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WILSON v. HECKLER

February 24, 1984

MARY D. WILSON, et al., Plaintiffs,
v.
MARGARET HECKLER, Secretary of Health and Human Services, et al., Defendants



The opinion of the court was delivered by: GREEN

 This matter is before the Court on defendants' "Supplemental Motion to Dismiss or, in the Alternative, for Summary Judgment", plaintiffs' renewed motion for class certification, *fn1" and plaintiffs' motion for summary judgment.

 Plaintiffs challenge defendants' use of the per capita2 method to compute the portion of an AFDC (Aid to Families with Dependent Children) grant attributable to a District of Columbia SSI (Supplemental Social Security Income) recipient when calculating a retroactive SSI benefit payment for claims filed prior to June 1, 1982. *fn3" Plaintiffs assert that use of this method for those claims, rather than the incremental method, violates 402(a)(24) of the Social Security Act, 42 U.S.C. § 602(a)(24) (1976), *fn4" and denies them and the members of the proposed class equal protection of the law under the Fifth Amendment to the United States Constitution. Additionally, they claim that the notice used by the Social Security Administration (SSA) to advise SSI recipients of the award of retroactive benefits violates the due process clause of the Fifth Amendment.

 Defendants' Supplemental Motion to Dismiss, or in the Alternative, for Summary Judgment

 Following the Court's Order of November 1, 1982, the parties advised that plaintiff Wilson has been awarded all of the benefits to which she is entitled. Defendants argue that plaintiff Wilson's claims are moot and that, accordingly, this entire action should now be dismissed. Defendants seem to ignore, however, that plaintiff Wilson continues to dispute the constitutional adequacy of the SSI Notice of Decision and that plaintiff Green was awarded retroactive SSI benefits calculated using the per capita method to compute the portion of the AFDC grant attributable to her, the legality of which is still in issue for claims filed prior to June 1, 1982. Moreover, although plaintiff Wilson's claim concerning the method by which her benefits were calculated no longer presents a live controversy for Art. III purposes, her claim that she is entitled to represent a class is still viable and supplies her "personal stake" in the litigation. United States Parole Commission v. Geraghty, 445 U.S. 388, 402, 63 L. Ed. 2d 479, 100 S. Ct. 1202 (1980). *fn5" See also Gerstein v. Pugh, 420 U.S. 103, 110-11, 43 L. Ed. 2d 54, 95 S. Ct. 854 n.11 (1975); Sosna v. Iowa, 419 U.S. 393, 402, 42 L. Ed. 2d 532, 95 S. Ct. 553 n.11 (1975).

 This precise issue has arisen in cases presenting claims similar to plaintiffs' in the instant case. E.g., Jones v. Califano, 576 F.2d 12, 22 (2d Cir. 1978) (agency's grant of relief to named plaintiffs did not preclude certification of proposed class); Fitzgerald v. Schweiker, 538 F. Supp. 992, 1000 (D. Md. 1982) (permitting intervention of new named plaintiff prior to class certification where named plaintiff's claim had become moot).

 Having determined that this action is not moot and that defendants' supplemental motion to dismiss, therefore, should be denied, the focus of examination must shift to the question of whether the requirements of Rule 23 have been met.

 Class Certification

 Plaintiffs seek an order certifying this case as a class action under Fed. R. Civ. P. 23(a) and (b)(2), and designating them class representatives, for the following class:

 
All District of Columbia residents who have been granted Supplemental Security Income (SSI) benefits pursuant to Title XVI of the Social Security Act (42 U.S.C. § 1381 et seq.) who received a grant under the Aid to Families with Dependent Children (AFDC) program (42 U.S.C. § 601 et seq.) during the time period while their SSI claims were being determined, and who received or will receive retroactive SSI benefits calculated by subtracting a portion of the AFDC grant computed by use of the per capita method to be attributed to the SSI recipient from the SSI payment level.

 Defendants oppose class certification on three grounds. First, they argue that the proposed class includes individuals who have not presented claims to the Secretary contesting the calculation of retroactive benefits and thus do not meet the requirements of 42 U.S.C. § 405(g) (Supp. V 1981). They characterize that same basic argument, alternatively, as the failure of some class members to exhaust their administrative remedies. These identical contentions were rejected in Fitzgerald v. Schweiker, 538 F. Supp. 992 (D. Md. 1982) (which defendants make no attempt to distinguish), where plaintiffs successfully maintained a class action challenging the defendants' use of the per capita method to calculate retroactive SSI benefits paid to recipients who received AFDC under the Maryland AFDC program while their SSI applications were pending.

 Both named plaintiffs have exhausted their administrative remedies. Plaintiff Green has received a final decision on her benefits, which were calculated by use of the per capita method. While quite possibly some members of the proposed class did not appeal the initial decision, balancing all relevant considerations, the Court finds it appropriate to waive the exhaustion requirement for those individuals.

 For claims filed prior to June 1, 1982, the Secretary's formal policy in the District of Columbia, the legality of which defendants maintain still, is to use the per capita method in the initial computation of the portion of an AFDC grant attributable to an SSI recipient. Nonetheless, the Social Security Appeals Council and numerous administrative law judges have consistently ruled that application of the per capita method to determine the amount of AFDC benefits attributable to an SSI recipient for a retroactive period is illegal if a state computes its AFDC benefits by an incremental method. See Exhs. A-G in support of plaintiff Wilson's opposition to defendants' first motion to dismiss, Dec. 14, 1981. Applying the exhaustion doctrine, given this impasse at the agency, would preclude judicial review for any claimants who failed to contest use of the per capita method and would serve no useful purpose. Jones v. Califano, 576 F.2d at 19; Fitzgerald v. Schweiker, 538 F. Supp. ...


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