676 F.2d 352 (9th Cir. 1982), 80-3231, Buschmann v. Schweiker

Docket Nº80-3231.
Citation676 F.2d 352
Party NameCharles A. BUSCHMANN, et al., Plaintiffs-Appellants, v. Richard S. SCHWEIKER [*], Secretary of the United States Department of Health, Education and Welfare, Defendant-Appellee.
Case DateMay 03, 1982
CourtUnited States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 352

676 F.2d 352 (9th Cir. 1982)

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

May 3, 1982

Argued and Submitted Nov. 2, 1981.

Page 353

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.

Page 354

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

Page 355

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

Page 356

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...

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77 practice notes
  • 243 F.Supp.2d 1171 (D.Or. 2003), Civ. 99-1116, Bohner v. Daniels
    • United States
    • Federal Cases United States District Courts 9th Circuit United States District Court (Oregon)
    • February 6, 2003
    ...rules. National Tour Brokers' Ass'n v. United States, 591 F.2d 896, 902 (D.C.Cir. 1978); see also Buschmann v. Schweiker, 676 F.2d 352, 357 (9th Cir. 1982) (observing that the notice and comment procedures protect "the right of the people to present their views to the government agenci......
  • 713 F.2d 795 (D.C. Cir. 1983), 79-1044, Action on Smoking and Health v. C.A.B.
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (District of Columbia)
    • June 30, 1983
    ...Rather, the exceptions should be invoked only in emergency situations when delay would do real harm. See Buschman v. Schweiker, 676 F.2d 352, 357 (9th Cir.1982). Bald assertions that the agency does not believe comments would be useful cannot create good cause to forgo notice and comment pr......
  • 411 Mass. 587 (1992), Berrios v. Department of Public Welfare
    • United States
    • Massachusetts United States State Supreme Judicial Court of Massachusetts
    • January 9, 1992
    ...an emergency sufficient to dispense with notice and comment prior to the promulgation of regulations. See, e.g., Buschmann v. Schweiker, 676 F.2d 352, 355-356 (9th Cir.1982). Consistent with this approach, the judge ruled that department funding problems caused by the line item by themselve......
  • 871 F.2d 1172 (2nd Cir. 1989), 495, Ruppert v. Bowen
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (2nd Circuit)
    • March 29, 1989
    ...558 F.Supp. 129, 141-44 (E.D.N.Y.1982), just as did the cases cited in Rothman. Rothman, 706 F.2d at 410 (citing Buschmann v. Schweiker, 676 F.2d 352, 355 (9th Cir.1982); Nunemaker v. Secretary, HEW, 679 F.2d 328, 332-33 (3d Cir.1982); Usher v. Schweiker, 666 F.2d 652, 655-57 (1st Cir.1981)......
  • Request a trial to view additional results
71 cases
  • 243 F.Supp.2d 1171 (D.Or. 2003), Civ. 99-1116, Bohner v. Daniels
    • United States
    • Federal Cases United States District Courts 9th Circuit United States District Court (Oregon)
    • February 6, 2003
    ...rules. National Tour Brokers' Ass'n v. United States, 591 F.2d 896, 902 (D.C.Cir. 1978); see also Buschmann v. Schweiker, 676 F.2d 352, 357 (9th Cir. 1982) (observing that the notice and comment procedures protect "the right of the people to present their views to the government agenci......
  • 713 F.2d 795 (D.C. Cir. 1983), 79-1044, Action on Smoking and Health v. C.A.B.
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (District of Columbia)
    • June 30, 1983
    ...Rather, the exceptions should be invoked only in emergency situations when delay would do real harm. See Buschman v. Schweiker, 676 F.2d 352, 357 (9th Cir.1982). Bald assertions that the agency does not believe comments would be useful cannot create good cause to forgo notice and comment pr......
  • 411 Mass. 587 (1992), Berrios v. Department of Public Welfare
    • United States
    • Massachusetts United States State Supreme Judicial Court of Massachusetts
    • January 9, 1992
    ...an emergency sufficient to dispense with notice and comment prior to the promulgation of regulations. See, e.g., Buschmann v. Schweiker, 676 F.2d 352, 355-356 (9th Cir.1982). Consistent with this approach, the judge ruled that department funding problems caused by the line item by themselve......
  • 871 F.2d 1172 (2nd Cir. 1989), 495, Ruppert v. Bowen
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (2nd Circuit)
    • March 29, 1989
    ...558 F.Supp. 129, 141-44 (E.D.N.Y.1982), just as did the cases cited in Rothman. Rothman, 706 F.2d at 410 (citing Buschmann v. Schweiker, 676 F.2d 352, 355 (9th Cir.1982); Nunemaker v. Secretary, HEW, 679 F.2d 328, 332-33 (3d Cir.1982); Usher v. Schweiker, 666 F.2d 652, 655-57 (1st Cir.1981)......
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1 books & journal articles
  • Overly restrictive administrative records and the frustration of judicial review.
    • United States
    • Environmental Law Vol. 38 Nbr. 4, September 2008
    • September 22, 2008
    ...impropriety creates an appearance of irregularity which the agency must then show to be harmless." (citing Buschmann v. Schweiker, 676 F.2d 358, 358 (9th Cir. 1982))); Natural Res. Def. Council, Inc. v. Train, 519 F.2d 287, 291-92 (D.C. Cir. 1975) (declining to conclude that the record......
5 provisions
  • Separate Parts In This Issue Part II Postal Regulatory Commission,
    • United States
    • Federal Register November 09, 2007
    • November 9, 2007
    ...``impractical, unnecessary, or contrary to the public interest.'' It is essentially an emergency procedure. See Buschmann v. Schweiker, 676 F.2d 352, 357 (9th Cir. 1982).\9\ Since the purpose of the section 553(d) waiting period is ``to give affected parties a reasonable time to adjust thei......
  • Part II
    • United States
    • Federal Register November 09, 2007
    • November 9, 2007
    ...``impractical, unnecessary, or contrary to the public interest.'' It is essentially an emergency procedure. See Buschmann v. Schweiker, 676 F.2d 352, 357 (9th Cir. 1982).\9\ Since the purpose of the section 553(d) waiting period is ``to give affected parties a reasonable time to adjust thei......
  • order price regulations: order price regulations— Milk handlers; administration assessment and electronic funds transfer,
    • United States
    • Federal Register May 03, 1999
    • April 27, 1999
    ...553(d) includes situations where compliance is impracticable, unnecessary, or contrary to the public interest); Buschmann v. Schweiker, 676 F. 2d 352 (9th Cir. 1982) It would be impracticable to provide the thirty-day interval because, based on the April price of milk announced by the Feder......
  • order price regulations: order price regulations— Class I fluid milk route distributions in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont,
    • United States
    • Federal Register September 01, 1998
    • August 26, 1998
    ...553(d) includes situations where compliance is impracticable, unnecessary, or contrary to the public interest); Buschmann v. Schweiker, 676 F.2d 352 (9th Cir. 1982) (1) It would be impracticable to provide the thirty-day interval because the previously published amendment exempting certain ......
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