Burrell Detherage v. Jo Anne Barnhart , 91 F. App'x 520 ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-1658
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Burrell D. Detherage, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Jo Anne B. Barnhart, Commissioner * [UNPUBLISHED]
of Social Security, *
*
Appellee. *
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Submitted: November 21, 2003
Filed: March 2, 2004
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Before WOLLMAN, BYE, and SMITH, Circuit Judges.
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PER CURIAM.
This is an attempted appeal from the district court’s1 order affirming the
Commissioner of Social Security’s termination of disability insurance benefits. The
threshold issue for us is whether Detherage’s notice of appeal, filed months before the
district court’s order was entered, is sufficient to give us jurisdiction to consider the
appeal. We hold that it is not, and we therefore dismiss the appeal.
1
The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
Detherage’s September 30, 1987, application for disability insurance benefits
was approved effective September 16, 1987, on the basis of Detherage’s testicular
carcinoma, alcoholic liver cirrhosis, and major depression. Some 11 years later, after
a routine continuing disability review, the Commissioner determined that Detherage’s
disability had ceased and thus terminated his benefits. The Commissioner affirmed
that decision upon reconsideration. Following a hearing, an Administrative Law
Judge (ALJ) found that Detherage’s disability had ceased as of November 1998 and
ordered that benefits be discontinued as of January 1999. The Appeals Council of the
Social Security Administration denied Detherage’s request for review, and thus the
ALJ’s decision became the final decision of the Commissioner.
Detherage filed a complaint in the district court on May 24, 2001, arguing that
the ALJ had improperly terminated his disability benefits. After the Commissioner’s
answer was filed and the district court had disposed of some discovery motions,
Detherage filed a motion to remand under sentence six of 42 U.S.C. § 405(g) so that
the ALJ might consider a post-hearing letter from Detherage’s primary physician.
The district court denied the motion on October 6, 2002. Detherage filed a notice of
appeal of this order on December 2, 2002. On January 9, 2003, the district court
entered an order stating that the attempted appeal was interlocutory in nature because
the district court’s denial of the motion for sentence six remand was not a final
judgment. On March 10, 2003, the district court entered an order affirming the ALJ’s
determination on the merits. Detherage did not file a notice of appeal from the
judgment entered on the March 10, 2003, order.
With narrow exceptions, our jurisdiction extends only to final judgments of the
district courts. 28 U.S.C. § 1291; Powell v. Georgia-Pacific Corp., 90 F.3d 283, 284
(8th Cir. 1996). The Federal Rules of Appellate Procedure prescribe the
preconditions to our exercise of appellate jurisdiction. Rule 3 states that “[a]n appeal
permitted by law as of right from a district court to a court of appeals may be taken
only by filing a notice of appeal with the district clerk within the time allowed by
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Rule 4.” Fed. R. App. P. 3(a)(1). Rule 4 provides that the notice of appeal in a case
where, as here, the government or its officer is a party shall be filed “by any party
within 60 days after the judgment or order appealed from is entered.” Fed. R. App.
P. 4(a)(1)(B). These rules are mandatory and jurisdictional. Arnold v. Wood, 238
F.3d 992, 994 (8th Cir. 2001).
Detherage argues that denial of his remand motion was in effect a final order
because remand under sentence six was the only relief he sought from the district
court. This is simply not true. Detherage raised a number of additional issues before
the district court. He claimed that the record was incomplete because certain portions
of the recording of the hearing were inaudible. He claimed that the ALJ had failed
properly to assess his credibility and had misapplied the Medical-Vocational
Guidelines. In a word, Detherage questioned the validity of the ALJ’s determination
on the merits and asked the district court to decide whether the termination of benefits
was supported by substantial evidence. Only with its order of March 10, 2003, did
the district court dispose of all these claims. As we recently stated, “A district court’s
decision is final if it ‘ends the litigation on the merits and leaves nothing for the court
to do but execute the judgment.’” Reinholdson v. Minnesota, 346 F.3d 847, 849 (8th
Cir. 2003) (quoting Cunningham v. Hamilton County, 527 U.S. 198, 204 (1999)).
Accordingly, Detherage’s appeal from the October 6, 2002, order denying his motion
for a sentence six remand was interlocutory because that order did not dispose of all
of the issues in the case. Jenson v. Dole, 677 F.2d 678, 679-80 (8th Cir. 1982).
There remains the question whether the purported appeal can be found to be
properly before us by virtue of the provisions of Fed. R. App. P. 4(a)(2), which
provides that “[a] notice of appeal filed after the court announces a decision or
order–but before the entry of the judgment or order–is treated as filed on the date of
and after the entry.” We conclude that it cannot, for the rule “permits a notice of
appeal from a nonfinal decision to operate as a notice of appeal from the final
judgment only when a district court announces a decision that would be appealable
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if immediately followed by the entry of judgment.” Firstier Mortgage Co. v.
Investors Mortgage Ins. Co., 498 U.S. 274, 276 (1991). Any judgment entered on the
October 6, 2002, order could not have reasonably been considered to be final for the
reasons stated above. Thus, Detherage cannot plausibly argue that he falls within the
group that the rule was designed to protect: “[T]he unskilled litigant who files a
notice of appeal from a decision that he reasonably but mistakenly believes to be a
final judgment, while failing to file a notice of appeal from the actual final judgment.”
Id.
Nor is there any other reason why Detherage should be excused from the
necessity of filing a notice of appeal from the March 10, 2003, order. The doctrine
of “unique circumstances,” which we applied to preserve the appeal in Schwartz v.
Pridy, 94 F.3d 453 (1996), is not applicable in Detherage’s case, for unlike the litigant
in Schwartz, Detherage did not rely upon any erroneous advice from the district court
that no further notice of appeal need be filed. Indeed, in contrast to the situation in
Schwartz, the district court specifically noted in its January 9, 2002, order that
Detherage’s notice of appeal was premature because it was filed with respect to a
non-final decision.
Because a timely notice of appeal has not been filed with respect to the district
court’s March 10, 2003, order, we lack jurisdiction, and thus the appeal must be
dismissed. It is so ordered.
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