George W. Hillhouse v. Patricia Roberts Harris, Secretary of Health & Human Services

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George W. HILLHOUSE, Appellant, v. Patricia Roberts HARRIS, Secretary of Health & Human Services, Appellee.

No. 82-2148

United States Court of Appeals, Eighth Circuit

Submitted June 13, 1983. Decided Aug. 31, 1983.

715 F.2d 428

within the contemplation of the legislature. In this modern era, however, the construction of solid waste disposal facilities is an essential governmental activity, and the obvious importance that the Iowa legislature placed on projects such as Metro justifies a broad interpretation of what the legislature must have contemplated. Thus we believe that Metro initiated its anticompetitive conduct pursuant to state policy, and such conduct is exempt from the federal antitrust laws under the Parker doctrine.

IV.

Plaintiff contends that, even if the restriction on disposal of refuse generated within the Des Moines area was pursuant to a clearly articulated and affirmatively expressed state policy, as required by

City of Lafayette and

Community Communications, supra, the defendants’ anticompetitive conduct is still not immunized from antitrust scrutiny because it was not actively supervised by the state itself.

Where private parties claim the benefit of the state action exemption, they are required to show active state supervision of the challenged restraint. See

California Retail Liquor Dealers Association v. Midcal Aluminum, Inc., 445 U.S. 97, 104-06, 100 S.Ct. 937, 942-43, 63 L.Ed.2d 233 (1980). See also

City of Lafayette v. Louisiana Power & Light Co, supra, 435 U.S. at 410, 98 S.Ct. at 1135;

Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S.Ct. 3110, 42 L.Ed.2d 1141 (1976). The Supreme Court has not decided whether this active supervision requirement also applies to anticompetitive activities of municipal governments. See

Community Communications Co. v. City of Boulder, supra, 455 U.S. at 51 n. 14, 102 S.Ct. at 841 n. 14. This circuit, however, has recently held that a showing of state supervision is unnecessary where the restraint represents governmental conduct in an area of traditional municipal activity.

Gold Cross Ambulance & Transfer & Standby Service, Inc. v. City of Kansas City, supra, 705 F.2d at 1014-15. Accord

Town of Hallie v. City of Eau Claire, supra, 700 F.2d at 383-84 (7th Cir.1983). Metro‘s refuse disposal operations were within a well defined area of traditional municipal activity and thus we need not address the district court‘s reasoning that the supervision exercised by the State of Iowa over the activities of Metro was sufficient to satisfy the requirements of the state action exemption set forth in

California Retail Liquor Dealers Association v. Midcal Aluminum, supra.¹⁶

Accordingly, the judgment of the district court dismissing the plaintiff‘s complaint is affirmed.¹⁷

Odom, Elliott, Lee & Martin by Mark L. Martin, Fayetteville, Ark., for appellant.

J. Paul McGrath, Asst. Atty. Gen., Washington, D.C., W. Asa Hutchinson, U.S. Atty., Fort Smith, Ark., Frank V. Smith, III, Regional Atty., Charlene M. Seifert, Asst. Regional Atty., U.S. Dept. of Health and Human Services, Dallas, Tex., for appellee.

Before ROSS and McMILLIAN, Circuit Judges, and COLLINSON, District Judge.*

* The Honorable William R. Collinson, Senior United States District Judge for the Eastern and Western Districts of Missouri.

PER CURIAM.

George W. Hillhouse appeals from an order of the district court¹ upholding the denial of social security disability benefits by the Secretary of Health and Human Services.

Hillhouse originally filed his application for benefits on March 28, 1979, contending he was disabled pursuant to 42 U.S.C. § 423(d)(1)(A) because of back pain, hemorrhoids, and an ulcer.² Benefits were denied at every level and upon review denial was adopted by the Appeals Council on January 15, 1980. On appeal to the federal district court the case was remanded to consider whether Hillhouse‘s subjective complaints of pain were credible. The administrative law judge (ALJ) found the complaints of pain credible and recommended that benefits be awarded.

In his finding, the ALJ relied on Eighth Circuit case law which directs that the Secretary must give consideration to the claimant‘s subjective complaints of pain even though they are not corroborated by objective findings.

Brand v. Secretary of Dept. of Health, Educ. and Welfare, 623 F.2d 523, 526 (8th Cir.1980);

Northcutt v. Califano, 581 F.2d 164, 166 (8th Cir.1978). The Appeals Council reviewed the entire record including the complaints of pain, and concluded that appellant‘s testimony was not credible because the record showed facts inconsistent with disabling pain. This resulted in a finding that the appellant was not entitled to disability insurance benefits.

Hillhouse sought review in the federal district court. The district court must uphold the decision of the Secretary if it is supported by substantial evidence.

Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 1422, 28 L.Ed.2d 842 (1971);

McGhee v. Harris, 683 F.2d 256, 258 (8th Cir.1982); 42 U.S.C. § 405(g). Accordingly, the district court concluded that the decision of the Appeals Council was supported by substantial evidence and affirmed the denial of benefits.

547 F.Supp. at 91.

After carefully considering the briefs, arguments and the entire record in the instant case, we affirm on the basis of Judge Arnold‘s well-reasoned opinion pursuant to Rule 14 of the Rules of this court.

Although we need not decide the issue in this case, we note the Secretary continues to operate under the belief that she is not bound by district or circuit court decisions. In its findings the Appeals Council states, “the Secretary is bound only by the provisions of the Social Security Act, regulations and rulings, and by United States Supreme Court decisions. A district or circuit court decision is binding only in the specific case it decides.”

547 F.Supp. at 92 (emphasis added).

In a similar controversy with the National Labor Relations Board the Third Circuit discussed the precedential value of circuit court opinions on administrative agencies:

A decision by this court, not overruled by the United States Supreme Court, is a decision of the court of last resort in this federal judicial circuit. Thus our judgments * * * are binding on all inferior courts and litigants in the Third Judicial Circuit, and also on administrative agencies when they deal with matters pertaining thereto.

Allegheny Gen. Hospital v. NLRB, 608 F.2d 965, 970 (3d Cir.1979) (emphasis added). See also

Ithaca College v. NLRB, 623 F.2d 224, 228 (2d Cir.), cert. denied, 449 U.S. 975, 101 S.Ct. 386, 66 L.Ed.2d 237 (1980) (an agency is bound to follow the law of the circuit);

Lopez v. Heckler, 572 F.Supp. 26 (C.D.Cal.1983) (Secretary violated the separation of powers doctrine in announcing her nonacquiescence in federal appeals court decisions). We repeat Judge Arnold‘s words with emphasis.

The result of this individual case should not obscure the fact that the regulations of HHS are not the supreme law of the land. “It is, emphatically, the province and duty of the judicial department, to say what the law is,”

Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803), and the Secretary will ignore that principle at his peril.

547 F.Supp. at 93.

Judgment affirmed.

McMILLIAN, Circuit Judge, concurring specially.

While I concur wholly in everything said in the majority opinion, I think more is needed to be expressed. I have no wish to invite a confrontation with the Secretary. Yet, if the Secretary persists in pursuing her nonacquiescence in this circuit‘s decisions, I will seek to bring contempt proceedings against the Secretary both in her official and individual capacities.

Notes

1

The Honorable Richard S. Arnold, United States Circuit Judge, sitting by designation in the United States District Court for the Western District of Arkansas.

2

For a detailed statement of the facts and the medical evidence see

Hillhouse v. Harris, 547 F.Supp. 88 (W.D.Ark.1982).

16

In view of the district court‘s dismissal of the federal antitrust claims, dismissal of the pendent state antitrust claims was warranted.

17

Relying upon

National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), and

Hodel v. Virginia Surface Mining & Reclamation Ass‘n, 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981), the defendants have also argued that, even apart from the Parker exemption, their activities are protected from antitrust scrutiny by the tenth amendment to the United States Constitution. Because we hold that the Parker exemption applies, there is no need for us to consider the defendants’ constitutional argument. It should be noted, however, that once the revenue bonds have been retired, the legislative justification for the anticompetitive provisions will disappear. If the ordinances are still in effect and plaintiff chooses to challenge them at that time, the Parker exemption might no longer be available to Metro.

Case Details

Case Name: George W. Hillhouse v. Patricia Roberts Harris, Secretary of Health & Human Services

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Aug 31, 1983

Citation: 715 F.2d 428

Docket Number: 82-2148

Court Abbreviation: 8th Cir.