that the Secretary owes plaintiff a constitutional duty which is so positively commanded as to be devoid of judgment or discretion will support jurisdiction under Section 1361. We must, therefore, proceed to an analysis of the due process issue.
The Due Process Issue
The requirements of procedural due process apply only to the deprivation of interests encompassed within the Fifth and Fourteenth Amendments' protection of liberty and property. Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). Thus, the threshold question presented is whether the nature of plaintiff's asserted property interest is within the range of interests protected by the Due Process Clause of the Fifth Amendment. Initially, we note that plaintiff does not claim a property interest in the amount of the overpayment nor does she challenge the Secretary's right to recoup an overpayment by means of a civil suit.
We are concerned solely with the monthly social security benefits to which plaintiff is entitled pursuant to 42 U.S.C. § 402(e) (1) (B) (ii). Plaintiff was found qualified by the Social Security Administration to receive disabled widow's insurance benefits on the social security record of her deceased husband. As long as she continues to satisfy the statutory requirements of the Act, plaintiff is entitled to receive benefits pursuant thereto. Plaintiff's property interest in her monthly benefits amounts to a statutory entitlement and, therefore, constitutes a property interest protected by the Due Process Clause of the Constitution.
The basic principles of due process are well established: Parties whose rights are affected are entitled to be heard; and in order that they may enjoy that right they must first be notified. Fuentes v. Shevin, 407 U.S. 67, 32 L. Ed. 2d 556, 92 S. Ct. 1983 (1972). It is equally fundamental that the right to notice and an opportunity to be heard "must be granted at a meaningful time and in a meaningful manner". Fuentes v. Shevin, supra, at 80; Armstrong v. Manzo, 380 U.S. 545, 552, 14 L. Ed. 2d 62, 85 S. Ct. 1187 (1965). In the instant case, the regulations permit the adjustment of benefits following the summary reconsideration decision on the question of waiver, and they permit the implementation of the adjustment prior to an evidentiary hearing before an administrative law judge. To the extent that the regulations fail to provide an opportunity for evidentiary hearing before an administrative law judge prior to the reduction of benefits, we conclude that the procedure utilized to recoup over-payments is constitutionally deficient in that it fails to provide an evidentiary hearing "at a meaningful time." Plaintiff's benefits are a matter of statutory entitlement and may not be terminated, reduced or otherwise adjusted absent an opportunity for a prior hearing. Goldberg v. Kelly, 397 U.S. 254, 25 L. Ed. 2d 287, 90 S. Ct. 1011 (1970).
The Secretary argues that Goldberg v. Kelly, supra, and its progeny are inapplicable to Title II of the Act and asserts several reasons in support of his argument. First, the Secretary contends that Goldberg and Sniadach v. Family Finance Corp., 395 U.S. 337, 23 L. Ed. 2d 349, 89 S. Ct. 1820 (1969) are distinguishable from cases arising under Title II in that the decisions in Goldberg (termination of welfare benefits) and Sniadach (garnishment of wages) were based on need. Under Title II, the question whether one is entitled to benefits has nothing to do with one's financial situation or need. Goldberg and Sniadach, however, merely emphasized the special importance of welfare benefits and wages, and they did not carve out a rule of necessity. Fuentes v. Shevin, supra, at 89. The Court in Fuentes clearly rejected the narrow interpretation that the Secretary urges us to adopt, holding:
". . . Both decisions were in the mainstream of past cases, having little or nothing to do with the absolute 'necessities' of life but establishing that due process requires an opportunity for a hearing before a deprivation of property takes effect." (citations omitted) 407 U.S. at 88.
It is, therefore, apparent that under the present law need or necessity do not constitute the sine qua non upon which the right to procedural due process is founded.
Secondly, the Secretary argues that the weight of judicial authority supports his position that Goldberg is inapplicable to cases arising under Title II. In Richardson v. Wright, 405 U.S. 208, 31 L. Ed. 2d 151, 92 S. Ct. 788, rehearing denied, 405 U.S. 1033, 92 S. Ct. 1274, 31 L. Ed. 2d 490 (1972), the Supreme Court was faced squarely with the question whether Goldberg applied to cases arising under the Act. In the light of new regulations adopted by the Secretary, the Court remanded the case for reconsideration under the new regulations. The Secretary relies on Wright for the proposition that an evidentiary hearing is not a per se requirement prior to the adjustment of social security benefits in order to recoup an over-payment. We believe that the Secretary is reading too much into that decision, but it is significant in that all cases decided subsequent thereto were based on the new regulations adopted by the Secretary. The Secretary also relies on Anderson v. Finch, 322 F. Supp. 195 (N.D. Ohio 1971), remanded, 454 F.2d 596 (6th Cir. 1972) and Messer v. Finch, 314 F. Supp. 511 (E.D. Ky. 1970), judgment vacated for mootness, 400 U.S. 987, 91 S. Ct. 455, 27 L. Ed. 2d 435 (1971), in support of his argument. These cases, however, were decided prior to Fuentes, and since Fuentes, the weight of judicial authority establishes that procedural due process requires an evidentiary hearing prior to termination or adjustment of social security benefits. Elliott v. Weinberger, 371 F. Supp. 960, 42 U.S.L.W. 2442 (D. Hawaii 1974), (hearing required prior to adjustment of social security benefits in order to recoup an over-payment); Eldridge v. Weinberger, 361 F. Supp. 520 (W.D. Va. 1973) (hearing required prior to termination of social security benefits); Williams v. Weinberger, 360 F. Supp. 1349 (W.D. Ga. 1973) (hearing required prior to termination of social security benefits). But see Jarbo v. Weinberger, [*] F. Supp. [*], (W.D. Wash. November 14, 1973).
Finally, the Secretary argues that a pre-recoupment trial type hearing would impose an insuperable burden upon the Title II program. In support of this argument, the Secretary notes that in 1970 there were 1,250,000 over-payment cases and alludes to the financial and administrative burden involved. Such burden cannot override plaintiff's manifest due process right to a prior hearing. The Supreme Court in Goldberg and Fuentes has specifically rejected this argument where a hearing is clearly required by the Due Process Clause. Moreover, the Court in Eldridge v. Weinberger, supra, at 525-527, specifically rejected this argument in the context of a social security case. See also Richardson v. Wright, supra, at 223-226 (Brennan, J., dissenting); Elliot v. Weinberger, supra. A prior hearing always imposes some costs in time, effort and expense, but these costs cannot outweigh the constitutional right to such a hearing. Fuentes v. Shevin, supra, at 90 n. 22.
We conclude that the Secretary owes plaintiff a constitutional duty to afford an opportunity for an evidentiary hearing prior to the adjustment of social security benefits in order to recoup an overpayment. This duty, arising out of the Due Process Clause of the Fifth Amendment, is so positively commanded by the cases construing that amendment as to be free from doubt. Accordingly, our conclusion in this respect supports our jurisdiction under the mandamus statute, 28 U.S.C. § 1361.
Once it is determined that the protection of due process applies, the next consideration is what due process safeguards are required. It is at this point that due process is flexible to the extent that only such procedural protection is required as a particular situation demands. Morrissey v. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972). Consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the governmental function involved as well as the private interest that has been affected by governmental action. Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 6 L. Ed. 2d 1230, 81 S. Ct. 1743 (1961). In balancing the interest of the respective parties, we now become more sensitive to defendant's argument of administrative burden. Plaintiff does not seek to have us impose the full panoply of procedural safeguards upon the Secretary, rather she seeks only an opportunity to present her case at a hearing prior to any adjustment of her benefits. Accordingly, our consideration of this case will be so limited. We hold that a recipient of social security benefits is entitled by the Due Process Clause of the Fifth Amendment to an opportunity to a hearing prior to the adjustment of his social security benefits in order to recoup an over-payment. The recipient must be accorded notice of his right to a hearing in a conspicuous manner and given sufficient time to exercise this right. We do not hold that a hearing must be held in every case, in that a voluntary, intelligent and knowing waiver of the right may obviate the need for a hearing. This, of course, presupposes adequate notice of the right to a hearing. Moreover, we see no reason why the opportunity for a hearing cannot be afforded within the present procedural framework of the Social Security Administration. The procedures followed in a general determination of qualification to Title II benefits as followed in this case need not be varied except to suspend the implementation of the adjustment of benefits until an opportunity for a hearing is afforded.
For the foregoing reasons, defendant's motion for summary judgment will be denied and plaintiff's motion for summary judgment will be granted.
AND NOW, this 30th day of April, 1974, IT IS ORDERED that:
1. defendant's motion to dismiss the complaint for lack of jurisdiction is DENIED;
2. plaintiff's motion for a class action determination is GRANTED; the class consisting of all persons eligible for Social Security OASDI benefits within the counties encompassed by the Eastern District of Pennsylvania, whose benefits may be terminated, reduced or otherwise adjusted in order to recoup an over-payment;
3. plaintiff's motion for the convening of a three-judge court is DENIED;
4. defendant's motion for summary judgment is DENIED; and
5. plaintiff's motion for summary judgment is GRANTED.