
USCA1 Opinion

	




          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                                         -2-            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                                _______    ______________________________            &  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.                                          -7-
