John W. Gardner, Secretary of Health, Education and Welfare v. Eli M. Hall , 366 F.2d 132 ( 1966 )

BREITENSTEIN, Circuit Judge

(concurring in result).

I concur in the result. The decision of the Secretary is thoroughly unsatisfactory. I do not know what is the basis for the denial of the application for social security benefits. Counsel arguing before us say that the action of the Secretary can be sustained on either the theory of the receipt of income or the reallocation of income. In my opinion the record presented and the reasonable inferences therefrom would sustain either theory. The trouble is that the Secretary found neither. As said in Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 246, 9 L.Ed.2d 207 “courts may not accept appellate counsel’s post hoc rationalizations for agency action.” When we do not know what a decision means, we are powerless to say whether it is right or wrong. United States v. Chicago, M., St. P. & P. R. Co., 294 U.S. 499, 511, 55 S.Ct. 462, 79 L.Ed. 1023. We may not sustain administrative action by supplying adequate and proper grounds which have not been relied on by the agency. Securities and Exchange Commission v. Chenery Corporation, 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995.