EFFECTIVE/PUBLICATION DATE: 06/29/92
SSR 92-7c: SECTIONS 202(a), 204(a), 204(a)(1), 204(a)(1)(A) AND (B), 204(b), 205(a), 1611(c)(1), 1631(b)(1)(A) AND (B) OF THE SOCIAL SECURITY ACT (42 U.S.C. 402(a), 404(a), 404(a)(1), 404(a)(1)(A) AND (B), 404(b), 1382(c)(1), 1383(b)(1)(A) AND (B)) OVERPAYMENTS AND UNDERPAYMENTS -- PAYMENT ERRORS CALCULATED (NETTED) FROM THE FIRST PAYMENT ERROR TO THE MONTH THE INITIAL DETERMINATION OF OVERPAYMENT OR UNDERPAYMENT IS MADE
20 CFR 404.502-404.504, 404.902, 416.538, 416.558(a), and 416.1402
Sullivan v. Everhart, 494 U.S. 83 (1990)
- This Ruling concerns the validity of the "netting regulations, under which the Secretary calculates the difference between the amount due and the amount paid for the period beginning with the first month for which there was a payment error and ending with the month the initial determination of overpayment or underpayment is made.
- In this case, recipients of old-age, survivors, and disability insurance benefits, and supplemental security income payments brought suits against the Secretary seeking declaratory judgment that the netting regulations were facially invalid because (1) they were contrary to the Social Security Act (the Act) and (2) they violated beneficiaries' rights to procedural due process. (The Supreme Court found it unnecessary to address the issue of procedural due process as it was not reached by the Court of Appeals.) The United States District Court for the District of Colorado granted summary judgment on the ground that the regulations violated the Act. The Secretary appealed to the United States Court of Appeals for the Tenth Circuit which affirmed the district court decision. The Supreme Court granted certiorari.
- The Supreme Court held that the netting regulations are based on a permissible construction of the Act because the Act nowhere specifies that the correctness of payments must be determined on a month-by-month basis. Also, the Court held that netting is not inconsistent with the "adjustment" or "recovery" provisions of the Act which prohibit adjustment of payments to or recovery from any person who is without fault unless there is an opportunity for a waiver hearing. The Court reasoned that netting is not "adjustment" or "recovery" of benefits but the calculation of whether more or less than the correct amount of payment has been made. The Court also held that the netting regulations are not rendered arbitrary and capricious by including the period running from the first discovery of error to the initial determination that error was committed in the netting calculation. Accordingly, the Supreme Court reversed the judgment of the Court of Appeals and remanded the case for further proceedings consistent with this opinion.
SCALIA, Supreme Court Justice:
If the Secretary of Health and Human Services determines that a beneficiary has received "more or less than the correct amount of payment," the Social Security Act requires him to effect "proper adjustment or recovery," subject to certain restrictions in the case of overpayments. This case requires us to decide whether the Secretary's so-called "netting" regulations, under which he calculates the difference between past underpayments and past overpayments, are merely a permissible method of determining whether, "more or less than the correct amount of payment" was made, or are instead, as to netted-out overpayments, an "adjustment or recovery" that must comply with procedures for recovery of overpayments imposed by the Act.
Two statutory benefit programs established by the Social Security Act (Act) are involved: the Old-Age, Survivors, and Disability Insurance program (OASDI), 53 Stat. 1362, as amended, 42 U.S.C. § 401 et seq. (1982 ed. and Supp. IV), and the Supplemental Security Income program (SSI), 86 Stat. 1465, 42 U.S.C. § 1381 et seq. (1982 ed. and Supp. IV). Millions of Americans receive benefits under these programs; inevitably, some beneficiaries occasionally receive more than their entitlement, and others less. The OASDI program provides the following procedure for correcting such errors:
- "Whenever the Secretary finds that more or less than the correct amount of payment has been made to any person under this subchapter, proper adjustment or recovery shall be made, under regulations prescribed by the Secretary, as follows:
- "(A) With respect to payment to a person of more than the correct amount, the Secretary shall decrease any payment under this subchapter to which such overpaid person is entitled, or shall require such overpaid person or his estate to refund the amount in excess of the correct amount, or shall decrease any payment under this subchapter payable to his estate or to any other person on the basis of the wages and self-employment income which were the basis of the payments of such overpaid person, or shall apply an combination of the foregoing. . . .
- "(B) With respect to payment to a person of less than the correct amount, the Secretary shall make payment of the balance of the amount due such underpaid person. . . ." Act § 204(a)(1)(A), (B); 42 U.S.C. § 404(a)(1)(A), (B) (1982 ed., Supp. IV).
As to overpayments, the Act provides:
- "In any case in which more than the correct amount of payment has been made, there shall be no adjustment of payments to, or recovery by the United States from, any person who is without fault if such adjustment or recovery would defeat the purpose of this subchapter or would be against equity and good conscience." Act § 204(b); 42 U.S.C. § 404(b) (1982 ed.).
The provisions regulating payment errors in the SSI program are substantially similar. Califano v. Yamasaki, 442 U.S. 682, 697, 99 S.Ct. 2545, 2555, 61 L.Ed.2d 176 (1979), held that the limitation on adjustment or recovery of overpayments imposed by § 204(b) of the Act gives recipients the right to an oral hearing in which they may attempt to convince the Secretary to waive recoupment.
In the provisions set forth above, the Act contemplates that the Secretary will "fin[d] [whether] more or less than the correct amount" of payment has been made. Elsewhere, it confers upon the Secretary general authority to "make rules and regulations and to establish procedures, not inconsistent with the provisions of this subchapter, which are necessary or appropriate to carry out such provisions," Act § 205(a), 42 U.S.C. § 405(a) (1982 ed.); see also Act § 1631(d)(1), 42 U.S.C. § 1383(d)(1) (1982 ed., Supp. IV) (SSI). Pursuant to that authority, the Secretary promulgated the regulations at issue here. The SSI regulation provides:
- "The amount of an underpayment or overpayment is the difference between the amount paid to a recipient and the amount of payment actually due such recipient for a given period. An overpayment or underpayment period begins with the first month for which there is a difference between the amount paid and the amount actually due for that month. The period ends with the month the initial determination of overpayment or underpayment is made." 20 CFR § 416.538 (1989).
The OASDI regulation unhelpfully provides that "[t]he amount of an overpayment or underpayment is the difference between the amount paid to the beneficiary and the amount of the payment to which the beneficiary was actually entitled," 20 CFR § 404.504 (1989), but the Secretary has interpreted this as embodying the methodology set forth in the SSI regulation. Dept. of Health and Human Services, Social Security Ruling 81-19a (cum.ed. 1981).
Two hypotheticals will illustrate the operation of the netting regulations. Mr. A, entitled to $100 per month, is erroneously paid $80 in January and erroneously paid $150 in February. In March the Secretary determines that these payments were incorrect, nets the errors (i.e., calculates the difference between the underpayment and the overpayment), and seeks to recover the net overpayment of $30. Mrs. B, also entitled to $100 per month, receives $50 in April and $110 in May. In June, the Secretary makes the incorrect payment determination, nets the errors, and pays out $40. In neither case may the beneficiaries seek to have the underpayment and the overpayment treated separately: Mr. A could not demand $20 for January and seek a waiver of the recoupment of $50 for February, and Mrs. B could not demand $50 for April and seek a waiver for the $10 in May.
In the present case, the Secretary made both underpayments and overpayments to each of the respondents, and netted those errors pursuant to the regulations. He determined that three respondents (the original plaintiffs) received net underpayments, and paid that net amount. The other respondents (intervenors below) received net overpayments, and the Secretary offered them hearings to determine whether recoupment should be waived as to the net overpayment. The plaintiffs (later joined by the intervenors) filed this suit under §§ 205(g) and 1631(c)(3) of the Act, 42 U.S.C. §§ 405(g), 1383(c)(3) (1982 ed.), in the United States District Court for the District of Colorado. They claimed that the netting regulations were facially invalid because (1) they were contrary to the Act and (2) they violated beneficiaries' rights to procedural due process. The District Court granted respondents' motion for summary judgment on the former ground, and the Court of Appeals for the Tenth Circuit affirmed in all relevant respects. 853 F.2d 1532 (1988). The Court noted that two other Courts of Appeals had upheld the netting regulations against similar attacks. Id., at 1536-1537 (citing Lugo v. Schweicker, 776 F.2d 1143 (CA3 1985), and Webb v. Bowen, 851 F.2d 190 (CA8 1988)).
We granted certiorari, 490 U.S. _____, 109 S.Ct. 2098, 104 L.Ed.2d 660.
Our mode of reviewing challenges to an agency's interpretation of its governing statute is well established: We first ask "whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter, for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). "In ascertaining the plain meaning of the statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole." K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 1817, 100 L.Ed.2d 313 (1988); see also Mead Corp. v. Tilley, 490 U.S. _____, _____, 109 S. Ct. 2156, _____, 104 L.Ed.2d 796 (1989). But "if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute," Chevron, supra, 467 U.S. at 843, 104 S.Ct., at 2781, that is, whether the agency's construction is "rational and consistent with the statute." NLRB v. United Food & Commercial Workers, 484 U.S. 112, 123, 108 S.Ct. 413, 420, 98 L.Ed.2d 429 (1987). These principles apply fully to the Secretary's administration of the Act. See Schweiker v. Gray Panthers, 453 U.S. 34, 43, 101 S.Ct. 2633, 2639, 69 L.Ed.2d 460 (1981); Batterton v. Francis, 432 U.S. 416, 425, 97 S.Ct. 2399, 2405, 53 L.Ed.2d 448 (1977).
We first consider whether the Act speaks directly to the validity of the netting regulations. Two provisions are relevant: a general authorization, and a specific limitation. First, the Act authorizes the Secretary to determine whether "more or less than the correct amount" has been paid. 42 U.S.C. §§ 404(a), 1383(b)(1)(A) (1982 ed., Supp. IV). The Act does not define the term "correct amount." It assuredly could be construed to refer to the amount properly owing for a given month. If that were the only possible interpretation, respondents would prevail, since the netting regulations ascertain the correct amount for a longer time period. But the Act does not foreclose a more expansive interpretation of "correct amount," viz., the amount properly owing as of the date of the determination. Although the Act elsewhere describes OASDI and SSI as monthly benefit programs, e.g., Act § 202(a), 42 U.S.C. § 402(a) (1982 ed., Supp. IV); Act § 1611(c)(1), 42 U.S.C. § 1382(c)(1) (1982 ed., Supp. IV), it nowhere specifies that the correctness of payments must be determined on a month-by-month basis.
The fuller context of the OASDI provisions suggests that Congress,. in authorizing the Secretary to determine whether the "correct amount" was paid, did not prohibit him from making that determination for more than a monthly time period. The Act authorizes a determination of whether "the correct amount of payment has been made," 42 U.S.C. § 404(a)(1), and mandates adjustments "[w]ith respect to payment to a person of more than the correct amount," § 404(a)(1)(A), and "[w]ith respect to payment to a person of less than the correct amount," § 404(a)(1)(B). If Congress had in mind only shortfalls or excesses in individual monthly payments, rather than in the overall payment balance, it would have been more natural to refer to "the correct amount of any payment," and to require adjustment "with respect to any payment . . . of less [or more] than the correct amount." This terminology is used elsewhere in § 204(a)(1)(A), whenever individual monthly payments are at issue ("the Secretary shall decrease any payment under this subchapter to which such overpaid person is entitled"; "shall decrease any payment under this subchapter payable to his estate"). 42 U.S.C. § 404(a)(1)(A) (emphases added). Moreover, the provision governing adjustment of overpayments to a deceased beneficiary seems to contemplate computation on a multi-payment basis ("the Secretary . . . shall decrease any payment under this subchapter payable to his estate or to any other person on the basis of the wages and self-employment income which were the basis of the payments to such overpaid person") Ibid. (emphasis added).
The Act's provisions governing SSI are slightly different, but in no way contradict the Secretary's position. They authorize the Secretary to determine whether "more or less than the correct amount of benefits has been paid," 42 U.S.C. § 1383(b)(1)(A) (1982 ed., Supp. IV) (emphasis added). Had this read "more or less than the correct amount of any benefit" it might support respondents' position, but as written it at least bears (if it does not indeed favor) the interpretation that more than a single monthly benefit is at issue.
Respondents nevertheless maintain, as did the Court of Appeals, that another provision of the Act directly precludes the Secretary from netting underpayments and overpayments. They point to § 404(b) (1982 ed.), which provides: "In any case in which more than the correct amount of payment has been made, there shall be no adjustment of payments to, or recovery by the United States from, any person who is without fault if such adjustment or recovery would defeat the purpose of this subchapter or would be against equity and good conscience." See also Act § 1383(b)(1)(B) (1982 ed., Supp. IV) (SSI). Respondents argue that by using the phrase "adjustment or recovery," Congress intended to subject to this requirement all collection methods, including the set off effected by netting. They claim this broad meaning is given to the words "adjustment" and "recovery" by other Social Security regulations (e.g., 20 CFR §§ 404.502-404.503 (1989)), common usage (e.g., Webster's Third New International Dictionary 27, 1898 (1981) (hereinafter Webster's)), and general legal usage (e.g., United Statesv. Burchard, 125 U.S. 176, 8 S.Ct. 832, 31 L.Ed. 662 (1888)). Under this interpretation, when the agency calculates the difference between, or nets, Mr. A's $20 underpayment and his $50 overpayment, see supra, at 963, it has engaged in "adjustment or recovery," but without complying with the restrictions on "adjustment or recovery" that the Act imposes.
In our view, however, with this provision as with those discussed earlier, respondents have established at most that the language may bear the interpretation they desire -- not that it cannot bear the interpretation adopted by the Secretary. "Adjustment" can have the more limited meaning (which the Secretary favors) of "an increase or decrease" of payments (Webster's 27), and "recovery" can have the more limited meaning of "get[ting] back" payments already made (see id., at 1989 ("recover")). Moreover, other provisions of the Act support this limited meaning. It is at least reasonable, if not necessary, to read the phrase "adjustment or recovery" in § 204(b) in pari materia with the identical phrase in § 204(a)(1). The latter section directs the Secretary, if he finds that incorrect payment has been made, to make "proper adjustment of recovery . . . as follows." In the case of overpayment, he shall "decrease any payment under this subchapter to which such overpaid person is entitled, or shall require such overpaid person or his estate to refund the amount in excess of the correct amount. . . ." 42 U.S.C. § 404(a)(1)(A) (1982 ed., Supp. IV). As to SSI, "adjustment or recovery shall . . . be made by appropriate adjustments in future payments to such individual or by recovery from . . . or by payment to such individual or his eligible spouse. . . ." 42 U.S.C. § 1383(b)(1)(A) (1982 ed., Supp. IV). Giving the terms their more limited meaning does not produce absurd policy consequences. Reducing future benefits, or requiring the beneficiary to pay over cash, will ordinarily produce more hardship than merely setting off past under payments and overpayments. It is not at all unreasonable to think that waiver hearings were established only for the former.
As used in the Act, therefore, adjustment can be read to mean decreasing future payments, and recovery to mean obtaining a refund from the beneficiary. Under this interpretation, when the agency nets Mr. A's underpayment against his overpayment, it is not engaged in "adjustment or recovery," but only in the calculation of whether "more or less than the correct amount of payment has been made." Only after making that calculation does the Secretary take the additional step to rectifying any error by "adjustment" (increasing or decreasing future payments) or "recovery" (obtaining a refund from the beneficiary). And it is only this latter step that is governed by § 204(b) of the Act. We do not say this is an inevitable interpretation of the statute; but it is assuredly a permissible one.
Since the Act reasonably bears the Secretary's interpretation that netting is permitted, only one issue remains: Respondents contend that the manner in which the regulations provide for netting to be conducted is arbitrary and capricious, because of their definition of the netting period. Overpayments are netted with underpayments up to the "month [of] the initial determination" of error. 20 CFR § 416.538 (1989). "Initial determination" is a term of art meaning the Secretary's formal determination that an error was committed. See 20 CFR §§ 404.902, 416.1402 (1989). Needless to say, that formal determination will not be simultaneous with the Secretary's first discovery that something is amiss; delay is inevitable. Respondents contend that this delay is fatal. At best, they say, the period over which netting is conducted will turn on the fortuity of the time period between discovery and formal determination. At worst, the Secretary will manipulate the netting period by delaying formal determination, thus including more underpayments in the netting period and reducing the net overpayment subject to the recoupment-waiver procedures.
It seems to us not arbitrary or capricious to establish a grace period within which these determinations can be considered and formally made; they should not be spur-of-the-moment decisions. That delay will extend the netting period, and may result in the inclusion of more underpayments to be netted. But we cannot say that the alternatives -- immediate determinations, or determinations within a fixed period -- would not produce errors that make beneficiaries worse off on the whole.
Moreover, although the Secretary's regulations do not establish a fixed time period for the formal determination, they do establish a time limit upon the principal adverse consequence of delay; the netting-in of additional underpayments. The regulations provide:
- "Where an apparent overpayment has been detected but determination of the overpayment has not been made (see § 416,558(a)), a determination and payment of an underpayment which is otherwise due cannot be delayed unless a determination with respect to the apparent overpayment can be made before the close of the month following the month in which the underpaid amount was discovered." 20 CFR § 416,538 (1989).
See also HHS, Program Operation Manual System, GN 02201.002 (1989) (Social Security Administration policy to resolve overpayments as quickly as possible). Respondents' fear of intentional manipulation of the netting period can be entirely dismissed if this provision is observed in good faith -- as we must presume, in this facial challenge, it will be. See, e.g.,FCC v. Schreiber, 381 U.S. 279, 296, 85 S.Ct. 1459, 1470, 14 L.Ed.2d 393 (1965). The intentional manipulation hypothesis is in any event implausible. Deliberately protracting the netting period may indeed draw in future underpayments; but it may just as likely draw in future overpayment, which will be uncollectible until the Secretary's determination is made. The Secretary might conceivably ensure that delay works to the Government's financial advantage by deliberately underpaying while keeping the netting period open, but since that is an obvious violation of the Act it is again not the stuff of which a facial challenge can be constructed.
In addition to the fact that the disadvantages of the Secretary's approach are less than respondents assert, the disadvantages of respondents' approach are more. The Secretary points out that a separate accounting for each month would cause the agency great expense, in the cost of a greatly increased volume of complex recoupment-waiver proceedings, in the cost of overpayments that are simply written off because the cost of the proceedings would exceed the recovery, and in the cost of overpayments whose return will be subject to lengthy delays. These expenses "in the end come out of the pockets of the deserving since resources available for any particular program of social welfare are not unlimited." Matthews v. Eldridge, 424 U.S. 391, 348, 96 S.Ct. 893, 909, 47 L.Ed.2d 18 (1976).
Respondents seek to minimize the administrative burden by proposing a scheme under which the Secretary would notify the beneficiary of under payments and overpayments, withhold reimbursement of the underpayments for a brief period during which the beneficiary may seek waiver of recoupment of overpayments, and then net the underpayments and that portion of the overpayments as to which waiver has not been sought. This scheme, however, does not at all address the problem of delay in netting that is the asserted basis for finding the regulations arbitrary and capricious. Substituting, "notification" of underpayments and overpayments for "determination" of underpayments and overpayments merely gives the occasion for the delay another name. What this alternative proposal of respondents really puts forward is an alternative means of assuring that overpayments cannot be "netted out" without an opportunity for waiver hearing. As we discussed at length earlier, the statute does not require such assurance. In sum, we find no basis for holding the regulations arbitrary and capricious.
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The Court of Appeals did not reach respondents' contention that the regulations violate due process, and we will not address that claim in the first instance. See, e.g., United States v. Sperry Corp., 493 U.S. _____, _____ 110 S.Ct. 387, _____, 107 L.Ed.2d 290 (1989). Accordingly, the judgment is reversed and the case remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Scalia delivered the opinion of the Court, in which Chief Justice Rehnquist and Justices White, Blackmun, and O'Connor joined. Justice Stevens filed a dissenting opinion, in which Justices Brennan, Marshall, and Kennedy joined.
 "(A) Whenever the Secretary finds that more or less than the correct amount of benefits has been paid with respect to any individual, proper adjustment or recovery shall, subject to the succeeding provisions of this subsection, be made by appropriate adjustments in future payments to such individual or by recovery from such individual or his eligible spouse (or from the estate of either) or by payment to such individual or his eligible spouse (or from the estate of either) or by payment to such individual or his eligible spouse. . . .
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"(B) The Secretary (i) shall make such provision as he finds appropriate in the case of payment of more than the correct amount of benefits with respect to an individual with a view to avoiding penalizing such individual or his eligible spouse who was without fault in connection with the overpayment, if adjustment or recovery on account of such overpayment in such case would defeat the purposes of this subchapter, or be against equity and good conscience, or (because of the small amount involved) impeded efficient or effective administration of this subchapter. . . ." Act § 1631(b)(1)(A), (B); 42 U.S.C. § 1383(b)(1)(A), (B) (1982 ed., Supp. IV).