in light of the fact that Congress did not specifically provide any review mechanism of the Secretary's decisions in this type of case, to adopt the government's view would be to accept that the Secretary has unrestrained discretion to promulgate any rule or prevailing regulation he chose. Certainly, the absence of a review mechanism cannot be interpreted as congressional intent to vest the Secretary with unbridled discretion nor can Congress' silence be interpreted as creating a jurisdictional bar to this Court's power to hear potential claimants who would otherwise be without a remedy.
Relying on Ringer, the government also argues that plaintiff must first exhaust its administrative remedies under § 205(g) before it can contemplate bringing an action in district court. Ringer, 466 U.S. at 619 n.12, 621, 627. Section 205(g), however, calls for the exhaustion of administrative remedies prior to obtaining judicial review of a " final decision of the Secretary made after a hearing to which he was a party." (emphasis added). Here, plaintiff was not a party to a hearing before the Secretary and there is no final decision. Therefore, Section 205(g) is wholly inapplicable to this proceeding. See Attorney Registration and Disciplinary Com'n v. Schweiker, 715 F.2d 282, 288 (7th Cir. 1983) (suit could not be maintained under review provision of the Act where no past or future employees of plaintiff's met § 205(g) requirements).
Furthermore, the section is simply not designed to adequately address the systemic, procedural challenges that plaintiff raises -- challenges that are completely unrelated to any substantive benefit determination. Section 205(g) was designed for the review of individual benefit claims and not for the types of claims raised in this proceeding. Certainly, an employee who desires to correct errors in his record or who contests his Social Security benefits because they fail to accurately reflect his earnings can pursue an individual claim under that section. Yet, that same employee would have virtually no opportunity to challenge, and no way of knowing, the procedural flaws in the wage recording system that produced his errors.
Even if an employee succeeded in correcting errors in his record via an administrative proceeding under Section 205(g), this success would provide no protection from future errors stemming from the same systemic flaws. Cf. Stieberger v. Heckler, 615 F. Supp. 1315, 1337 (S.D.N.Y. 1985) (Act fails to provide an adequate alternative for remedying plaintiff's challenges where "even if individual claimants were to succeed in obtaining an award of benefits, the policies of which they complain would remain in place and continue to effect other similarly situated claimants"). Thus, the procedural irregularity would remain unaddressed despite plaintiff's exhaustion of administrative remedies and despite an individual vindication.
After fully considering the government's arguments, this Court is not only persuaded by Michigan Academy but also finds that Ringer is not binding precedent. As previously discussed, Ringer can be distinguished on its facts and it must be read and applied in light of the well-established principle concerning the presumption of judicial review. Thus, this Court concludes that plaintiff's claims do not arise under the Act and therefore are not barred from judicial review by Section 205(h). To hold otherwise, as defendants invite this Court to do, would unfairly and unwisely bar all direct attacks upon the Secretary and the Act. Certainly, Congress did not intend Section 205(h) to have such an unduly sweeping effect. Therefore, the government's motion to dismiss for lack of subject matter jurisdiction is denied.
B. Mandamus Jurisdiction
Until 1962, federal district courts were without jurisdiction to issue mandatory orders to correct any abuse of authority by federal officials. See 7 J. Moore, J. Lucas & K. Sinclair, Moore's Federal Practice para. 81.07 (2d ed. 1986). In that year, Congress enacted Section 1361 to Title 28 which provided:
The 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 plaintiff.
Generally, this provision expanded the district courts' jurisdiction to hear suits brought to compel a federal officer to exercise a duty. Previously, such suits were maintainable only in the District Court for the District of Columbia. Id.
In Ellis v. Blum, 643 F.2d 68, 78 (2d Cir. 1981), the Second Circuit noted that there is an impressive array of cases from a number of circuits which hold that § 1361 provides a jurisdictional basis to review procedures employed in administering Social Security benefits. See, e.g., Belles v. Schweiker, 720 F.2d 509, 511 (8th Cir. 1983); Kuehner v. Schweiker, 717 F.2d 813 (3d Cir. 1983); Sharpe v. Harris, 621 F.2d 530 (2d Cir. 1980); Frost v. Weinberger, 515 F.2d 57, 62 (2d Cir. 1975). In Ganem v. Heckler, 241 U.S. App. D.C. 111, 746 F.2d 844 (D.C. Cir. 1984), this Circuit joined the consensus of the circuit courts by holding that mandamus is not precluded by the Act. In Ganem, our Circuit Court stated that mandamus generally will not issue unless there is: (1) a clear right in the plaintiff to the relief sought; (2) a plainly defined and nondiscretionary duty on the part of the defendant to honor that right, and; (3) no other adequate remedy, either judicial or administrative, available. Id. at 852. Here, the government argues that plaintiff is not entitled to mandamus jurisdiction as these criteria are not met. After a careful consideration of this argument and in light of the persuasive caselaw, the Court finds that even if federal question jurisdiction does not lie here, certainly mandamus jurisdiction exists under Section 1361.
The government argues that it does not owe a mandatory duty to the plaintiff, as the Act fails to specifically address a reconciliation process for handling discrepancies in employee earnings. Yet, even if Congress failed to specify the details of a reconciliation process, this does not automatically allow agencies to ignore the important and essential duties that Congress entrusted to them. In fact, in Estate of Smith v. Heckler, 747 F.2d 583, 591 (10th Cir. 1984), the Tenth Circuit held that mandamus relief was appropriate to compel HHS Secretary to perform her duty of promulgating regulations that would inform her of the quality of medical care given by federally funded nursing facilities:
It is the court's duty in a mandamus action to measure the allegations in the complaint against the statutory and constitutional framework to determine whether the particular official actions complained of fall within the scope of the discretion which Congress accorded the administrators. . . . In other words, even in an area generally left to agency discretion, there may well exist statutory or regulatory standards delimiting the scope or manner in which such discretion can be exercised.. . . If, after studying the statute and its legislative history, the court determines that the defendant official has failed to discharge a duty which Congress intended him to perform, the court should compel performance, thus effectuating the congressional purpose (citations omitted) (emphasis added).