*1 H07 government competing ue contracts past
throughout company decade. The PRESLAR, Plaintiff-Appellant, Walter was founded in the 1970s as a one-man custo- having preju- than dial service. Rather been delay in a final diced determination to SECRETARY OF HEALTH uphold Deputy Secretary’s 1986 “interim SERVICES, AND HUMAN benefited,
jurisdiction,” Nationwide has effec- Defendant-Appellee. tively deferring appealing debarment while No. 92-2371. Deputy Secretary rehearing, to the for a court, then to the district and now to this Appeals, United States Court of court.8 Sixth Circuit. Deputy Because we hold that Secre- Argued Aug. 1993. tary authority had the to debar Nationwide agree when he did so we with Na- Decided Jan. 1994. tionwide that the district court should not Wage have submitted the Administrator’s appeal to a Board of Service Contract
Appeals that was constituted Instead,
There was no need to do so. we
remand the matter to the court district for a any legal
consideration of substantive chal-
lenges against that Nationwide raises
Deputy Secretary’s 1988 decision debar company obtaining for three
federal service contracts.
IV reasons, foregoing
For the we REVERSE
the district court’s decision to vacate the
Deputy Secretary’s ruling, which was appellate
issued authority under the interim properly granted by
that had been the Secre-
tary of Consequently, Labor. we hold that Wage appeal Administrator’s 1986 should
not have been directed to the Board of Ser- Appeals yet
vice Contract another hear- Rather,
ing. we remand the matter to the
district court for a consideration of substan- challenges
tive that Nationwide raises
against Deputy Secretary’s 1988 determi-
nation that “unusual circumstances” did not company’s
exist to excuse the violations of
the Service Contract Act. Indeed, holding ironically may our in this case If the Board had established in been it and, potential place defer Nationwide's ap- debarment would have been in hear equal irony, "penalizes” Department peal, and its decision to debar Nationwide would having delayed naming Labor for the Board. have become effective at that time. *2 briefed), (argued and War- B.
John Bieske MI, ren, plaintiff-appellant. Weinstein, Counsel, Chief Donna Morros (briefed), Edward J. Kristof Leslye E. Jones Department of Health (argued), Counsel, V, Region of Gen. Office Woodard, IL, L. Office Chicago, William MI, Detroit, defendant-appel- Atty., lee. MERRITT, Judge; Chief
Before: ENGEL, BOGGS, Judge; and Senior Circuit Judge. Circuit MERRITT, Judge. Chief appeals the Dis- Preslar Claimant Walter judgment denying his sum- trict Court’s final granting sum- mary judgment motion defendant mary judgment in favor judg- (“Secretary”). The District Court’s Secretary’s denial of Pres- affirmed ment Disability Security application for lar’s Social question The main be- Insurance Benefits. as a Preslar’s skills fore us is whether within truck driver are Security regulation meaning a Social disability being benefits prohibits they year claimants if “have paid to 60-64 old Be- marketable.” skills which are improper le- Secretary applied an cause the appli- evaluating gal Preslar’s standard when benefits, on that denied basis cation benefits, we reverse. application for I. Disability In- applied for Preslar
Walter Security Supplemental surance Benefits 30, 1989, claiming that he April Income on hip due to and back unable to work was injuries, effects osteoarthritis late inju- and connective tissue musculoskeletal years old the time of was 61 at ries. Preslar grade had an application and eleventh his Security Administra- education. Social initially upon application his tion denied reconsideration. a de 19, 1990, requested
On June Law novo hearing an Administrative before (“ALJ”). December Judge On ap- hearing which Preslar ALJ held Numerous medical re- peared with counsel. H09 record, part ports skill, and tests were made person one has —a has the and an along testimony from opening Preslar and a driving, available for it is clear expert. this, Preslar testified that he this claimant has had a lot— pain unable to work due to many experience was his shoul- driving. So ders, right hip. back and The relevant medi- from his *3 occupation, cal evidence indicated that Preslar had it is in been that sense. He has the problems opening there, treated for several If with he could shoulder, right hip perform occupation the left and back. The easily. expert vocational testified that Preslar could Q Okay. Very good. I you’ve think work, perform any past not of his relevant my question answered now. driving, which included food truck custodial 7, January decision, In his 1991 the ALJ work, Nevertheless, bartending. and she concluded that per- Preslar was unable to 7,000 approximately that light testified truck past work, form his relevant but that Preslar driving jobs Michigan economy existed in the capacity retained the range to do a full which Preslar could obtain and limitations, work with minor and significant adjustment. no that based on expert’s the vocational testimo- expert The ALJ then asked the to assess ny, Preslar “highly had marketable work driving whether Preslar’s truck skills were skills,” including driving, truck ability “highly The marketable.” testified: power tools, use hand and honor, way A Your I think that one of use register. a cash finding, Based on that looking marketability at is the notion of the ALJ concluded that Preslar was not dis- driving occupations go whether or not lack- Appeals abled. -The Council denied Preslar’s their, ing in terms of their need to be filled request decision, for review of the ALJ’s by competent employees. The answer to which became the final decision of the Secre- is, particular at this time there does tary. appear huge to be a need for drivers in 21, 1991, sought ju- On November Preslar So, occupations terms of—the are filled. Secretary’s dicial review of the by decision is, yes, they’re the answer marketable. filing this action in the United States District they highly Are marketable in terms of his Michigan. Court the Eastern District of particular gentleman in terms of his —this Upon summary cross motions judgment, it, age? way I The would answer Your Magistrate Secretary’s found that Honor, employer is that an would not be supported by decision was substantial evi- forced to potential take someone with dence, and recommended that the Secre- problems, health factor that and/or tary’s granted. Magistrate motion be particular gentleman’s is included in this rejected argument Preslar’s that there was situation. evidence, support not substantial the ALJ’s Q So, That, you saying? what are finding possessed highly that he likely, employer most an hire 30,1992, driving September truck skills. On younger person? approved the District Magistrate’s Court correct, A That is Your Honor. Report and Recommendation and entered course, Q hiring practice— Of that is a judgment Secretary. in favor of the appeals. now correct, A That is Your Honor.
Q exactly legal —consideration. Not II.
consideration. correct, A That is Your Honor. arguments appeal center on Q your the, So then is that answer Secretary’s finding that his skills as a driving operative driving skills truck driver are marketable.” He are, fact, in highly marketable? expert’s contends the vocational testimo- are, fact, marketable, They ny in supporting Your is not substantial evidence And, we’re, again, finding, Honor. if if we’re sim- and that an incorrect definition of ply looking occupation, applied terms of the term was the lower tribunals. is not dis- work activities ity to do basic Secretary’s decision to affirm the willWe Secretary ap abled. long as the as deny benefits reaching the legal standards plied correct working has is not If an individual Secretary’s find decision, long as and as “meets du- impairment which a severe by substantial supported ings of fact are appen- is listed requirement ration (West 405(g) Supp. 42 U.S.C.A. evidence. impairment(s)”, equal to a listed dix 1 or is 389, Perales, 1998); v. Richardson regardless of disabled other then he is L.Ed.2d 842 91 S.Ct. factors. Secretary Health and (1971); Brainard reached based If a decision Cir.
Human activity medical facts on current work 1989). alone, im- has a severe the claimant *4 Secretary then the reviews
pairment,
A.
capacity
functional
residual
claimant’s
physical and mental demands
disability
compensable
To establish a
If the
previous work.
claimant
claimant’s
Act, a claimant
Security
the Social
under
previous
this
continue to do
is able to
is
to en
that he
unable
must demonstrate
work,
he is not disabled.
then
activity
any
gainful
be
gage in
substantial
any
he
claimant cannot do
work
5.
If the
medically
physi
determinable
he has a
cause
impair-
past
because of a severe
did
expect
impairment that can be
cal mental
or
ment,
Secretary considers his re-
then
lasted, or can be
in death or has
ed to result
education,
age,
capacity,
sidual functional
last,
continuous
for at least 12
expected to
experience to see if
can
he
past
work
1382c(a)(3)(A)(West
§
42 U.S.C.A.
months.
cannot,
If he
the claimant
do other work.
416.905(a) (1992).
1992);
§
If a
20 C.F.R.
is disabled.
perform
that he
establishes
claimant
work,
(1982).
is on the
§
the burden
past
his
relevant
404.1520
See also
20 C.F.R.
See
458, 460,
is
that
claimant
Secretary
Campbell,
to establish
103
v.
461 U.S.
Heckler
showing
(1983);
the claimant
1952, 1953,
Tyra
not disabled
analysis step fifth reaches the without disabled, the claimant is not ing that Secretary requires the to Step five show Secretary. The transfers to the burden is able to do other work that the claimant steps are as follows: economy, consider- available in the national working and en- An who is individual factors, age. among the claimant’s ing other activity gainful is not gaging in substantial 404.1520(f)(1), 404.1563, 416.- §§ 20 C.F.R. disabled, medi- regardless of the claimant’s 920(f)(1). un- age is evaluated condition. cal structure of C.F.R. der the four-tiered Age presumed not to § is affect working does 404.1563. is but 2. An individual who seriously ability adapt to to new work sig- impairment which have a “severe” (20 age people under situations nificantly physical mental abil- limits his or
HH 404.1563(b)). However, § C.F.R. adapt the Secre- to a new work situation and to do others_ tary faces a denying heavier burden when competition work in with disability to benefits older claimants. For 404.1563(a). Section Although vocational fac- (50-54), persons “approaching age” advanced tors are to be viewed in terms of their effect regulations recognize age, in con- ability perform jobs rather than junction impairment with a severe and limit- (see them, 423(d)(2)), § obtain 42 U.S.C. experience, may seriously ed work affect section recognizes a direct relationship be- ability adjust their significant numbers age tween employment. likelihood of (20 jobs in economy. § C.F.R. 404.- age, As claimants 1563(c)). (55 must ac- People of advanced over) knowledge that it becomes increasingly diffi- signifi- are considered an which cult to cantly adapt to new affects their to do substantial work environments and gainful activity; they compete if severely impaired are younger, healthier, similarly- work, they and cannot do medium must have skilled Heckler, workers. Tom v. skills that can be transferred to less demand- Cir.1985). 1257 n. Finally, the ing jobs significant exist numbers § four-tiered structure of 404.1563, 20 C.F.R. (20 economy. national C.F.R. 404.- which the requirement 1563(d)). Finally, for claimants close to re- found, places increasingly an heavy burden *5 age, regulations tirement provide: Secretary on the to show that the claimant is (60-64) you If age are close to retirement easily employable, recognizing that advanc- impairment, and have a severe we will not ing age becomes an increasingly impenetra- you adjust consider to sedentary able to or ble barrier to obtaining employment. The light you work unless have skills which are regulation appears to be a codification of the highly marketable. notion that ages, as one advantage “the of 404.1563(d) added). § 20 C.F.R. (emphasis having acquired ... certain training skills or throughout Preslar has maintained this dis- may longer no offset the vocational disadvan- pute that light his skills as a truck driver are tage age-” of (citing Id. Fed.Reg. 43 “highly and thus that marketable” he is (Nov; 55,353 1978)). 28, Secretary disabled. The argues that the de- A number of courts have addressed the deny cision to upon benefits based the mar- interpretation ketability “highly of marketable” re- upheld skills must be quirement. supported by example, because it is For Renner v. Heck- expert’s ler, testimony. the Ninth Circuit highly held that mar- ketable skills and transferable skills are not
An assessment of whether or not a claim- synonymous; “highly sepa- marketable” is a highly ant’s skills are marketable is difficult higher rate and Secretary. burden for the because of the absence of a definition of the (9th 1421, Cir.1986). statutes, 786 term in F.2d 1425 regulations Citing a or case law. case, “highly It is evident that Seventh Circuit Renner marketable” skills stated that at something least, are very more than Secretary “transferable” must establish over, skills. Claimants including approximate 55 number and locations of age, those close to possess retirement must jobs- available for which the claimant has easily skills which occupa- transfer to other transferable and must establish that “highly tions. The requirement, the claimant competitive job would be however, only applies to those 60-64. 20 jobs despite market for those age. his Id. 404.1563(d). C.F.R. Terry See also v. Sul- Heckler, (citing 1250, Tom v. 779 F.2d 1257 livan, (9th Cir.1990). 1279 (7th Cir.1985)). more recent Ninth Cir- In.a case, cuit being competi- Another the court regulations subsection of the ruled sheds Secretary equivalent possessing additional how the tive is not highly is required to evaluate a age: marketable skills. The record must reflect a
(a) higher degree Age competitiveness: General of you “edge” refers to how old are (your chronological age) give and the extent to claimant’s skills her “com- your age your ability pared persons affects age against half her whom 1112 Sullivan, Secretary Health and tion for Foster v. Terry v. would be competing.”
she
of
89-CV-40012-FL,
Cir.1990).1
(9th
Human
No.
1279
F.2d
903
126475, *2-3,
LEX-
1989 U.S.Dist.
1990 WL
opinion, the Sixth Cir
unpublished
In an
1989).
(E.D.Mieh.
*1-3
Oct.
17081
IS
highly
purpose of the
cuit found
evaluating
requirement
dis
marketable
disagreed with the Sec-
The District Court
nearing
persons
retirement
claims of
marketability, instead
retary’s
assessment
person
older
often
the skills of an
is that
Magistrate’s
highly
adopting
definition:
disadvantage of
offset the vocational
“sufficiently unique and
skills are
reasoned that
advancing age. The Court
sufficiently
by employers [such]
coveted
pool
persons with skills similar
when
possessing
skills could
person
[claimant’s]
most in
large,
and when
to the claimant’s
buyer.”
readily
willing
Id.
sell them to
claimant,
younger than the
pool are
*6,1989
LEXIS
126475at
U.S.Dist.
1990WL
cannot be
claimant’s skills
Foster,
1990 WL
Adopted
at *12.
17081
that the
it is reasonable to assume
because
126475,.
LEXIS
11241
1990 U.S.Dist.
potential employees will be hired
younger
1990).
(E.D.Mieh.
The District
April
claimant. Stone v.
instead of the
the term
market-
Court found that
Services,
1H3 skills, Thus, jobs employees possess Report’s only analysis are not of the mean- abundance, probably ing skills not marketability are of the term was that should marketable, highly since it is doubtful that “in viewed of a physical claimant’s limitations, younger, the older claimant will be hired over as well as the extent to which a sum, employees. In potential healthier we affects his or her highly adapt believe that marketable skills are to a new work situations.” Based on acquired through spe- term, those skills are understanding of Magis- education, training cialized or extensive or trate stated that the expert’s vocational testi- experience, mony and which make the claimant’s was support sufficient to the ALJ’s a or a finding possessed not deterrent even consideration highly mar- hiring process. highly Finally, claimant ketable skills. the District Court difficulty adopted marketable should little Magistrate’s skills have Report -without obtaining employment. proper elaboration on interpretation or highly marketable,
definition agreeing expert’s testimony III. provided rest of the record sufficient evi- interpretation Given our of the re dence to support the ALJ’s decision. But as quirement we above, we stated expert’s the vocational testi- question turn now to the of whether the mony support finding highly does proper legal standard to make this determi according to our understanding applied nation was below. The ALJ’s Order of that term. solely upon expert’s relied the vocational tes Neither the ALJ nor the lower court as- timony highly to establish that Preslar had sessed whether Preslar’s skills were some skills, stating: “The vocational way “coveted,” “specialized” or nor was there expert further testified that in terms of the a determination of training, the amount of work, driving truck ... that the claimant’s experience required education or of Preslar driving highly truck skills were marketable.” Moreover, to attain his skills. no discussion However, testimony expert’s is not suffi or place determination ever took which Would support finding cient evidence to enjoys establish competi- that Preslar some interpretation marketable skills under our “edge” younger potential tive employees over that term. The any did not describe compete with whom Preslar would *7 for truck education, training experience or which driving jobs. We therefore conclude that skills, helped Preslar to attain his nor does application for benefits must be re- any competitive edge she discuss that Pres according evaluated high- to the definition of competing light lar has over others for truck ly in opinion.2 marketable set forth this fact, driving jobs. In expert the testified drivers, large that there was not a for need Accordingly, judgment we REVERSE the employer and that an would consider Pres the of District Court and REMAND with lar’s to his detriment. directions to remand to the to Magistrate’s Report possesses highly and Recommen- reevaluate whether Preslar regulations dation noted that the failed to marketable skills in accordance with this prove highly opinion. a definition of marketable. Secretary may necessaiy job.
2. We believe that the have diffi level are to For ex- ample, culty establishing Selected Characteristics states that neces- highly that Preslar has market sary knowing operate include how to motor opinion. able skills in accordance with this In vehicles, hands, coordinating eyes and feet to Titles, Dictionary Occupational Dept. U.S. of of vehicle, observing regulations control the traffic (Vol. II, Ed.Rev.1991) Labor 4th and Selected using collecting delivery and ey. educational, arithmetic for mon- Occupations Characteristics in Revised of Defined requirements satisfy Such not Titles, Dictionary Occupational Dept, of of training experiential require- or (1993), Department Labor of Labor defines However, ments set forth above. because there light driving, occupation truck for which the may satisfy be other evidence which would expert vocational testified Preslar had standard, "highly necessary it is for only Court, It states that minimal Secretary, and not this to reevaluate training very vocational and a low educational Preslar's skills.- fifty fifty-four, fifty, between and concurring. under Judge, sons ENGEL, Circuit Senior sixty, sixr fifty-five and between and between for remand reversal and I concur that the sixty-four, it seems me ty and however, concerned, I am reconsideration. pertain to the meant to “highly” is not term Judge Merritt’s in language certain with in applicant marketability specific of the skills of á infers that opinion which applicant’s respec- upon that question based se, driver, be deemed per can not truck' already adequately is disability, tive for “highly marketable.” Instead it is regulations. with dealt law, being a that as matter I would hold essentially market factors and the related a within driver is skill light truck a I am availability job prospects. While regulations. See and meaning of the statute language skills must uncertain about (9th Bowen, 1249, 1251 F.2d Paulson v. the Com- “sufficiently unique,” cited from be Heckler, Cir.1988); Perez Report and Recommendation missioner’s Cir.1985). fifty require a All states Resources, No. Foster v. Health motor vehicle. operate a in order license 126475, *2-3, 89-CV-40012-FL, 1990 WL required qualify for uniformly Tests are (E.D.Mich. LEXIS *1-3 1989 U.S.Dist. great That mass a license. such 31,1989), that skills language further its Oct. motor to drive may be licensed Americans by employers “sufficiently coveted should be from the fact not detract vehicles does person possessing that a such granting require certain skills before states willing to a readily sell them skills could operate required to The skill licenses. such very realistically practically buyer” is great not as as probably is a smaller truck defining that are skills sound standard semi-tractor, surely great- it is but that for a Furthermore, such “highly marketable.” ordinary suggest To car. than that for an er rationally, distin- effectively, and standard truck van can never driving a small or judge applicants used to guishes the criteria the.meaning of 20 C.F.R. a skill be within transferability only in (mandating aged 55-59 404.1563(d), my judgment simply not in is significant num- “jobs cases where exist regulations use of the with the accordance economy”) the re- bers the national language used Whether therein. by those are 60- quirements to met who be given given place, or at a in a such a skill upon time, depends “highly marketable” usually to be entirely circumstances specific insensitive to Judges facts be - testimony. youn- modern-day from life. drawn While the realities may possess greater ger operators vehicle think, has, wisely I re- Judge Merritt time, quicker physical strength and reaction adversely upon commenting from frained possess may the other hand older drivers expressing expert’s avoidance responsibility, reliabili- greater sense of a far question opinion in terms of the ultimate her law, ty, respect derived factors but skills are of when may training experience and *8 It seems obvious to me “highly” marketable. importance poten- equal greater or even testimony expert that the felt this her from can, factors and often employers. tial These admin- invading province do, any disadvantage sheer offset I that. At judge. understand istrative law aged in the may upon the role of the impose to meet I think that the same time market, competitive at least for a substantial Secretary, specific more upon the burden jobs. number of available regard to the findings be made with must for the market exists Finally, employment . the motivation sixty sixty-five part applicant by of an District approach I taken favor the that of a quite different from v. A. Newblatt in Foster Unit- Judge Stewart fre- wage employees States, young Older earner. WL U.S.Dist. ed already receiving pensions and (E.D.Mich. 18, 1990), quently are April as LEXIS 11241 employers from former Especial- retirement benefits Judge opinion. quoted in Merritt’s aug- for means not looking for the and are compared with the ly when standards their lives but enrich per- ment their income age which are defined increments of working through continued contact with the Employer’s recognize recog- this and
world. advantages gained
nize the economic to be hiring persons. such
These observations are no means defini- They judgments. I simply
tive. are value
point being among out them as those consid- job marketability,
erations which can affect time, given given
in a area and at a
determine whether a claimant’s skills are
“sufficiently by employers coveted such that person possessing claimant’s skills could
readily willing buyer.” sell them to a
competent expert and well-skilled vocational
should take these factors into consideration evaluating being
when whether the skill of truck driver is a marketable one. my feeling
It is that the failure of either the magistrate or the to consid- marketability comprehensive
er in this fash- compels
ion reversal. MEYERS, Plaintiff-Appellee,
John CINCINNATI,
CITY OF Defendant-
Appellant.
No. 92-3258. Appeals,
United States Court of
Sixth Circuit.
Argued April
Decided Jan.
Rehearing Suggestion Rehearing
En Banc Denied March 1994.* *9 * Suhrheinrich, Judge, grant ing Circuit rehear- for the stated in his reasons dissent.