I-4-3-10.Consideration of Appeal or Reargument

Last Update: 9/13/05 (Transmittal I-4-15)

A. General

Upon receipt of a new sentence four remand order not issued as a result of the RVR procedures, the analyst's preliminary consideration must be whether to appeal the order (see I-4-3-1). Remand orders under sentence six are generally not appealable because they are interlocutory actions; i.e., interim, not final. However, appellate review of a district court interlocutory order on a controlling question of law may be obtained (28 U.S.C. 1292(b)).

Remand orders under either sentence four or sentence six may also be appealable in certain infrequent cases under the “collateral order” doctrine established by the Supreme Court in Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541 (1949); a remand is appealable if it is, in effect, a final disposition of a claimed right. Therefore, the analyst must carefully review any remand order which appears to apply an incorrect legal standard or invalidate a regulation, ruling or procedure to determine whether appeal may be warranted.

Additionally, reargument before a district court may be warranted under Rules 59(e) or 60(b) of the Federal Rules of Civil Procedure. Rule 59(e) provides that a motion to alter or amend a judgment may be filed not later than 10 days after entry of judgment. Rule 60(b) provides that a motion for relief from final judgment may be made within a reasonable time (but not more than a year), and that relief may be granted for reasons such as mistake, inadvertence, excusable neglect, etc.

Example:

Medical opinion in a case indicates that coronary arteriography would definitely establish the claimant's residual functional capacity. The claimant states that he is unable to afford this procedure and the court remands the case to the Commissioner to obtain it on a consultative basis. The court's order gives no indication that the court was aware of the regulatory prohibition against purchase of an invasive medical procedure (e.g., coronary arteriograms, cardiac catheterizations, myelograms, etc.) by SSA (see 20 CFR 404.1519m and 416.919m). In this case, the analyst should recommend reargument following the procedures in section I-4-3-10 C., below.

NOTE:

Nearly all district courts construe failure to object timely to a magistrate judge's report and recommendation as a waiver of the right to raise later objections to the court's order of judgment. Accordingly, the analyst must determine whether the government filed objections to the magistrate judge's report and recommendation if the analyst is considering recommending appeal or reargument.

B. Appeal

If the analyst concludes that appeal of a remand order is warranted, the analyst must discuss the case with the OAO Branch Chief or the CCPRB Chief. If warranted, the case will be brought to the attention of the Executive Director of OAO. In those instances where an appeal is warranted, the Executive Director (or designee) will contact OGC.

NOTE:

A motion under Rule 59(e) tolls the time to file an appeal. If a motion under Rule 60(b) is filed the appeal time continues to run.

C. Reargument

If the analyst concludes that reargument of a district court order under Rule 59(e) or 60(b) is appropriate, the case must be discussed with the Branch Chief. If reargument is warranted, the Branch Chief will notify OGC. Analysts must act expeditiously in cases where reargument under Rule 59(e) is suggested because the time limits for such motions are so narrow.

D. Rehearing

The Federal Rules of Civil Procedure contain provisions for a motion and petition for rehearing, and for a suggestion for rehearing en banc of a circuit court opinion or order. If the analyst believes that such a motion or suggestion is warranted, the Branch Chief must first be consulted.

If the Branch Chief agrees, the analyst must annotate the Court Case Control and Routing Slip, (see I-4-2-99), and refer the case to the Executive Director of OAO with a memorandum explaining the basis for the recommendation. If the Branch Chief disagrees with the analyst's assessment, the analyst must be advised of the action to be taken.