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
& 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.
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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
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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
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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
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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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