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May 31, 1979

LENA COCKRUM, et al., Plaintiffs,
JOSEPH CALIFANO, JR. Secretary of the Department of Health, Education and Welfare, Defendant.

The opinion of the court was delivered by: OBERDORFER


I. Introduction

 A. Overview

 Plaintiffs' complaint sets forth six causes of action against the Secretary. It alleges violations of 42 U.S.C. 405(b) (with respect to Title II claimants), 42 U.S.C. 1383(c) (with respect to Title XVI), and with respect to all claimants, 42 U.S.C. § 1302, two provisions of the Administrative Procedure Act (APA), 5 U.S.C. §§ 555(b) and 706(1), and the Due Process Clause of the Fifth Amendment. Plaintiffs seek an injunction ordering the Secretary to make final decisions on appeals within 120 days after a hearing is requested, and to pay benefit claims whenever a decision has not been reached within that time. Alternatively, they seek an injunction directing the Secretary to adopt regulations which impose time limits on reaching decisions on appeals. As explained below, they also seek reconsideration of an earlier order denying a motion for a preliminary injunction, and seek a preliminary injunction for both named parties and the class.

 In the original complaint and in the new complaints filed with later motions to intervene, plaintiffs allege that they constitute a certifiable class under F.R.Civ.P. 23(b)(1) and (2). On July 6, 1978, plaintiffs moved for certification under 23(b)(2) on behalf of four subclasses of individuals who had suffered delays of 120 days or more in their appeals from the denial, termination or reduction of (1) benefits under Title II, except for claims based on disability; (2) disability benefits under Title II; (3) benefits under Title XVI, except those based on disability; (4) disability benefits under Title XVI.

 On July 25, plaintiffs filed an application for a temporary restraining order to require defendant to issue a final decision on the benefit claims of two named plaintiffs Lena Cockrum and Lottie Young. The Court denied the TRO on July 27, based on representations that government counsel would undertake certain efforts to secure prompt resolution of Young's claim and on the understanding that if such efforts were unsuccessful the issues would be reconsidered in ruling on the motion for preliminary injunction. That latter motion was denied on August 23, based on evidence that the case had been mooted as to those named plaintiffs. The Court also noted, however, in a memorandum accompanying the order denying plaintiffs' motion, that its conclusion that the named plaintiffs would not benefit from a preliminary injunction did not necessarily require dismissal of the action, citing Sosna v. Iowa, 419 U.S. 393, 95 S. Ct. 553, 42 L. Ed. 2d 532 (1975) for the proposition that in some cases certification of the class may be held to relate back to the time the suit was filed "depend(ing) upon the circumstances . . . and especially the reality of the claim that otherwise the issue would evade review." Id. at 402, n. 11, 95 S. Ct. at 559. Subsequently the parties have strongly contested some of the representations which formed the basis for that preliminary decision, but in light of the Court's resolution of the issues in this case it will be unnecessary to return to that problem. A motion for intervention on behalf of Annie Pearl David, Esther Starkey and Michael L. Wasilow was filed on September 26, 1978. A second motion for intervention was filed on January 30, 1979 on behalf of Azzie Lee Cage and Josephine Muldrow. Both motions are opposed by the Secretary.

 In this Memorandum the Court explains its orders resolving the outstanding motions. Section B of Part I deals with the procedural aspects of the Court's decision to enter summary judgment for plaintiffs. Part II treats the motions for class certification and intervention as to three intervenors. Part III sets out conclusions as to jurisdiction and mootness. Part IV addresses the substantive issue of entitlement to declaratory and equitable relief which this case presents.

 B. Disposition

 The Court has treated plaintiffs' motion for reconsideration and clarification of the denial of a preliminary injunction and its opposition to defendant's motion to dismiss as a motion for summary judgment and has entered judgment and granted declaratory relief for plaintiffs. The Court's entry of judgment at this stage of the proceedings is based upon a number of considerations and authorities. First, it is clear that in this Circuit oral argument on a motion for summary judgment is not required before entry of that judgment, Spark v. Catholic University, 167 U.S.App.D.C. 56, 59, 510 F.2d 1277, 1280 (1975); 6 Moore's Federal Practice at P 56.14(1) (1978); Local Rule 1-9(c). Secondly, both F.R.Civ.P. 56(b) and case law support the Court's treatment of a motion to dismiss as a motion for summary judgment where matters outside the pleadings are presented and considered by the Court; Carter v. Stanton, 405 U.S. 669, 92 S. Ct. 1232, 31 L. Ed. 2d 569 (1972); Fagan v. National Cash Register, 157 U.S.App.D.C. 15, 26, 481 F.2d 1115, 1126 (1973); Tuley v. Heyd, 482 F.2d 590, 592-93 (5th Cir. 1973). And finally under the proper circumstances where the parties have had full opportunity to present the issues and to contest the proposition that there exist no facts in dispute material to entry of judgment, the Court may enter judgment for a party which has not In haec verba moved for summary judgment; Morrissey v. Curran, 423 F.2d 393, 398 (2d Cir. 1970); Petroleo Brasileiro S. A. v. American Oil Corp., 372 F. Supp. 503, 508 (S.D.N.Y.1974); United States v. Cless, 150 F. Supp. 687 (M.D.Pa.1957) (on plaintiff's motion for judgment on pleadings, court enters summary judgment for defendant); See Abrams v. Occidental Petroleum Corp., 450 F.2d 157, 165-66 (2d Cir. 1971), Aff'd sub nom. Kern County Land Corp. v. Occidental Petroleum Corp., 411 U.S. 582, 93 S. Ct. 1736, 36 L. Ed. 2d 503 (1973); 6 Moore's Federal Practice at P 56.12 (1978). As Professor Moore notes in his treatise (quoting in the first paragraph from his first edition):

If either the proponent of the claim or the defending party moves for a summary judgment, and the court finds that the moving party is not entitled thereto, but that the other party is so entitled, it would seem that the court has the power to enter the proper judgment, although a cross-motion therefor was not made. Rule 54(e) gives the court the power to enter the final judgment to which the prevailing party is entitled, even if the party has not demanded such relief in his pleadings, except in default judgment cases. The theory is that the form of the pleadings should not place a limitation upon the power of the court to do justice. So where one party has invoked the power of the court to render a summary judgment against his adversary, it is reasonable that this invocation gives the court power to render a summary judgment for his adversary if it is clear that the case warrants that result.
There is some authority Contra, which only leads to the ceremony of a formal motion by the party so entitled. The great weight of authority, however, dispenses with the formality of a cross-motion and supports the above position of the Treatise. (At 56-331-56-332) (footnotes omitted).

 This case plainly presents circumstances in which such a procedure is in order. The Secretary has had a full and more than fair opportunity to contest, and has contested, every element of plaintiff's allegations in a variety of pleadings. The parties vigorously contested the motions for a temporary restraining order and a preliminary injunction. Plaintiff's Motion for Reconsideration and Clarification of the Denial of a Preliminary Injunction presented another opportunity for defendant to contest the case. Defendant filed an extensive memorandum in support of its Motion to Dismiss and a supplemental memorandum, supported by five exhibits. The parties further contested the Motion for Class Certification and two motions for intervention, with defendant filing a supplemental memorandum with respect to the former. The supplemental reports requested by the Court to provide information about named parties and intervenors and about the status of two relevant cases were employed by defendant as additional opportunities to raise substantive issues by incorporating his motion for rehearing en banc filed in the Sixth Circuit case of Blankenship v. Secretary of Health, Education and Welfare, 587 F.2d 329 (6th Cir. 1978). In addition, the Court has before it numerous affidavits and exhibits, filed by both parties in contesting various motions, and statistics relating to delays in decision-making revealed by plaintiff's interrogatories. *fn1" Moreover, the issue here turns on a finite number of facts which are fully admitted by defendant in his interrogatories, so that a 9(h) statement, which relates to facts and not legal issues, could not materially assist either the Court or the parties. Thus, since the record in this case goes far beyond the pleadings, the Court concludes that treatment of the motion to dismiss as one for summary judgment is quite in order here.

 As to the entry of summary judgment for plaintiffs, the rationale for refusing to grant a judgment to a nonmoving party is that the moving party may not have had full opportunity to contest such adverse decision. When a party moves for dismissal on the pleadings or summary judgment, in theory he may present an offensive argument without the necessity of protecting his defense. Here, however, the government's vigorous defense against plaintiffs' motion for reconsideration of the denial of a preliminary injunction fully developed the issues (already treated fully in the Secretary's defense of parallel suits against him in four other circuits); the Court grants nothing by its entry of summary judgment which could not have been accomplished in granting the plaintiffs' renewed motion for preliminary injunction.

 Legal as well as factual issues are thus fully presented in the papers. Moreover, this case represents the local manifestation of a nationwide problem which has been treated thoroughly in other jurisdictions. *fn2" As to both legal and factual issues, the Court has compared the information now available to it with the information set forth as the basis for decisions in those companion cases cited above of which it takes judicial notice. The defendant's careful opposition here and in the parallel cases makes it inconceivable that there exists any point which the Secretary could raise which he has not already raised here at least once. Nor does the motion for stay of judgment proffer any additional point which has been omitted or slighted throughout the course of this litigation. Under these circumstances the Court will not elevate form over substance and delay further the judgment to which plaintiffs are entitled.

 II. Jurisdiction

 A. 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3)

 The Secretary contends that 42 U.S.C. § 405(h) bars jurisdiction pursuant to 405(g) and 1383(c)(3). *fn3" As in every court which has considered the issue, that contention is rejected here.

 Section 405(g) provides in part that

Any individual, after any final decision of the Secretary made after a hearing to which he was a party, . . . may obtain a review of such decision by a civil action . . ..

 Section 405(h) provides in part that

No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or government agency except as herein provided. No action against . . . the Secretary . . . shall be brought under (28 U.S.C. 1331 et seq.) to recover on any claim arising under this subchapter.

 In Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), a Title II recipient brought a constitutional challenge to the Social Security Administration's assessment procedures, without first having exhausted his administrative remedies. The Supreme Court found jurisdiction pursuant to 405(g). The Court noted that Weinberger v. Salfi, 422 U.S. 749, 755-56, 95 S. Ct. 2457, 45 L. Ed. 2d 522 (1975) had held that 405(h) precluded federal question jurisdiction over actions challenging the denial of benefits, making 405(g) the exclusive basis for review. It went on to note:

Implicit in Salfi, however, is the principle that this condition (a final decision after a hearing) consists of two elements, only one of which is purely "jurisdictional' in the sense that it cannot be "waived' by the Secretary in a particular case. The waivable element is the requirement that the administrative remedies prescribed by the Secretary be exhausted. The nonwaivable element is the requirement that a claim for benefits shall have been presented to the Secretary. Absent such a claim there can be no "decision" of any type. And some decision by the Secretary is clearly required by the statute. 424 U.S. at 328, 96 S. Ct. at 899.

 The Court suggested that even if the Secretary did not voluntarily waive the former element, the Court itself could independently determine whether an issue was sufficiently final to warrant review. Such waiver by the court would be appropriate where "a claimant's interest in having the particular issue resolved promptly is so great that deference to the agency's judgment is inappropriate." Id. at 330, 96 S. Ct. at 900.

Decisions in different contexts have emphasized that the nature of the claim being asserted and the consequences of deferment of judicial review are important factors in determining whether a statutory requirement of finality has been satisfied. . . . Certain of the policy considerations implicated in (analogous provisions such as 28 U.S.C. 1257 and 1291) are different from those that are relevant here. . . . But the core principle that statutorily created finality requirements should, if possible, be construed so as not to cause crucial collateral claims to be lost and potentially irreparable injuries to be suffered remains applicable. Id. at 331, n. 11, 96 S. Ct. at 901.

 Under the circumstances of Salfi, the Court found that review was appropriate because the constitutional challenge was entirely collateral to the substantive claim for entitlement and that it was at least arguable that an erroneous termination would cause damage not repairable through retroactive payments. Id. at 330-31, 96 S. Ct. 893.

 Here plaintiffs do not seek a determination that they are eligible for benefits under Titles II or XVI; they claim that statutes and the Constitution entitle them to a decision within a reasonable time. These claims are obviously collateral to any substantive determination. Thus, finding jurisdiction here in no way undermines the normal requirement of exhaustion of administrative remedies or the role of 405(g) as the exclusive jurisdictional basis for challenges to the merits of benefit determinations under the Act. Caswell v. Califano, 583 F.2d at 14, n. 11.

 Moreover, effective relief here cannot be afforded by awaiting a final determination. The affidavits reveal and the Court finds that members of the class live at or below the margin of poverty and are in dire financial condition. The Court concludes that deprivation of subsistence support cannot be remedied adequately by larger future payments. See, e.g. Jones v. Califano, 576 F.2d 12, 18-22 (2d Cir. 1978); Lyons v. Weinberger, 376 F. Supp. 248, 262 (S.D.N.Y.1974). Moreover, requiring a final determination would deprive plaintiffs of the very right they seek. As the district court noted and the First Circuit repeated in Caswell v. Califano, 583 F.2d at 14:

It would indeed be ironic if the very delay now under attack, which prevents the exhaustion of administrative remedies through no fault of the plaintiffs, constitutes a barrier to this Court's jurisdiction under Section 405(g), (quoting 435 F. Supp. at 133.)

 Moreover, awaiting a final decision would be futile, since it is clear that the Secretary has taken a position opposed to any of the relief plaintiffs seek in this and every other case which has presented the issue; See, e.g. Petition for Certiorari, White v. Mathews, supra at 8-9, quoted in Memorandum in Opposition to Defendant's Motion to Dismiss. And the significance of the delays and the resulting deprivation of benefits is underscored by the fact that a significant, high percentage of adverse decisions are reversed on appeal, Infra at 1238. The Court therefore concludes that jurisdiction is proper under 42 U.S.C. §§ 405(g) and 1383(c)(3). Blankenship v. Secretary of HEW, supra; Caswell v. Califano, supra; Jones v. Califano, supra.

 Plaintiffs assert and the Secretary vigorously denies that the Court has jurisdiction under the mandamus statute, 28 U.S.C. § 1361, which grants to the district court original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United ...

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