United States District Court, Northern District of Illinois, E.D
December 3, 1985
MARION BECKLESS, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
MARGARET HECKLER, SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEFENDANT.
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
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
(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 when the Secretary's position is firm and
further administrative appeal would prove unavailing. Thomas v.
Heckler, 598 F. Supp. 492, 499 (M.D.Ala. 1984).
In the present case, waiver is justified on either ground.
Here the claim for benefits is not "inextricably intertwined"
with the procedural question being adjudicated.
Ringer, 104 S.Ct. at 2021. Moreover, a final decision on the
substantive issue here will not automatically determine whether
each class member receives benefits. A decision merely will
alter the valuation method which may lead to the eventual
distribution of benefits. As summarized in Johnson v. Heckler,
607 F. Supp. at 880, a claim is collateral when the sought-after
change does not result in all members of the putative class
receiving an award of benefits. If change in procedural policy
is achieved in the present case, some members still may be
The need for prompt judicial review is also present in this
case. The purpose of the SSI program is to provide a minimum
amount of income for the aged, blind and disabled. The
benefits are distributed to eligible recipients to meet their
basic needs. Individuals wrongly denied benefits for food,
clothing, and shelter likely would incur substantial hardship.
Thus, the necessity for prompt relief cannot be overlooked.
Johnson, 100 F.R.D. at 74; see also Caswell v. Califano,
583 F.2d 9, 14 (1st Cir. 1978). The requisite elements have been
met for waiver on collateral grounds.
The futility requirement is met as well. The case of
Jackson v. Schweiker, 683 F.2d 1076 (7th Cir. 1982), supports
the argument of waiver on futility grounds. In Jackson, the
plaintiff also challenged regulations governing SSI benefits
which "impute as unearned income to SSI recipients the
difference between the fair market rental value and the rent
actually paid for shelter." Jackson v. Schweiker, 683 F.2d at
1077. Because the named plaintiff who had met the exhaustion
requirement still failed to receive relief, the district court
in Jackson waived exhaustion for the remainder of the class.
Jackson v. Harris, 86 F.R.D. 452, 454 (N.D.Ind. 1980), aff'd on
other grounds sub nom. Jackson v. Schweiker, 683 F.2d 1076 (7th
Cir. 1982). The Jackson court found that the Secretary's
decision was final as to the named plaintiff and was not likely
to be altered for other class members challenging the
regulation. Jackson, 86 F.R.D. at 453. Given that the
procedural issues discussed by the Seventh Circuit Court of
Appeals in Jackson are the same issues involved in the present
case, there is no reason to believe the Secretary would alter
her stance in any subsequent appeals. The Secretary's position
in Jackson is indicative of what her position is likely to be
in the present case. Furthermore, a decision in the Jackson
case has provided the Secretary with a clear opportunity to
reconsider her position. Her failure to do so indicates that
exhaustion of administrative remedies in this case would be
futile. See Chico v.
Heckler, 710 F.2d 947 (2d Cir. 1983); Johnson v. Heckler, 100
F.R.D. at 74 (N.D.Ill. 1983).
The defendant cites the Ringer case in support of her
argument that waiver is inappropriate in this case. However,
Ringer is distinguishable from the case at hand. In Ringer, the
plaintiff sought to alter the Secretary's policy as to medicare
payments for BCBR surgery (bilateral carotid body resection).
The Supreme Court found that the plaintiff's claim for benefits
in Ringer was "inextricably intertwined" with the legal claims
being adjudicated. Thus, the legal claims were not collateral
to the plaintiff's claim for benefits. Ringer, 104 S.Ct. at
2021. In addition, the court found that further administrative
appeal would not have been futile because the administrative
law judge was not bound by the previous ruling in the case. Id.
The court in Ringer did not call into question a court's
ability to waive exhaustion requirements in certain
circumstances. Instead, the court ruled that those
circumstances did not exist in Ringer. Class members merely
sought reimbursement for surgery which already had been
performed. Id. at 2021. Here, the plaintiff seeks only
procedural changes. As previously stated, the court's ruling in
the present case will not necessarily result in a payment of
benefits to class members. The two cases are factually
C. 60-Day Requirement
Another of defendant's arguments involves the problem of
class members allegedly failing to meet the 60-day requirement
of section 205(g) of the Social Security Act. This section
requires judicial review "within sixty days after the
mailing . . . of notice of [final] decision or within such
further time as the Secretary may allow." 42 U.S.C. § 405(g)
(1982). The Seventh Circuit Court of Appeals has ruled
previously on the 60-day requirement and has found it to be a
statute of limitations waivable by the parties and not a
jurisdictional requirement. Johnson v. Heckler, 769 F.2d 1202,
1209 (7th Cir. 1985); Wilson v. Edelman, 542 F.2d 1260, 1274
(7th Cir. 1976); see also, Eldridge, 424 U.S. at 328 n. 9, 96
S.Ct. at 899 n. 9; Salfi, 422 U.S. at 764, 95 S.Ct. at 2466;
City of New York v. Heckler, 742 F.2d 729, 737-38 (2d Cir.
1984). Here, however, defendant has not waived the 60-day
In Lopez v. Heckler, 725 F.2d 1489 (9th Cir. 1984), the Ninth
Circuit Court of Appeals found that the court, as well as the
parties, could waive the 60-day requirement in unusual
circumstances. The court held that the 60-day limitation would
be inapplicable when constitutional claims were raised or when
jurisdiction was based on the mandamus statute. Id. at 1506;
see also, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51
L.Ed.2d 192 (1977). Substantial constitutional issues not
subject to the 60-day limitation were held to exist in Lopez.
Furthermore, the court stated that deference to the agency on
the issue of waiver was inappropriate given the bad faith on
the part of the Secretary in refusing to follow previous
decisions of the court on this matter. Lopez, 725 F.2d at 1506.
It was largely the Secretary's issuance of a clear statement of
nonacquiescence which led to a finding of bad faith. Id. at
In the case at hand, plaintiff cites both Lopez and Holden v.
Heckler, 584 F. Supp. 463, 465 (N.D.Ohio 1984), as support for
waiver of the 60-day requirement due to the Secretary's failure
to follow the decision of the Seventh Circuit Court of Appeals
in Jackson. However, it is not clear from the Jackson decision
whether the Secretary is refusing completely to comply with the
Seventh Circuit's decision. The Secretary has not issued a
policy of nonacquiescence as was done in Lopez, and without
further evidence, it is unclear whether the Secretary has
failed to perform her duties as a public official.
Consequently, no issue of bad faith has been presented which
would merit a waiver of the 60-day requirement. Instead, the
court finds that each claimant must have received a final
decision within 60 days prior to the filing of this action for
the court to maintain jurisdiction over those claimants.
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, 223,
78 L.Ed.2d 217 (1983)
(Stevens, J. dissenting in part, concurring in part).
In Lopez, the Ninth Circuit answers the question of whether a
final decision has occurred despite the waiver of exhaustion.
Lopez, 725 F.2d at 1505. Plaintiffs who show futility of
exhaustion, as the plaintiff has here, "have also demonstrated
that they have received a final decision for purposes of the
sixty-day requirement." Lopez. 725 F.2d at 1505. The fact that
some potential class members may be subsequently excluded does
not affect the ability of the class to become certified. An
over-broad class may be narrowed by amendment of the
certification order. Fed.R. Civ.P. 23(c)(4) and 23(d); see
also, Smith v. Heckler, 595 F. Supp. 1173, 1185 (E.D.Cal. 1984).
In addition, the plaintiffs who fail to meet the 60-day
requirement possibly may invoke jurisdiction under the mandamus
statute, 28 U.S.C. § 1361.
D. Mandamus Jurisdiction
Section 1361 of the judicial code provides:
District courts shall have original jurisdiction
of any action in the nature of mandamus to compel
an officer or employee of the United States or
any agency thereof to perform a duty owed to the
The Supreme Court has not decided the issue of whether the
third sentence of § 405(h) bars mandamus actions arising under
the Social Security Act. Ringer, 104 S.Ct. at 2022. Other lower
courts, however, have found that mandamus relief under the act
is not precluded when claims are "essentially procedural in
nature." Ringer v. Schweiker, 697 F.2d 1291 (9th Cir. 1982),
cert. granted sub nom. Heckler v. Ringer, 463 U.S. 1206, 103
S.Ct. 3535, 77 L.Ed.2d 1386 (1983); Ellis v. Blum, 643 F.2d 68
(2d Cir. 1981); Sharpe v. Harris, 621 F.2d 530, 532 (2d Cir.
1980). A writ of mandamus will not issue unless: (1) plaintiff
has a plain right to have the act performed, (2) the defendant
has a plain duty to perform it, and (3) no other adequate
remedy is available to the plaintiff. Kennecott Copper Corp.,
Nevada Mines v. Costle, 572 F.2d 1349, 1356 (9th Cir. 1978);
City of New York, 742 F.2d at 729. A writ of mandamus is an
extraordinary remedy which should not issue unless the duty
upon the defendant is clear and unmistakable. Gillis v. IRS,
578 F. Supp. 69 (D.C.N.H. 1983). Where the interpretation or
application of a statute or regulation is discretionary, a writ
of mandamus is not controlling. Mid-American Regional Council
v. Mathews, 416 F. Supp. 896 (W.D.Mo. 1976).
Taking into consideration the above prerequisites, it is
inappropriate at this time to determine whether jurisdiction
can be invoked under § 1361. There is insufficient evidence
before this Court which would demonstrate the existence of a
duty, and a failure, to act by the Secretary. Therefore, the
issue of whether jurisdiction may be invoked under the mandamus
statute must be addressed at a later time when more evidence is
available to determine whether the Secretary has failed to
perform a duty.
E. Requirements of Rule 23(a) and (b)
Rule 23(a)(1) requires a class to be so numerous that
joinder of each class member is impracticable. No specific
number is determinative of whether a class is large enough to
be certified. Johnson, 100 F.R.D. at 72. However, it is the
plaintiff's burden to show impracticality of joinder. Vergara
v. Hampton, 581 F.2d 1281, 1284 (7th Cir. 1978).
The statistics introduced by the plaintiff, as well as the
plaintiff's stipulation as to numerosity, are sufficient to
fulfill the numerosity requirement for class certification in
this case. See Smith v. Heckler, 595 F. Supp. at 1186
(plaintiff's introduction of statistics, although not
presenting exact figures, gives sufficient indication of the
2. Common Question of Law or Fact
Rule 23(a)(2) requires there to be a common question of law
or fact between all members of the putative class. Here, the
class is limited only to those SSI applicants or recipients
who have been denied initial or continuing benefits under the
challenged regulations and who wish to challenge the
Secretary's method of determining such benefits. Therefore,
the class definition
provides a question of law common to the entire class.
The typicality element requires the class representative to
have a claim "based on the same legal theory" as the claim
asserted on behalf of other class members. Long v. Thornton Tp.
High School District 205, 82 F.R.D. 186, 190 (N.D.Ill. 1979).
The nature of each party's claim must be the same for all
parties. Here, the valuation method for determining SSI
benefits is challenged on the grounds that it constitutes
statutory, regulatory and constitutional violations. The nature
of the plaintiff's claim is no different from that of the other
4. Adequate Representation by Named Plaintiff
The final requirement involves adequate representation by
the named plaintiff on behalf of other class members.
"Adequacy of representation depends on two factors: (a) the
plaintiff's attorney 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." Susman v. Lincoln American Corp., 561 F.2d 86, 90 (7th
The attorneys presently representing the plaintiffs have
been found to be adequate counsel several times in the past.
See, e.g., Wright v. Califano, 587 F.2d 345 (7th Cir. 1978);
Jimenez v. Weinberger, 523 F.2d 689 (7th Cir. 1975); Johnson v.
Heckler, 100 F.R.D. 70 (N.D.Ill. 1983). Furthermore, all class
members, including the named plaintiff, will benefit equally if
relief is granted. The plaintiff's interest is not adverse or
inconsistent with others in the class. In addition, the
requirements under 23(b)(2) have been met. Therefore,
injunctive and declaratory relief are appropriate with respect
to the class as a whole.
For the reasons stated above, the plaintiff's motion for
class certification is granted under Fed.R.Civ.P. 23(a) and
(b) with the following modifications as to the class
The plaintiff class includes those members whose benefits
were terminated or reduced pursuant to the policies challenged
in this action on or since August 27, 1984, at any stage of
the administrative process, or who had challenges to such
decisions pending on August 27, 1984. Because the complaint
was filed on October 26, 1984, these class members all meet
the Act's statute of limitations requiring that actions for
judicial review of the Secretary's decision be filed within 60
days of the date of the decision.
IT IS SO ORDERED.
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