Kiedos v. Apfel, Civ.A. 97-30149-MAP.

• Decision Date: 23 March 1999
• Docket Number: No. Civ.A. 97-30149-MAP.,Civ.A. 97-30149-MAP.
• Citation: 45 F.Supp.2d 80
• Parties: Dorota KIEDOS, Luisa Mejia, Xiomara Cruz, Individually and on Behalf of all Others Similarly Situated, Plaintiffs, v. Kenneth APFEL, Commissioner, Social Security Administration, Defendant.
• Court: U.S. District Court — District of Massachusetts

45 F.Supp.2d 80

Dorota KIEDOS, Luisa Mejia, Xiomara Cruz, Individually and on Behalf of all Others Similarly Situated, Plaintiffs, v. Kenneth APFEL, Commissioner, Social Security Administration, Defendant.

No. Civ.A. 97-30149-MAP.

United States District Court, D. Massachusetts.

March 23, 1999.

COPYRIGHT MATERIAL OMITTED

Ray Cebula, Disability Law Center, Boston, MA, Ethel Zelenske, National Senior Citizens Law Center, Washington, DC, for plaintiffs.

Richard G. Lepley, Pamela J. Aronson, Dept. of Justice, Federal Programs Branch, Washington, DC, for defendant.

ORDER

PONSOR, District Judge.

Upon de novo review this Report and Recommendation is hereby adopted, without objection. The motions to dismiss are allowed.

REPORT AND RECOMMENDATION REGARDING DEFENDANT'S MOTION TO DISMISS (Docket No. 20) and DEFENDANT'S RENEWED MOTION TO DISMISS FIRST AMENDED COMPLAINT (Docket No. 26)

NEIMAN, United States Magistrate Judge.

Defendant Kenneth Apfel, Commissioner of the Social Security Administration ("Defendant"), claims that Plaintiffs' complaints are moot due to intervening legislation and the voluntary cessation of the challenged policy. In response, Plaintiffs Dorothy Kiedos, Luisa Mejia and Xiomara Cruz, all of whom had been denied Supplemental Security Income (SSI) due to their alien immigrant status, assert that Defendant's changed policy has not completely eradicated the deleterious effects of the challenged policy.

Defendant's original motion to dismiss, as well as his renewed motion, have been referred to the court for a report and recommendation pursuant to Rule 3 of the Rules for United States Magistrates for the United States District Court for the District of Massachusetts. See 28 U.S.C. § 636(b)(1)(A). For the reasons which follow, the court recommends that Defendant's motions to dismiss be allowed.

I. STANDARD OF REVIEW

When confronted with a motion to dismiss pursuant to Rule 12(b)(6), a court is required to view the facts as presented in the pleadings, and all reasonable inferences to be drawn therefrom, in a light most favorable to the non-moving party. See Acadia Motors, Inc. v. Ford Motor Co., 44 F.3d 1050, 1055 (1st Cir.1995). A dismissal for failure to state a claim is appropriate only if it appears, according to the facts alleged, that the claimant cannot recover on any viable theory. Rumford Pharmacy, Inc. v. City of East Providence, 970 F.2d 996, 998 (1st Cir.1992). "[T]he issue is not whether plaintiffs will ultimately prevail, but whether they are entitled to offer evidence to support their claims." Day v. Fallon Comm. Health Plan, Inc., 917 F.Supp. 72, 75 (D.Mass. 1996). See also Vartanian v. Monsanto Co., 14 F.3d 697, 700 (1st Cir.1994). However, a court "need not credit bald assertions, periphrastic circumlocutions, unsubstantiated conclusions, or outright vituperation." Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir. 1990).

II. FACTUAL AND LEGAL BACKGROUND

Plaintiffs filed this action to challenge Defendant's implementation of the Personal Responsibility and Work Opportunity Act of 1996, Pub.L. No. 104-193, ("1996 Welfare Act"), enacted August 22, 1996. The 1996 Welfare Act significantly limited SSI eligibility for certain noncitizen residents of the United States. In particular, Plaintiffs challenged Defendant's policy of applying the 1996 Welfare Act to SSI applications pending on its effective date April 22, 1996. Thus, SSI claimants, who would have been eligible under pre-existing alien status rules, would nonetheless be found ineligible.

On August 5, 1997, the Balanced Budget Act of 1997, Pub.L. No. 105-33 ("BBA"), was signed by the President, the provisions of which significantly altered SSI eligibility criteria for noncitizens. In effect, the BBA eliminated the challenged barriers to Plaintiffs' eligibility for SSI. The BBA changes were effective as if they had been included in the 1996 Welfare Act. On October 20, 1997, Defendant issued instructions to be included in the Social Security Administration's Program Operations Manual System ("POMS") in order to implement the BBA.

On October 24, 1997, Plaintiffs filed their First Amended Complaint adding claims challenging Defendant's failure to implement those provisions of the BBA relevant to their SSI claims. Specifically, Plaintiffs alleged that Defendant had failed to implement the BBA provisions which repealed and changed the 1996 Welfare Act eligibility criteria used to deny their claims. This failure, Plaintiffs alleged, was a violation of Defendant's obligation to carry out the plain language of the BBA and the express purposes of the SSI program.

The POMS instructions were followed by the Declaration of Caroline Lott, dated December 3, 1997. (Def.Mem.Supp.Mot. Dismiss (Docket No. 20) Exh. 1.) This Declaration, which was appended to Defendant's original motion to dismiss, required that SSI applications filed before August 22, 1996, be readjudicated. The Declaration also provided information as to how individuals would be contacted and their applications reprocessed. Specifically, lists of affected claimants, prototype notice language and processing instructions would be sent to local offices of the Social Security Administration ("SSA"). (Lott Decl. ¶ 6.) Local SSA offices then would issue notices to the individual claimants informing them of the decision to allow them to have their applications read-judicated. The Declaration also described SSA's goal of issuing formal instructions by November 30, 1997, and stated that "SSA will engage in a vigorous public information campaign to ensure that the public is aware of this" change in policy. (Id. ¶ 8.)

In fact, the formal instructions were not issued until December 18, 1997, when Defendant disseminated Emergency Teletype EM-97-207 ("Teletype"). The Teletype provided an explanation of the process Defendant would use to send lists of affected individuals, including the Plaintiff class, to local SSA offices. The Teletype also detailed the notification procedure to be used to locate and contact individuals in order to readjudicate their claims. Individuals who had pending appeals, however, would not receive these letters. (EM 97-207, § B.1.) Similarly, individuals who were in current pay status, but who had previous periods of ineligibility due to Defendant's renounced policy, would not receive letters until the claim had been reviewed by the local SSA. (Def.Mem.Supp. Renewed Mot. Dismiss (Docket No. 27) Exh. 2, EM-97-207, § C.1.)

After these latter two groups of claimants were isolated, local SSA offices were to send a "come in" letter to each individual who had filed an application prior to August 22, 1996. The letter would inform the claimant of the change in policy and the readjudication procedure, (EM-97-207 § B.1), and would be accompanied by a foreign language insert that instructed the recipient to have the English language letter translated, if necessary. Individuals were allowed a thirty day period to respond. (EM-97-207 § C.2.)

After fifteen days from the date of the "come in" letter, local SSA offices were to send follow up letters to nonresponding individuals. The follow up letter was essentially a copy of the original letter. (EM-97-207 § C.3.) Claims of individuals who did not respond within the thirty day period were to be placed in "close out" status. The procedure however, required local SSA offices to take extraordinary steps before closing an individual's file, including "all possible efforts" to secure needed information. (Id. § C.4.)¹

A Second Declaration of Caroline Lott, appended to Defendant's renewed motion to dismiss, indicated that Defendant had issued the lists of affected claimants to the local SSA offices and that the offices had begun the process of sending initial "come in" letters. (Def.Mem.Supp. Renewed Mot. Exhib. 1, Second Lott Decl. ¶ 7.)

III. DISCUSSION

In his motions to dismiss, Defendant argues that Plaintiffs' case is moot because he has voluntarily ceased any challenged conduct. In particular, Defendant points to the BBA, the POMS, the Teletype and other policy statements which provide Plaintiffs with all relief to which they would be otherwise entitled if successful on the merits of their claims. In response, Plaintiffs assert that their claims are not moot and that Defendant's reliance on the voluntary cessation principle is misplaced.

"[F]ederal courts are without power to decide questions that cannot affect the rights of litigants in the case before them." North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971). "The inability of the federal judiciary to review moot cases derives from the requirement of Article III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy." DeFunis v. Odegaard, 416 U.S. 312, 316, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974) (internal quotations and citation omitted). As the Supreme Court has explained, "no justiciable controversy is presented ... when the parties are asking for an advisory opinion, [or] when the question sought to be adjudicated has been mooted by subsequent developments ..." Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968).

A case is not moot, however, if the issues presented are "live" or if the parties retain a "legally cognizable interest in the outcome." Knight v. Mills, 836 F.2d 659, 670 (1st Cir.1987) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)). Even the "voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot." United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953). See Nunez-Soto v. Alvarado, 956 F.2d 1, 3 (1st Cir.1992); Boston Teachers Union, Local 66 v. Edgar, 787 F.2d 12, 16 (1st Cir.1986). "This rule is derived from the notion that a challenged practice or policy might...