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December 3, 1985


The opinion of the court was delivered by: Bua, District Judge.


Plaintiff, Marion Beckless, moves this Court for an order certifying the above class pursuant to Fed.R.Civ.P. 23(a) and (b). For reasons stated below, the Court grants plaintiff's motion for certification.


The named plaintiff, Marion Beekless, brings this action on her behalf, and on behalf of others similarly situated, to challenge SSI regulatory policies established by the U.S. Department of Health and Human Services. The Supplemental Security Income (SSI) program provides a minimum income for the poor and disabled and is established under 42 U.S.C. § 1381 et seq. The plaintiff seeks to certify the class pursuant to Fed.R.Civ.P. 23(a) and (b) and has filed an amended motion for class certification which defines the class as follows:

  All Supplemental Security Income (SSI) applicants
  who have resided or are residing in Illinois or
  Wisconsin, whose applications are denied or
  initial benefits are reduced due to in-kind
  income determined under 20 C.F.R. §§ 416.1140 and
  .1141 (1984) (or predecessor regulations),
  regardless of whether such income can be used to
  meet needs for food, clothing or shelter; and all
  recipients of SSI who have resided or are residing
  in Illinois or Wisconsin whose benefits are being
  or have been reduced or terminated pursuant to the
  same policies, who have made a claim for continuing
  benefits by filing a request for reconsideration or


Defendant argues that the class cannot be certified because putative class members have failed to meet the jurisdictional requirements of 42 U.S.C. § 405(g).

Section 405(g) provides:

  Any individual, after any final decision of the
  Secretary made after a hearing to which he was a
  party, irrespective of the amount in controversy,
  may obtain a review of such decision by a civil
  action commenced within sixty days after the
  mailing to him of notice of such decision or
  within such further time as the Secretary may

To obtain a final decision two elements must be met. First, class members must meet the nonwaivable element of presenting a claim for benefits to the Secretary. Second, the party presenting the claim must exhaust all administrative remedies before seeking judicial review of the matter. This second requirement has been held to be waivable by either the Secretary or the court. Mathews v. Eldridge, 424 U.S. 319, 330, 96 S.Ct. 893, 900, 47 L.Ed.2d 18 (1975); Weinberger v. Salfi, 422 U.S. 749, 764, 95 S.Ct. 2457, 2466, 45 L.Ed.2d 522 (1975); Heckler v. Ringer, 466 U.S. 602, 104 S.Ct. 2013, 2023, 80 L.Ed.2d 622 (1984). Certain circumstances must exist for the court to waive the exhaustion requirement. A court may waive the requirement when the plaintiff's legal claims are wholly collateral to their claims for benefits and when prompt resolution is so necessary that deferring to an agency decision is inappropriate. Giacone v. Schweiker, 656 F.2d 1238, 1243 (7th Cir. 1981); Eldridge, 424 U.S. at 330, 96 S.Ct. at 900. Waiver also may occur when an administrative remedy would be futile due to the Secretary's "final" position on the statutory issues. Liberty Alliance for the Blind v. Califano, 568 F.2d 333, 345-46 (3rd Cir. 1977). In the present case, the Secretary contends that the putative class members fail to meet both the waivable and nonwaivable requirements. The Court disagrees.

A. Presentation Requirement

Some courts have found that merely applying for benefits is sufficient to meet the presentment requirement under section 405(g). Wright v. Califano, 603 F.2d 666, 668-70 (7th Cir. 1979); Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976); Johnson v. Heckler, 100 F.R.D. 70 (N.D.Ill. 1983). As the Johnson case correctly points out, "the policy of the Seventh Circuit has been that the initial application for benefits meets the jurisdiction criteria." Johnson, 100 F.R.D. at 73 n. 5. As such, claimants who have applied for benefits in the present case have met the presentment requirement. Other requirements, however, are obligatory for recipients who have had their benefits terminated. Recipients whose benefits are terminated must present a new claim altogether. Heckler v. Lopez, 463 U.S. 1328, 104 S.Ct. 10, 77 L.Ed.2d 1431, motion to vacate stay denied, 464 U.S. 879, 104 S.Ct. 221, 78 L.Ed.2d 217 (1983) (Rehnquist, J. finding that recipients must file for continued benefits after benefits are terminated). Although the plaintiff's original complaint was drafted so as to include potentially ineligible class members who failed to file for continued benefits, the plaintiff's amended complaint comports with both the Seventh Circuit's policy and the requirements set forth by Justice Rehnquist in Lopez. Id. 104 S.Ct. at 14. Consequently, the putative class members have fulfilled the presentment requirement by narrowing the definition of their class as was done in the Johnson case.

B. Exhaustion of Administrative Remedies

In addition to fulfilling the presentment requirement, potential class members must exhaust all administrative remedies or have waiver granted by the court or the Secretary. To waive the "exhaustion of remedies" requirement the court need find only that the claim is collateral to an award of benefits or that exhaustion would be futile. A collateral claim is one in which the legal claim is not tied to the claim for benefits. A positive result in the legal claim will not result necessarily in class members receiving benefits. Johnson v. Heckler, 607 F. Supp. 875, 880 (N.D.Ill. 1984). A claim is futile ...

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