20 CFR 404.957-58
Beauchot v. Richardson, Civ. No. 70 F 124, U.S.D.C., N.D.Ind. (9/25/72)
ESELBACH, District Judge:
This matter is now before the court on cross motions of the plaintiff, Theresa A. Beauchot, and the defendant, Secretary of Health, Education, and Welfare, for summary judgment under Rule 56 of the Fed. R. Civ. P. on the grounds that there is no genuine issue as to any material fact and that the parties are entitled to judgment as a matter of law. Plaintiff has been receiving Social Security benefits under 42 U.S.C. §§ 402(d), 423(d), for a period beginning in March 1968, and continuing through the present. She seeks additional payments for the period from November 1958 to March 1968. Following hearing and administrative appeal, defendant denied this request, relying upon the statute, especially 42 U.S.C. § 402(j)(1), and regulations promulgated thereunder, 20 C.F.R. §§ 404.957-58.
The case presents three questions of law: a) Has this court jurisdiction to review the Secretary's determination under the regulation? b) Did the Secretary abuse his discretion in the interpretation of that regulation? c) Is the regulation as interpreted consistent with the statute? This court finds it unnecessary to determine the jurisdictional question presented because of the result reached on the other two questions -- that even if this court had jurisdiction to review the Secretary's decision, the court would uphold his determination in this case. Accordingly, defendant's motion will be granted and plaintiff's motion denied.
An examination of the record and the stipulations and pleadings of the parties reveals the following facts: Plaintiff suffers from the chronic, incurable disease of lupus erythematosus. She has been so afflicted since before her eighteenth birthday in 1952, and because of this disease she has been, and is, unable to be gainfully employed. Plaintiff's father, now deceased, was a wage earner covered by the Social Security Act. On the basis of these facts, plaintiff is entitled to Social Security benefits. 42 U.S.C. §§ 402(d), 423(d). Following application by plaintiff and a hearing as provided in the statute, the Hearing Examiner so found, and, on appeal, the Appeals Council agreed. On the basis of this ruling and 42 U.S.C. §402(j)(1), the Secretary made benefits payable as of one year prior to plaintiff's March 1969 application.
This application was plaintiff's third one. The first had been filed in June 1959, and the second, in September 1962. Both applications were denied by the Secretary, and since plaintiff did not seek reconsideration or a hearing from the agency and since she did not file a civil action in any district court within 60 days, these determinations by the Secretary became final and no longer subject to direct judicial review. 42 U.S.C. § 405(g)(h); Jamieson v. Folsom, 311 F.2d 506 (7th Cir.), cert. denied, 374 U.S. 487, reh. den., 375 U.S. 871 (1963). * * *
The parties agree that the statute allows for retroactive payments for a maximum of only one year prior to the filing of the pertinent application. The parties disagree as to which is the pertinent application -- plaintiff contends that it is the first, while the Secretary contends that 20 C.F.R. §§ 404.957-58 compels him to find that it is the third.
The Secretary treated plaintiff's third application as an application for benefits, plus a request that the first two applications be "reopened" pursuant to 20 C.F.R.§ 404.957. He contends that the express terms of that regulation encompass all possible grounds on the basis of which an otherwise final determination may be reopened and that plaintiff's circumstances fit under none of them. Plaintiff challenges this regulation as so interpreted by contending that defendant is compelled by the law to reopen her first two applications and to reverse the decisions there made.
Under 42 U.S.C. § 405(g)(h) plaintiff's third application is directly reviewable on the merits by this court. However, it is not that finding which plaintiff actually is attacking; rather, she attacks defendant's refusal to reopen the first two applications. Whether this ruling is reviewable by this court is a question separate and distinct from the matter of review of the merits of the third application. The Government claims this court does not have jurisdiction, citing Sangster v. Gardner, 374 F.2d 498 (6th Cir. 1967). While Sangster is not on point and is therefore readily distinguished, the question of jurisdiction is not so easily answered. In fact, there is a decision exactly on point, which under most circumstances this court would feel compelled to follow. In Gross v. Celebrezze, 246 F. Supp. 66 (N.D. Ind. 1965), Judge Beamer found that agency action on a motion to reopen is not reviewable because, adopting the reasoning of Filice v. Celebrezze, 319 F.2d 443 (9th Cir. 1963), 42 U.S.C. §§ 405(g)(h) allow review only of those orders provided for in 42 U.S.C. § 405(b), which provision does not include motions to reopen otherwise final decisions; consequently, review of such motions is not permitted under the Social Security Act. Subsequently, the Second Circuit has held that while motions to reopen are in fact not subject to review under the Social Security Act, they are so subject under § 10 of the Administrative Procedure Act, 5 U.S.C. § 1009, which statute the Filice court had not considered (nor had the court in Gross). Cappadora v. Celebrezze, 356 F.2d 1 (2d Cir. 1966) (Friendly, J.) See also Wong Wing Hang v. Immigration and Naturalization Service, 360 F.2d 715 (2d Cir. 1966) (Friendly, J.). Basically, the Second Circuit argues that jurisdiction to review is absent under the APA only if expressly negatived by Congress, and while 42 U.S.C. 405(h) can be so read, it is more reasonable to read that provision as merely providing the exclusive means for review of orders required under 405(b) and remaining silent on other agency orders. Although one judge in the Northern District of Indiana has interpreted § 405(g)(h), none has addressed the question whether the Secretary's disposition of motions to reopen are reviewable under the APA. In such a circumstance, the proper approach for this court is to treat that question as an open question in the District. Kasparek v. Gardner, 409 F.2d 214 (9th Cir. 1969); Shelton v. Sec. of HEW, 428 F.2d 81 (3d Cir. 1970).
In two cases last cited, the courts found it unnecessary to resolve this question, because even assuming jurisdiction to review under the APA, that review showed the Secretary's denial of the motion to reopen was proper and lead to granting of the Secretary's motion for summary judgment in any event. So it is in this case: Assuming this court has jurisdiction to review, that review shows, as developed below, the Secretary's action is proper.
A three-tiered standard for reopening otherwise final decisions is set out in 20 C.F.R.§ 404.957: Within one year, plaintiff can reopen for any reason: within four years, plaintiff can reopen for "good cause" shown, as defined in 20 C.F.R. §404.958: at any time plaintiff can reopen upon a showing of any of nine listed facts. The Secretary interprets this regulation to mean that the last nine mentioned reasons for reopening at any time (the only tier which is pertinent to our case) are exclusive and that, consequently, there is no tenth, unwritten reason for reopening for "prevention of manifest injustice." Generally, the agency promulgating a rule is its best interpreter, and a court should adopt that interpretation, save only if it is an arbitrary and unreasonable reading of the regulation or if the interpretation is a trap for the unwary. Davis, ADMINISTRATIVE LAW TREATISE, § 30.12: Udall v. Tallman, 380 U.S. 1 (1965). The Secretary's interpretation here is beset by none of the listed infirmities, and accordingly we are bound by it. At the same time, it must be observed that the regulation does not compel the reading the Secretary has given to it. It would have been legitimate also to interpret the regulation as including an unwritten freedom to diverge therefrom in cases where the regulation would produce "manifest injustice." That the Secretary has not so interpreted his regulation is unfortunate.
Within the confines of the regulation itself, plaintiff has no peg upon which to fit her case, for, as the Secretary contends, none of the nine reasons for reopening a case at any time fit her situation. Plaintiff contends that the record now before the court shows that the first two determinations were clearly erroneous, and that, consequently, she fits within the exception providing for reopening following "error on the face of the evidence on which such determination or decision was based." 20 C.F.R. § 404.957(c)(8).
However, as the Secretary contends, for this exception the relevant time is clearly the time of the original administrative decision. Shelton, supra.
In 42 U.S.C. § 405(a), Congress authorizes the Secretary to promulgate regulations that are "not inconsistent" with the statute and that are "reasonable and proper" rules for carrying out the statutory scheme.
In a significant number of cases, the Secretary's actions under this regulation and statutory authorization have been reviewed by courts. See Cappadora, Kasparek, Shelton, supra, and cases cited in n.7 supra; see also, Thompson v. Richardson, 452 F.2d 911 (2d Cir. 1971). In no case found by this court has plaintiff prevailed even in a claim that the Secretary abused his discretion in not opening the individual case, let alone in a claim that the regulation in any particular violates the statutory grant of § 405(a).
While plaintiff's plight in this case certainly evokes sympathy, so alone do the plaintiffs in some of the other cases. In fact, the circumstances in Pasquale v. Cohen, 296 F. Supp. 1088 (D.R.I. 1969), are strikingly similar to the instant case. There, on a second application the Hearing Examiner found, as in this case, that on the basis of new evidence plaintiff was eligible for benefits from a time beginning before the first application, but because 20 C.F.R. § 404.957 did not permit reopening of that first application, plaintiff could receive benefits only as of a year prior to the second application. Plaintiff did not meet the "good cause" exception of 404.957(b) because, though having good cause, his second application had to have been filed within "four years after the date of the notice of the initial determination" and, in this case, the second application had been filed four years and one month later. The district court, obviously moved by the closeness of the cut off date, found that "initial determination" meant "final disposition of the initial determination," because the Government's interpretation would be "contrary to the expressed reason for the Social Security Act." Id. at 1092. On appeal, 418 F.2d 627 (1st Cir. 1969), the court affirmed on a technicality, but it went out of its way to overturn the district court's finding that "initial determination" meant "final." In so doing, it found nothing impermissible about the absolute four- year limit set out in the regulation. For a similar situation and decision, see Shelton, supra.
In like manner, this court cannot find it a violation of §405(a) for the Secretary to include no provision for avoiding "manifest injustice" in his regulation. When viewed as a whole, the regulation shows that the Secretary has been more than minimally responsive to the needs of social security applicants. Arguably, under the statute the Secretary need not have allowed for any reopening at all. All that the Secretary has done in making his regulation absolute is ensure a clear precise standard. This in turn aids him in handling the agency's vast workload, which aid was a major concern of Congress when it drafted the act. Cappadora, supra. The Secretary here, has done nothing different from what Congress did in other parts of the Act, e.g., retroactive benefits are limited to an absolute maximum of one year. 42 U.S.C. § 402(j)(1).
Accordingly, the motion of the plaintiff for summary judgment is denied and the motion of the defendant for summary judgment is granted.
 The Secretary makes a further argument that the correct starting point, if plaintiff's position is accepted, is not June 1958, but June 1959, the month in which plaintiff's father became eligible for benefits. Because this court finds for the Secretary, it need not decide this point.
 For an outline of the regulation, see Part B, infra.
 These sections provide in pertinent part as follows:
 That this attack arises within the context of a decision by the Secretary which is otherwise reviewable, of course, has no effect on the jurisdictional question. Plaintiff's rights cannot vary on the basis of the context in which she obtains a ruling on her motion to reopen. Filice v. Celebrezze, 319 F.2d 443 (9th Cir. 1963).
 In that case the district court not only reviewed the Secretary's finding on plaintiff's third application, but it also on its own motion reviewed and reversed the Secretary's determination on plaintiff's first two applications. The Sixth Circuit found that the district court did not have jurisdiction to review either of the first two applications on the merits. We certainly have no quarrel with that finding; however, that is not the matter before this court for review. As the court said in Burge v. Richardson, 321 F. Supp. 646 (N.D.Ga. 1971): "It is clear that plaintiff is not entitled to a review of the original denial of benefits . . . as she neither fully pursued her administrative remedies . . . nor followed the prescribed procedures of § 405(g) of the Social Security Act . . . . Plaintiff, however, seeks review of the subsequent decision of the Appeals Council declining to reopen her prior denial of benefits." Id. at 647.
 After Filice and Cappadora had been decided, a district court in the Ninth Circuit faced with the same question, cited both cases, but felt itself bound to follow Filice. In Kasparek, on appeal the Ninth Circuit did not treat Filice as controlling; rather, it held that the question of the relation of the APA and motions to reopen was an open question in the Circuit. (In a later case the Ninth Circuit reaffirmed Filice. Brockman v. Finch, 418 F.2d 116 (9th Cir. 1969). In Shelton, in a similar situation the Third Circuit also treated the question as an open one.
 We note that a significant number of jurisdictions have adopted the Cappadora reasoning. Pasquale v. Cohen, 418 F.2d 627 (1st Cir. 1969); Minton v. Richardson, 328 F. Supp. 1264 (S.D. Tex. 1971); Burge v. Richardson, 321 F. Supp. 646 (N.D. Ga. 1971); Lyall v. Cohen, 297 F. Supp. 606 (W.D. Va. 1969); Freeman v. Cohen, 292 F. Supp. 319 (D.S. Car. 1968).
 The Government had been dilatory in making its appeal to the Circuit Court, and the court refused to grant a waiver of the prescribed time for appeal.