Jones v. Sullivan, s. 90-1683

• Decision Date: 05 August 1991
• Docket Number: Nos. 90-1683,90-1976,s. 90-1683
• Citation: 938 F.2d 801
• Parties: Unempl.Ins.Rep. CCH 16381A William JONES, German Poe, Jeanette Poe, by her next friend German Poe, Gloria Coe, Francisco Noe, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services of the United States, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 801

938 F.2d 801

Unempl.Ins.Rep. CCH 16381A

William JONES, German Poe, Jeanette Poe, by her next friend German Poe, Gloria Coe, Francisco Noe, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services of the United States, Defendant-Appellant.

Nos. 90-1683, 90-1976.

United States Court of Appeals Seventh Circuit.

Argued Jan. 17, 1991.

Decided Aug. 5, 1991.

Jeffrey B. Gilbert, Steven Coursey, Alicia Alvarez, JoAnn F. Villasenor, Legal Assistance Foundation of Chicago, Chicago, Ill., for plaintiffs-appellees.

Anton R. Valukas, U.S. Atty., Eileen M. Marutzky, Ira H. Raphaelson, Asst. U.S. Attys., Crim. Div., Chicago, Ill., Stuart M. Gerson, Office of the U.S. Atty. Gen., Barbara C. Biddle, William Kanter, Peter P. Maier, John S. Koppel, Dept. of Justice, Civ. Div., Appellate Section, Felecia L. Chambers, Dept. of Justice, Federal Programs Branch-Civ. Div., Washington, D.C., for defendant-appellant.

Before CUMMINGS, WOOD, Jr., and COFFEY, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

On August 24, 1987, plaintiffs filed an action, for themselves and on behalf of members of a class ¹ against the Secretary of Health and Human Services ("Secretary"), seeking injunctive and declaratory relief. They alleged that the Secretary's "no process" policy of denying applicants new social security account numbers ("SSNs"), duplicate SSN cards, or new SSNs to correct scrambled accounts, without adequate notice or a hearing violated the Social Security Act and the due process clause of the fifth amendment to the Constitution.

The district court dismissed plaintiffs Jeanette Poe and William Jones in its July 1988 class certification order, because their injury was cured before the filing of the complaint. In the order of October 3, 1988, which clarified the class certification order, the court dismissed plaintiff Gloria Coe based on Coe's having received a duplicate SSN card before certification of the class. On August 7, 1989, the district court granted plaintiffs' motion for summary judgment, finding that the Secretary's "no process" policy violated the Social Security Act. The portion of the October 3, 1988 order dismissing Coe as class representative was vacated and Coe was reinstated as a class representative. Plaintiff Francisco Noe was dismissed as a representative plaintiff because of conflicting factual representations by Noe.

The Secretary asserts that the claims of the remaining named plaintiffs, Gloria Coe and German Poe, were moot before certification of the class and that the district court should have dismissed the action. For the reasons that follow, we agree.

I. BACKGROUND

The Secretary administers the social security program pursuant to the Social Security Act ("Act"), 42 U.S.C. Secs. 401 et seq. The Act provides for the assignment of SSNs to qualified individuals for maintenance of accurate wage earnings records in the administration of various social security programs. 42 U.S.C. Sec. 405(c). SSNs may also be used for identification, for administration of any tax, to verify eligibility for public benefits, to obtain drivers licenses, and to show employment authorization. Id. The Act also authorizes the Secretary to promulgate rules and regulations necessary to implement the provisions of the Act. 42 U.S.C. Sec. 405(a). See 20 C.F.R. Secs. 422.101-422.140 (general procedures).

Each eligible worker who applies is to be assigned an SSN and a card to verify the SSN. 42 U.S.C. Sec. 405(c)(2)(B)(i) & (D). Duplicate or replacement SSN cards may be issued to an individual who has lost his or her card. An individual's eligibility may be determined by "such evidence as may be necessary to establish the age, citizenship, or alien status, and true identity of such applicants, and to determine which (if any) social security account number has previously been assigned to such individual." 42 U.S.C. Sec. 405(c)(2)(B)(ii). See 20 C.F.R. Secs. 422.103, 422.107. ² The Secretary will not assign a social security number, or issue a duplicate or corrected card "unless all of the evidence requirements are met." 20 C.F.R. Sec. 422.107(a).

Plaintiffs allege that the Secretary's policy regarding the issuance of SSNs and duplicate cards fails to provide adequate notice of denial, or opportunity to contest the Secretary's decision when applicants' requests are denied. Plaintiffs label this practice the "no process" policy and contend that it violates the Act and the due process clause of the fifth amendment. ³

The district court certified the case as a class action on July 21, 1988. On August 2, 1988, the district court rejected plaintiffs' motion for preliminary injunction and denied defendant's motion to dismiss (Jones v. Bowen, 692 F.Supp. 887 (N.D.Ill.1988)). In an October 3, 1988 clarification of the class certification order, the district court amended the class certification order to include only those individuals within the class who had not obtained original SSNs, new SSNs or duplicate SSN cards as of July 21, 1988.

On August 7, 1989, the district court granted summary judgment for the plaintiffs, holding that the Secretary's failure to provide notice and an opportunity to contest denials of SSNs, violated the Act. On January 31, 1990, the district court issued the final judgment order instructing the Secretary to provide full administrative review procedures for SSN refusals. ⁴

The named plaintiffs remaining in the district court's final decision, and those with whom we are concerned in this appeal, are German Poe and Gloria Coe. Both Poe and Coe are aliens. Poe resided in the United States as an immigrant covered by an unrevoked Silva letter ⁵ until 1987, at which time he applied for amnesty under the Immigration Reform and Control Act of 1986 ("IRCA"). ⁶ On September 23, 1987, Poe received his temporary residence card under IRCA. Pursuant to his new status under IRCA, Poe applied for and received a new SSN in September 1987. Coe also applied for amnesty under IRCA and was approved as a temporary resident. Coe received a duplicate SSN card in October 1987.

Poe sought a new SSN to correct problems he experienced due to a scrambled earnings account. Scrambled earnings are wages earned by one individual that are incorrectly attributed to another individual's account.

In 1985, Poe received notice from the Internal Revenue Service ("IRS") informing him of underpayment of his taxes. The wages upon which this notice was based actually were earned by another person using Poe's SSN (issued to Poe in 1975) without authorization. Poe took the IRS notice to the Social Security Administration ("SSA") office. SSA investigated the problem, and corrected Poe's account for the years 1978, 1980, 1981 and 1982. SSA deleted from Poe's account the earnings by the unauthorized user. Poe requested a new SSN in order to prevent a recurrence of this problem, but SSA orally denied the request. ⁷ Poe claims that he received another IRS notice in 1986 regarding underpayment of taxes in 1984, and that he presented the problem to SSA in February 1986. SSA has no record of this action taken by Poe.

In May and December of 1985, Poe's dependents had food stamps and medical cards improperly terminated because the Illinois Department of Public Aid incorrectly assumed that Poe was working. This matter was corrected after intervention by Poe's attorney. In 1986, Poe applied for unemployment compensation benefits, but those payments were delayed when a computer check resulted in the discovery that Poe's SSN was being used by another worker. The Illinois Department of Employment Security investigated the matter and, after determining that the worker was not Poe, awarded Poe the benefits due to him.

Poe alleges that his 1985 request for a new SSN to correct a scrambled earnings discrepancy was denied without adequate procedural protections, and that with those procedures, he would have proven his right to a new SSN. The complaint stated "[w]ere Mr. Poe provided with a hearing, Mr. Poe would present evidence as to his identity and of the SSN previously assigned solely to him thereby entitling him to a scrambled account number." Regarding Coe, plaintiffs argued in the complaint, "[w]ere Ms. Coe provided a hearing by the SSA, Ms. Coe would present evidence as to her identity and eligibility for a SSN."

Poe did receive a new SSN in 1987, and the prior scrambled account problems were solved before the filing of the complaint. At oral argument, counsel for plaintiffs conceded that Poe has had no problem with a scrambled account since SSA and the state agency corrected his earlier troubles. Coe received her requested duplicate SSN card in October 1987. Thus, before filing for class certification in May 1988 and before the district court certified the class in July 1988, named plaintiffs Poe and Coe obtained the new SSN and duplicate SSN card they were seeking when they filed the complaint against the Secretary.

II. ANALYSIS

The Secretary argues that because Poe and Coe received the requested new SSN and duplicate SSN card before the certification of the class and before plaintiffs filed for class certification, no "case" or "controversy" exists and the claims are moot. ⁸ The district court order of October 3, 1988 limited the class to persons who had not received an original SSN, new SSN or duplicate SSN card as of July 21, 1988. In granting plaintiffs' motion for summary judgment, the district court held, however, that despite this limitation on the class, the claims of Poe and Coe were not moot because their claims were "capable of repetition, yet evading review." ⁹

Article III of the Constitution requires that an actual "case" or "controversy" must exist, "not only at the date the action is initiated, but at every stage of the trial and appellate proceedings." Foster v. Center Township of LaPorte County, 798 F.2d 237, 245 (7th Cir.1986)....