individual basis can correct In this circumstance, plaintiffs have shown
sufficient harm to waive the exhaustion requirement See Ringer, 104
S.Ct. at 2023; Mental Health Association of Minnesota, 720 F.2d at 971.
B. Sixty-Day Limitation
42 U.S.C. § 405(g) allows for judicial review of the. Secretary's
final decision if a complaint is filed within 60 days of the decision.
Defendant argues that this provision is jurisdictional and therefore a
nonwaivable bar against hearing claims of class members who have failed
to file in a timely fashion.
The Supreme Court has vacillated between viewing the 60-day limitation
as an absolute jurisdictional bar and viewing it as a waivable statute of
limitations. Compare Heckler v. Lopez, 464 U.S. 879, 104 S.Ct. 221, 78
L.Ed.2d 217 (1983) (memorandum opinion denying application to vacate a
stay) (Stevens, J., dissenting in part); Califano v. Yamasaki,
442 U.S. 682, 703-04, 99 S.Ct. 2545, 2558-59, 61 L.Ed.2d 176 (1979), with
Mathews v. Eldridge, 424 U.S. 319, 328 n. 9, 96 S.Ct. 893, 899 n. 9, 47
L.Ed.2d 18 (1976); Weinberger v. Salfi, 422 U.S. 749, 763-64, 95 S.Ct.
2457, 2465-66, 45 L.Ed.2d 522 (1975). However, in none of these cases did
the Supreme Court address the issue specifically. In the meantime, the
Seventh Circuit has recently stated, admittedly in dicta, that it follows
the Salfi decision. Johnson, 769 F.2d at 1209; see also Wilson v.
Edelman, 542 F.2d 1260, 1274 (7th Cir. 1976).
The Senate Finance Committee recently addressed the issue in its Report
on the Social Security Disability Benefits Reform Act of 1984 (Reform
Act), stating that "[since 42 U.S.C. § 405(g)] is an authorization to
sue the United States, its 60-day time limit for filing suit is
jurisdictional and cannot be tolled by the pendency of a class suit."
S.Rep. No. 466, 98th Cong., 2d Sess. 17 (1984). The Secretary argues that
this statement clearly establishes congressional intent on the 60-day
provision. However, the statement is made in the context of a discussion
of one particular amendment to the Act which sets out new standards for
"continued eligibility" cases. These cases are closer to the type
addressed in Heckler v. Ringer, as the Committee itself implies by citing
the case with approval on the issue of exhaustion, than to the kind of
case presently before the court. Other language in the Senate Report
supports a narrow reading of its language. The Committee seemed to be
concerned solely with the financial cost of allowing potentially
thousands of individuals to join class actions to challenge the
Secretary's determination of continued eligibility even though they have
not exhausted their administrative remedies or filed suit in federal
court within 60 days of an adverse final determination. As the Report
states, "[t]he Committee cannot justify [a $1-2 billion] drain on the
Trust Fund for the benefit of a group of individuals who had, but chose
not to exercise, opportunities for, appeal." S.Rep. No. 466, 98th Cong.,
2d Sess. 17 (1984). Given the narrowness of the Senate Finance
Committee's concern, and the mixed signals from the Supreme Court, this
court is reluctant to go against established Seventh Circuit law to hold
the 60-day limitation as anything other than a statute of limitations
which can be waived or tolled.
While the Secretary argues that the 60-day requirement is not
waivable, plaintiffs correctly point out that tolling, not waiver, is the
issue in this case. The general rule is that filing of a class action
complaint tolls the statute of limitations for all members of the
putative class pending class certification. See Crown, Cork, & Seal Co.,
Inc. v. Parker, 462 U.S. 345, 349, 103 S.Ct. 2392, 2395, 76 L.Ed.2d 628
(1983) (Title VII suit); American Pipe & Construction Co. v. Utah,
414 U.S. 538, 543-45, 553, 94 S.Ct. 756, 760-62, 38 L.Ed.2d 713 (1974)
(antitrust suit); Williams v. Owens-Illinois, Inc., 665 F.2d 918 (9th
Cir. 1982) (Title VII case); Wright v. Califano, 603 F.2d 666, 669, and
n. 7 and 8 (7th Cir. 1979) (Social Security case); Jimenez v.
Weinberger, 523 F.2d 689, 696 (7th Cir.
1975) (Social Security case). The Court in Crown, Cork explained that the
rule furthers the purpose behind class actions, the "promotion of
efficiency and economy of litigation." 462 U.S. at 349, 103 S.Ct. at
2395. This purpose is most apparent in a case such as the present one,
where a single ruling on the legality of the Secretary's procedures is
appropriate and will save the courts from repeatedly considering the
identical legal issue. The class is limited to those persons denied
benefits on or after November 19, 1984, 60 days prior to the filing of
the original complaint.*fn5 The court holds that the statute of
limitations is tolled for the putative class members. See Polaski v.
Heckler, 751 F.2d at 953; City of New York, 742 F.2d at 738.
As a result of the above analysis of the exhaustion requirement and the
60-day limitation, the court concludes that it has jurisdiction over the
class based on 42 U.S.C. § 405(g). Although this means we do not have
to reach the issue of whether mandamus jurisdiction also lies in this
case, we note that several circuits have held that mandamus jurisdiction
is not foreclosed by the Social Security Act's jurisdictional sections.
See e.g., Dietsch v. Schweiker, 700 F.2d 865, 867-68 (2d Cir. 1983);
Mental Health Association of Minnesota, 720 F.2d at 968-69 and n. 17;
Leschnoik v. Heckler, 713 F.2d 520, 522 (9th Cir. 1983); Ellis v. Blum,
643 F.2d 68, 78-82 (2d Cir. 1981); cf. Americana Healthcare Corp. v.
Schweiker, 688 F.2d 1072, 1084 (7th Cir. 1982) (implying mandamus will
lie in the appropriate circumstances).
Having stepped through the maze of jurisdictional issues raised by the
Secretary, we now turn to her procedural objections. She claims that the
class fails to meet the requirements of Fed.R.Civ.P. 23. The court,
however, finds that the claims plaintiffs raise are particularly well
suited to a class action and that Rule 23's requirements are easily met.
Plaintiffs estimate the class numbers 11,000 as of April 1, 1985. The
Secretary argues that this estimate is too high because it includes those
with claims to continued benefits whose cases will automatically be
remanded for administrative review under the Reform Act. While this may
indeed occur, the class is still sufficiently numerous to meet the
requirement of Rule 23(a)(1). See Johnson v. Heckler, 100 F.R.D. 70, 72
(N.D.Ill. 1983); Long v. Thornton Township High School District, 82
F.R.D. 186, 189 (N.D.Ill. 1979).
Common Question of Law and Fact
Plaintiffs' claim that the Secretary has failed to make medical
equivalence findings uniformly affects all members of the class even
though some class members are evaluated and rejected at step four or five
of the evaluation process. Plaintiffs do not, as the Secretary contends,
seek a determination of each individual's eligibility for benefits.
Thus, the class has met the requirement of Rule 23(a)(2). Johnson, 100
F.R.D. at 74; Dixon v. Quern, 76 F.R.D. 617, 620 (N.D.Ill. 1977).
The typicality test is "whether the named plaintiffs claim and that
asserted on behalf of the class are `based on the same legal theory.'"
Johnson, 100 F.R.D. at 74. Plaintiffs' claims clearly meet this test
because they are based on a procedural challenge to the Secretary's
interpretation of her regulations. See Quern, 76 F.R.D. at 620.
Adequacy of Representation
"Adequacy of representation depends on two factors: (a) the plaintiffs'
attorneys must be qualified, experienced and generally able to conduct
the proposed litigation; and (b) the plaintiff must not have interests
antagonistic to those of the class." Johnson,
100 F.R.D. at 74-75. Plaintiffs' attorneys are experts in class actions
and Social Security law, and have been found adequate class counsel in
this circuit many times. See e.g., Wright v. California, 587 F.2d 345
(7th Cir. 1978); Jimenez v. Weinberger, 523 F.2d 689 (N.D.Ill. 1977);
Custom v. Trainor, 74 F.R.D. 409 (N.D.Ill. 1977). The second factor is
also met because the class members have the same interest in ensuring
that the Secretary make medical equivalence findings at step three of her
evaluation process. Thus, Rule 23(a)(4)'s requirements are met.
Lastly, the class meets the requirements of Rule 23(b) that the
Secretary act on grounds generally applicable to the class, thereby
making injunctive or declaratory relief with respect to the class as a
whole appropriate. In fact, as the plaintiffs point out, the class itself
is defined by reference to the scope of the defendant's policies at
issue, so that relief will affect all members of the class equally and
only those members. Johnson, 100 F.R.D. at 75; see also Advisory Board
Committee Note to Fed.R.Civ.P. 23, 39 F.R.D. 69, 102.
For all the foregoing reasons, the court grants plaintiffs' motion for
class certification for the class as presently defined.