UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
September 17, 1984
SARAH CAPITANO, APPELLANT,
SECRETARY OF HEALTH AND HUMAN SERVICES, APPELLEE
732 F.2d 1066.
Kaufman, Oakes, and Cardamone, Circuit Judges.
(On petition for rehearing).
OAKES, Circuit Judge:
The Government, in its petition for rehearing, in addition to arguing that Rosenberg and Capitano were wrongly decided, argues that Social Security Ruling 80-9c, 1980 C.B. 37 (the Ruling), has the force of law and must be followed by this court. That Ruling, without notice or comment, simply reprinted and thus we will assume adopted Davis v. Califano, 603 F.2d 618 (7th Cir. 1979), as law binding at all levels of the administrative process. Since the Ruling was not promulgated pursuant to notice and comment rulemaking, it is interpretative and not binding on this court. See, e.g., Board of Education v. Harris, 622 F.2d 599, 612-13 (2d Cir. 1979), cert. denied, 449 U.S. 1124, 101 S. Ct. 940, 67 L. Ed. 2d 110 (1981); American Postal Workers Union v. United States Postal Service, 707 F.2d 548, 560 (D.C. Cir. 1983), cert. denied, 465 U.S. 1100, 104 S. Ct. 1594, 80 L. Ed. 2d 126 (1984); Batterton v. Marshall, 648 F.2d 694, 701-02 (D.C. Cir. 1980).
The Secretary argues that this court should give authoritive effect to the Ruling even though it is an interpretative rule. Cf. Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S. Ct. 161, 89 L. Ed. 124 (1944); 2 K. Davis, Administrative Law Treatise 59 (2d ed. 1979). We have here no evidence that the Secretary had addressed the question before 1973, so that there was no contemporaneous construction. See, e.g., United States v. National Association of Securities Dealers, 422 U.S. 694, 717-19, 95 S. Ct. 2427, 45 L. Ed. 2d 486 (1975).
We note also that Congress has not "ratified" the agency interpretation through reenactment or amendment. Even though the Social Security Act has been amended since 1980, none of the amendments concerns the deemed widow provision. See 42 U.S.C.A. § 416, Historical Note 228-29 (1983). Nor is the Ruling sufficiently longstanding to deserve authoritative effect. See, e.g., United States v. Clark, 454 U.S. 555, 565, 102 S. Ct. 805, 70 L. Ed. 2d 768 (1982). Moreover, the Ruling does not deserve authoritative effect as resting "on specialized agency understanding that judges lack." 2 K. Davis, supra, at 59. While agency expertise provides a basis for deference, see Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 565, 100 S. Ct. 790, 63 L. Ed. 2d 22 (1980); Batterton v. Francis, 432 U.S. 416, 425 n.9, 97 S. Ct. 2399, 53 L. Ed. 2d 448 (1977); National Nutritional Foods Association v. Weinberger, 512 F.2d 688, 696 (2d Cir. 1975), cert. denied, 423 U.S. 827, 96 S. Ct. 44, 46 L. Ed. 2d 44 (1975), the Ruling is not the result of agency expertise; it is simply the adoption of one interpretation of a statute over another, a function clearly within the purview of judicial competence. We are aware that the Supreme Court has stated that the Secretary's interpretations of the Social Security Act are entitled to considerable deference. See New York Department of Social Services v. Dublino, 413 U.S. 405, 421, 93 S. Ct. 2507, 37 L. Ed. 2d 688 (1973). But deference can be overborne if a court finds that the agency interpretation is unreasonable because it violates the letter or spirit of the statute, see, e.g., Brewster v. Gage, 280 U.S. 327, 336, 50 S. Ct. 115, 74 L. Ed. 2d 457 (1930); Wisdom v. Norton, 507 F.2d 750, 756-57 (2d Cir. 1974). Since we have held that the objectives of the Social Security Act are consonant with our decisions in Rosenberg and Kirkland v. Railroad Retirement Board, 706 F.2d 99 (2d Cir. 1983), and are expressly at odds with the Ruling, the agency interpretation by definition violates the spirit of the statute and should not be given authoritative effect. Neither Chevron, U.S.A., Ltd. v. NRDC, 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694, 52 U.S.L.W. 4845, 4847 (U.S. June 25, 1984), nor Batterton v. Francis, 432 U.S. 416, 425 n.9, 97 S. Ct. 2399, 53 L. Ed. 2d 448 (1977), change this result since we do not have a legislative regulation here. Cf. Whirlpool Corp. v. Marshall, 445 U.S. 1, 100 S. Ct. 883, 63 L. Ed. 2d 154 (1980) (noting distinction between interpretative rules and legislative regulations).
There remains the final question whether we think Rosenberg, Kirkland, and Capitano were wrongly decided. We can add nothing to the Capitano opinion in holding otherwise except to correct our statement that Rosenberg did not use the term "fund." Rosenberg did use the term in its statement of facts, but the concept of a "fund" for individual payments was not part of Rosenberg's analysis, and we otherwise adhere to our comments in respect thereto.
Petition for rehearing denied.
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