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TADDONIO v. HECKLER

April 25, 1985

ROBERT TADDONIO
v.
MARGARET M. HECKLER, Secretary of Health and Human Services



The opinion of the court was delivered by: BECHTLE

 BECHTLE, J.

 Presently before the court are: (1) the Secretary's motion to dismiss; (2) plaintiff's motion for class certification; and (3) cross-motions for summary judgment. Having already granted plaintiff's motion for reconsideration, the court will consider here the several issues raised in the motions and in the briefs for reconsideration which the court must resolve before reaching the merits. As the court has requested additional briefs with respect to key issues penultimate to the decision on the merits, the court will at this time resolve only the motion to dismiss and the motion for class certification and not the cross-motions for summary judgment. For the reasons herein, both the motion to dismiss and the motion for class certification will be denied.

 The court adopts its recitation of the facts from its prior Opinion of February 28, 1985. 603 F. Supp. 1985. (E.D.Pa. 1985)

 DISCUSSION

 The Secretary moves to dismiss plaintiff's complaint on the grounds that: (1) this court has no jurisdiction, Fed.R.Civ.P. 12(b)(1); and (2) the ALJ's decision reinstating plaintiff's benefits rendered this case moot.

 1. The first issue is whether the court has subject matter jurisdiction. This is the second time the court has considered this issue. See Taddonio v. Heckler, No. 83-5600 (E.D. Pa. April 9, 1984) (Bechtle, J.). The court held then that it had jurisdiction. Nevertheless, the Secretary raised this issue again on reconsideration. The court has carefully considered the Secretary's renewed arguments and determines that its April 9, 1984 Opinion is correct. The non-waivable jurisdictional element of the final decision element of 42 U.S.C. § 405(g) is satisfied because "section 405(g) permits class actions on behalf of Supplemental Security Income recipients whose benefits have been reduced or terminated." Kuehner v. Schweiker, 717 F.2d 813, 817 (3d Cir. 1983), citing Liberty Alliance of the Blind v. Califano, 568 F.2d 333 (3d Cir. 1977). The exhaustion element of the final decision requirement is also satisfied here since "no § 405(g) exhaustion requirement [exists] for constitutional issues." Kuehner v. Schweiker, 717 F.2d at 817. Plaintiff has dropped his statutory claim and sets forth now only his constitutional one.

 2. The court turns to the mootness issue. The Secretary argues that this case is moot because of two events: (1) plaintiff's benefits never lapsed because there was an agreement between the parties which provided that plaintiff's benefits would continue through the ALJ's decision; and (2) because the ALJ's decision reinstated plaintiff's benefits, plaintiff received all the relief to which he is entitled under the Social Security Act and no longer has any personal stake or interest in this action or its outcome. In response to the Secretary's argument, plaintiff avers that this action is not moot because it falls within the well accepted "capable of repetition, yet evading review" exception to the mootness doctrine. See Weinstein v. Bradford, 423 U.S. 147, 46 L. Ed. 2d 350, 96 S. Ct. 347 (1975).

 The court turns first to the "capable of repetition" element. Under the Secretary's review procedures, plaintiff's benefits, like those of all Supplemental Security Income recipients, are subject to periodic review. 20 C.F.R. § 416.204. It is not improbable that plaintiff's SSI status could be altered or terminated at any time because plaintiff is found to have demonstrated that he was capable of performing SGA *fn1" or to be ineligible for other non-medical reasons. Accordingly, the court concludes that the Secretary's challenged action is capable of repetition.

 Second, the court considers the evading review element. Plaintiff asserts that this element is met because over half of the termination cases are resolved at the ALJ level. The court determines that plaintiff's averment is inconclusive and imprecise. Nevertheless, the court finds that in situations, such as the situation of plaintiff, where the recipient challenges (in the appropriate district court) the constitutionality of the Secretary's decision at the reconsideration stage, *fn2" and simultaneously appeals the reconsideration decision for a hearing on the remaining questions before an ALJ, the ALJ will almost invariably render its decision before the district court rules on the difficult constitutional issues, such as the ones before the court in this case. In that event, the outcome of the ALJ's decision would effect the justifiability of the constitutional challenge in the district court. If the ALJ affirms the Secretary's reduction or termination of the recipient's SSI benefits on the non-constitutional grounds, this court cannot perceive that the recipient would have an actual injury because the ALJ has merely determined that plaintiff's benefits had been rightfully terminated below. Under these circumstances, plaintiff would have no standing to continue his lawsuit in the district court. See Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 41 L. Ed. 2d 706, 94 S. Ct. 2925 (1974). On the other hand, if the ALJ's decision reinstated plaintiff's benefits and the court concluded that the ALJ's decision to reinstate plaintiff's benefits made his constitutional challenge moot, the constitutional issue would continually evade review. As a result, the court holds that plaintiff's challenge is within the "capable of repetition, yet evading review" exception, and the decision of the ALJ, favorable to plaintiff, did not render plaintiff's claim moot.

 3. Next, the court turns to plaintiff's motion for class certification. The class which plaintiff seeks to represent consists of

 
the SSI beneficiaries whose benefits have been reduced or terminated based on non-medical eligibility factors and who, within 10 days of the reconsideration decision requested a hearing before an Administrative Law Judge.

 This is the second time the court considers plaintiff's motion. On April 9, 1984, the court denied plaintiff's motion, but granted plaintiff leave to refile for class certification after discovery on the issue of numerosity. Shortly thereafter, plaintiff filed interrogatories on this issue, and the Secretary responded to them with what the court believes were her best efforts.

 Fed.R.Civ.P. 23 sets forth the requirements to certify a class action. The court will certify a class if plaintiff meets his burden of showing each of the four Rule 23(a) prerequisites to a class action and one of the Rule 23(b) prerequisites. Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239 (3d Cir.), cert. denied, 421 U.S. 1011, 44 L. Ed. 2d 679, 95 ...


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