Aznavorian v. Califano

• Decision Date: 23 August 1977
• Docket Number: Civ. No. 75-1103-GT.
• Citation: 440 F. Supp. 788
• Parties: Grace AZNAVORIAN, Individually (and on behalf of all other aged, blind or disabled persons similarly situated), Plaintiff, v. Joseph A. CALIFANO, Secretary of Health, Education, and Welfare, Individually and in his official capacity, Defendant.
• Court: U.S. District Court — Southern District of California

440 F. Supp. 788

Grace AZNAVORIAN, Individually (and on behalf of all other aged, blind or disabled persons similarly situated), Plaintiff, v. Joseph A. CALIFANO, Secretary of Health, Education, and Welfare, Individually and in his official capacity, Defendant.

Civ. No. 75-1103-GT.

United States District Court, S. D. California.

August 12, 1977.

Order — August 23, 1977.

COPYRIGHT MATERIAL OMITTED

Peter A. Schey, Legal Aid Foundation, Los Angeles, Cal., Ian Fan and Charles H. Wolfinger, Jr., Legal Aid Society of San Diego, San Diego, Cal., Dorothy T. Lang, Western Center on Law and Poverty, Los Angeles, Cal., Ralph S. Abascal, Victor Harris, California Rural Legal Assistance, San Francisco, Cal., Philip M. Gassel, Legal Services for the Elderly Poor, New York City, for plaintiff.

Terry J. Knoepp, U. S. Atty., D. Michael Waltz, Asst. U. S. Atty., San Diego, Cal., for defendant.

OPINION

GORDON THOMPSON, Jr., District Judge.

I. INTRODUCTION

Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3),¹ plaintiff seeks review of a final decision, dated September 26, 1975, of the Secretary of Health, Education and Welfare, terminating her Supplemental Security Income benefits for the months of August and September, 1974, pursuant to Social Security Act section 1611(f), 42 U.S.C. § 1382(f). Plaintiff Aznavorian sought to have this action maintained as a class action pursuant to Rule 23(a) and (b)(2), Federal Rules of Civil Procedure. No facts are in dispute and plaintiff's sole contention is that Section 1611(f) is unconstitutional as being violative of her due process and equal protection rights because it penalized her right of international travel in violation of the Fifth Amendment to the United States Constitution. Section 1611(f) provides as follows:

Notwithstanding any other provision of this title, no individual shall be considered an eligible individual for purposes of this title for any month during all of which such individual is outside the United States . . .

For purposes of the preceding sentence, after an individual has been outside the United States for any period of 30 consecutive days, he shall be treated as remaining outside the United States until he has been in the United States for a period of 30 consecutive days.

The statute creates two classes of equally needy Supplemental Security Income (SSI) recipients, indistinguishable from each other, except that one class has recently traveled outside the United States for more than one month. Because section 1382(f) conclusively presumes that traveling class members have abandoned their residence in the United States, the statute terminates their SSI benefits during any calendar month they are outside the country and for the first thirty days following their return.

II. FACTS

The uncontested facts in this case are as follows: On July 21, 1974, plaintiff Aznavorian, a United States citizen, resident of San Diego County, and an eligible recipient of Supplemental Security Income benefits, left the United States for health reasons and proceeded to Guadalajara, Mexico, where she sought medical attention. At the time of her departure, she did not intend to remain outside of the United States for more than one month.

While in Mexico, plaintiff Aznavorian became ill and she was unable to return to the United States until September 1, 1974. No evidence indicates that she ever intended to abandon her residence in the United States. As a result of this brief departure, defendant Secretary terminated plaintiff from the Supplemental Security Income program and she was found to be ineligible for any benefits during the months of August and September, 1974, pursuant to Section 1611(f) of the Social Security Act.

There are two parties seeking to intervene. Intervenor Anna Tolstick is an 80-year-old widow who has been residing in New York City, New York, since 1921. Intervenor Tolstick is a recipient of Supplemental Security Income who wishes to visit a sister in Ukraine, U.S.S.R., once more before she dies. Mrs. Tolstick would like to travel outside the United States for two months. However, defendant Secretary has advised her by letter that she would automatically lose her SSI benefits during the planned trip and for one month after she returned pursuant to Section 1611(f) of the Act. For that reason, she has not taken her trip and has remained in the United States.

Intervenor Betsabe Rivas, an 80-year-old widow residing in New York City, New York, is in almost the identical situation as Intervenor Tolstick. She is an SSI recipient who wishes to make a last visit to her family in Cali, Columbia. She also received a letter from defendant Secretary indicating that her benefits would be terminated pursuant to Section 1611(f) if she undertook her planned travel abroad. For that reason, she has remained in the United States.

The Court has before it defendant Secretary's Motion for Summary Judgment, plaintiffs' Motion for Class Certification, and a Motion to Intervene as Plaintiffs brought by Mrs. Tolstick and Mrs. Rivas.

III. MOTIONS FOR CLASS CERTIFICATION AND FOR CLARIFICATION

Plaintiff Aznavorian has filed this action on behalf of herself and all similarly situated persons pursuant to Rule 23(a) and (b)(2), Federal Rules of Civil Procedure. She defines her class as consisting of:

all individuals eligible for Supplemental Security Income who had such SSI denied, terminated or interrupted pursuant to an initial written determination, an administrative reconsideration, an administrative hearing, or an Appeals Council review, based solely on 42 U.S.C. § 1382(f), on September 26, 1975, or at any time thereafter.

As defined, all class members are properly before this Court pursuant to 42 U.S.C. § 405(g) as they have all received a "final decision" from defendant Secretary.²

Defendant Secretary contends class relief is not available under section 405(g). The Supreme Court in Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), did not foreclose, but to the contrary, implied that class relief is available to a court exercising section 405(g) jurisdiction. Salfi denied class relief not because anything in section 405(g) precludes this form of relief, but because the class was improperly formed in the specific setting of that case.³ 422 U.S. at 764, 95 S.Ct. 2457. The Court in Salfi recognized that where the sole challenge is to the constitutionality of a statutory requirement, something over which the defendant Secretary has no jurisdiction, further exhaustion beyond an initial determination "would not merely be futile . . . but would also be a commitment of administrative resources unsupported by any administrative or judicial interest." Weinberger v. Salfi, supra, 422 U.S. at 766, 95 S.Ct. at 2467.

In Mathews v. Eldridge, 424 U.S. 319, 328, 96 S.Ct. 893, 899, 47 L.Ed.2d 18 (1976), the Supreme Court held:

Salfi identified several conditions which must be satisfied in order to obtain judicial review under § 405(g). Of these, the requirement that there be a final decision by the Secretary after a hearing was regarded as "central to the requisite grant of subject-matter jurisdiction . . .." 422 U.S. at 764, 95 S.Ct. at 24669 (Footnote omitted). Implicit in Salfi, however, is the principle that this condition 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.

The "waivable jurisdictional element", that a "final decision" be rendered to satisfy the statutory exhaustion requirement, in some cases will not be left to the "deference of the agency's judgment . . ." Id., at 330, 96 S.Ct. 893, 899. The plaintiff in Eldridge conceded that he did not exhaust the administrative procedures provided by the Secretary. Id., at 330, 96 S.Ct. 893.

The fact that full exhaustion of administrative remedies is not required when the plaintiffs challenge denials and/or terminations solely on alleged statutory or regulatory constitutional infirmities was again recognized in Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976), and Norton v. Mathews, 427 U.S. 524, 96 S.Ct. 2771, 49 L.Ed.2d 672 (1976). The Court noted in Diaz:

None of the appellees completely exhausted available avenues for administrative review. Nevertheless, the Secretary acknowledged that the applications of Diaz and Clara raised no disputed issues of fact and therefore the interlocutory denials of their applications should be treated as final for the purpose of this litigation. Id., 426 U.S., at 72, 96 S.Ct., at 1888.

Cf., Weinberger v. Wiesenfeld, 420 U.S. 636, 641 n. 8, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975). The decisions in Jimenez v. Weinberger, 523 F.2d 689, 695-696, n. 10 (7th Cir. 1975), cert. denied, 427 U.S. 912, 96 S.Ct. 3200, 49 L.Ed.2d 1204 (1976), and Tatum v. Mathews, 541 F.2d 161, 163-164 (6th Cir. 1976), interpret the "final decision" requirement consistent with Eldridge and Salfi as requiring no more than an initial adverse decision. Cf., Ellison v. Califano, 546 F.2d 1162, 1164 (5th Cir. 1977). The plaintiff class herein is defined as including only those persons who have received an explicit decision denying, interrupting or terminating their benefits based solely on the terms of the challenged statute.⁴

A. The Requirements of Rule 23(a) Are Satisfied

Rule 23(a)(1) requires that "the class is so numerous that joinder of all members is impracticable." Defendant Secretary's responses to plaintiff's interrogatories have provided information clearly resolving the "numerosity" issue in favor of class certification. Defend...