an agency policy applied to all recipients, as opposed to making a claim unique to his or her individual situation, full individual exhaustion is not required. For example, in Eldridge, the Court held that "it is unrealistic to expect that the Secretary would consider substantial changes in the current administrative review system at the behest of a single aid recipient ...." Id. at 330, 96 S. Ct. at 900. It would be similarly unrealistic to think that the Secretary would change an agency-wide policy applied to all recipients at the behest of a single claimant.
The Secretary's decision on cost-of-living increases has been made. The challenged policy is clearly set forth in the Claims Manual. The cost-of-living increase involves no individual determination of need it applies automatically to all SSI recipients except those awaiting hearings. It is not significant that the challenge is to a policy which is within the Secretary's authority to change rather than to a statute over which the Secretary has no control. Id. at 330, 96 S. Ct. at 900. Liberty Alliance for the Blind v. Califano, 568 F.2d 333 (3d Cir. 1977). Although the Secretary apparently could change this policy on his own, it is unrealistic to expect that he would do so as a result of administrative review efforts by an individual plaintiff.
The question of whether a sufficiently final decision has been made for section 405(g) purposes is usually one for the Secretary. The court, however, may "make its own judgment as to whether the needs of the administrative process (have) been satisfied," especially where the plaintiff raises "at least a colorable claim that because of his physical condition and dependency upon the disability benefits, an erroneous (reduction) would damage him in a way not recompensable through retroactive payments." Liberty Alliance for the Blind v. Califano, 568 F.2d at 345, quoting Mathews v. Eldridge, 424 U.S. at 331, 96 S. Ct. at 900.
Plaintiff here claims that her sole source of income is SSI and that she is totally disabled. SSI provides a bare subsistence level of support. See S.Rep.No.92-1230, 92 Cong., 2d Sess., 383, 384 (1972). Cost-of-living increases are mandated by law to maintain that bare subsistence level in the face of current high inflation rates. It follows that if the cost-of-living increase is denied, the payments inevitably fall below the current subsistence level. It is not clear how long SSI recipients wait for eligibility hearings but it appears from the pleadings to be a substantial amount of time. Morrell waited over eight months for a decision on her eligibility. If a claimant is found not disabled at a hearing, the Social Security Administration can attempt to recoup the money paid her pending the hearing. 20 C.F.R. § 416.501 et seq. If the claimant is disabled, denial of the cost-of-living increase could indeed cause irreparable harm. "It is simply not true that a claimant for disability benefits, not infrequently in dire financial circumstances due to his disability, is truly made whole by retroactive payments which he has had to survive (long periods of time) without." Caswell v. Califano, 583 F.2d 9, 14 (1st Cir. 1978). Deference to agency judgment as to the need for full exhaustion is therefore inappropriate in such a case. Mathews v. Eldridge, 424 U.S. at 331, 96 S. Ct. at 900.
The defendant argues that plaintiff has not presented her claim within the meaning of section 405(g) since she did not individually request a cost-of-living increase from the agency before filing suit. However, plaintiff's counsel contacted at least three officials of the Philadelphia office of the Social Security Administration about the challenged policy before filing suit. The response was that no cost-of-living increase will be applied to persons receiving benefits pending hearings on proposed reductions, suspensions, and terminations of their benefits. See Attachments to Complaint. In addition, on November 21, 1980, Morrell's counsel wrote to the Secretary of Health and Human Services challenging the policy and specifically requesting that Morrell receive immediate payment of the cost-of-living increase. See Exhibit A, Motion to Intervene, December 3, 1980. Cf. Mathews v. Diaz, 426 U.S. 67, 96 S. Ct. 1883, 48 L. Ed. 2d 478 (1976) (held: plaintiff presented claim, challenge to requirements for alien eligibility for medicare, by filing a medicare application with the Secretary after suit was filed in court).
The presentation requirement of section 405(g) has been construed liberally. In Mathews v. Eldridge, 424 U.S. at 329, 96 S. Ct. at 900, the Supreme Court held that the plaintiff had sufficiently presented his constitutional claim, that he had a right to a hearing before termination of his social security disability insurance benefits, simply by notifying the agency that, contrary to its determination, he was still disabled. His failure to raise the constitutional claim to a pre-termination hearing was not fatal to the court's jurisdiction. In Caswell, the plaintiffs challenged the long delays they endured waiting for hearings on their disability benefit applications. The court held that the claim had been presented to the Secretary by definition since all plaintiffs had filed claims for benefits. See also Ellison v. Califano, 546 F.2d 1162 (5th Cir. 1977) (challenge to SSI rule treating recipient couples as married for six months after separation; claim presented when plaintiff reported separation to agency even though she did not raise constitutional issue or request reconsideration or formal hearing); Tatum v. Mathews, 541 F.2d 161 (6th Cir. 1976) (recipients of state disability benefits presented claim to pre-termination hearing by fact that they were automatically shifted to SSI for one year when SSI program was first enacted); Johnson v. Mathews, 539 F.2d 1111 (8th Cir. 1976).
The purpose of the presentation requirement is to obtain a decision from the agency. The agency has considered and spoken on this issue. Its policy is clear. Where the plaintiff has received an answer, it would be an exercise in futility to require her to return to the agency merely to repeat the question. Such an exercise would not only "be futile for the (recipient), but would also be a commitment of administrative resources unsupported by any administrative or judicial interest." Weinberger v. Salfi, 422 U.S. at 765-766, 95 S. Ct. at 2467. Therefore Morrell's failure to make an individual personal request to the agency for a cost-of-living increase before filing suit does not preclude subject matter jurisdiction.
Defendant also relies on the doctrine of primary jurisdiction to support his motion. This doctrine calls for courts to refer to agencies issues involving "technical questions of fact uniquely within the expertise and experience of an agency." Nader v. Allegheny Airlines, 426 U.S. 290, 304, 96 S. Ct. 1978, 1987, 48 L. Ed. 2d 643 (1976). The claim here is not highly technical. The issue is one of statutory construction of section 1382f. Statutory construction is one of the traditional tasks of the judiciary. Referral to the agency is thus not appropriate in this case.
I will therefore deny the defendant's motion to dismiss for lack of subject matter jurisdiction.
IV. Class Certification
Plaintiff seeks to maintain this action as a class action under Fed.R.Civ.P. 23(a) and (b)(1) and (2). Certification is sought for the class consisting of all persons who continue to receive SSI benefits pending hearings on their continued eligibility for payment and who would receive a cost-of-living increase but for defendant's challenged policy. The Social Security Act does not preclude class actions in social security cases. Califano v. Yamasaki, 442 U.S. 682, 99 S. Ct. 2545, 61 L. Ed. 2d 176 (1979). Class certification and relief are especially apt where a case turns on "questions of law applicable in the same manner to each member of the class." Id. at 701, 99 S. Ct. at 2557. Certification of a nationwide class, as is sought here, is acceptable where such certification will not improperly interfere with litigation of similar issues in other judicial districts. Id. at 702, 99 S. Ct. at 2558. No similar litigation in other judicial districts has been brought to my attention.
Defendant argues that a nationwide class should not be certified because litigation of the suit by a national class would prevent evaluation of the policy by different courts in different factual contexts. This argument is specious. The issue here is whether defendant's national policy on cost-of-living increases violates the Constitution, the Social Security Act and/or the regulations promulgated thereunder. No individual factual determinations are involved.
There is no question that most of the requirements of rule 23 are met in this case. The validity of defendant's policy is a question of law common to the entire class, rule 23(a)(2). Morrell sought the cost-of-living increase and was denied it because of defendant's policy; her claim is typical of those of the class, rule 23(a)(3). Defendant does not contest her ability to protect fairly and adequately the interests of the class, rule 23(a)(4). Defendant's policy is applied nationwide to all SSI recipients. He has thus acted on grounds generally applicable to the class, thereby making appropriate final injunctive and declaratory relief with respect to the class as a whole, rule 23(b)(2).
The only issue is whether plaintiff has complied with the prerequisite of numerosity set forth in rule 23(a)(1). Under Yamasaki each member of a proposed class must satisfy the presentation requirement of section 405(g). This requirement has not been satisfied; therefore I will not certify the class at this time. Instead, I will allow discovery on the number of recipients who presented the issue of their eligibility for the cost-of-living increase to the Secretary.
On December 11, 1980, Marie Nastri moved to intervene as a plaintiff. Because of the unusual sequence of events present in her case, I find her intervention into this lawsuit would add nothing but confusion. Therefore I will deny her motion.
On December 3, 1980, Betty Osborne and John Hall moved to intervene as plaintiffs. Osborne and Hall are both residents of Washington state. If, through discovery, Morrell demonstrates that the proposed class meets the numerosity requirement of rule 23(a)(1), it may be desirable to grant the motion of Hall and Osborne to intervene as representatives of SSI recipients in other parts of the country. I will defer ruling on the motion to intervene until the class certification issue is resolved.