Charles A. Buschmann v. Richard S. Schweiker , Secretary of the United States Department of Health, Education and Welfare

concurring and dissenting:

I concur in that part of the majority’s opinion upholding the basic validity of the regulation in question. However, I cannot agree with its holding that the interim regulation is invalid due to noncompliance with the Administrative Procedures Act.

As stated by the majority on the first page of the opinion, the facts are not in dispute. Consequently, the lower court’s decision was actually a decision on the merits despite its use of summary judgment to dispose of the case.

Before us is a situation where the plaintiffs and the Secretary agree that the Regulation, 20 CFR 416.1125(d), published in final form on July 7, 1978, is valid and is identical to the interim regulation challenged in this case. The district court held that in light of these facts, the plaintiff had not shown any prejudice. To permit a party to prevail where no harm has been demonstrated is nothing short of allowing litigants to use the federal courts to complain about things that in no way affect them. Courts were not established for such a purpose. True enough, the courts must see to it that administrative agencies follow correct rule-making procedures. However, in my view, this…

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;

*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…

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. 1 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: 2 1. Does 20 C.F.R. §…