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).
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 ...