State of Florida v. Weinberger, 73-1728.
| Decision Date | 10 April 1974 |
| Docket Number | No. 73-1728.,73-1728. |
| Citation | 492 F.2d 488 |
| Parties | STATE OF FLORIDA et al., Plaintiffs-Appellants, v. Caspar W. WEINBERGER, Secretary, Health, Education and Welfare, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
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Robert L. Shevin, Atty. Gen., S. Strome Maxwell, Asst. Atty. Gen., Tallahassee, Fla., Eli H. Subin, Orlando, Fla., William A. Geoghegan, George D. Webster, Washington, D. C., William L. Rogers, Asst. Atty. Gen., Miami, Fla., for plaintiffs-appellants.
Stewart J. Carrouth, Asst. U. S. Atty., Tallahassee, Fla., Harlington Wood, Jr., Asst. Atty. Gen., Robert E. Kopp, Robert S. Greenspan, David Cohen, Civil Div., Appellate Section, U. S. Dept. of Justice, Washington, D. C., for defendant-appellee.
Before GODBOLD, DYER and GEE, Circuit Judges.
The State of Florida, joined by its own licensing board for nursing home administrators and its members, as well as by various national and state associations of examiners, nursing homes and administrators, seeks a determination of the validity of a regulation promulgated by defendant, Caspar W. Weinberger, in his capacity as Secretary of the United States Department of Health, Education and Welfare. The regulation (45 C.F.R. § 252.10) redefines what sort of a state licensing board for nursing home administrators will qualify for the Medicaid program. The major revision of the original definition alters it so that a board containing a majority of nursing home administrators will no longer pass muster. Florida, having acted under the former definition, has such a board. Other provisions of the regulations are also attacked. The court below refused the injunctive and declaratory relief sought and, finding neither ripeness for review in the cause nor standing in any plaintiff, dismissed the case. Finding both, we reverse and remand for a determination of the merits.
Medicaid is a program established by Congress under which participating states receive funds for use in providing medical assistance to the aged, blind, disabled and others under certain specified disadvantages. States such as Florida wishing to participate must secure the Secretary's approval of a medical assistance plan meeting the requirements of 42 U.S.C. § 1396a. Among these are providing an agency to license nursing home administrators, if such homes are to figure in the plan. Any omnibus agency established by state law to license the healing arts is to perform the function; if there is none, a board is to be created to do so which is ". . . representative of the professions and institutions concerned with care of chronically ill and infirm aged patients . . . ." 42 U.S.C. § 1396g(b). A brief chronology may be of assistance in understanding how the parties arrived at the posture in which we find them.
Prior to the issuance of regulations by the Secretary relating to the requirements for such boards, his official position regarding their composition was contained in a letter of January 29, 1970, reading in part as follows:
The Department of Health, Education and Welfare . . . would not object to a State board consisting of a simple majority of members representing one group, provided the remainder of the board membership is representative of the other professions and institutions concerned with the care of nursing home patients. As an example, a nine-man board might consist of five nursing home administrators, with the remaining four members representative of such other professions as the medical, nursing, hospital administrators, or educators in the health disciplines.
On February 28, 1970, interim regulations were published by the Secretary which tracked the statutory language without significant change.
Effective July 7, 1970, Florida passed its statute governing the composition of its board, establishing an 11-member board consisting of six licensed nursing home administrators and five other members drawn from the ranks of other germane callings. Florida Statutes § 468.166, F.S.A.
On September 9, 1971, the Secretary proposed a regulation adding to the definition of the term "board" as used in his regulation the following language:
. . . provided that less than a majority of the board membership shall be representative of a single profession or institutional category, and provided further that the non-institutional members shall have no direct financial interest in nursing homes.
On March 29, 1972, this regulation was adopted as a final one. It became effective on July 1, 1973.
Thus, at this time, Florida law requires a majority of nursing home administrators on its licensing board, and the Secretary's regulation forbids one.
Joined by various professional groups, Florida brought suit asserting that the amended regulation exceeded the Secretary's powers in this and other respects and seeking declaratory and injunctive relief. Jurisdiction was alleged under federal question, declaratory judgment and administrative procedure act heads. The Secretary sought dismissal of the action for failure to state a claim upon which relief could be granted, lack of personal and subject matter jurisdiction, and want of standing to sue. Cross-motions for summary judgment were filed and plaintiffs' application for injunction pendente lite was noticed. Upon hearing the court denied the relief requested by plaintiffs, granted defendant's motion for summary judgment and dismissed the complaint on grounds of want of standing in any plaintiff save Florida,1 lack of ripeness of the controversy for decision, and the existence of an adequate remedy at law.
Plaintiffs' appeal presents only the issues of standing and ripeness for review. The Secretary counters, treating these two issues under the general rubric of standing and asserting as well both sovereign immunity and the correctness of his position on the merits— that is, that the regulation is a valid exercise of his authority. Since our disposition does not reach the merits, we emphasize at the outset that nothing herein is intended as intimating any views whatever upon them.
The standards which must guide our decision of this issue are provided by Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), and the companion cases of Toilet Goods Association v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967), and Gardner v. Toilet Goods Association 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967). They are succinctly stated in the Abbott majority opinion, at 387 U.S. 148-149:
Without undertaking to survey the intricacies of the ripeness doctrine it is fair to say that its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.
The basic rationale stated by Mr. Justice Harlan seems amply fulfilled here. There is nothing abstract about this disagreement, and the Secretary has set a collision course with Florida law in a formal and final regulation which is backed by grave sanctions and which demands, if valid, immediate compliance.2
As for the Court's specific, two-pronged test, the issue posed on the merits is a classic one for judicial treatment: whether particular regulations promulgated by the Secretary are within his authority. As in Abbott, both sides have moved for summary judgment, and no claim is made that further administrative proceedings are contemplated. And as in Abbott, the Secretary's fulldress argument to us on the merits of the regulation's validity proceeds entirely in terms of congressional intent and makes little or no appeal to factual justifications. The regulation is final and is formally and actually in effect. Indeed, the Secretary seems obliquely to concede fitness of the issue for judicial decision by quoting the Abbott test in both its aspects but disputing only its hardship facet.
As for that hardship, the state is presently faced with the dilemma whether to bow to the Secretary's volte-face and amend its laws and procedures, with all the likely financial outlay and certain legislative and administrative effort which that process entails, or to risk the at least temporary loss of funding which a conformity hearing by the Secretary could well produce. Indeed, only the holding of such a hearing stands between Florida and these consequences as we write. In the process of enacting his regulation, the Secretary has already necessarily determined that it complies with the Act, and if it does, plainly Florida law does not. One consequence of such a finding by him in a conformity hearing is an immediate and mandatory termination of funding, either of the non-conforming portion of Florida's plan or, in the Secretary's discretion, of the entire Florida Medicaid program. 42 U.S.C. § 1396c. The calamitous prospect of such a loss of funding, even for a short period, to the state and to the disadvantaged citizens for whom it stands parens patriae is so grave as to suffice for such hardship as may be required. Faced with the serious risk of such sanctions, there is no need for Florida to stand by while the Secretary ticks, hoping that he will not go off.
A similar situation was dealt with by the Supreme Court in Columbia Broadcasting System v. United States, 316 U. S. 407, 62 S.Ct. 1194, 86 L.Ed. 1563 (1942), a suit under the Urgent Deficiencies Act, 38 Stat. 219. Held reviewable was a Federal Communications Commission regulation proscribing certain contractual arrangements between chain...
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