Buschmann v. Schweiker, 80-3231

• Decision Date: 03 May 1982
• Docket Number: No. 80-3231,80-3231
• Citation: 676 F.2d 352
• Parties: Charles A. BUSCHMANN, et al., Plaintiffs-Appellants, v. Richard S. SCHWEIKER * , Secretary of the United States Department of Health, Education and Welfare, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 352

676 F.2d 352

Charles A. BUSCHMANN, et al., Plaintiffs-Appellants, v. Richard S. SCHWEIKER ^*, Secretary of the United States Department of Health, Education and Welfare, Defendant-Appellee.

No. 80-3231.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 2, 1981.

Decided May 3, 1982.

Michael H. Marcus, Mult. Cty. Legal Aid Serv., Portland, Or., argued, for plaintiffs-appellants; Amy Veranth, Portland, Or., on brief.

Larry K. Banks, Social Sec. Div., Dept. of Health & Human Ser., Baltimore, Md., argued, for defendant-appellee; Judith D. Kobbervig, Asst. U. S. Atty., Portland, Or., Thomas S. Martin, Social Security Div., Dept. of Health & Human Ser. Baltimore, Md., on brief.

Appeal from the United States District Court for the District of oregon.

Before KILKENNY and GOODWIN, Circuit Judges, and PRICE ^**, District Judge.

GOODWIN, Circuit Judge.

Charles Buschmann and a class consisting of himself and all present and future Supplemental Security Income ("SSI") recipients in Region X appeal from a judgment of the district court upholding the validity of 20 C.F.R. § 416.1125(d). ¹ Buschmann raises two questions on appeal:

1. Does 20 C.F.R. § 416.1125(d) exceed the Secretary's authority under 42 U.S.C. § 1382a(a)(2)(A) of the Social Security Act? ²

2. Can this regulation apply to any period prior to its publication as a final regulation on July 7, 1978, because the Secretary failed to comply with the Administrative Procedures Act, 5 U.S.C. § 553? ³

The facts are not in dispute. Charles Buschmann had been receiving $42.30 a month in SSI benefits. He lived alone in a house owned by his son for which he paid $80 a month rent. The Secretary determined that the current market rental value of the dwelling was $145 a month. Under 20 C.F.R. 416.1125(d) this generated $65 a month of unearned income to Buschmann, thus terminating his continued eligibility for SSI benefits.

Buschmann filed a class action claiming (1) that the regulation exceeded the Secretary's authority, and (2) that the regulation could not apply to any period prior to the date of its final publication. The district court granted the Secretary's motion for summary judgment on these issues, but reversed the Secretary's determination of current market rental value as not being supported by substantial evidence.

Buschmann appeals the district court's decision. The Secretary does not appeal.

1. Validity of the Regulation

Buschmann argues that 20 C.F.R. § 416.1125(d) violates SSI's objective of guaranteeing minimum subsidies because the regulation counts as "income" savings that are not actually available to the recipients to meet their basic needs. This court upheld the validity of regulation 416.1125(d) in Antonioli v. Harris, 624 F.2d 78 (9th Cir. 1980):

"This regulation is clearly 'reasonably related to the purposes of enabling legislation,' Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 280-81, 89 S.Ct. 518, 525, 21 L.Ed.2d 474 (1969), because it tends to equalize the status of SSI recipients who live in quarters owned by friends or relatives, paying little or no rent, and those who must obtain housing in the marketplace. See Mourning v. Family Publications Service, 411 U.S. 356, 369, 93 S.Ct. 1652, 1600, 36 L.Ed.2d 318 (1973); National Welfare Rights Organization v. Mathews, 533 F.2d 637, 645 (D.C.Cir.1976)." 624 F.2d at 81.

Antonioli also disposes of Buschmann's argument that the imputed income was unavailable to him:

"The crux of appellant's challenge to the decrease in benefits is that he did not have any unearned income. We disagree. Although appellant assumed some financial obligations, he did not pay rent to his father. He thus fared better and had more resources available than an SSI recipient forced to locate and finance housing in the open market...." 624 F.2d at 80. Accord: Usher v. Schweiker, 666 F.2d 652 (1st Cir. 1981); Kimmes v. Harris, 647 F.2d 1028 (10th Cir. 1981), cert. denied, --- U.S. ----, 102 S.Ct. 400, 70 L.Ed.2d 214.

Buschmann also claims that this regulation should be invalidated in that it is "arbitrary and capricious." The decisions of Antionilo and Kimmes foreclose that claim. It should also be noted that the interpretation of an administrative regulation by the officers or agency charged with its administration is to be given controlling weight unless it is plainly erroneous or inconsistent with the regulation. Mourning v. Family Publications Service, Inc., 411 U.S. 356, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973); Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); Bowles v. Seminole Rock Co., 325 U.S. 410, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945). The interpretation of regulation 416.1125(d) is not plainly erroneous.

Thus we find that the assessment of in-kind support does not violate the purpose of the Social Security Act and is not arbitrary or capricious.

2. Noncompliance with the Administrative Procedures Act

A regulation is invalid if the agency fails to follow procedures required by the Administrative Procedures Act, 5 U.S.C. § 553. ⁴ U. S. Steel Corp. v. U. S. Environmental Protection, 595 F.2d 207, 210 (5th Cir. 1979); Anderson v. Butz, 550 F.2d 459, 462 (9th Cir. 1977); Hotch v. United States, 212 F.2d 280 (9th Cir. 1954); Carter v. Blum, 493 F.Supp. 368, 372 (S.D.N.Y.1980); Kelly v. United States Department of Interior, 339 F.Supp. 1095, 1100-1101 (E.D.Cal.1972); City of New York v. Diamond, 379 F.Supp. 503, 518 (S.D.N.Y.1974).

Section 553(b) and (d) requires the agency to publish a substantive rule in the Federal Register no less than 30 days before the rule's effective date, and to provide an opportunity for public comment. Section 553(b)(B) allows an exception "if the agency has 'good cause' to believe the process would 'be impracticable, unnecessary, or contrary to the public interest' and if the agency publishes reasons for thinking so along with the rules in question." Western Oil & Gas v. United States E.P.A., 633 F.2d 803, 810 (9th Cir. 1980). The Secretary did not comply with 5 U.S.C. § 553 when he proposed the presumed maximum value (PMV) now in dispute as an amendment to regulation 416.1125. Regulation 416.1125(d) was published for the first time in the Federal Register on January 29, 1974. It was preceded by the following preamble:

"Notice is hereby given that the rules contained in the following notices of proposed rule making and proposed regulations will be applied in order to administer the supplementary security income program during the period from January 1, 1974 when the new program became effective, until final regulations are adopted." (Emphasis added.) 39 F.R. 3674.

However, the PMV approach now in dispute was not published until October 20, 1975, when the Secretary published a proposed amendment to 416.1125. These new rules were given a limited retroactive effect:

"The rules set forth in 416.1125(b)(2), (d), and (3) of the proposed amendment pertaining to support and maintenance provided to individuals living in households will be applied by the Social Security Administration with respect to supplemental security income benefits payable for months beginning with December 1974, until a final regulation is adopted." (Emphasis added.) 40 F.R. 48937-8.

The Secretary relies on the "good cause exception" in Section 553(b)(B) for the proposition that the agency could waive the 30-day notice rule. In order to avail itself of the "good cause exception" the agency must determine "that compliance with the 30-day requirement is either impracticable, unnecessary or contrary to the public interest." Kelly v. United States Department of the Interior, supra, 339 F.Supp. at 1101. It must then include this finding and a short statement of reasons with the new regulations. Id. The Secretary did not make such a finding in this case and did not include the reasons with the regulations he published on October 25, 1975.

The district court held that the preamble to the regulations published on January 29, 1974, indicated that all rules would be retroactive on publication because "the rule was designed to implement a statute which was in effect twenty-nine days earlier." "Good cause" was the need to "administer the supplementary security income program" which was already in effect.

The district court's analysis was too generous. The preamble of January 29, 1974, never mentioned the PMV approach adopted in October 1975. The PMV approach was a new method of calculating eligibility. The preamble does not mention any method of calculating eligibility. Furthermore, the Secretary made the disputed provision of the amendment retroactive to December 1974 and not to the original effective date of January 1, 1974. The requirements of Section 553(b)(B) are clear. The finding and the reasons for waiving the 30-day notice must be published with the proposed rule. The preamble of January 29, 1974, cannot validate a rule published almost two years later.

The cases cited by the Secretary do not support the proposition that failure to comply with the requirements of § 553(b)(B) is insignificant. Nader v. Sawhill, 514 F.2d 1064, 1068 (Em.App.1975), and People of the State of California, State Lands Com'n v. Simon, 504 F.2d 430 (Em.App.1974), involve government price controls. The announcement of future controls could cause market distortions. U. S. Steel v. U. S. Environmental Protection, supra, 595 F.2d at 214, n.15. No such exigency is involved here.

"However, we warn that repeated technical noncompliance will not be tolerated. Moreover, we stress categorically that our resolution of the procedural issues herein is founded upon the unique circumstances in which this price increase was formulated. Assuming less calamitous circumstances, we fully expect that any future decisions will take the utmost advantage of full and open public comment." Nader v. Sawhill, 514 F.2d at 1069.

Other cases have indicated that the good cause exception should be...