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PAGE v. SCHWEIKER

September 2, 1983

Helen M. PAGE, on behalf of herself and all others similarly situated, Plaintiffs,
v.
Richard S. SCHWEIKER,1 Secretary of Health and Human Services, Defendant



The opinion of the court was delivered by: CALDWELL

 CALDWELL, District Judge.

 Before us for disposition is defendant's motion to dismiss or, alternatively, for summary judgment. For the reasons discussed hereinafter, the motion is denied.

 I. Background

 On October 27, 1982, plaintiff filed her complaint against the Secretary of Health and Human Services challenging the procedure utilized by the Social Security Administration (SSA) to recoup purported overpayments from Supplemental Security Income (SSI) beneficiaries. *fn2" Plaintiff sought to bring a class action on behalf of "every SSI beneficiary within the Commonwealth of Pennsylvania who has requested a waiver of an alleged SSI overpayment and who has not or will not be given a face to face meeting/hearing prior to the institution of recoupment procedures by the SSA." Complaint at para. 2.

 Pursuant to section 1631(b)(1) of the Social Security Act, 42 U.S.C. § 1383(b)(1), erroneous overpayments to beneficiaries may be recouped by the government. Plaintiff was found eligible for SSI benefits on December 3, 1981, and on or about July 21, 1982, she received a notice of overpayment. On or about July 29, 1982, plaintiff requested a waiver of the planned recoupment and completed an "Overpayment Recovery Questionnaire" in which she indicated that she had not understood that she needed to report changes in her widow's benefits from the Veterans' Administration (VA) and that this requirement had not been explained to her. *fn3" She further listed her monthly income as totalling $329.90 from a $32.40 SSI payment and $297.50 in VA benefits. Her usual household expenses consisted of $50.00 (excluding food stamps) for food, $65.00 for utilities, $35.00 for life insurance, and $5.40 for another insurance payment. Plaintiff calculated the total to be $205.40, but a review of the figures indicates that the correct total was $155.40.

 A notice from the SSA dated September 1, 1982, indicated that plaintiff was not "without fault" with respect to the overpayment and that recoupment would commence on October 1, 1982. That notice gave plaintiff a choice of three courses of action pursuant to 20 C.F.R. § 416.1413. These are case review, informal conference, or formal conference. It appears from the record that plaintiff's counsel on September 14, 1982, orally requested reconsideration and that no specific form of review was scheduled. *fn4" On September 28, 1982, plaintiff was notified that her reconsideration request was denied and that recoupment would begin on November 1, 1982. Following that decision, the present action was filed. *fn5"

 II. The Standing and Mootness Issues

 Defendant has alleged the existence of two obstacles that plaintiff must overcome before the merits of her case are properly before us. *fn6" One of these is standing and the other is mootness. Standing, as both parties recognize, is the "threshold question in every federal case, determining the power of the court to entertain the suit." Warth v. Seldin, 422 U.S. 490, 498-99, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975).

 A recent comprehensive discussion of standing is found in Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 102 S. Ct. 752, 70 L. Ed. 2d 700 (1982). In that case the Court focused on Article III § 2, clause 1 of the Constitution and its restriction of the federal judicial power to the resolution of "cases" and "controversies" and stated,

 
At an irreducible minimum, Art III requires the party who invokes the court's authority to "show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant," Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 60 L Ed 2d 66, 99 S Ct 1601 [1608](1979), and that the injury "fairly can be traced to the challenged action" and "is likely to be redressed by a favorable decision," Simon v Eastern Kentucky Welfare Rights Org. 426 U.S. 26, 38, 41, 48 L Ed 2d 450, 96 S Ct 1917 [1924](1976). [footnote omitted]

 Id. 454 U.S. at 472, 102 S. Ct. at 758, 70 L. Ed. 2d at 709. In construing this language, however, we are mindful of the warning that too little attention has been paid "to guard[ing] against the possibility that judges will use standing to slam the courthouse door against plaintiffs who are entitled to full consideration of their claims on the merits." Barlow v. Collins, 397 U.S. 159, 178, 90 S. Ct. 832, 844, 25 L. Ed. 2d 192, 206 (1970) (Brennan, J., concurring in the result and dissenting). See also Valley Forge, supra, 454 U.S. at 490, 102 S. Ct. at 768, 70 L. Ed. 2d at 721 (Brennan, J., dissenting). Also of interest to us in reaching our present conclusions is the decision in O'Shea v. Littleton, 414 U.S. 488, 94 S. Ct. 669, 38 L. Ed. 2d 674 (1974), wherein the Supreme Court found that nineteen named individuals who sought to bring a civil rights class action did not have standing. In so concluding, the court noted that the complaint stated no real or immediate injury or threat of injury but rather indicated generally a continuing pattern of prohibited conduct by defendants. The court conceded that although "past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury," the prospect of future injury had not been sufficiently demonstrated. The elements of speculation and conjecture found in O'Shea, however, do not exist in the present case. Mrs. Page, because she is challenging the procedure used to make recoupment decisions on SSI benefits, runs exactly the same risk she ran before. If she requests waiver in the future when the SSA concludes that she has been overpaid, her request will be reviewed and an initial determination made without her being given a hearing or an opportunity for one. The Secretary's argument loses sight of the fact that the injury complained of here occurred when the waiver request was not sufficient to accord Mrs. Page the opportunity for a face to face hearing before any decision on the waiver was made. Under the circumstances we believe this action falls within the ambit of the Article III standing requirements. There exists a threatened injury traceable to the challenged action and we decline to deprive plaintiff of the opportunity to have the court evaluate her substantive claim simply because we might analyze the standing issue to exclude her.

 Standing is a confusing and often elusive concept, and we do not find defendant's argument against standing persuasive. The point of plaintiff's action, as we perceive it, is to challenge the two step procedure a beneficiary must follow before a face-to-face hearing will be scheduled. Even though plaintiff ultimately received such a hearing and is going through the administrative procedures established by the Secretary's regulations, we cannot accept defendant's position that plaintiff lacks standing nor that her action is moot.

 With regard to the mootness issue, it is realized that various circumstances exist under which a claim can become moot, but we do not believe the facts as they have occurred in the present matter warrant such a finding. Plaintiff initiated her challenge to the Secretary's recoupment procedures on her own behalf and on that of others similarly situated. Were we to accept defendant's mootness argument, the Secretary's procedures would be insulated from attack by anyone who eventually receives a face to face prerecoupment hearing. Furthermore, we would be encouraging the Secretary to grant a hearing whenever a legal ...


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