Malvin Schechter v. Caspar W. Weinberger, Secretary of Health, Education and Welfare
506 F.2d 1275
D.C. Cir.
1974
Check Treatment

Malvin SCHECHTER, Appellant, v. Caspar W. WEINBERGER, Secretary of Health, Education and Welfare, Appellee.

No. 73-1797.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 19, 1973. Decided Oct. 3, 1974.

1275 | 498 F.2d 1015

, Judge Chestnut reasoned:

After a review of the cases, I reach the conclusion that the controlling consideration as to whether the court has jurisdiction in this case is to be found in the answer to the question whether the exercise of this jurisdiction would necessarily be inconsistent with the Interstate Commerce Act as a whole (49 USCA § 1 et seq.). And in my opinion this question must be answered in the negative. Conceding that it would have been preferable for Congress to have committed the readjustment of the rates with respect to the period now in question primarily to the Commission, and that the Commission as an expert body constantly dealing with matters of this kind is much better equipped to pass on the question than the courts, it still does not follow that the plaintiff ought to be remediless in this case; nor that the essential purposes of the Interstate Commerce Act would be frustrated by the exercise of jurisdiction here.

.

Although the strict language of the statute preserves the common law action, the foregoing opinion correctly perceives the effect of the specific holding in Brimstone as ruling out such an action in cases seeking retroactive divisions, even though Brimstone never really faced up to the conflict of its holding with the language of sections 1(4), 8 and 22. In the face of Brimstone, however, it is my opinion that the situation must be corrected, if at all, by the Supreme Court or by Congress. Congress has been informed of the problem and the Northern Lines testified that they were prepared to submit corrective legislation.7

The northern railroads appear to be locked into their continuing deficits by the recalcitrant attitude of the southern railroads. It may be true that the present divisions are fair, but they may not be. If a court trial were held, the justness of the rates could be determined. The primary jurisdiction doctrine would require the ICC first to fix proper divisions and the trial court would then determine whether equity requires that whole or partial retroactivity be applied. But the Brimstone decision indicates that there is no remedy for this wrong which is allegedly substantial, of long duration and likely to continue.

I thus concur reluctantly in what I consider to be a most inequitable result as dictated by the Brimstone decision.

See also,

.

Ronald L. Plesser, Washington, D. C., with whom Alan B. Morrison, Washington, D. C., was on the brief, for appellant.

Michael Kimmel, Atty., Dept. of Justice, with whom Harold H. Titus, Jr., U. S. Atty., at the time the brief was filed, and Leonard Schaitman, Atty., Dept. of Justice, were on the brief for appellee. Walter H. Fleischer, Atty., Dept. of Justice, also entered an appearance for appellee.

Before FAHY, Senior Circuit Judge, and WRIGHT and MacKINNON, Circuit Judges.

FAHY, Senior Circuit Judge:

The Secretary of Health, Education and Welfare denied appellant an opportunity to inspect and copy certain survey reports prepared by state agencies dealing with Medicare services at a Portland, Orgeon medical laboratory and a Boston hospital. The Secretary‘s refusal of access to these reports was due in part to his reliance upon section 1106(a) of the Social Security Act, 42 U.S.C. § 1306(a).1 Appellant sued the Secretary in our District Court to compel disclosure of the reports. On the Secretary‘s motion the court granted summary judgment in his favor by order of June 7, 1973. In its order the court held that the documents requested “are exempt from disclosure by 5 U.S.C. § 552(b)(3) [Exemption 3 of the Freedom of Information Act] by virtue of the provisions of section 1106 of the Social Security Act, 42 U.S.C. § 1306 . . . .”2 This Exemption 3 protects from disclosure “matters that are . . . specifically exempted from disclosure by statute.”

Pending our consideration of this appeal from the judgment of the District Court, the United States Court of Appeals for the Third Circuit, in a case presenting the same legal question, reached a decision contrary to that of our District Court in this case,

;3 so too has the United States Court of Appeals for the Fifth Circuit in
, where the decision is listed among “Decisions Without Published Opinions.” The Serchuk court cites Stretch v. Weinberger, supra.4 And in
, Judge Jones of our District Court has held that 42 U.S.C. § 1306(a):

does not specifically exempt the documents sought from disclosure, but rather is a blanket exclusion on disclosure of all files, records and reports compiled under the Social Security Act. That blanket exemption is in direct contravention of the liberal disclosure requirement of the Freedom of Information Act, and cannot qualify as a specific exemption within the meaning of the Act. Schecter [sic] v. Richardson, Civil Action No. 710-72 (D.D.C. July 17, 1972); Serchuk v. Richardson, No. 72-1212-Civ-PF (S.D.Fla., Nov. 28, 1972). But see [People of the State of] California v. Richardson, 351 F.Supp. 733 (N.D. Cal.1972).

See also,

, and the memorandum opinion of Judge Gesell of our District Court in
.

We agree with the reasoning of the Court of Appeals for the Third Circuit involving 42 U.S.C. § 1306(a) in the Stretch case, which seems to have met the approval of the Court of Appeals for the Fifth Circuit in Serchuk.5 We agree also with the reasoning of our District Court with respect to the same statute in the Dellums case.6 We shall accordingly reverse.

We may add that were the opening non-disclosure language of 42 U.S.C. § 1306(a) amenable to a construction as a specific statutory exemption, the language of the section which follows, with which the former must be construed, would destroy such specificity. Read as a whole, section 1306 vests complete, uncharted discretion with respect to disclosure in the Secretary rather than being a specific exemption by statute.

Reversed and remanded for further proceedings consistent with this opinion.

MacKINNON, Circuit Judge (dissenting):

I dissent in accordance with my views in this case previously set forth in

.

Notes

1
42 U.S.C. § 1306(a) in pertinent part provides as follows:
No disclosure . . . of any file, record, report or other paper, or any information, obtained at any time by the Secretary of Health, Education, and Welfare . . . in the course of discharging [his] . . . duties under this chapter . . . shall be made except as the Secretary of Health, Education, and Welfare . . . may by regulations prescribe.
2
The Social Security Amendments of 1972, Pub.L. 92-603, 86 Stat. 1329, require disclosure of survey reports compiled after January 31, 1973. See, 20 C.F.R. 401.3(v)(1). The reports requested by appellants had been compiled prior to January 31, 1973.
3
The Department of Justice courteously advised this court of the Stretch decision before its availability in the published report of the case.
4
A copy of the action of the Fifth Circuit furnished this court by the United States shows the action of that Circuit as follows:
April 29, 1974
Before Wisdom, Coleman and Simpson, Circuit Judges.
Per Curiam:
AFFIRMED. See Local Rule 21. And see
. (Footnote omitted.)
5
See footnote 4, supra.
7
Hearing before the Subcommittee on Transportation and Aeronautics of the House Committee on Interstate and Foreign Commerce on II.R. 6591, et al. (Northeast Rail Transportation), May 8, 1973, pp. 280-83 (93d Cong., 1st Sess.):
Mr. Langdon. We have, in our situation, sir, in considering the Northeast as a whole, as we compute it, a deficit of about $100 to $125 million a year arising from what we regard as improper divisions of rates applying to and from the West and the South.
* * * * *
Mr. Langdon. Yes, sir, that has been drafted and we are prepared to submit it. What it does is give the Commission power to fix divisions retroactively.