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MORRELL v. HARRIS

January 26, 1981

Shirley MORRELL, Dorothy Scott, on behalf of themselves and all others similarly situated
v.
Patricia Roberts HARRIS,1 Secretary of HEW.



The opinion of the court was delivered by: LORD, III

I. Introduction

This proposed class action challenges the defendant's policy on cost-of-living increases in Supplemental Security Income (SSI) benefits. Defendant does not apply the automatic cost-of-living increase provided by law to the disputed benefit amounts SSI recipients receive pending hearings on proposed reductions, suspensions, or terminations of their benefits.

 In 1974, the Social Security Act was amended to provide automatic cost-of-living increases in SSI benefit amounts. 42 U.S.C. § 1382f. Under section 1382f SSI benefits are automatically increased whenever Federal Old Age, Survivors, and Disability Insurance (Title II) benefits are increased for cost-of-living. Under the defendant's policy, as set forth in the SSI Claims Manual, SSI recipients receiving benefits pending a hearing do not receive a cost-of-living increase on the disputed amount of their benefits. Social Security Administration Claims Manual P 13331(a) (1977).

 On July 1, 1980, defendant authorized a cost-of-living increase in SSI benefits. Morrell did not receive this increase, for she was awaiting her hearing at that time. She filed this law suit to challenge defendant's policy against applying a cost-of-living increase to disputed benefit amounts received pending hearings. Morrell seeks to represent the class of similarly situated SSI recipients who receive benefits pending hearings but who do not receive cost-of-living increases. I will discuss the motion for a class certification in part IV of this opinion. Plaintiff also seeks a preliminary injunction, see part IV, infra. Defendant moves to dismiss on the basis of mootness, see part II, infra, and lack of subject matter jurisdiction, see part III, infra.

 II. Mootness

 Morrell had a hearing on the issue of her continued disability and received a favorable determination in September 1980. As a result, she became entitled to the cost-of-living increase retroactive to July 1, 1980. It is unclear from the pleadings whether her benefit checks in fact have been increased. Defendant argues that her claim is moot since Morrell has become entitled to the entire cost-of-living increase.

 Ordinarily, once a plaintiff obtains the relief sought, the controversy no longer exists. The case is moot. There is an exception, however, where the issue presented is capable of repetition yet evades review. Moore v. Ogilvie, 394 U.S. 814, 89 S. Ct. 1493, 23 L. Ed. 2d 1 (1969). In an individual case *fn2" , the "capable of repetition yet evading review" doctrine applies where two elements are present: "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Weinstein v. Bradford, 423 U.S. 147, 149, 96 S. Ct. 347, 349, 46 L. Ed. 2d 350 (1975).

 This doctrine applies to Morrell's claim. She seeks more than simply the retroactive payments of the cost-of-living increase to which she has now become entitled. She challenges defendant's stated policy which deprives SSI recipients of the increase in benefits for the period of time, here over two months, between the effective date of a cost-of-living increase and the date of receipt of the increase retroactively following a favorable hearing decision. It is highly unlikely that a constitutional and statutory challenge to this policy could be fully litigated in the relatively short time that the policy is directly applied to any one individual.

 The second element of the doctrine is also present here. Section 1382f requires the Secretary to apply a cost-of-living increase to SSI benefit amounts whenever benefit levels of Federal Old Age, Survivors, and Disability Insurance (Title II) benefits are increased for cost-of-living. Under 42 U.S.C. § 415(i), those increases are determined by a formula dependent on evaluations of the Consumer Price Index. *fn3" In short, a cost-of-living increase is mandated where the Consumer Price Index is three percent higher than the Consumer Price Index of approximately a year earlier. Present inflation rates are such that there is a "reasonable expectation" that the Consumer Price Index will increase in the future by percentages high enough to mandate a cost-of-living increase for Title II recipients, and thus for SSI recipients as well.

 There is also a "reasonable expectation" that Morrell will be subject again to the same deprivation she challenges here. The Social Security Administration can and does review the status of SSI disability recipients to determine their continued eligibility for SSI. Morrell faced such a review last year at the time the cost-of-living increase went into effect. Congress has amended the Social Security Act to require, effective in 1982, review of continued eligibility at least once every three years for recipients with non-permanent disabilities, and when appropriate, for recipients with permanent disabilities. Social Security Disability Amendments of 1980, Pub.L.No.96-265, § 311, 94 Stat. 441 (1980). It is thus reasonable to expect that Morrell, who has a psychiatric disability, may again be deprived of a future cost-of-living increase on benefits she is receiving pending a review of her continued eligibility. Cf. Phelps v. Harris, 86 F.R.D. 506 (D.Conn.1980) (medicare insurance claims case; defendant's burden to show allegations of future harm illusory not met where alleged wrongful behavior not reasonably expected to reoccur).

 III. Subject Matter Jurisdiction

 Defendant has moved to dismiss this action for lack of subject matter jurisdiction. The Social Security Act contains its own jurisdictional provision, 42 U.S.C. § 405(g), which is "(t)he only avenue for judicial review" of the defendant's decisions. Mathews v. Eldridge, 424 U.S. 319, 327, 96 S. Ct. 893, 899, 47 L. Ed. 2d 18 (1976). Section 405(g) requires a plaintiff to present the claim to the Secretary and obtain from him a final decision on the claim as a prerequisite to court jurisdiction. Weinberger v. Salfi, 422 U.S. 749, 95 S. Ct. 2457, 45 L. Ed. 2d 522 (1975). The presentation requirement can not be waived. Id. However full exhaustion of the ...


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