finding Social Security claims manual did not need to fulfill the general APA requirement for public notice and comment
How later courts described this case
- finding Social Security claims manual did not need to fulfill the general APA requirement for public notice and comment
- noting that interpretive rules "do not change any existing law or policy nor do these provisions remove any previously existing rights"
- rule was interpretive because "[t]hese provisions only explain what the more general terms of the Act and regulations already provide"
- noting that interpretive rules "only explain what the more general terms of the Act and regulations already provide"
Written by the judges who cited it.
The opinion
FLETCHER, Circuit Judge,
concurring:
I concur in the result, but write separately to record my disagreement with the majority’s approach to appellant’s claim that the government deprived her of a property interest in violation of her Fifth Amendment right to procedural due process. I suggest that the majority misperceives the nature of Powderly’s due process claim. She asserts that in November, 1979, funds were taken from her own bank account by the government without due process.- The majority mistakenly characterizes her claimed property interest as “a property interest in the funds erroneously sent to her deceased husband.” These funds were embodied in a government check in her deceased husband’s name that was mailed to her address fourteen months earlier in September, 1978, and that she endorsed and deposited in her checking account. The majority further characterizes her claim as a “unilateral” and “abstract” claim to her husband’s social security benefits.
Neither characterization is accurate. Powderly objects to the debiting of her *1099 bank account in November of 1979. The proceeds from her husband’s check after fourteen months may or may not have been in that account when it was debited, but that is not relevant.
Were the government the actor in debiting the account, I would be in dissent asserting that appellant’s bank account at Sea-First was a property interest protected from federal governmental deprivation without due process, Anderson National Bank v. Luckett, 321 U.S. 233, 240, 247 , 64 S.Ct. 599, 603, 606 , 88 L.Ed. 692 (1944) (“bank accounts” are “property” subject to due process); see Fuentes v. Shevin, 407 U.S. 67, 86 , 92 S.Ct. 1983, 1997 , 32 L.Ed.2d 556 (1972). I would find the majority’s holding that the government need provide neither notice nor a hearing before seizing property (Powderly’s bank account) completely untenable.
But it was not the government that debited Powderly’s account. It was the bank. Sea-First’s actions cannot “fairly be attributed” to the government of the United States. See Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 157 , 98 S.Ct. 1729, 1733 , 56 L.Ed.2d 185 (1978). Thus, no process was due from the government before Powderly’s account was debited.
The federal government itself neither debited nor directed the bank to debit her account. The Treasury determined only that, pursuant to 31 C.F.R. § 240.5 (a) (1982), Sea-First was liable to the Treasury for return of the amount paid by the Treasury to the bank on a check bearing an unauthorized endorsement. The Treasury made no determination as to who ultimately received the funds from the Treasury nor did it direct the bank to recover any funds from appellant. The only arguably federal government action was directed against Sea-First not appellant.
Nor can the actions of Sea-First in debiting Powderly’s account be imputed to the federal government on some theory of agency. Sea-First’s ability to debit appellant’s account in the amount of the forged check derives not from some delegation of federal authority to the bank by the Treasury but from appellant’s own depository contract with the bank and the self-help remedies authorized by Washington state law governing the relationship between financial organizations and their customers. Wash.Rev.Code Ann. § 62A.4-103 (1981); see Conner v. First National Bank of Sedro-Woolley, 113 Wash. 662, 665-66 , 194 P. 562, 563 (1921); Allied Sheet Metal Fabricators, Inc. v. Peoples National Bank of Washington, 10 Wash.App. 530, 537-38 , 518 P.2d 734, 739 , aff’d, 83 Wash.2d 1013 , cert. denied, 419 U.S. 967 , 95 S.Ct. 231 , 42 L.Ed.2d 183 (1974). Indeed, absent the sort of contractual arrangement under state law present here, a presenting bank could quite conceivably be unable to recover by debit a sum paid to a depositor on a check with an unauthorized endorsement, even though the Treasury, pursuant to federal law, is able to secure a refund from the bank. Thus, the bank in no way caí* be viewed as acting as the agent of the Treasury, since its rights of recovery against appellant are neither defined nor created by federal law.
Since appellant has failed to show that any action fairly attributable to the federal government deprived her of the funds deposited in the Sea-First account, I too would deny her due process claim, but for that reason and no other.