A civil procedure/appellate law throwback. The foundational cases is Forney v. Apfel, 524 U.S. 266 (1998). In a unanimous decision, Forney held that a prevailing plaintiff in an action to review the final decision of the Commissioner could appeal where the District Court reversed on some issues, but not all the issues that the plaintiff raised.
In Forney v. Chater, 108 F.3d 228 (9th Cir. 1997), the Circuit Court held that the Restatement Second of Judgments sec. 27 did not impose collateral estoppel on the issues the District Court affirmed, only the issues where the District Court reversed the final decision of the COSS. The Supreme Court reversed because an aggrieved party can appeal a decision granting in part and denying in part the remedy requested.
On remand from the Supreme Court, the Ninth Circuit (176 F.3d 482 (Table) 1999 WL 197237) affirmed the finding that the ALJ properly rejected the treating physician; reversed on the rejection of Forney's testimony; reversed on the rejection of Forney's husband's testimony; found that the failure to account for limitations caused by pain rendered the vocational expert testimony insubstantial; and affirmed the District Court finding that the ALJ failed to consider the DOT/SCO (a year before the COSS published SSR 00-4p). Having had his deep dive into the Restatement reversed, Judge Kleinfeld dissented that he would affirm the ALJ on all counts.Enter Sakowitz v. Kijakazi. Part 3 of the decision says:
Because neither party challenges the district court’s decision to remand for reconsideration of Dr. Warbritton’s opinion, we do not address this aspect of the district court’s decision.
Sakowitz won at the District Court. As Forney on remand suggests, a panel could take it all away even if the COSS does not cross-appeal. The majority in Forney on remand and this panel have it right. The Court of Appeal does not have jurisdiction to rake away the favorable parts of the District Court judgment absent a cross-appeal from the COSS.
Sakowitz adds to the breadth of the remand order. Sakowitz holds that the ALJ erred in rejecting the symptom and limitation testimony; erred in rejecting the opinion from a second treating physician; and failed to provide germane reasons for rejecting the opinions of treating chiropractors.
Are Forney appeals necessary? If the remand hearing is de novo on all issues, the answer is "no, Forney appeals are not necessary unless the plaintiff has a real shot at a reversal for the payment of benefits." If a remand hearing is not de novo but invokes law of the case and rule of mandate, then Forney appeals are absolutely necessary to broaden the scope of the remand hearing.
The law of the case and the rule of mandate apply in Social Security cases. The purpose of an appeal (or complaint for review) is to narrow the scope of the later proceedings. The purpose of a court order is to correct errors. The idea that a step five reversal on a reaching issue would require the ALJ to reconsider Forney's, her husband's, and to include those factors into an examination of the vocational expert represents a very large set of dice and a prayer for a benevolent ALJ. Absent a court order calling for a de novo hearing, the proceedings on remand must comply with the order of the District Court.
Sakowitz does not cite Forney. It doesn't have to cite Forney. The work done 25 years ago settled the law. We no longer need a law review article hashing through the Restatement Second of Judgments or the relevant Supreme Court decisions on appealability or when a party is aggrieved.
Hat tip to Julien Swanson, the attorney of record in Sakowitz.
And a hat tip to Ralph Wilborn, Tim Wilborn, and Eric Schnaufer for Forney so long ago.
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Suggested Citation:
Lawrence Rohlfing, A Forney Appeal Expands the Scope of Remand -- Sakowitz v. Kijakazi, California Social Security Attorney (December 21, 2023)
https://californiasocialsecurityattorney.blogspot.com
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