               5
pool" and therefore was not entitled to producer-handler
status. Under applicable regulations, the ALJ's decision
becomes effective thirty-five (35) days after service upon the
parties unless appealed to the JO thirty days (30) after
service. See 7 C.F.R. SS 900.64(c), 900.65(a)(1999). The
ALJ's decision was served on Kreider on August 15, 1997.

On September 12, 1997, Kreider moved for an extension
of time to file its appeal from the ALJ's August 12, 1997
decision. The JO granted Kreider an extension until
September 19, 1997. On September 19, 1997, Kreider sent
its appeal via Federal Express next day delivery. The Office
of the Hearing Clerk stamped Kreider's appeal as received
on September 25, 1997.

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

While Kreider's motion for reconsideration was pending
before the JO, Kreider filed a complaint with the District
Court on February 2, 1998 challenging the ALJ's August
12, 1997 decision and noting that the JO had denied its
appeal as untimely.2 The JO denied Kreider's motion for
_________________________________________________________________

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

                               6
reconsideration on February 20, 1998. On April 3, 1998,
Kreider filed an amended complaint challenging the JO's
January 12, 1998 and February 20, 1998 decisions. The
USDA filed a motion to dismiss.

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

C.

On October 7, 1998, the USDA filed a timely appeal from
the District Court's 1998 Order which was docketed with
us at 98-1906. On October 21, 1998, Kreider filed a cross-
appeal. In Kreider's notice of appeal, Kreider listed the
docket numbers from the District Court's two prior
proceedings hoping to bring an appeal from the District
Court's 1996 Order. Kreider's cross-appeal was treated as
two separate appeals: 1) a cross-appeal from the District
Court's 1998 Order (docketed at 98-1983); and 2) an appeal
from the District Court's 1996 Order (docketed at 98-1982).

On October 30, 1998, we sent a letter to the parties
questioning our jurisdiction over Kreider's appeal from the
District Court's 1996 Order. We invited submissions by the

                               7
parties outlining the basis for our jurisdiction. Both parties
submitted letters. In its letter, the USDA contends that we
have jurisdiction over Kreider's appeal from the District
Court's 1996 Order under Forney v. Apfel, 524 U.S. 266
(1998) and Sullivan v. Finkelstein, 496 U.S. 617 (1990). In
addition, both the USDA and Kreider cite Forney as the
basis for our jurisdiction in their briefs. Kreider also asserts
various other grounds for jurisdiction in its letter. Both
parties seem to recognize that Kreider never intended to file
a cross-appeal from the District Court's 1998 Order.

II.

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

A.

We traditionally have recognized an exception to the
general finality rule for certain District Court orders
remanding for further administrative proceedings.
Specifically, we have exercised appellate review when a
District Court finally resolves an important legal issue in
reviewing an administrative agency action and denial of
_________________________________________________________________

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

                               8
appellate review before remand to the agency would
foreclose appellate review as a practical matter. See AJA,
817 F.2d at 1073 (citing Horizons Int'l, Inc. v. Baldrige, 811
F.2d 154 (3d Cir. 1987)); Union R.R., 648 F.2d at 909.

An example of an immediately appealable remand under
this exception is found in AJA, 817 F.2d 1070. After the
Army Corps denied AJA's application for a permit, AJA filed
suit in District Court. AJA, 817 F.2d at 1071-72. The
District Court denied the Corps' motion for summary
judgment and remanded holding that AJA was entitled to
an administrative hearing. Id. at 1072. The Corps appealed.

We exercised jurisdiction over the Corps' appeal even
though the District Court's order remanding for further
administrative proceedings was not a final order. We noted
that the District Court had resolved an important legal
issue opening the door to arguments by all applicants that
they are entitled to a hearing prior to a permit denial. Id. at
1073. In addition, we found that the issue may evade
appellate review; if the Corps granted AJA a permit on
remand, the Corps would be unable to appeal the hearing
issue and if the Corps denied AJA a permit, the issue of
whether AJA is entitled to a hearing would be moot. Id. For
these reasons, we held that the Corps' appeal fell within
our previously recognized exception to the finality rule.

B.

In addition to our well established exception to the
finality rule for certain District Court orders remanding for
further administrative proceedings, the Supreme Court
recently carved out a very specific exception to the finality
rule for remand orders under the Social Security Act. See
Forney, 524 U.S. 266, and Finkelstein, 496 U.S. 617. In
Finkelstein, the Court held that the District Court's order
effectively holding that certain regulations were invalid and
remanding for further administrative findings without
resort to those regulations was immediately appealable. The
Court relied heavily upon specific language within the
Social Security Act in reaching this decision.4 The Court,
_________________________________________________________________

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

                               9
however, also noted that if benefits were awarded on
remand under the inquiry mandated by the District Court
"there would be grave doubt" as to whether the Secretary
could appeal his own order. Finkelstein, 496 U.S. at 625.

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

After Forney, it is clear that Finkelstein did not simply
apply our general exception to finality to a social security
case, but rather created a separate exception to thefinality
rule based on the language of the Social Security Act.
Accordingly, Forney cannot be read to extend appellate
jurisdiction to all District Court orders remanding for
further administrative proceedings as the parties contend,
but rather speaks only to appellate jurisdiction under
statutes containing language comparable to that found in
the Social Security Act. This conclusion is supported by the
_________________________________________________________________

final judgment subject to immediate appeal under the following
language:

       [T]he district court shall have the power to enter `a judgment
       affirming, modifying, or reversing the decision of the Secretary,
with
       or without remanding the cause for rehearing.'

       *   *   *

       `[t]he judgment of the court shall be final except that it shall be
       subject to review in the same manner as a judgment in other civil
       actions.'

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

                               10
fact that, to date, no court has applied Forney to a case not
arising under the Social Security Act. As the USDA
concedes, the AMAA does not contain language comparable
to that found in the Social Security Act. Forney and
Finkelstein therefore do not control our jurisdiction over
these appeals.

C.

Given that Forney and Finkelstein do not control our
jurisdiction over these appeals, we return to our general
exception to the finality rule to determine whether we have
jurisdiction over either of the appeals before us.
Specifically, we must determine whether either the 1996
Order or 1998 Order finally resolves an important legal
issue over which appellate review would be foreclosed as a
practical matter in the absence of an immediate appeal.

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

Under our exception to the finality rule, the 1996 Order
is not subject to immediate appeal. It does notfinally
resolve a particularly important legal issue and, more
importantly, it is not an order that will evade appellate
review. Absent an order that would evade review, our
interest in avoiding piecemeal litigation and duplicative
efforts overrides any interest we may have in entertaining
the merits of Kreider's appeal at this juncture. Accordingly,
our traditional exception to finality in agency proceedings
does not afford us jurisdiction over Kreider's appeal from
the 1996 Order.5
_________________________________________________________________

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

                               11
Our exception, however, does provide appellate
jurisdiction over the USDA's timely appeal from the 1998
Order. This order vacated the JO's determination that
Kreider's appeal was untimely and remanded for the JO to
hear the merits of Kreider's appeal from the ALJ's decision.
This decision resolves an issue of law that may evade
review if immediate appeal is not permitted; should Kreider
receive the relief it seeks on remand, it is doubtful that the
USDA would be able to appeal its own decision in order to
raise the procedural issues decided by the District Court in
its 1998 Order. Therefore, under our exception for agency
appeals, we have jurisdiction over the USDA's appeal from
the 1998 Order.6

III.

Having established that we have jurisdiction over the
USDA's appeal of the District Court's 1998 Order, we turn
now to the merits of that appeal. The USDA asserts that the
District Court erred in exercising jurisdiction over Kreider's
appeal and in holding that Kreider's administrative appeal
was timely. Because we agree that it was improper for the
District Court to exercise jurisdiction over Kreider's appeal,
_________________________________________________________________

the District Court's 1996 Order at this juncture to bring its position on
the merits before us. Setting aside the obvious problems with the
timeliness of such an appeal at this late date, we wish to make clear that
because the District Court's 1996 Order is not afinal order over which
we have appellate jurisdiction, the USDA is equally precluded from
appealing the 1996 Order.

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

                               12
we will vacate the District Court's 1998 Order without
reaching the issue of whether Kreider's administrative
appeal was timely.

After the District Court's initial remand via the 1996
Order, Kreider first filed a complaint in the District Court
on February 2, 1998. In this complaint, Kreider sought
review of the ALJ's August 12, 1997 decision on the merits.
At that time, Kreider's motion for reconsideration of the
JO's January 12, 1998 order, which dismissed Kreider's
administrative appeal as untimely, was still pending. It is
clear to us that the District Court did not have jurisdiction
over Kreider's February 2, 1998 complaint.

First, as the District Court recognized, it did not have
jurisdiction to review the ALJ's August 12, 1997 decision
because that decision is not a final agency decision subject
to judicial review. See Kreider, 1998 WL 481926 at *7.
Second, even if Kreider's February 2, 1998 complaint had
challenged the JO's January 12, 1998 decision, which it did
not, the District Court would have lacked jurisdiction to
review that decision at that time due to Kreider's pending
motion for reconsideration. See Stone v. INS, 514 U.S. 386,
391 (1995)(noting the general rule that the timely filing of
a motion to reconsider an agency's action generally renders
the underlying order nonfinal for purposes of judicial
review); West Penn Power Co. v. United States Envtl.
Protection Agency, 860 F.2d 581, 584 (3d Cir. 1988) (same).7

Because the District Court lacked jurisdiction to
entertain any appeal by Kreider on February 2, 1998, the
date Kreider filed its first complaint, the District Court
erred in exercising jurisdiction under the theory that
Kreider's April 3, 1998 amended complaint related back to
Kreider's February 2, 1998 complaint. An amended
complaint that purports to relate back to an original
complaint asserting an improper appeal which wasfiled on
a date upon which the District Court would have lacked
_________________________________________________________________

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

                               13
jurisdiction over the appeal raised in the amended
complaint, must be dismissed for lack of jurisdiction. See,
e.g., Reynolds v. United States, 748 F.2d 291, 293 (5th Cir.
1984) (holding that District Court properly dismissed for
lack of jurisdiction amended complaint that could only
relate back to pleading filed on a date upon which the
District Court would have lacked jurisdiction over the
issues asserted). Absent a viable relation back theory,
Kreider's April 3, 1998 complaint is an untimely appeal of
the JO's January 12, 1998 decision.8 Accordingly, because
the District Court lacked jurisdiction over Kreider's appeal
of the JO's January 12, 1997 decision, we will vacate the
District Court's 1998 Order.

IV.

For the foregoing reasons, we will dismiss summarily
Kreider's cross-appeal from the District Court's 1998 Order
(No. 98-1983), dismiss Kreider's appeal from the District
Court's 1996 Order (No. 98-1982) for lack of jurisdiction,
and vacate the judgment of the District Court in the
USDA's appeal from the District Court's 1998 Order (No.
98-1906).
_________________________________________________________________

8. Kreider does not dispute that its April 3, 1998 amended complaint
was filed more than twenty days after the District Court's February 20,
1998 denial of Kreider's motion for reconsideration of the JO's January
12, 1998 decision and therefore is untimely absent a viable relation back
theory. See 7 U.S.C. S 608c(15)(B)(1994).


                               14
SLOVITER, Circuit Judge, concurring.

I concur in the opinion of Judge Mansmann. I write
separately to express my concern that our opinions, and
those of other courts, dealing with the issue of appellate
jurisdiction over district court orders remanding to an
administrative agency have used language that is
inconsistent with basic principles of federal jurisdiction. In
particular, I take issue with language referring to our
jurisdiction in that instance as an "exception" to the finality
rule. See, e.g., Bridge v. United States Parole Commission,
981 F.2d 97, 101-02 (3d Cir. 1992); United States v.
Spears, 859 F.2d 284, 287 (3d Cir. 1988); Perales v.
Sullivan, 948 F.2d 1348, 1353 (2d Cir. 1348). In plain
words, there can be no judicially created "exception" to the
jurisdiction Congress has granted the courts of appeals.

I.

Any analysis of the jurisdiction of the courts of appeals
must begin with the recognition that under our
Constitutional separation of powers it is Congress that sets
the jurisdiction of the federal courts, and the judiciary has
no power to make exceptions to the congressional
determinations in that respect. See United States v.
Hollywood Motor Car Co., 458 U.S. 263, 264 (1982) (per
curiam); see also 15A Charles Alan Wright, Arthur R.
Miller, and Edward H. Cooper, Federal Practice and
Procedure S 3905, at 232 (2d ed. 1991).

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

                               15
the final judgment rule has been the heart of appellate
jurisdiction in the federal system.").9

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

Over the years, Congress has made discrete decisions
"that particular policies require that private rights be
vindicable immediately." See Digital Equip. Corp. v. Desktop
Direct, Inc., 511 U.S. 863, 880 n.7 (1994) (discussing
provision for immediate appeal under 9 U.S.C. S 16(a) when
district court declines to send case to commercial
arbitrator). However, such a decision is always
characterized by an express congressional judgment. See,
e.g., 28 U.S.C. S 1292(a)(1) (authorizing appeal from
interlocutory orders granting, modifying, denying etc.
injunctions); 28 U.S.C. S 1292(b) (authorizing interlocutory
appeal on certification). The Supreme Court has cautioned
that the existence of those congressional policy judgments
"by no means suggests that [the courts] should now be
more ready to make similar judgments for themselves" and
to expand the scope of appellate jurisdiction beyond that
set by Congress. Digital Equip. Corp., 511 U.S. at 880 n.7.

II.

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

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

                               16
finality rule that does not have a statutory predicate.
Nonetheless, opinions of the lower federal courts repeatedly
refer to the collateral order "exception" emanating from the
holding of Cohen v. Beneficial Industrial Loan Corp., 337
U.S. 541 (1949), that the courts of appeals have jurisdiction
over "a small class of orders" that, albeit not the final
decision in the case, resolve important questions completely
separate from the merits, which would be effectively
unreviewable were they to wait appeal from the final
judgment in the underlying action. The notion of an
"exception" to the finality doctrine is illogical as Congress
alone establishes our appellate jurisdiction.

The collateral order doctrine was hardly a new theory of
finality never previously comprehended. More than two
decades earlier, the Court stated that, althoughfinal
judgments are the rule,

       it is well settled that an adjudication final in its nature
       as to a matter distinct from the general subject of the
       litigation and affecting only the parties to the particular
       controversy, may be reviewed without awaiting the
       determination of the general litigation.

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

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

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

                               17
`practical construction' of it." 511 U.S. at 867. See also
Firestone, 449 U.S. at 368 ("Cohen did not establish new
law; rather, it continued a tradition of givingS 1291 a
`practical rather than a technical construction.' "); Coopers
& Lybrand, 437 U.S. 463, 468 (1978) ("[T]he Court held [the
Cohen order] appealable as a `final decision' under
S 1291."); Abney v. United States, 431 U.S. 651, 658 (1977)
("[T]his Court held [in Cohen] that the Court of Appeals had
jurisdiction under S 1291 to entertain an appeal from the
District Court's pretrial order." (emphasis added)).

I agree with the majority that the two cases arising under
the Social Security Act, Sullivan v. Finkelstein, 496 U.S.
617 (1990), and Forney v. Apfel, 524 U.S. 266 (1998),
represent an exception to the final judgment rule. But the
exception is one made by Congress, not the courts.

In Finkelstein, the Court considered the jurisdiction of
the courts of appeals to hear an appeal by the Secretary of
Health and Human Services from a district court's order
invalidating regulations issued by the Secretary and
remanding to the agency for renewed consideration of the
claim for benefits. The Court observed that the language of
42 U.S.C. S 405(g) in the Social Security Act permitted a
district court to enter " `a judgment affirming, modifying, or
reversing the decision of the Secretary, with or without
remanding the cause for a rehearing.' " Id. at 625 (quoting
S 405(g)) (emphasis omitted). Further, S 405(g) made clear
that such a judgment was " `final except that it shall be
subject to review in the same manner as a judgment in
other civil actions.' " Id. (quotingS 405(g)) (emphasis
omitted). In light of this language, the Court concluded that
Congress had "define[d] a class of orders as `final
judgments' that by inference would be appealable under
S 1291." Id. at 628. Justice Blackmun concurred, but
stated he would have treated the appeal as falling within
the confines of the collateral order doctrine. Id. at 632
(Blackmun, J., concurring).

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

                                18
theory as the basis for appellate jurisdiction and
emphasized, in a unanimous opinion, that Congress had
created a class of orders through S 405(g) that were
appealable as final orders under S 1291. Thus, because the
district court decisions at issue in Finkelstein and Forney
were a class of orders declared "final" by Congress by
construction of the language of the Social Security Act, they
provide little assistance on the issue facing us now, the
appealability of an order remanding to an agency under a
statute that has no comparable provision for appeal.

Of course, it would have facilitated our decision as to our
appellate jurisdiction over an order remanding to an
administrative agency if Congress had explicitly provided
for such, and it may be that cases such as this will lead it
to consider doing so. In any event, the precedent allowing
such an appeal in appropriate circumstances, including
that from this court, precludes any retreat now.

The most obvious analog, and the one relied on by many
courts of appeals, is the collateral order doctrine,
notwithstanding the fact that most of the agency remand
orders would not qualify because the remand would rarely
be on an issue separate from the merits. See 15B Wright,
Miller & Cooper, supra, S 3914.32, at 240 (asserting that
"[a]n impressive number of cases" permit appeal under the
doctrine). It has been suggested that the tendency is to
accept the appeals of government agencies, apparently
because "administrative agencies, as more or less
coordinate branches of government, deserve the protection
of special appeal opportunities." Id. at 56-57 n.9 (Supp.
1999) (citing, inter alia, Bergerco Canada v. United States
Treasury Dep't, 129 F.3d 189, 191-92 (D.C. Cir. 1997);
Baca-Prieto v. Guigni, 95 F.3d 1006, 1008-09 (10th Cir.
1996); Hanauer v. Reich, 82 F.3d 1304, 1306-07 (4th Cir.
1996); Schuck v. Frank, 27 F.3d 194, 196-97 (6th Cir.
1994)). But see Cotton Petrol., Inc. v. United States Dep't of
the Interior, 870 F.2d 1515, 1521-22 (10th Cir. 1989); AJA
Assocs. v. Army Corps of Eng'rs, 817 F.2d 1070, 1072-73
(3d Cir. 1987)).

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

                               19
appealing its own decision. In others, the agency's decision
will render the issue moot, because the agency has
complied with the district court's order. Additionally,
agencies ought not face the risk of contempt to prompt an
immediate appeal, or the danger that the agency will be
unable to recapture later any benefits paid in the interim.
See 15B Wright, Miller & Cooper, supra , S 3914.32, at 240-
41.

I agree that a practical construction of finality suffices to
justify review of an agency remand order in appropriate
cases. Such an approach is a considerable improvement
over viewing the basis of our jurisdiction as an"exception
to finality."

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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