CECIL, Senior Circuit Judge.
These appeals are from orders of remand to the Secretary by Magistrate David R. Irvin, to whom the petitions of the plaintiffs were assigned by Judge Moynahan of the United States District Court for the Eastern District of Kentucky.
John Whitehead made application for social security disability benefits, Tom Gray applied for black lung benefits and Monette Lay made application for disabled widow's insurance benefits. In each case the claim was denied by a hearing examiner and the denial was affirmed by the Appeals Council. The claimants then each brought an action in the District Court for the Eastern District of Kentucky to review the decisions of the Secretary of Health, Education and Welfare.
Under the general order of the court, the clerk referred these cases to the Magistrate. The court's order of reference is as follows:
Whitehead's complaint in the district court was filed on May 21, 1976, and, in response thereto, the Secretary filed an answer on August 24, 1976, together with a transcript of administrative proceedings before the hearing examiner. Thereafter, Whitehead filed a motion for summary judgment in February, 1977. The Secretary filed a similar motion in March, 1977.
Subsequently, Whitehead suffered a myocardial infarction and moved for permission to file a June 6, 1977 report of his treating physician, Dr. Emanuel Rader. In addition, he filed a motion for remand of his case to the Secretary for consideration of new evidence. Magistrate Irvin entered an order allowing the Secretary twenty days in which to respond to Whitehead's motion for report and remand. Whitehead amended his motion and sought to attach a January 10, 1978 report of Dr. Rader.
On January 24, 1978, the Secretary moved for an extension of time until February 23, 1978, within which to respond to Whitehead's motions. This motion was granted by the Magistrate in an order of February 2, 1978. However, by order of February 7, 1978, the Magistrate remanded the case to the Secretary for further administrative procedure. Thereupon, on March 21, 1978, the Secretary filed his notice of appeal from the order of the Magistrate.
In response to Gray's complaint in the district court filed August 6, 1975, the Secretary filed an answer together with a transcript of administrative proceedings before the hearing examiner. Thereafter, on March 22, 1976, the Secretary filed a motion for summary judgment. Gray then filed a motion for summary judgment on April 22, 1976.
Before any ruling on these motions Gray died and his attorney filed a motion for remand with suggestion of death. By order of October 12, 1977, the Magistrate allowed the Secretary twenty days in which to respond to the motion for remand. The Secretary filed no such response. On January 24, 1978, the Magistrate entered an order remanding the case to the Secretary for further administrative proceedings. The Secretary filed a notice of appeal from this decision on March 21, 1978.
On August 20, 1976, Monette Lay filed an action in the District Court for the Eastern District of Kentucky for a review of the decision of the Secretary denying her claim for disabled widow's insurance benefits under the Social Security Act. The Secretary filed an answer on August 20, 1976, together with a transcript of the administrative proceedings before the hearing examiner.
Thereafter, the Secretary filed a motion for summary judgment on April 13, 1977. In response, Lay filed a counter-motion for summary judgment and, in addition, she filed a motion for remand to the Secretary for the taking of further testimony. On May 11, 1977, the Magistrate entered an order allowing the Secretary twenty days
On May 19, 1978 the Secretary filed a notice of appeal from this order of the Magistrate.
The procedural posture of the Secretary's efforts to object to Judge Moynahan's order of reference and Magistrate Irvin's remands may be summarized as follows: The order contemplated that the Magistrate shall prepare and file with the clerk his findings and a written recommendation. The parties would then have ten days in which to file their objections to the report. No reports and no recommendations were filed by the Magistrate and no objections were made by the Secretary. In this status of the cases, the Secretary sought to perfect three direct appeals to this Court, one in each of the three cases in which remand had been ordered by the Magistrate. In addition he commenced a mandamus proceeding to compel the district court to perform what he considered was the mandatory administrative act of passing, one way or the other, upon the issues of remand.
This Court ordered that these appeals should be consolidated and briefed together. The decision and opinion on the mandamus proceeding is reported as Califano v. Moynahan, 596 F.2d 1320 (1979).
The Secretary asserts he was faced with a dilemma in opposing the Magistrate's independent order of remand. Since the Magistrate submitted no report and recommendation to the district judge, but instead directly granted the motion for remand, the Secretary asserts that it was not possible for him to file particularized objections with the Clerk of the Court as contemplated by the general order of reference on social security and black lung benefit cases entered by Chief Judge Moynahan on February 2, 1977.
Clearly the Magistrate considered the question of remand to be a pretrial matter within the meaning of the Magistrate's Act, 28 U.S.C. § 636(b)(1)(A):
The Secretary, on the other hand, asserts that because remand was dispositive of the case, the language of Section 636(b)(1)(A) does not provide an avenue of relief.
Orders of remand, when entered by a district judge, have normally been held not to be final and thus not appealable. See Bohms v. Gardner, 381 F.2d 283 (8th Cir. 1967) (Blackmun, J.), cert. denied, 390 U.S. 964, 88 S.Ct. 1069, 19 L.Ed.2d 1164 (1968); Mayersky v. Celebrezze, 353 F.2d 89 (3rd Cir. 1965); Marshall v. Celebrezze, 351 F.2d 467 (3rd Cir. 1965).