# Petition — Mathews v. Elliot > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1792%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 425 U.S. 987 ## Text Seo 2ne Court, U. & | FILED we¥ “1234 | FEB 27 1976 et MICHAEL RUDAK, JR. CLE In the Supreme Court of the United States OCTOBER TERM, 1975 F. DAVID MATHEWS, SECRETARY OF HEALTH, EDUCATION, AND WELFARE, PETITIONER v. EVELYN ELLIOTT, ET AL. F. DAVID MATHEWS, SECRETARY OF HEALTH, EDUCATION, AND WELFARE, PETITIONER Vv. FANNIE BUFFINGTON, ET AL. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ROBERT H. BORK, Soliciter General, Rex E. LEE, Assistant Attorney General, WILLIAM KANTER, ROBERT S. GREENSPAN, Attorneys, Department of Justice, Washington, D.C. 20530. INDEX Page ERE ES See Ae 2 RRL Ce SAO See 2 Questions presented 2 Constitutional and statutory provisions and regulations involved _........-_---_ 2 Statement —___. Seip ceiaeniintadnneictiiiala ddl Nasi 3 Reasons for allowing the writ i) a 11 EE See an GS Oe la Appendix B EK Se Appendix C sientieteabibniglanataiiviippeinihaaaimiamaiactian +>: ae I a ee | TET CITATIONS Cases: Bowman v. Loperena, 311 U.S. 262 _ 5 Federal Trade Commission v. Minneapo- lis-Honeywell Co., 344 U.S. 206 5 Mathews v. Eldridge, No. 74-204, decided February 24, 1976 — ) Pfister v. Northern Illinois Finance Corp., f° eee ee 5 United States v. Adams, 383 U.S. 39 5 Constitution and statutes: United States Constitution, Fifth Amend- ment th PR ME Tae et fi M 9.3 II Constitution and statutes—Continued Page Social Security Act, Title II, 49 Stat. 622, et seqg., as amended and added, 42 U.S.C. 401, et seq.: | Section 203(f), 42 U.S.C. 403(f)_. 6 Section 203(h), 42 U.S.C. 403(h)_. 6 Section 204, 42 U.S.C. 404... si, 9a Section 204(a)(1), 42 U.S.C. 404 SII asuieessiiesaensceiieatl Puisonmaate 3, 4, 92a-93a Section 204(b), 42 U.S:C. 404(b)... 3, 4, 93a-94a Section 205(g), 42 U.S.C. 405(g)__ 10 i: SI, a eigesaeniies 7 Miscellaneous: 20 C.F.R. 404.907-404.913 ete: 4 20 C.F.R. 404.907-404.917 ss 8 Ta-92a I 4 Social Security Claims Manual: Section SEGG(Q) Ge Section 5503.3 Sane ee Section 5503.5 4, 86a Iu the Supreme Court of the United States OCTOBER TERM, 1975 No. F. DAVID MATHEWS, SECRETARY OF HEALTH, EDUCATION, AND WELFARE, PETITIONER Vv. EVELYN ELLIOTT, ET AL. F. DAVID MATHEWS, SECRETARY OF HEALTH, EDUCATION, AND WELFARE, PETITIONER Vv. FANNIE BUFFINGTON, ET AL. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT The Solicitor General, on behalf of the Secretary of Health, Education, and Welfare, petitions for a writ of certiorari to review the judgments of the United States Court of Appeals for the Ninth Cir- cuit in these consolidated cases. (1) 2 OPINIONS BELOW The opinion of the court of appeals (App. A, in- fra, pp. la-45a) is not yet reported. The opinion of the district court (App. C, infra, pp. 50a-79a) in Elliott v. Weinberger is reported at 371 F. Supp. 960. The order (App. D, infra, pp. 8la-84a) of the district court (no opinion having been delivered) in Buffington v. Weinberger is not yet reported. JURISDICTION The judgments of the court of appeals (App. B, infra, pp. 46a-49a) were entered on October 1, 1975. On December 17, 1975, Mr. Justice Rehnquist ex- tended the time for filing a petition for a writ of certiorari to and including February 28, 1976. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district courts lacked jurisdiction over these class actions 2. Whether the Due Process Clause requires that an oral hearing be held before, rather than after, a social security beneficiary’s payments are reduced in order to recoup an erroneous overpayment. CONSTITUTIONAL AND STATUTORY PROVISIONS AND REGULATIONS INVOLVED The Fifth Amendment of the Constitution pro- vides in pertinent part: No person shall be * * * deprived of * * * property, without due process of law * * *. Section 204 of the Social Security Act, 49 Stat. 624, as amended, 42 U.S.C. 404, and the regulations of the Department of Health, Education, and Wel- fare, are set forth in pertinent part in App. E, infra, pp. 85a-94a. STATEMENT 1. Section 204(a)(1) of the Sociai Security Act, 42 U.S.C. 404(a)(1), provides that in the event of an erroneous overpayment to a Social Security bene- ficiary, “proper adjustment or recovery shall be made, under regulations prescribed by the Secretary fof Health, Education, and Welfare] * * * [by] decreas[ing] any payment under this subchapter [ re- lating to old-age, survivors’, and disability insurance | to which such overpaid person is entitled.” Section 204(b) of the Act further provides, however, that “there shall be no adjustment of payments to, or recovery by the United States from, any person who is without fault if such adjustment or recovery would defeat the purpose of this subchapter or would be against equity and good conscience.” This case con- cerns the constitutional validity, under the Due Process Clause, of the procedures used by the Secre- tary in enforcing and giving effect to these statutory provisions. Under the Secretary’s procedures, once the Secre- tary has initially determined that an overpayment has been made, the recipient is notified of the deter- 4 mination and given an opportunity to contest the determination in writing and, in addition or in the alternative, to request that the Secretary waive re- covery in accordance with Section 204(b) of the Act. He is invited to discuss his case with the local Social Security office. See 20 C.F.R. 404.907-404.913 (App. E, infra, pp. 87a-91a). Adjustment or recovery is deferred pending review of the initial determination. Sections 5503.3 and 5503.5 of the Social Security Claims Manual (App. E, infra, pp. 85a-87a). If the Secretary decides upon review that the initial deter- mination of an overpayment was correct and that waiver of recovery is not warranted, recovery is ef- fected by decreasing the beneficiary’s subsequent monthly benefit payments until the overpayment has been recouped, as provided by Section 204(a)(1) of the Act (App. E, infra, pp. 92a-94a). Following the Secretary’s decision upon this initial review, the beneficiary is entitled to further admin- istrative review, including a full evidentiary hear- ing. 20 C.F.R. 404.917 (App. E, infra, p. 92a). If, following the hearing, it is determined that there had been no overpayment, or that the beneficiary was en- titled to waiver of recovery, the beneficiary’s with- held payments are repaid and his subsequent pay- ments restored to the appropriate level. 2. This petition arises out of two lawsuits ini- tiated, respectively, in the United States District Court for the Western District of Washington (Buf- fington, et al. v. Weinberger, No. 734-73C2, affirmed in part, reversed in part, No. 74-3118, C.A. 9, peti- 5 tion for rehearing pending), and the United States District Court for the District of Hawaii (£lliott, et al. v. Weinberger, Civ. No. 72-3629, affirmed in part, reversed in part, No. 74-1611, C.A. 9, petition for rehearing pending). Both cases present the same issues, and were consolidated by the court of appeals for decision.* The named respondents in Buffington, Mrs. Buf- fington and Mrs. Biner, are recipients of social secur- ity retirement benefits.* ‘The Secretary determined that respondents had received an overpayment and 1 Respondents submitted an untimely petition for rehearing in the court of appeals, which the court filed for disposition on the merits. The untimely filing of a petition for rehearing in the court of appeals, if entertained on the merits, ordinarily extends the time for filing a petition for certiorari. Bowman v. Loperena, 311 U.S. 262; Pfister v. Northern illinois Finance Corp., 317 U.S. 144. However, this Court has also suggested that the time may not be extended with respect to mat- ters ruled upon by the court of appeals which are not put in issue by either party in the petition for rehearing. Federal Trade Commission Vv. Minneapolis-Honeywell Co., 344 U.S. 206; see also United States v. Adams, 383 U.S. 39. In the instant case, the government did not seek rehearing with re- gard to jurisdiction or to that portion of the court of appeals’ decision holding that an evidentiary hearing was required in overpayment cases involving matters of credibility. Respond- ents seek by rehearing to extend that requirement to all over- payment cases, whether testimonial evidence is necessary or not. Accordingly, the district court’s jurisdiction and that por- tion of the court of appeals’ judgment which requires a pre- recoupment hearing in cases involving matters of credibility are not subject to review on the petition for rehearing. 2 The issues in both Buffington and Elliott are identical. For the sake of conciseness, we describe the facts in Buffing- ton in the text and discuss those in Elliott in related footnotes. 6 sought to recoup it. The determination was made on the basis of annual reports of excess earnings filed pursuant to a statutory directive (42 U.S.C. 403(h)), which requires a beneficiary to file such reports when his earnings exceed the statutory maximum (see 42 U.S.C. 403(f)).° The amount of Mrs. Buffington’s overpayment was $78.60. She was notified of the overpayment on October 3, 1973, and the $78.60 was withheld from her November 1973 check. She then requested re- consideration by the Secretary, who sustained the overpayment determination (App. A, infra, p. 9a). On October 22, 1974, the district court ordered the Secretary to restore to respondent the amount re- couped from her until she was given the opportunity for a hearing (App. D, infra, p. 84a). The amount of respondent Biner’s overpayment was $2,216.20, representing the total amount of bene- fits she had received during 1972. After the Secre- * The finding of overpayments to three of the named re- spondents in Elliott, Mr. Silva, Mr. Vaquilar, and Mrs. Ortiz, also were based upon reports of excess earnings (App. C, infra, pp. 54a-55a). The overpayments to the other named respondents had been mistakenly made for other reasons: Mrs. Elliott received both retirement and disability benefits when she was entitled only to disability payments; Mr. Gaines received duplicate checks for the same benefit period; and Mrs. Yamasaki was overpaid due to a processing error (App. C, infra, pp. 57a-59a). All of the respondents sought reconsideration and waiver from the Secretary but initiated this lawsuit before those requests could be acted upon. All monies recovered from respondents have been restored to them by order of the district court (App. C, infra, p. 78a). a 7 tary’s initial determination of an overpayment, Mrs. Biner twice requested reconsideration and also re- quested that the overpayment be waived. After con- sidering Mrs. Biner’s submissions, the Secretary ad- hered to his decision that recovery of the overpa~- ment was appropriate (App. A, infra, pp. 10a-12a).* After the institution of this suit, Mrs. Biner received an oral hearing before an administrative law judge, who sustained the Secretary's decision (id. at 12a). On December 11, 1973, respondents Buffington and Biner brought this suit as a class action, contending that the Secretary’s procedures for recovering over- payments fail to provide due process since they do not afford claimants a pre-recoupment oral hearing. The district court determined that it had jurisdiction under the Mandamus Act, 28 U.S.C. 1361, and cer- tified the case as a class action of nationwide extent, defining the class to consist of all individuals eligible for old age and survivors’ benefits whose benefits have been or will be reduced or otherwise adjusted *In denying Mrs. Biner’s request for waiver, the Secretary found Mrs. Biner at fault in retaining the benefit checks. Mrs. Biner had worked throughout 1972 and had earned over $7,000 for the year—a sum that precluded eligibility for any benefit payments. Mrs. Biner did not, however, file a report of excess earnings for that year. The Secretary subsequently learned from Mrs. Biner’s employer that she had excess earn- ings, and requested that she file an earnings report. When she did so, the overpayment was deter.nined. On the basis of these facts, the Secretary concluded that Mrs. Biner was not without fault in receiving the overpayment and therefore refused to waive recoupment (Affidavit of Forbus, Deputy Director, Bureau of Retirement and Survivors’ Insurance, Social Security Administration; App. A, infra, pp. 10a-12a). 8 without notice and opportunity for a prior hearing (App. A, infra, p. 15a; district court order of April 4, 1974).° The district court declared the Secretary’s recoupment procedure unconstitutional and enjoined the Secretary from recovering any overpayment from members of the class “without affording them an opportunity for a hearing before any recoupment or adjustment is effected” (App. D, infra, p. 82a). In the Elliott case, the respondents brought suit challenging the constitutionality of the Secretary’s recoupment procedures on the same basis as the re- spondents in Buffington. The district court in Elliott declared the recoupment procedure unconstitutional and enjoined the Secretary from recovering overpay- ments from beneficiaries residing in Hawaii (App. C, infra, pp. 54a-55a, 73a, 78a). The court of appeals consolidated these cases for decision and affirmed the holdings of the district courts with regard to jurisdiction and the propriety of class relief. The court further affirmed the holdings that the Secretary’s recoupment procedures are un- constitutional but vacated and remanded the cases to the district courts for the entry of more limited orders that would require a prior oral hearing only where the Secretary’s determination might turn upon the credibility of witnesses.° ° The class order was later modified so as to exclude groups of beneficiaries whose claim to a prior hearing was already the subject of litigation in other courts (App. A, infra, p. 15a; district court order of October 29, 1974). ¢ For purposes of convenience, the court distinguished two categories of overpayment disputes, “reconsideration” cases 9 REASONS FOR ALLOWING THE WRIT The questions presented by this petition are iden- tical to those raised by the petition for a writ of cer- tiorari pending before the Court in Mathews v. Mattern, et al., No. 75-649,’ and this petition should be granted for the reasons advanced in support of the petition in Mattern." and “waiver” cases. “Reconsideration” cases generally involve the correctness of the Secretary’s determination that an over- payment has occurred (e.g., whether the computation of an earnings statement is correct, or whether two benefit checks have been received rather than one) and ordinarily can be decided on the basis of documentary evidence. In “waiver” cases, however, the court concluded that issues of credibility are often involved in determining whether a claimant was at fault in receiving an overpayment. The court determined, however, that the constitutional necessity of a prior hearing turns upon the particular facts of each case and not upon whether the case is one of “reconsideration” or “waiver” (App. A, infra, pp. 36a-43a). " We are furnishing counsel for the respondents with copies of our petition in Mattern, and with copies of our briefs in Mathews v. Eldridge, No. 74-204, decided February 24, 1976, and Norton v. Mathews, No. 74-6212, upon which we in part rely in Mattern. * When we filed our petition for certiorari in Mattern, we informed the Court that the Secretary was in the process of complying with the outstanding injunctions in these cases by informing all overpaid beneficiaries that upon request they would receive an evidentiary hearing before recoupment is initiated. The Secretary had not then had an opportunity to analyze the response to the new procedure. An analysis has now been made of the first few months’ experience with that procedure, and we are informed that the number of requests for pre-recoupment hearings has not been as great as antici- pated. 10 Moreover, this Court in Mathews v. Eldridge, No. 74-204, decided February 24, 1976, rejected on the merits a claim that due process requires an eviden- tiary hearing before Social Security disability pay- ments may be terminated. The decision below ap- pears inconsistent with Eldridge on that issue.’ ® Although the Court found that the district court had jurisdiction under 42 U.S.C. 405(g) to consider Eldridge’s constitutional claims, that finding was based in substantial part on the fact that he had “at least a colorable claim that because of his physical condition and dependency upon the disability benefits, an erroneous termination would damage him in a way not recompensable through retroactive pay- ments” (slip op., p. 9; footnote omitted). No similar claim can be asserted by respondents here. Moreover, even if the district court below had jurisdiction over some of the named plaintiffs under Eldridge, for the reasons discussed in our Norton brief it lacked jurisdiction over the class members and the named plaintiffs in Eliott who failed to exhaust the Secretary’s pre-recoupment procedures (see Eldridge, supra, slip op., pp. 6-10). A NS Te we 11 CONCLUSION For the foregoing reasons, and those set forth in the petition for a writ of certiorari in Mathews v. Mattern, supra, the petition for a writ of certiorari should be granted and these cases disposed of in ac- cordance with the disposition of Mattern. Respectfully submitted. ROBERT H. BORK, Solicitor General. REx E. LEE, Assistant Attorney General. WILLIAM KANTER, ROBERT S. GREENSPAN, Attorneys. FEBRUARY 1976. rr la APPENDIX A UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 74-1611 EVELYN ELLIOTT and BENITO MOLINA, Individually and on behalf of all others similarly situated, PLAINTIFFS-APPELLEES v8. CASPAR W. WEINBERGER, Individually and in his capacity as Secretary, United States Department of Health, Education and Welfare; and SuNG DAI SEU, individually and in his capacity as Pacific Area Manager, Social Security Administration, Department of Health, Education and Welfare, DEFENDANTS-APPELLANTS No. 74-3118 FANNIE BUFFINGTON and FRANCES BINER, Individually and on behalf of all others similarly situated, PLAINTIFFS-APPELLEES v8. CASPAR WEINBERGER, Individually and in his capacity | as Secretary of the Department of Health, ; Education and Welfare, DEFENDANTS-APPELLANTS OPINION [October 1, 1975] a Om > 2a 74-1611, Appeal from the United States District Court for the District of Hawaii 74-3118, Appeal from the United States District Court for the Western District of Washington Before: BROWNING and TRASK, Circuit Judges, and WILLIAMS,* District Judge WILLIAMS, District Judge: These consolidated appeals by the Secretary of the Department of Health, Education and Welfare (here- inafter referred to as the “Secretary”) challenge the judgments of two district courts requiring, inter alia, the Secretary to provide old-age and disabled social security beneficiaries the opportunity to request a hearing prior to the initiation of recoupment proce- dures, the purpose of such procedures being the recov- ery of monies paid to such beneficiaries allegedly in excess of their legal monthly entitlements. In both these class action suits plaintiffs-appellees asserted that the procedures utilized by the Secretary in re- couping excess payments denied them due process of law under the fifth amendment because their benefits were reduced or suspended without adequate notice of the reason for the recoupment, without adequate notice of their right to reconsideration, waiver, or partial adjustment of the Secretary’s recoupment de- * Honorable Spencer Williams, United States District Judge for the Northern District of California, sitting by designation. RN eee St A CNA LAD ALLEL AN eS ts gc al — OO 8 A RINE ee Ne ee ee ee ee ee cision, and without affording them the opportunity to have a pre-recoupment hearing. Elliott v. Wein- berger, 371 F. Supp. 960, 964 (D. Haw. 1974); Buffington v. Weinberger, Civil No. 734-73C2 (W.D. Wash., Oct. 22, 1974). The district courts held that mandamus jurisdiction was established under 28 U.S.C. § 1361,’ and that the recoupment procedures violated the due process rights of these complaining recipients. In addition to providing a hearing to any recipient who requested one, the Secretary was order- ed to supply the recipients adequate notice informing them of their right to such a hearing, and the hear- ing, if requested, had to precede recoupment. While we are in substantial agreement with the general principle that a hearing must be afforded recipients prior to recoupment of their monthly benefits, we do not believe that such a hearing is constitutionally compelled unless the issues raised in a recipient’s re- quest for review of the Secretary’s initial overpay- ment and recoupment determination are incapable of resolution upon written submission and/or docu- mentary proof. 1In Elliott v. Weinberger, plaintiffs asserted that jurisdic- tion additionally existed under 28 U.S.C. §1331(a) and 5 U.S.C. § 701 et seq. The court in Elliott, however, expressly declined to decide whether jurisdiction could be properly predicated upon these sections, but noted in passing that sup- port existed for either jurisdictional base. In Buffington Vv. Weinberger, the court found both § 1361 and § 701 et seq. to furnish the necessary jurisdictional basis. 4a The Statutory and Procedural Background The Social Security Act vests the Secretary with the power to recover lost funds in the event over- payments are made to recipients of old-age or dis- ability benefits. 42 U.S.C. § 404 provides in pertinent part: (a) Whenever the Secretary finds that more or less than the correct amount of payment has been made to any person under this subchapter, proper adjustment or recovery shall be made, under regulations prescribed by the Secretary, as follows: (1) With respect to payment to a person of more than the correct amount, the Sec- retary shall decrease any payment under this subchapter to which such overpaid per- son is entitled, or shall require such over- paid person or his estate to refund the amount in excess of the correct amount, or shall decrease any payment under this sub- chapter payable to his estate or to any other person on the basis of the wages and self- employment income which were the basis of the payments to such overpaid person, or shall apply any combination of the forego- Me 6 as : (b) In any case in which more than the cor- rect amount of payment has been made, there shall be no adjustment of payments to, or recov- ery by the United States from, any person who is without fault if such adjustment or recovery would defeat the purpose of this subchapter or would be against equity and good conscience. Ce ee oe ee ee 5a The challenged government procedures are as fol- lows: As of January 1, 1974,’ all recipients subject to recoupment receive, thirty days before actual re- coupment begins, form letters which set forth the reasons for the proposed recoupment, the availability of reconsideration (when a recipient asks for recon- sideration, the correctness of the overpayment deter- mination itself is being challenged), the condition for waiver (when a beneficiary requests that his over- payment be waived, he is, in effect, conceding the debt but asking that it be forgiven or reduced), and the need to consult the local Administration office within thirty days if they wish to complain.’ 2 At the time these suits were filed, those beneficiaries whose overpayments were determined from their “annual earnings reports” were not entitled to advance notice of recoupment. Rather, recoupment began immediately, subject to later con- sideration of the beneficiary’s request for reconsideration or waiver. Plaintiffs Silva, Ortez, Vaquilar, Biner and Buffiing- ton all had recoupment procedures initiated against them on the basis of earnings reports filed with the Secretary. Follow- ing January 1, 1974 it has been the Secretary’s practice to provide all such beneficiaries the same pre-recoupment notice as in other overpayment cases. * Social Security Claims Manual § 5503(a) requires the Sec- retary to inform overpaid beneficiaries of their “right to re- quest reconsideration” and of the applicable waiver provisions of the Social Security Act. Contrary to the Secretary’s con- tention, the form letter notice does not apprise a beneficiary of his “right” to waiver consideration. Nor does the Claims Manual require such disclosure. Only the “conditions” of waiver need be revealed. Even as to reconsideration, the form letter fails to make clear that such re-appraisal is a matter of right rather than a mere possibility. 6a The initial overpayment and recoupment notice sent to beneficiaries makes no mention of the forms needed for reconsidera.ion or waiver, nor sets forth information about how to complete them. However, the beneficiary can obtain review of his case by set- ting forth, in a letter, the reasons why he opposes the overpayment determination or seeks waiver. When reconsideration or waiver consideration is required, the Administration’s decision is based upon a claim- ant’s ex parte presentation of documentary evidence offered in support of his claim for relief. No oral hearing is given prior to the commencement of re- coupment. Furthermore, it is the Secretary’s policy to im- mediately defer recoupment action upon the filing of a request for reconsideration or waiver. Claims Manual § 5503(b), (c). Any deferral of recoupment beyond thirty days after the date of the initial no- tice lies completely within the discretion of the Ad- ministration. Although appellants claim that it is the Secretary’s policy to defer recoupment indefinitely once a request for reconsideration or waiver has been filed (Claims Manual § 5503(c)), in plaintiff Biner’s case social security checks were not forthcoming in either November or October of 1973, notwithstand- ing the fact that Biner filed a waiver request in mid- October 1973. Appellants attribute this oversight to administrative error. If, after review of the information supplied by the beneficiary, the Secretary adheres to his initial de- termination that recoupment is appropriate, he noti- 1 rere Tt NET ROO Cn Ala ee 7a fies the beneficiary to this effect and resumes the withholding of benefits to satisfy the overpayment. If dissatisfied with this decision, the beneficiary may request an administrative hearing de novo, in which the beneficiary is provided an opportunity to present oral testimony and to cross-examine witnesses be- fore an independent hearing examiner. 20 C.F.R. § 404.928-.929. However, recoupment is not sus- pended pending the outcome of this de novo hearing. The beneficiary is further entitled to appeal the hear- ing examiner’s determination to the Appeals Council of the Social Security Administration (20 C.F.R. § 404.945), and to judicial review of the Appeals Council’s decision pursuant to 42 U.S.C. § 405(g). The Facts In Elliott, plaintiffs Silva, Ortiz and Vaquilar (subclass one) were determined to have been over- paid by the Secretary based upon their own annual earnings reports. They all received the form letter previously mentioned indicating the reasons for the overpayment determination, the specific amount over- paid and the amount by which the recipient’s subse- quent benefit checks would be reduced or suspended altogether. These plaintiffs were additionally ap- prised of the possibility of reconsideration and the conditions of waiver. All of them contacted the Ad- ministration’s local offices within thirty days of re- ceipt of the letter. At the time the Elliott court ren- dered its decision, the Secretary had completed re- 8a coupment against two of these plaintiffs, but as to the other had deferred recoupment pending disposi- tion of the suit. Plaintiffs Elliott, Gaines and Yamasaki (subclass two) received notices more than thirty days before recoupment was to begin, the notice disclosing infor- mation similar that contained in the notices sent to subclass one plaintiffs.‘ Plaintiff Elliott was notified that the overpayment determination was predicated upon “her receipt of both retirement and disability benefits when she was entitled to only disability bene- fits.” Elliott, supra at 965. “Duplicate payments” was the reason given Gaines for his overpayment, and plaintiff Yamasaki was told that “a processing error’ caused an overpayment to be sent to her. All subclass two plaintiffs contacted their district office within thirty days after receipt of the overpayment notice. Recoupment against Elliott and Gaines was deferred pending resolution of this case, whereas re- coupment against Yamasaki has been completed. Elliott, supra at 965-66. As to plaintiffs Buffington and Biner, their claims arose out of factual situations similar to those per- taining to three of tne named plaintiffs in Elliott.’ Both Buffington and Biner are recipients of social security old-age benefits. Based on “annual earnings reports” submitted by plaintiffs, the Secretary de- termined that they had received overpayments of ‘For a discussion of the major difference see note 2 supra. * See note 2 supra. ae ee we) Ra ate oe PME ns 4 ane ~ CP ME) ete AR ER cate RE OE ee A Ril CTE TE, Sek gears nN TE I Oe ee 9a benefits, and consequently sought to recoup the over- payments from plaintiffs’ future benefits.’ In 1973 Mrs. Buffington was entitled in her own right to old-age social security benefits of $80.50 per month. Based upon her husband’s earnings record, she was also entitled to wife’s benefits of $15.70 a month, resulting in total monthly benefits of $96.20 (she actually was receiving $89.90 per month due to monthly Medicare deductions of $6.30). In Sep- tember 1973, plaintiff’s husband filed an annual earnings report which showed that he had received earnings in 1972 which exceeded the statutory limit. Accordingly, the Secretary determined Mrs. Buffing- ton to have been in receipt of a total overpayment of $78.60. Notice of the overpayment was sent to Mrs. Buffington on October 3, 1973, indicating that the overpayment would be withheld from her next benefit check. In early November she received a social se- curity check in the amount of $11.30. Mrs. Buffing- ton subsequently submitted a request for reconsidera- tion to the local administrative office. On July 24, 1974 her request was denied and the original over- payment determination was sustained. * Pursuant to 42 U.S.C. § 403(b), deductions from social security benefits must be made when a beneficiary’s earnings exceed the amount prescribed by statute. To determine whether deductions are appropriate in any given case, a beneficiary who earns more than the statutory maximum is required to file an “annual earnings report” which sets forth the amount of wages earned by the beneficiary during the preceding year. The social security application form, and certain pamphlets sent to beneficiaries, advise the claimants of the filing re- quirement. 10a Mrs. Biner was found entitled to old-age social security benefits in November 1970. In November 1972, however, she notified her claims representative that she intended to cease working in December 1972.’ The Social Security Administration in 1972 sent Mrs. Biner three checks in a total amount of $2,216.20, representing benefits for all of 1972." However, the Administration subsequently dis- covered, as a result of a cross check with Biner’s former employer, that Biner had earned income in * There is considerable dispute as to whether plaintiff Biner also informed the district office that her earnings would not exceed the statutory maximum in 1972. The Secretary con- tends that plaintiff represented to her claims representative that she would not have earnings above $1,680 for the year 1972, and that based upon this representation the Secretary issued Mrs. Biner $2,216.20 in excess benefit checks. Plaintiff Biner, on the other hand, claims that her purpose in con- tacting the local office was to ensure that she would begin re- ceiving her benefits promptly after her retirement in Decem- ber 1972, and, as such, would only have had cause to inform the office of the date of her retirement, not the amount of income she earned during 1972. In any event, she exceeded the earnings maximum in 1972—the year for which she received the benefit checks at issue here. ® It is unclear whether Mrs. Biner knew or should have had reason to know that these checks represented benefit pay- ments for the year 1972. The Secretary contends that enclosed with at least the first check was a letter which indicated that the check was intended as back payment for 1972. Excerpts of this letter which are quoted in the affidavit of the Deputy Director of the Bureau of Retirement and Survivors Insurance of the Social Security Administration do not bear this out. Buffington Tr. 311. On the other hand, Mrs. Biner asserts that no explanation whatsoever was furnished by the Administra- tion articulating the purpose in its sending this check. " ee _ lla excess of the statutory amount for 1972. Thereupon, the Secretary requested Mrs. Biner to file an annual earnings report, which she submitted on August 28, 1973; and it was upon this basis that the overpay- ment was determined. In the latter part of September 1973, Mrs. Biner was notified that she had been overpaid, and con- sequently, her benefits would be suspended until the entire amount had been recouped. She was also supplied with a facsimile of the form letter referred to earlier. She received no benefit checks for October 1973. In Mid-October 1973 Mrs. Biner received a letter from the Administration containing “waiver” forms which she was instructed to fill out and return to the district office if she wished to do so. Mrs. Biner completed the forms and mailed them to the local office. However, submission of this request for waiver consideration did not halt recoupment pro- ceedings. Moreover, on November 19, 1973 Mrs. Biner was informed that she was at fault in retain- ing the checks and, consequently, no waiver would be permitted. She was also informed that the original suspension of her benefits had been adjusted so that $50.00 per month would be withheld from her regu- lar benefit payments. During the latter part of 1973 Mrs. Biner twice requested reconsideration of the Secretary’s over- payment decision. Again, recoupment was not halted. On April 8, 1974, however, the Secretary adhered to his initial determination that recoupment was ap- propriate, and continued to deduct amounts from 12a Mrs. Biner’s subsequent benefit checks. In late May or early June of that year, Mrs. Biner requested and was granted on October 21, 1974 an administrative hearing to review the propriety of the Secretary's recoupment decision. After oral hearings, the admin- istrative law judge sustained the Secretary’s decision. Appeal of the judge’s ruling is presently pending. The District Courts Properly Exercised Jurisdiction Under 28 U.S.C. § 1361 The Secretary contends that the district courts erred in assuming jurisdiction over these cases pur- suant to the Federal Mandamus statute, 28 U.S.C. § 1361. Mandamus has traditionally been viewed as appropriate to compel officials to comply with the law only when the claim is clear and certain and the duty of the officer is ministerial and “so plainly pre- scribed as to be free from doubt.” United States v. Walker, 409 F.2d 477, 481 (9th Cir. 1969). Typically, mandamus has been limited to cases in which statutory or regulatory duties were sought to be enforced. Recently, however, in Knuckles v. Weinberger, 511 F.2d 1221 (9th Cir. 1975), this court held section 1361 to supply the necessary juris- dictional basis when a constitutional duty is made clear by subsequent judicial interpretation. In Knuckles we conclude that a district court had sec- tion 1361 jurisdiction to consider constitutional claims asserted against the Department of Health, Educa- tion and Welfare’s summary suspension of social security payments. In so holding, we made it clear A tt et Ct tr OR 2 Se = be DAL we AN had ni a ~ ee ee, ee ee eee eee Pe ee “Te * 18a that it is not essential to a finding of jurisdiction that the constitutional duty sought to be enforced be clear beyond all doubt from the outset of the litigation See also Brown v. Weinberger, 382 F. Supp 1092 (D. Ma. 1974). All that is required is that plaintiffs avoid asserting unsubstantial claims. Mead v Parker 464 F.2d 1108 (9th Cir 1972); Byse & Fiocea “See. tion 1361 of the Mandamus and Venue Act of 1962 and ‘N on-Statutory’ Judicial Review of Federal Ad- ministrative Action,” 81 Harv. L. Rev. 308 (1967) If we were bound to first determine the existence of a duty on the part of the Secretary as a prerequisite to iinding jurisdiction under § 13861—~an approach urged upon us by the Secretary—we would, in es- sence, be disposing of these cases on their aute~ an exercise wholly inappropriate in deciding the threshold question of jurisdiction. In the instant cases, the allegations contained in the complaints present substantial constitutional claims, namely, that Goldberg v. Kelly, 397 U.S. 254 (1970), compels the conclusion that the procedures instituted by the Secretary deprive plaintiffs of their property without due process of law. While section 404 of the Social Security Act vests the Secretar with discretion in establishing procedures to camer overpayments, he may not institute procedures which violate the fifth amendment. Precedents clearly dem- onstrate that the applicability of the Goldberg ration- ale to the instant circumstances is not so tenuous as to seriously call into question the substantiality of l4a plaintiff’s claims here. The district courts therefore properly assumed jurisdiction under § 1361 to decide whether the Secretary had abused his discretion.’ Accord Frost v. Weinberger, 515 F.2d 57 (2d Cir. 1975); Mattern v. Weinberger, Civil No. 74-1776 (3d Cir., June 3, 1975) (slip opinion) ; Martinez v. Richardson, 472 F.2d 1121 (10th Cir. 1973). The Class Action The district court in Elliott certified the Silva, Ortiz and Vaquilar plaintiffs as representatives of a subclass of old-age beneficiaries resident in Hawaii subject to actual or possible recoupment of overpay- ments as a result of their own annual income reports. The Elliott, Gaines and Yamasaki plaintiffs were certified as a subclass representing recipients of old- age and disability benefits resident in Hawaii who were subject to actual or possible recoupment for reasons other than the filing of annual income reports. The court ordered (1) the posting of a notice in every local social security office; (2) the publishing of an advertisement in a non-legal section of two newspapers of general circulation; and (3) the in- clusion of a notice of the suit in every letter from the Administrating informing the recipients of its over- payment determination. The notice informed the members of the class of the pendency of the suit, of ° Having found an adequate jurisdictional basis under the Mandamus Act, it is unnecessary to decide whether the Ad- ministrative Procedure Act or 28 U.S.C. § 1331(a) also furn- ish an independent source of jurisdiction. ee et ee ee eee lda their right to intervene, and of their right to question the adequacy of their representation. Elliott Tr. 199- 201. The Government takes no issue with the Elliott court’s class certification order or with the adequacy of the notice provided. The Buffington court certified the two named plain- tiffs as representatives of a nation-wide class of per- sons eligible for social security old-age and survivors’ benefits under 42 U.S.C. § 402 “whose benefits have been or will be reduced or otherwise adjusted with- out prior notice and opportunity for a hearing.” The court excepted from the class residents of Hawaii and the Eastern District of Pennsylvania and those individuals involved in other litigation challenging the Secretary’s procedures in recouping benefits with- out prior notice and hearing. Buffington Tr. 422- 24. No notice whatsoever was provided members of the certified class. The Secretary contends that the failure to order that notice be provided to the class was a violation of due process and that the class order must be de- clared invalid, reducing the effect of the judgment solely to the two individuals named as plaintiffs. The Secretary further argues that the district court abused its discretion in certifying a nation-wide class. We disagree. There is little doubt that the district court’s cer- tification order satisfied the terms of Fed. Rule of Civ. Pro., Rule 23(c)(1) and (3). Furthermore, contrary to the Secretary’s suggestion, this action is plainly of the type described in Rule 23(b) (2), not fs 16a 23 (b)(3). Although plaintiffs seek recovery of monies recouped from their monthly benefit checks, their primary purpose in bringing this action is to enjoin the Secretary from recouping such sums with- out providing social security beneficiaries a proceed- ing hearing. It is only logical that as a necessary part of their claim plaintiffs would seek to recover money which they believed to have been retrieved pursuant to the procedures sought to be enjoined. In short, pecuniary recovery is purely incidental to this suit’s principal purpose, and consequently this action is properly certifiable under 23 (b) (2). Rob- inson v. Lorillard Corp., 444 F.2d 791 (4th Cir. 1971). In similar cases, too numerous to cite here, class certification of an essentially (b)(2) action was not precluded simply because monetary benefits were an inevitable by-product of the recovery of the injunctive and declaratory relief prayed for. See eases cited in 3B Moore’s Federal Practice, {| 23.40, at 23-652 to 23-654 (1974), and 1974 Cum. Supp. at 82 n.19. In any event, the Buffington court’s judg- ment did not award plaintiffs damages. Under Rule 23(c)(2) notice is mandatory in a (b)(3) class action. And the Supreme Court has so held. Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974). The Secretary contends that the Hisen rationale should be extended to cover all class ac- tions, including, naturally, (b) (2) actions. However, even the Eisen Court acknowledged that the notice requirements of subdivision (c)(2) are inapplicable to (b)(2) class actions. Jd. at 177 n.14. Rather, 2 we ctiies 17a Rule 23(d)(2) operates to make notice discretion- ary with the court in (b) (2) actions. The weight of authority supports an intergeete- tion—consistent with due process requirements—of Rule 23 which does not require notice in every (b) (2) class action. Compare Katz v. Carte Blanche Corp., 496 F.2d 747, 756 (3d Cir.), cert. denied, 419 U.S. 885 (1974) ; Woodward v. Rogers, 344 F. Supp. 974, 980 n.10 (D.D.C. 1972), aff'd, 486 F.2d 1317 (D.C. Cir. 1973); Yaffe v. Powers, 454 F.2d 1362, 1366 (1st Cir. 1971); Souza v. Scalone, 64 F.R.D. 654, 659 (N.D. Cal. 1974) ; Johnson v. City of Baton Rouge, La., 50 F.R.D. 295, 299 (E.D. La. 1970); Northern Natural Gas Co. v. Grounds, 292 F. Supp. 619 (D. Kan. 1968) ; 3B Moore’s Fed. Prac. { 23.55, at 23-1152; 7A Wright & Miller, Fed. Prac. & Proc., Civ.: § 1786 (1973) [notice not required in (b) (2) action] with Schrader v. Selective Service Sys. Loc. Bd. No. 76, 470 F.2d 73, 75 (7th Cir. 1972), cert. denied, 409 U.S. 1085 (1972); Zielstra v. Tarr, 466 F.2d 111 (6th Cir. 1970) [notice required]. The seminal case upon which most, if not all, courts requiring notice rely is the Second Circuit’s decision in EHisen v. Carlisle & Jacquelin, 391 F.2d 555, 564-65 (2d Cir. 1968), in which the court by way of dicta stated that “notice is required as a matter of due process in all representative actions.” Id. at 564. However, in Frost v. Weinberger, 515 F.2d 57, 65 (2d Cir. 1975), the Second Circuit re- jected its earlier pronouncement in ELisen and specifi- cally rule that LHisen’s statements with respect to 18a notice only applied to class actions brought under provisions of Rule 23 other than (b)(2). Indeed, even before Frost some district courts in the Second Circuit resisted Eisen’s inflexible due process ap- proach to (b)(2) actions, and instead read Eisen to say that notice was required in class actions when due process so required. Lynch v. Household Fin. Corp., 360 F. Supp. 720, 722 n.38 (D. Conn, 1973).” 1 Likewise, district courts in the Sixth Circuit have not uniformly chosen to follow the decision in Zielstra v. Tarr, supra; one court finding Zielstra’s statement that due process required notice in all class actions purely dictum, “since the Court of Appeals held that the District Court did not have subject matter jurisdiction of the case which was on appeal.” Watson Vv. Branch County Bank, 380 F. Supp. 945, 960 n.11 (W.D. Mich. 1974). Cf. Alexander v. AVCO Corp., 380 F. Supp. 1282, 1286 (M.D. Tenn. 1974). It is unclear where the Fifth Circuit stands on the notice question. In Johnson Vv. Georgia Highway Express, Inc., 417 F.2d 1122, 1125 (5th Cir. 1969), without Jiscussing due process requirements, the court implied that notice in (b) (2) actions is not required. In Justice Godbold’s specially con- curring opinion he states that 23(b) (2) “does not require notice.” Jd. at 1127 n.1. Acting in apparent harmony with Johnson, the Fifth Circuit affirmed a Florida district court decision which held notice to be inappropriate in (b) (2) class actions. Mungin Vv. Florida East Coast Ry. Co., 318 F. Supp. 720, 732 (M.D. Fla. 1970), aff'd, 441 F.2d 728 (5th Cir. 1971), cert. denied, 404 U.S. 987 (1971). On the other hand, the Fifth Circuit upheld a district court decision in which Eisen was followed and notice was found necessary in a (b) (2) aetion. Pasquier v. Tarr, 318 F. Supp. 1350, 1353-54 (E.D. La. 1970), aff'd, 444 F.2d 116 (5th Cir. 1971). Per- haps it is fair to infer that at least the Fifth Circuit does not ascribe to the procrustean view that notice is required in all representative actions, rather whether vel non notice is man- dated depends on the circumstances involved and the applica- bility of relevant due process considerations. 19a Contrary to the Secretary’s suggestion that the dis- tinction between (b)(2) actions having monetary repercussions and (b)(3) actions is one solely of form of relief sought and not one of substance, rele- vant authorities have oft stated that the need for notice in a (b) (2) class action is de minimis simply because of its fundamental differences from a (b) (3) suit. As the Advisory Committee in its Note accom- panying the proposed revised, now adopted, Rule 23 implies, the strict (c)(2) notice requirement is in- apposite to a (b)(2) class because (b)(2) classes will tend to be more cohesive and unified so that ade- quate representation reduces the need for notice. See 39 F.R.D. 106. In representative actions brought under the oth- er provisions of Rule 23(b) [provisions other than 23(b) (3) ], the class generally will be more cohesive—for example, in many instances each member will be affected as a practical matter by a judgment obtained by another member if indi- vidual actions were instituted. Similarly, it is less |. ely that there will be special defenses or issues relating to individual members of a Rule 23(b)(1) or Rule 23(b)(2) class, than in the case of a Rule 23(b) (3) class. This means that there is less reason to be concerned about each member of the class having an opportunity to be present. 7A Wright & Miller, supra, § 1786, at 143. To the extent that absent class members might, as a matter of policy disfavor the position taken by named plaintiffs, defendants are usually more than adequate 20a stand-in for the purpose of presenting the policy ar- guments to the court. Thus, in suits under subdivisions (b)(1) or (b) (2), once the court determines that the members are adequately represented as required by Rule 23(a)(4), it is reasonably certain that the named representatives will protect the absent members and give them the functional equiva- lent of a day in court. In keeping with this philosophy, class members in Rule 23(b)(1) and Rule 23(b)(2) actions are not provided an opportunity by the rule to exclude themselves from the action as is true in Rule 23(b)(3) actions. [Air Line Stew. v. American Airlines, Inc., 490 F.2d 636, 642 (7th Cir. 1973); Johnson City v. City of Baton Rouge, supra; Van Gemert v. Boeing Co., 259 F. Supp. 125, 130 (S.D.N.Y. 1966)]. Because they do not have the alternative of bringing a separate suit, notice really serves only to allow those members the opportunity to decide if they want to intervene or to monitor the representa- tion of their rights. [Souza v. Scalone, supra, 64 F.R.D. at 659; Watson v. Branch County Bank, supra, 380 F. Supp. at 959]. We are of the opinion that the better reasoned view counsels against requiring, under due process principles, notice in every (b)(2) action. Only when the purposes in providing class members an oppor- tunity to signify whether representation by named plaintiffs is fair and adequate or to intervene to pres- ent additional claims or to otherwise come into the lal: tag woe 2la action to, for example, submit views as amici curiae, are in need of being served, does due process require the direction of some sort of notice to absent mem- bers of a (b)(2) class. In the instant case no such special circumstances exist to impel us to overturn the Buffington court’s decision not to provide notice. There is no question but that plaintiffs here are represented by skilled and experienced counsel. Their record here and at the district court level is testimony to this commendation. When, as here, absent mem- bers’ interests are adequately assured of being repre- sented because there are no money damages involved, no significant factual dispute is in need of resolution, the only issues raised are constitutional, and there is no serious question as to the competency of counsel, notice to the class serves no apparent purposes. Lynch v. Household Fin. Corp., supra; Woodward v. Rogers, supra. The presentation of additional indi- vidual claims would have complicated the suit and protracted it to the detriment of the class as a whole. The named plaintiffs’ claims are typical of the class, and additional plaintiffs are unnecessary. The con- stitutional issues involved in the suit have been ex- haustively briefed by counsel and fully canvassed in the cases and commentaries, thus rendering additional supplementation by absent members as amici curiae superfluous. Watson v. Branch County Bank, supra. For all intents and purposes, the class members of 22a the instant class have received their functional equiv- alent to a day in court.” The Secretary’s claim that the Buffington court abused its discretion in certifying a nation-wide class is similarly unpersuasive. In reviewing the designa- tion of a class by the trial judge the appellate court should allow the broadest discretion. City of New York v. International Pipe & Ceramics Corp., 410 F.2d 295 (2d Cir. 1969). Furthermore, nothing in Rule 23 indicates that a class should not be designated because it is too large. Certification of a national class action is not unknown in the federal courts. See Woodward v. Rogers, supra. The Secretary does not cite, nor can we find, any authority which sup- ports his rather novel theory limiting (b)(2) class actions because of their numerosity and manageability problems. By its terms, Rule 23 makes manage- ability an issue important only in determining the propriety of certifying an action as a (b)(3), not a ™ That Buffington’s class determination forecloses absent members from bringing individual suits thereafter, in and of itself, is not a factor militating against certification of a (b) (2) class action. If it were otherwise, no class actions could ever be certified under (b) (2). This is so because in (b) (2) actions absent members, regardless whether they receive notice or not, cannot excuse themselves from the litigation or avoid the res judicata effects of the judgment entered therein. Compare Air Line Stew. v. American Air- lines, Inc., supra, 490 F.2d at 642, with Schrader v. Selec- tive Service Sys. Loc. Bd. No. 76, supra, 470 F.2d at 75. In- deed, (b) (2) actions are generally preferred for their wider res judicata effects. Bing v. Roadway Express, Inc., 485 F. 2d 441, 447 (5th Cir. 1973). 23a (b) (2), class action. And as a practical matter, since plaintiffs seek no damages, and because notice is not required to be directed to these class members, there simply are no manageability problems here involved. In short, the Buffington suit strikes us as the classic type of action envisioned by the drafters of Rule 23 to be brought under subdivision (b) (2). The Secre- tary has acted on grounds generally applicable to all members of the class and finai injunctive and decla- ratory relief with respect to the whole class is appro- priate. Even if we required the Buffington suit to proceed on behalf of the named plaintiffs only, the in- junctive relief awarded in this suit would necessarily operate in favor of all social security old-age and survivor benefit recipients. It would be a practical absurdity were the Secretary to provide the ¢i2 proc- ess safeguards enunciated herein to the exclusion of all save the named plaintiffs. The Administration would be besieged with suits seeking the vindication of each and every social security recipient of old-age and survivors’ benefits subject to the Secretary’s re- coupment procedures. With a copy of this decision in their hands, ever-watchful legal-assistance attor- neys would wreak havoc on the administration of the Secretary’s recoupment programs. Multiplicity of ac- tions based on the same constitutional claims ad- vanced here would be the inevitable result. Obviating such unnecessary duplication is the very purpose for which Rule 23(b)(2) was designed. Maintenance of the instant case as a class action is not only proper, 24a but it also will effectuate the interests both of judi- cial administration and of justice. The Merits The principal case upon which plaintiffs rely is Goldberg v. Kelly, 397 U.S. 254 (1970). There the Supreme Court held that a pre-termination eviden- tiary hearing was required before a welfare recipi- ent’s benefits could be terminated. Stressing the recipient’s “brutal need” in continued payments, the Court found that in the balance the interest of the eligible recipient in uninter- rupted receipt of public assistance, coupled with the State’s interest that his payments not be erroneously terminated, clearly outweighs the State’s competing concern to prevent any in- crease in its fiscal and administrative burdens. Goldberg, id. at 266. Plaintiffs contend that the Goldberg decision compels a finding that pre-recoupment hearings are constitu- tionally necessary when the Secretary determines that overpayments have been made to social security old- age and disability beneficiaries and seeks to recoup those overpayments. On the other hand, the Secretary argues that, for the following reasons, Goldberg should be read nar- rowly, and thus determined inapposite to the cases here: (1) the Secretary’s present “written hearing” is adequate to establish the “probable validity” of the Administration’s overpayment determination; (2) the impact upon a social security recipient of a 25a reduction in or suspension of his or her monthly payments is not severe enough to warrant providing the recipient an oral hearing prior to recoupment; (3) to require such a hearing would result in vast disruption of the Social Security System; (4) in waiver consideration cases no property interest is in- volved invoking due process safeguards; and (5) no factual issues are presented in reconsideration cases necessitating oral pre-recoupment hearings.” In Mattern v. Weinberger, Civil No. 74-1776 (3d Cir. June 3, 1975) (slip opinion), all the arguments "In a footnote, the Secretary postulates that since the plaintiffs in Elliott whose overpayments were determined by information other than that disclosed in annual earnings reports have as yet had their reconsideration and/or waiver claims acted upon by the Secretary (due to the district court’s order prohibiting the Secretary from so acting), “the court’s failure to await the Secretary’s action on those writ- ten requests was plain error.” Appellants’ Brief in Elliott, at 17 n.19. In other words, the Secretary contends that the district court failed to observe the requirement that admin- istrative remedies must be exhausted as a requisite to the initiation of proceedings in a federal court. However, the case here is to be distinguished from the normal situation in which federal jurisdiction is sought to be invoked to review administrative action. Most often, the courts are asked to scrutinize the merit of an administrative determination, and in that instance, the available avenues of administrative review must ordinarily be exhausted. On the other hand, where, as here, the procedures which the agency contends must be exhausted are themselves the sub- ject of attack, exhaustion is unnecessary. Finnerty v. Cowen, 508 F.2d 979 (2d Cir. 1974) ; Martinez v. Richardson, supra, 472 F.2d 1121; Marsh v. County School Bd., 305 F.2d 94 (4th Cir. 1962): Francois v. Busheil, 325 F. Supp. 531 (N.D. Cal, 1971). 26a advanced here by the Secretary to distinguish the cases at bar from Goldberg, as well as the arguments propounded here by the Secretary, in connection with the burden that requiring pre-recoupment oral hear- ings would impose on the Administration, were fully considered and for the most part rejected. This Court concurs with the Third Circuit’s opinion and shares in its conclusion that Goldberg requires the Secretary to provide social security beneficiaries with a pre- recoupment oral evidentiary hearing along the param- eters and with the qualifications outlined in the Mat- tern decision. It cannot be seriously maintained that some form of process is not due social security beneficiaries whose old-age or disability payments are subject to suspension or reduction under the Secretary’s recoup- ment procedures. Plaintiffs’ interests in their monthly benefits amounts to a statutory entitlement and, therefore, constitutes a property interest protected under the Due Process Clause of the fifth amendment. Goss v. Lopez, 419 U.S. 565, 573 (1975); Board of Regents v. Roth, 408 U.S. 564, 577 (1972); 42 U.S.C. § 401 et seq. Thus, they may be deprived of their property interests only by due process of law. /d. That the deprivation of such property interests does not subject the persons entitled thereto to a “severe detriment or grievous loss” is of no moment in deter- mining whether due process comes into play. [F Jor in determining ‘whether due process re- quirements apply in the first place, we must look not to the “weight” but to the nature of the in- 27a terest at stake.’ [citations omitted.] [T]he length and consequent severity, while another factor to weigh in determining the appropriate form of hearing, ‘is not decisive of the basic right’ to a hearing of some kind. [citation omit- ted.] The Court’s view has been that as long as a property deprivation is not de minimis, its gravity is irrelevant to the question whether ac- count must be taken of the Due Process Clause. [citations omitted.] Roth at 576 (emphasis orig- inal.) A suspension or reduction in old-age or disability benefits imposed in order to recover an alleged over- pay. ent is not a de minimis deprivation outside the protection of the due process clause. See Goss, id. (wherein the Court found a 10-day suspension from school not to be de minimis). The Secretary contends that where a recipient ad- mits that an overpayment has been made but seek to gain a waiver of recoupment under 42 U.S.C. § 404(b), the recipient has no property interest in the amounts overpaid deserving of due process pro- tection. This argument is untenable. In Board of Regents v. Roth, supra at 577, the Supreme Court observed that, the welfare recipients in Goldberg v. Kelly, su- pra, had a claim of entitlement to welfare pay- ments that was grounded in the statute defining eligibility for them. The recipients had not yet shown that they were, in fact, within the statu- tory terms of eligibility. But we held that they 28a had a right to a hearing at which they might attempt to do so. Thus, the social security beneficiaries here who con- cede they have been overpaid nonetheless possess a property interest in their right to demonstrate they are eligible for waiver under the terms of 42 U.S.C. §$ 404(b). Section 404(b) provides a recipient of an overpayment with a statutory right not to have his payments reduced or suspended if he is “without fault” and the recovery would “defeat the purpose” of the Act or “would be against equity and good con- science.” It is not a matter of “governmental benefi- cence,” as the Secretary puts it, in his waiving re- coupment. Rather, it is a question of complying with the statute. Indeed, under section 404(b) waiver is not discretionary, but mandatory, viz., it provides that “there shall be no” recoupment under the condi- tions specified. “Thus, the fact that [plaintiffs] may not have been entitled to receive the overpayment(s | does not mean that [they have] no claim of entitle- ment to retain [them] (or at least to receive the full amount of [their] future monthly payments).” Mat- tern v. Weinberger, supra at 26. (emphasis original.) More difficult, however, is determining the form of process to which plaintiffs are due. The Secretary contends that, except in the “most extraordinary” circumstances as epitomized by Goldberg v. Kelly, the Supreme Court has not required trial-type hearings prior to a deprivation of a property interest where, as here, the preliminary pre-deprivation procedures 29a are sufficient to establish the “probable validity” of the administrative claim. In Mattern, the Third Circuit voiced what we be- lieve to be the crucial flaws in the Secretary’s analy- sis. First, the Secretary relies primarily on a line of cases which, while having some relevance on the issue, did not purport to overrule or modify Goldberg and are not controlling here. Mitchell v. W. T. Grant Co., 416 U.S. 600 (1974); Fu- entes v. Shevin, 407 U.S. 67 (1972); Sniadach v. Family Finance Corp., 395 U.S. 337 (1969). Of these three decisions, only Mitchell indicated that ‘probable validity’ may be determined in the absence of a prior oral hearing; Fuentes and Sniadach, in fact, required prior oral hearings. Thus, Mitchell, rather than Goldberg, represent the exception to the rule. . . . In Goldberg, the Supreme Court considered a state welfare pro- cedure in which a claimant had a right, after being interviewed by his caseworker and prior to termination of benefits, to receive a written explanation of the reasons for termination and to submit written information in rebuttal. He also had a right to a full oral hearing after ter- mination. 397 U.S. at 258-60. The Court, how- ever, held that this procedure was insufficient and required an oral hearing prior to termina- tion. Since the procedure invalidated in Gold- berg would seem to be at least effective in ensur- ing ‘probable validity’ as the procedure used here, and since the Court in Mitchell did not purport to mouify Goldberg, we refuse to extend the rea- soning of Mitcheil outside the creditor/debtor 30a context and to permit ex parte determination of ‘probable validity’ in social welfare cases. Furthermore, even if Mitchell’s ‘probable va- lidity’ analysis were applicable to social welfare cases, the procedure here may not pass muster. . . . The Court upheld the Louisiana sequestra- tion statute challenged in Mitchell partly because it provided for an immediate hearing after the writ issued. Jd. at 618. Thus, the constitution- ality of a procedure establishing ‘probable va- lidity’ without a full oral hearing prior to the property deprivation may depend in part on whether there is an immediate right to an oral hearing afterward. Mattern, supra at 14-16. (emphasis original. ) As evidenced in the case of plaintiff Biner, however, attending review of the Administration’s initial over- payment determination exists a delay of several months between the time recoupment commences and the time a recipient is provided a hearing. Finally, if the Secretary’s pre-recoupment pro- cedures are to be upheld on the ground that they are sufficient to determine ‘probable validity,’ they would have to be effective in minimizing the risk of an erroneous determination. See Mitchell, supra at 618; Arnett v. Kennedy, 416 U.S. 134 (1974), at 170 (Powell, J., concurring) and 188 (White, J., concurring in part and dis- senting in part.) However, the Secretary’s own figures undercut his contention that the proce- dures at issue here are effective to minimize er- roneous decisions to recoup. In 1970, the only year from which figures have been made avail- 3la able to us [as is also the case here], over one- third of all persons seeking a post-recoupment hearing (560 out of 1600) obtained reversals. Therefore, because of a combination of factors —the fact that the Supreme Court has given no indication that Mitchell’s ex parte ‘probable va- lidity’ approach is applicable outside the credi- tor/debtor context, and that such an approach appears to have been at least implicitly rejected in Goldberg v. Kelly; the substantial delay be- tween the initiation of recoupment and an oral hearing; and the significant reversal rate fol- lowing post-recoupment hearings—we conclude that the pre-recoupment procedures cannot be defended on the ground that they are sufficient to establish the ‘probable validity’ of the de- termination in question. Mattern, id. at 16-17. The Secretary also contends that oral hearings are not compelled here because unlike the welfare recipi- ents in Goldberg whose benefits were terminated, social scurity beneficiaries whose monthly payments are suspended or reduced through recoupment pro- cedures are not thereby necessarily left destitute. In the Secretary’s view, the severity of the impact visited upon plaintiffs here is not of the same quantum as that involved in Goldberg, and therefore, the oral hearing required in Goldberg is here unnecessary. However, the line of precedent following the Gold- berg decision does not support the Secretary’s posi- tion. It is axiomatic that the requisites of due process vary according to specific factual contexts. Goldberg, 32a supra at 262-63. And it is true that of significant im- portance in determining the formality and procedural requisites of the process due in particular circum- stances is the relative weight of the property interest involved. Board of Regents v. Roth, supra at 570; Crow v. California Dept. of Human Resources De- velop., 490 F.2d 580 (9th Cir. 1973), vacated 95 S.Ct. 1110. That is not to say, however, that the relative weight of the interest involved is dispositive of the question whether an oral hearing is to be afforded in the first place. In its most recent pronouncements concerning the subject, it has become quite clear that the Supreme Court envisions due process to generally require a pre-deprivation hearing of some type as long as the interest at stake is not de minimis, irrespective of the severity of the impact resulting from that de- privation. Goss v. Lopez, supra; North Georgia Fin- ishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 606 (1975); Fuentes v. Shevin, supra at 88-89; Bell v. Burson, 402 U.S. 535 (1971).” The government does not contend, nor can it be said, that the interest of these plaintiffs in receiving their monthly social security benefits is de minimis. As a threshold determination, therefore, it is our opinion that, excluding for the moment consideration of any competing interests on the part of the govern- ment, a hearing of some sort should be afforded plaintiffs prior to the recoupment of their social secur- ** We share the Third Circuit’s view that Judge Friendly’s contrary holding in Frost v. Weinberger, 515 F.2d 57 (2d Cir. 1975), is distinguishable and should not be followed. 33a ity old-age and disability benefits. Of similar resolve were the courts in Mattern v. Weinberger, supra; Eldridge v. Weinberger, 493 F.2d 1230 (4th Cir. 1974), aff'g 361 F. Supp. 520 (W.D. Va. 1973), cert. granted, 43 U.S.L.W. 3383 (January 14, 1975); Wil- liams v. Weinberger, 494 F.2d 1191 (5th Cir. 1974), aff'g 360 F. Supp. 1349 (N.D. Ga. 1973). As previously noted, due process is a flexible con- cept, and fashioning the specific parameters of the hearing required thereunder depends on striking an appropriate accommodation of the competing interests involved. Goss, supra at 579. The Secretary suggests that affirmance of the district courts’ holdings that due process requires a full Goldberg type hearing prior to recoupment of overpayments made to social security beneficiaries would impose a heavy fiscal burden on the Department of HEW. Since the De- partment already provides overpaid recipients elab- orate post-recoupment procedures, including the op- portunity for a de novo hearing, it appears that any burden in having to establish a new system, wherein the opportunity for a hearing must be provided be- fore rather than after recoupment, will be minimal. The major fiscal difficulty envisioned by the Secretary is the likelihood that the availability of pre-recoup- ment hearings will result in the filing of a far greater number of requests for reconsideration or waiver. During oral argument counsel for the Secretary cited statistics that show that the number of hear- ings on termination of welfare benefits has increased from 19,000 per year to 68,000 per year since the 34a decision of the Supreme Court in Goldberg. Without further clarification, these statistics are of little value. They do not disclose what change, if any, has taken place in the success rate of welfare beneficiaries who receive a hearing. If the effect of Goldberg were to cause the filing of a large number of frivolous requests for hearings by people seeking to delay termination, there might be reason to question the wisdom of Goldberg. But if, in fact, the percentage of successful contests has remained constant or de- clined slightly, then Goldberg has resulted in a lar- ger number of correct determinations of the issue of whether welfare benefits should be terminated, and, as such, Goldberg has benefited rather than bur- dened the system. If requiring pre-recoupment hearings would result in the filing of frivolous requests in order to delay recoupment, the present procedure should also encour- age frivolous written requests for reconsideration or waiver. This is so because the present practice of the Secretary is to delay recoupment until after a deter- mination by the Department that the request should not be granted. But the statistics provided by the Secretary show a high rate of success among those requesting either reconsideration or waiver. “Of those who do contest the initial overpayment deter- mination, about sixty-nine per cent succeed in getting the Administration to reverse itself.” Elliott v. Wein- berger, 371 F. Supp. at 967. One may reasonably wonder what happened to the frivolous, delay-moti- vated requests for reconsideration or waiver? As evidenced by plaintiff Biner’s case, the present procedure involves a substantial delay anywhere from four to five months between the time a recipient re- quests an administrative de novo hearing upon his or her claim for waiver or reconsideration and the time the hearing is held and the matter is disposed of. Thus, a decision that hearings must be held prior to recoupment would mean that the government could not collect payments for several months after the initial determination that recoupment was necessary. However, the present system has the evil of denying benefits for an equally long time from beneficiaries who are successful, after a full hearing, in reversing the Secretary’s initial determination. Which system is preferable should depend upon the success rate of recipients who take their case to the hearing stage. Relevant statistics indicate this rate to be very high —more than one third of those recipients who avail themselves of the opportunity to have their griev- ances resolved at the de novo hearing succeed in per- suading the Administration to reverse its original recoupment decision. Elliott, supra at 967. Since the success rate is significantly high, the government is being allowed to temporarily recoup payments when it has no claim to them. See Fusari v. Steinberg, 95 S.Ct. 533 (1975), in which the Supreme Court found “significant” in determining the requisites of due process a 19.4 to 26.1 per cent reversal rate of appealed denials of unemployment compensation bene- fits. A system which delayed the start of recoupment 36a pending the outcome of a hearing, the purpose of which is to determine the propriety of that recoup- ment, would provide a net benefit to society.” As alluded to earlier, the Secretary draws a dis- tinction between reconsideration cases and waiver con- sideration cases, contending that they raise somewhat different legal issues. Under the present procedures, when a recipient asks that the Secretary’s overpay- ment determination be reconsidered, he is challenging the correctness of the overpayment determination it- self. Contrariwise, when a social security beneficiary asks that recoupment be waived, he, in essence, is conceding that he was overpaid, but asks that recov- ery of the excess benefits involved be foregone. The Secretary contends that in the vast majority of recoupment cases issues are presented which are “In Fusari v. Steinberg, supra, the Court discussed the manner in which the delay in payment of unemployment in- surance benefits pending a hearing affected the balancing required to determine the requirements of due precess. In this context, the possible length of wrongful depriva- tion of unemployment benefits [between 100 and 126 days] is an important factor in assessing the impact of official action on the private interests. [citations omit- ted.] Prompt and adequate administrative review pro- vides an opportunity for consideration and correction of errors made in initial eligibility determinations. Thus, the rapidity of administrative review is a significant factor in assessing the sufficiency of the entire process. 95 S.Ct. at 540. Fusari appears to require that the existence of a substantial delay between the initial administrative determination and the conclusion of a full hearing be weighed as a factor tilt- ing the scales toward providing a pre-recoupment hearing. 37a uniquely suited to resolution by written submissions and documentary proof, thus obviating the need to provide full-blown, Goldberg type hearings. Al- though we agree that in those cases where factual disputes are as well suited to disposition by docu- mentary proof and written submissions as by oral hearings, due process does not require a pre-recoup- ment oral hearing, we cannot divine, as does the Secretary, that in virtually all reconsideration and waiver cases the only issues raised are those adapt- able to such facile resolution. The Third Circuit’s analysis of those cases arising in the recoupment context in which such documentary disposition is per- missible under due process principles is extremely well reasoned and warrants quotation here. Implicit in Goldberg v. Kelly is the recogni- tion of the fact that issues likely to arise in welfare termination cases can only be resolved through an oral hearing. One of the plaintiffs was a woman whose benefits had been termi- nated because she allegedly failed to cooperate with welfare officials in suing her estranged husband. Another was a man whose benefits were terminated because he refused to accept drug counseling and rehabilitation, though he claimed that he did not in fact use drugs. Goldberg, supra at 256 n.2. It is obvious that resolution of those factual disputes could only be made at an oral hearing, where the trier of fact could evaluate the credibility of the claim- ant. As the Court noted, “where credibility and veracity are at issue, as they must in many 38a termination proceedings, written submissions are a wholly unsatisfactory basis for decision.” /d. at 269. Similarly, in Goss v. Lopez, supra, the ques- tion of whether a student had engaged in dis- ruptive conduct justifying suspension could not possibly be determined without an oral hearing. See also Bell v. Burson, supra, which required an oral hearing to determine fault before revoca- tion of a driver’s license. By contrast, the Su- preme Court in Mitchell held that no prior op- portunity whatsoever need be given the debtor to oppose repossession of his property, in part because “the issue turns on the existence of the debt, the lien, and the delinquency,” which “are ordinarily uncomplicated matters that lend them- selves to documentary proof.” Jd. at 609. Thus, “t]he nature of the issues at stake minimize the risk” of an erroneous ex parte determination. Id. at 609-10 Mattern, supra at 23-24. * * * * We agree with the Secretary that “reconsider- ation” cases are generally well suited to resolu- tion by documentary proof, and that claimants in most cases of this type are not constitutionally entitled to a prior oral hearing.'*! 28. We decline to establish a flat rule that all “reconsideration” cases may be de- cided prior to recoupment without oral hear- ing, since we do not have sufficient basis for knowing all the types of cases which the Secretary may classify as being of the “reconsideration” type. The crucial distinc- tion is not whether the cases are labeled “reconsideration” or “waiver,” but whether they lend themselves to resolution by docu- mentary proof. Thus, while we shall use those terms as suggested by the Secretary for purposes of convenience, we do not mean to imply that the constitutionality of re- coupment in a particular case is dependent upon the label used nor that we necessarily accept the Secretary’s categorization in toto. [As exemplified by the cases at bar] most of these disputes involve matters of a purely arith- metical nature—whether the computation of an earnings statement is correct; whether a com- puter’s calculation of the amount of benefits re- ceived is accurate; whether two benefit checks have been received rather than one. In such circumstances, an examination of social security records and cancelled checks would seem to be sufficient, and it is hard to see how an oral hearing would be of much benefit to the claim- ant. Consequently, the Secretary’s pre-recoup- ment procedures permitting written evidence and providing for an examination of written docu- ments, when coupled with a right to a post- recoupment oral hearing, satisfy due process. We had one caveat, however. Because we can- not envision all the situations in which “re- consideration” cases are likely to arise, we ac- knowledge the possibility that there may be cases where the opportunity to appear in person might be important in making an accurate determina- tion. Thus, while many “reconsideration” cases can be decided without a prior oral hearing, we believe that, as a matter of due process, the 40a Secretary should establish procedures which would provide for an oral hearing where a case does not hinge on documentary evidence and where a claimant raises issues which necessitate an evaluation of his credibility. We are mind- ful of the concern expressed in Goldberg that many claimants lack the education or ability to frame written submissions in a persuasive light, and thus if a claimant in a “reconsideration” case raises such an issue, he should be entitled to a hearing. If, however, a claimant merely denies receiv- ing duplicate checks or claims that his earnings were of a certain amount, cancelled checks bear- ing his endorsement or earnings records main- tained by the social security office would seem to constitute hard proof incapable of oral re- buttal. Mattern, supra at 24-25. If plaintiff Biner had simply denied receiving the checks here in dispute or had claimed that they did not represent an overpayment, she would not have been constitutionally entitled to a hearing prior to recoupment. Cancelled checks bearing her endorse- ment would have been persuasive proof that she had received and negotiated them, and a comparison of the salary listed in her earnings report with the statutory maximum—showing the former to exceed the latter—would be strong evidence that the checks represented an overpayment. “Furthermore, [plain- tiff Biner] came forth with no written evidence to support a contention that she had not in fact been paid [$2,216.20] or that the check[s] did not repre- 4la sent an overpayment.” Jd. at 25-26. In her two re- quests for reconsideration, she simply stated that “I do not believe there was any overpayment.” Buffing- ton Tr. 112, 113. Consequently, if she had made solely those con- tentions, it is hard to see how a pre-recoupment oral hearing would be helpful. In all cases, how- ever, a claimant should be informed, prior to ini- tiation of recoupment, of the basis on which an adverse determination is made and should be offered the opportunity to explain or rebut any written evidence against her.” * * * * The Secretary also contends that “waiver” eases, like “reconsideration” cases, lend them- selves to resolution by documentary proof. We disagree. One of the factors to be considered in a “waiver” case is whether the claimant is “‘with- out fault,” and the Supreme Court has clearly indicated that determinations as to fault must be made at an oral hearing. Mattern, supra at 26-27. As in Mattern, the “facts of [plaintiff Biner’s case] graphically illustrate the need for an oral hearing.” Id. While conceding that it may have been at fault in issuing Mrs. Biner the checks which represented 1° Like the district court in Elliott we have serious doubts as to the adequacy of the Secretary’s summary explanation of some of its overpayment determinations as the result of “processing error.” Elliott Tr. 285. The strictures of due process would seem to compel a more elaborate description of the type of error which gave rise to the Secretary’s deter- mination in the first instance. 42a overpayments for the year of 1972, the Administra- tion nonetheless believed that the letter enclosed with the first check sent to Biner and the fact that she received checks while she was employed put her on notice that continued retention of those checks was improper and precluded a finding on its part that she was “without fault” within the meaning of the Social Security Act. Buffington Tr. 212-13. How- ever, whether Biner knew that she was not entitled to these checks seems to be a matter difficult to re- solve without hearing her side of the story. “Simi- larly, a finding of fault could not rest on the am- biguous [letter included with the first overpayment check sent to Biner] at least without giving [her] an opportunity to explain in person what she thought it meant.” Jd. at 27. Another requirement that a claimant in waiver case must meet is that recoupment would either frustrate the purposes of the Act or be against equity and good conscience. As defined by the Secretary’s regulations, these terms re- fer to such matters as difficulty in meeting neces- sary living expenses or a change of position by the recipient. [20 C.F.R. §§ 404.508, 404.509] We do not see how a resolution of such ques- tions can reliably be determined in the absence of oral testimony. While we believe that claimants in “waiver” eases have a constitutional right to a pre-re- coupment oral hearing, that right may not at- tach in all cases. Where a claimant in a “waiver” case raises no disputed issue of fact, 43a or where, accepting his version of the facts as true, we could say as a matter of law that he was not entitled to retain the overpayment, then again it is hard to see how a pre-recoupment hearing would be of benefit. Thus, the constitu- tional requirement of a hearing may be limited to some extent by principles analogous to sum- mary judgment in civil litigation. See Mills v. Richardson, 464 F.2d 995 1001 (2d Cir. 1972). Id. at 27-28. * * * * In sum, we conclude that the recoupment pro- cedure established by the Secretary is constitu- tionally deficient in that it does not provide for pre-recoupment oral hearings in the situations we have indicated are necessary. We do not believe that due process requires pre-recoupment oral hearings in all cases, but the Secretary’s existing procedure makes no distinction between the various types of cases and issues that are likely to arise. To the extent that a hearing is required, we agree with the district court[s] that the full panoply of procedural safeguards need not be provided and that the pre-recoup- ment hearing need not take the form of a ju- dicial or quasi-judicial trial. Jd. at 28-29. We are therefore of the opinion that to the extent indicated below the specific requirements outlined in the lower court’s opinions are those which are com- pelled by the Due Process Clause of the fifth amend- ment. Specifically, the Secretary is required to pro- vide a pre-recoupment hearing in the situations noted previously which affords the complainant the following rights: 44a 1. to present his case orally and to submit evi- dence with witnesses or documents; 2. to cross-examine witnesses against him; 3. to be represented by counsel if he wishes or to retain the informal assistance of a friend; 4. to have an independent hearing officer pre- side during the hearing who is totally unin- volved with the initial overpayment and recoup- ment decisions; 5. to receive an opinion written by the hearing officer which sets forth his decision and the rea- sons and evidence in support of it; 6. to review his file five days before the hear- ing ; 7. to receive adequate notice at least thirty days prior to the commencement of recoupment: (1) explaining the reasons recoupment is sought; (2) apprising him that in the event he, in writ- ing, requests reconsideration or waiver of the Secretary’s initial overpayment and recoupment determination, the Administration will subse- quently inform him of the form of review to which he is entitled pursuant tw the opinion herein rendered; and (3) informing him that recoupment will not begin until his request has been finally disposed of by way of the required review procedure.” 1° The court in Elliott found the Secretary’s form of notice deficient insofar as it failed to apprise recipients of the ap- propriate forms which must be completed in order to invoke the Administration’s review procedures. To remedy the situ- ation, the court ordered the Secretary to specify in his ini- tial overpayment notice those forms the recipient must. re- 45a The judgments of the district courts are affirmed in part and reversed in part, and the cases are re- manded for the entry of new judgments consistent with this opinion. quest from the local office to perfect his appeal rights. Al- though any written submission will trigger commencement of the Administration’s reconsideration and/or waiver pro- cedures, given the writing capabilities of many of these old- age and disabled beneficiaries and the subleties which may inhere in determining whether an oral hearing is required in any given situation, it would be prudent of the Secretary to furnish recipients information as to the forms involved in cases of this sort and encourage their utilization. We do not hold that providing information as to such forms is a matter of constitutional imperative, however. It is to be noted that any recipient who fails to notify the local office of his desire to have his overpayment and recoup- ment determination reviewed within the thirty day period will be deemed to have waived his right to seek that review by way of written submissions or by way of an oral hearing. 46a. APPENDIX B JUDGMENT UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 74-3118 DC# 734-73C2 FANNIE BUFFINGTON and FRANCES BINER, Individ- ually and on behalf of all others similarly situated, PLAINTIFFS-APPELLEES, Vv. CASPAR WEINBERGER, Individually and in his capacity as Secretary of the Department of Health, Educa- tion and Welfare, DEFENDANTS-APPELLANTS. APPEAL from the United States District Court for the Western District of Washington (Seattle). THIS CAUSE came on to be heard on the Tran- script of the Record from the United States District Court for the Western District of Washington and was duly submitted. ON CONSIDERATION WHEREOF, It is now here ordered and adjudged by this Court, that the judgment of the said District Court in this Cause 47a be, and hereby is AFFIRMED IN PART AND RE- VERSED IN PART, AND REMANDED. A TRUE Copy ATTEST: ‘{[February 19, 1976] EMIL E. MELFI, JR. Clerk by /s/ [Ilegible} puty [SEAL] Filed and entered October 1, 1975 48a JUDGMENT UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 74-1611 DC# 72-3629 EVELYN ELLIOTT and BENITO MOLINA, Individually and on behalf of all others similarly situated, PLAINTIFFS-APPELLEES, Vv. CASPAR W. WEINBERGER, Individually and in his ca- pacity as Secretary, United States Department of Health, Education and Welfare; etc., et al., DEFENDANTS-APPELLANTS. APPEAL from the United States District Court for the District of Hawaii (Honolulu). THIS CAUSE came on to be heard on the Tran- script of the Record from the United States District Court for the District of Hawaii and was duly sub- mitted. ON CONSIPERATION WHEREOF, It is now here ordered and adjudged by this Court, that the judgment cf the said District Court in this Cause be, and hereby is AFFIRMED IN PART AND RE- 49a VERSED IN PART, AND REMANDED TO THE DISTRICT COURT. A TRUE Copy ATTEST: [February 19, 1976] EMIL E. MELFI, JR. Clerk by /s/ pee [SEAL | Filed and entered October 1, 1975 50a APPENDIX C IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII Civil No. 72-3629 EVELYN ELLIOTT and BENITO MOLINA, Individually and on behalf of all others similarly situated, PLAINTIFFS v8. CASPAR WEINBERGER, Individually and in his ca- pacity as Secretary, United States Department of Health, Education and Welfare; and SuNG DAI Seu, Individually and in his capacity as Pacific Area Manager, Social Security Administration, Department of Health, Education and Welfare, DEFENDANTS FINDINGS OF FACT AND CONCLUSIONS OF LAW Under 42 U.S.C. § 404(a) and (b),* the Secretary of the Social Security Administration (hereinafter 1§ 404. Overpayments and underpayments (a) Whenever the Secretary finds that more or less than the correct amount of payment has been made to any person under this subchapter, proper adjustment or recovery shall be made, under regulations prescribed by the Secretary, as follows: [Footnote continued on page 51a] a — 5la the “Administration”) may effect or waive recoup- ment of overpayments made to social security recip- ients. The Administration has promulgated proce- dures and regulations governing recoupment and ? [Continued] (1) With respect to payment to a person of more than the correct amount, the Secretary shall decrease any payment under this subchapter to which such over- paid person is entitled, or shall require such overpaid person or his estate to refund the amount in excess of the correct amount, or shall decrease any payment under this subchapter payable to his estate or to any other person on the basis of the wages and self-employment income which were the basis of the payments to such overpaid person, or shall apply any combination of the foregoing. A payment made under this subchapter on the basis of an erroneous report of death by the Depart- ment of Defense of an individual in the line of duty while he is a member of the uniformed services (as defined in section 410(m) of this title) on active duty (as defined in section 410(1) of this title) shall not be considered an incorrect payment for any month prior to the month such Department notifies the Secretary that such individual is alive. (2) With respect to payment to a person of less than the correct amount, the Secretary shall make payment of the balance of the amount due such underpaid person, or, if such person dies before payments are completed or before negotiating one or more checks representing cor- rect payments, disposition of the amount due shall be made in accordance with subsection (d) of this section. (b) In any case in which more than the correct amount of payment has been made, there shall be no adjustment of payments to, or recovery by the United States from, any per- son who is without fault if such adjustment or recovery would defeat the purpose of this subchapter or would be against equity and good conscience. 52a waiver in its Claims Manual § 5503° and in the 2 The CLAIMS MANUAL § 5503(a) provides that stand- ard form letters sent to recipients subject to recoupment con- tain: (1) The incorrect payment made and how and when it occurred. (2) The right to request reconsideration of the over- payment determination. (3) The required recovery. (4) The proposed adjustment or the demand for repay- ment where adjustment is not possible. (5) The waiver provisions of the law (Social Security Act, secs. 204(b) or 1870(c)). (6) The availability of partial adjustment or partial refund. (7) The need to notify the DO [Department Office] promptly if the person feels that the circumstances in the case would justify reconsideration, waiver, partial adjustment, or partial refund. § 5503(b) provides: Delay in Withholding Benefits to Recover Overpayments. Before we start to adjust the overpayment against the benefits due a beneficiary, he or his payee wil! norm- ally be given reasonable opportunity to contest the cor- rectness of the determination or to establish that a basis exists for waiver or partial adjustment. The notice to the beneficiary will advise him that adjustment will be deferred for a longer period when the facts in a given case, including but not limited to time case is being being worked, cutoff dates, mailing time, etc., indicate that a 30-day period would be inadequate for considera- tion of the matter and reply by the beneficiary and re- viewing office processing time. The only exceptions to this rule are: (1) the overpayment is based on an annual report by the beneficiary; or [Footnote continued on page 53a] 53a Code of Federal Regulations, 20 C.F.R. §§ 404.901 ? [Continued] (2) the overpayment results from the superendorse- ment procedures under Section 205(n) of the Act where- by payment of a combined check is made to the survivor. . . . In the above two situations immediate adjustment action is taken. § 5503(c) provides: If the person responds raising some question about the correctness of the determination of overpayment, or raises a question about recovery, waiver or partial adjustment, the DO will obtain the necessary evidence and prepare a recommendation to the reviewing office for disposing of the case. Thus, if the person liable requests reconsideration of the substantive determina- tion and it appears that the determination will be affirmed, the DO will develop the possibility of waiver of adjustment or recovery of the overpayment at the same time it receives evidence to resolve the request for reconsideration. This is necessary since, if the substan- tive determination is affirmed the Reconsideration Deter- mination will cover both issues (§ 8737). (Emphasis original). When development is initiated for reconsideration of the overpayment determination, for waiver, or for par- tial adjustment, withholding to recoup the overpayment will be further deferred and payment will be continued until development has been completed, if the beneficiary is otherwise entitled to benefits. If development will not be completed before the expiration of the initial 30-day deferral period, the DO will . . . advise the reviewing office. After this case was heard, the Administration reported that by January 1, 1975, overpayments based on beneficiaries’ annual reports [§ 5503(b)(1)] will not be an exception to the rule of § 5505(b). o4a et seg. (1973).* The Plaintiffs in this class action claim that these procedures and regulations deny them due process of law under the Fifth Amendment because their benefits are reduced or suspended with- out adequate notice of the reasons for the recoup- ment, without adequate notice of their right to re- consideration, waiver, or partial adjustment,* and without a hearing prior to the recoupment. Defend- ants contest the Plaintiffs’ constitutional and juris- dictional claims. Facts: This court has divided the Plaintiff class into two subclasses. Represented by Plaintiffs Silva, Ortiz, and Vaquilar, the first subclass consists of all social security old-age beneficiaries, resident in the State of ® §§ 404.901 et seq. of Social Security Administration Reg- ulations No. 4, set forth a four-step administrative review including an initial determination (§ 404.905); a reconsidered determination (§ 404.914); an administrative hearing de novo before an independent administrative law judge (§ 404.917); review by the Appeals Council of the Social Security Administration, (§ 404.945). After exhaustion of these administrative remedies, 42 U.S.C. § 405(g) provides for judicial review. The initial overpayment determination notice must state the basis of the determination and inform the recipient of his right to reconsideration (§ 404.907). The initial deter- mination is final unless a written request for reconsideration is filed (§ 404.908). The reconsideration decision is final unless a hearing is requested in writing (§ 404.914). ‘ Partial adjustment is a recoupment method whereby part of monthly benefits are withheld. It is permitted (not man- dated) by 20 C.F.R. § 404.502a if certain conditions are met. 55a Hawaii, whose exposure to recoupment is based upon their own annual earnings reports.’ Represented by Plaintiffs Elliot, Gaines, and Yamasaki, the second subclass consists of all social security old-age and dis- ability benefit recipients, resident in the State of Hawaii, whose exposure to recoupment is based upon evidence other than annual earnings reports.* Named Plaintiffs of subclass one all received an Administration form letter indicating that based upon their annual earnings reports for the preceding year, a specified overpayment had occurred and that their subsequent benefit payments would be reduced or totally suspended over a specified period. There was some notice of the right to reconsideration and waiver.’ Plaintiffs believed themselves to be not liable ‘Recipients of old age retirement benefits are required to file annual earnings reports; and under 42 U.S.C. § 403(b) and (f), their monthly benefits may be reduced if their re- ported annual earnings are in excess of specified levels. Dis- ability recipients are not required to file annual earnings reports. * The exposure of Plaintiffs Elliott and Gaines to recoup- ment is based upon the Administration’s discovery of its own alleged error. Plaintiff Yamasaki’s exposure is based upon information supplied to the Administration by the insurance carrier of her unemployment compensation insur- ance. 7 The pertinent parts of the form letter are as follows: “If you believe that this determination is not correct, you may request that your case be reexamined. If you want the reconsideration, you must request it not later than 6 months from the date of this notice. You may make any such request through any social security office. 56a for any overpayment, not at fault in causing the overpayment, and unable to repay the amount due; they personally contacted local Social Security Ad- ministration offices within thirty days of receipt of the form letter. At that time, none were advised that appropriate forms requesting waiver, reconsideration, and partial adjustment were available to initiate ad- ministrative action, and none actually filed the re- If additional evidence is available, you should submit it with your request. To recover the overpayment, we shall withhold your benefits beginning‘with the check you would normally receive in . The next check that you will receive after the full overpayment has been withheld will be for $——. It will be sent to you about Thereafter, your regular monthly benefits of $—— will be resumed. Under social security law, any overpayment must be withheld from benefits or paid back unless both of the following are true: 1. The overpayment wasn’t your fault in any way and you cashed the check(s) because you thought they were correct, and 2. You couldn’t meet your necessary living expenses if you had to pay back the overpayment or have it withheld from your social security benefits; or it would be unfair for some other reason. To decide whether repayment would cause you financial hardship, we shall need a statement of your assets, and monthly income, and expenses. If you think you meet both conditions, call, write, or visit any social security office within 30 days from the receipt of this letter. Please take this letter with you if you visit the office. Unless we hear from you within 30 days, we shall with- hold benefits as indicated above.” 57a quisite forms within thirty days.‘ Currently, the Administration has completed recoupment against two of these Plaintiffs while deferring recoupment against the other pending the disposition of this case. Plaintiffs of subclass one have done all that reason- ably could be expected of them to exhaust their administrative remedies.’ Named Plaintiffs of subclass two received overpay- ment notices more than thirty days before recoup- ment was to begin. The notice to Plaintiff Elliott set forth that the overpayment determination was based *One Plaintiff (Vaquilar) did immediately ask for and receive a partial adjustment of the amount to be withheld monthly. Moreover, acting on advice of counsel, he com- pleted and filed the requisite forms requesting waiver and reconsideration more than thirty days after receipt of the overpayment notice. However, trial testimony indicates that timely completion of the forms would not have changed the Administration’s disposition of the first subclass cases. ® The general rule is that a litigant must exhaust his ad- ministrative remedies, if such remedies exist, before invok- ing federal jurisdiction. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51 (1938). However, the exhaustion requirement is excused if a) the administrative remedy is wholly inadequate, and the federal question is plain, or b) exhaustion would cause irreparable harm, as by prejudicial delay. See Martinez v. Richardson, 472 F.2d 1121, 1125 (10th Cir. 1973) and authorities cited therein. See also Note, Federal Jurisdiction Over Challenges To State Welfare Programs, 72 COL. L. REV. 1404, 1438-40 (1972). In this case, exhaustion of administrative remedies is excused on either of the above grounds. The federal question is clear; obtaining administrative relief on the due process issues raised would be a lengthy process during which many of the aged and disabled Plaintiffs in both subclasses would suffer and some would die. 58a upon her receipt of both retirement and disability benefits when she was entitled to only disability bene- fits. The notice to Plaintiff Gaines indicated that “duplicate payments” over specified dates was the reason for the overpayment finding.“ The notice to Plaintiff Yamasaki specified “a processing error’ as the cause of the overpayment.” All three named Plaintiffs received some notice of the right to recon- sideration and waiver.” The Plaintiffs believed them- selves to be not liable for any overpayment, not at fault in causing the overpayment, and unable to re- pay the amount claimed; they contacted local Admin- istration offices within thirty days after receipt of the overpayment notice. At that time, none were ad- vised that appropriate forms requesting waiver, re- consideration, and partial adjustment were available to instigate administrative action, and none actually filed the requisite forms within thirty days.“ Pres- ently, recoupment against Elliott and Gaines has been deferred pending a final disposition of this case, Affidavit of Bernard Popick, para. 12. " Plaintiff’s Exhibit, P-15. 2 Affidavit of Nancy Yamasaki, Exhibit A. 18 The pertinent parts of the initia] notice were virtually the same as those reprinted in note 7, supra. ’ The three subclass two Plaintiffs, acting upon advice of counsel, eventually did complete and file the requisite forms after the initial thirty days had elapsed. Trial testimony indicates, however, that timely completion of the fornrs would not have altered the Plaintiffs’ current status. See also note 9, supra. 59a while recoupment against Plaintiff Yamasaki has been completed. Plaintiffs of subclass two have done all that reasonably could be expected of them to ex- haust their administrative remedies. In summary, the Administration’s regulations and procedures, and the Plaintiffs’ histories in this case, show that recipients in both subclasses subject to recoupment receive recoupment notices which set out the basic reason for the recoupment, the possibility of reconsideration, the conditions for waiver, and the need to consult the local Administration office within thirty days if they wish to complain. For subclass one Plaintiffs, (at least until January, 1975), recoup- ment begins immediately after the initial overpay- ment decision is made. For subclass two Plaintiffs, the notice is sent thirty days before actual recoup- ment begins. In practice, actual adjustment may at the discretion of the Payment Center be extended be- yond 30 days when more time is needed to consider and process the matter. After the first determina- tion is made, if reconsideration or waiver is request- ed, recoupment is further deferred until those issues are determined on the basis of any documentary evi- dence submitted. Finally, a post-recoupment hearing is possible should the claimant wish to seek additional review.” The initial overpayment and recoupment notice sent to beneficiaries does not set forth the forms 15 See 42 U.S.C. § 405(b) (1969), and 20 C.F.R. § 404.917 (1973). 60a needed for reconsideration and waiver, or informa- tion about how to complete them. The information and forms missing in the initial notice are not gen- erally made available when the claimant consults his local Administration office. When reconsideration or waiver consideration is requested, the Administra- tion’s decision is based upon a claimant’s ex parte presentation of documentary evidence on an issue which he may understand only nebulously. Many of these claimants are elderly and disabled people whose capacities may frustrate an effective documentary presentation of their case. No oral hearing is given prior to the beginning of recoupment, and any de- ferral of recoupment beyond 30 days after the date of the initial notice lies completely within the discre- tion of the Administration. Should a claimant con- vince the Administration to reverse itself ex parte on the overpayment issue, a reduced or suspended pay- ment may ensue with a refund coming a month or more later. Statistics provided by the Defendant ” in this case indicate the following: (a) In 1970 there were overpayments in ap- proximately 1,250,000 cases. (b) Of these 1,250,000 overpayments, there were requests for reconsideration in approxi- mately 12,000 cases. 16 Affidavit of Bernard Popick, Director of the Bureau of Disability Insurance of the Social Security Administration, Department of Health, Education, and Welfare, para. 36. 6la (c) Of the 12,000 reconsideration determina- tions with respect to overpayments, there were approximately 8,250 reversals and approxi- mately 3,750 affirmances. (d) Of the 3,750 reconsideration affirmances with respect to overpayments, there were re- quests for hearing in approximately 1,600 cases. (e) Of the 1,600 cases that went to hearirg with respect to overpayments, there were re- versals in approximately 560 cases and affirm- ances in 1,040 cases. Stated another way, these statistics mean: (a) less than one per cent of the beneficiaries in overpayment status contest the matter. (b) Of those who do contest the initial over- payment determination, about sixty-nine per cent succeed in getting the Administration to reverse itself. (c) about forty-three per cent of those whose overpayment status is affirmed upon reconsidera- tion seek an oral (post-recoupment) hearing. (d) of those who get an oral hearing, more than one-third succeed in getting the Administration to reverse itself. (e) overall, of that small percentage of claim- ants questioning the overpayment determination, about seventy-three per cent (8,250 + 560 out of 12,000) finally succeed in obtaining relief. It is quite clear froi the above that when the claim- ant feels he has a strong enough case to question the Administration’s initial overpayment determination, 62a there is a very substantial chance that the Adminis- tration will eventually reverse itself. What is saddest and perhaps most important about this fact is that many social security recipients, like the Plaintiffs here, depend upon their full monthly benefit pay- ments for subsistence." Erroneous recoupments often cause the aged and infirm drastic hardship.“ Jurisdiction: The Defendants have moved for dismissal for lack of subject-matter jurisdiction. Plaintiffs assert that federal jurisdiction exists under 28 U.S.C. § 1331(a) (1966), 28 U.S.C. $1361 (Supp. I, 1972), and 5 U.S.C. §701 et seg. (1967) (hereinafter the “A.P.A.”). While § 1361 may have been intended to increase the availability of mandamus jurisdic- tion beyond that under common law,” even under the The Administration’s own CLAIMS MANUAL § 5000 states, ““Most people who get an RSDI check depend upon it for the necessities of life.” 1° For example, Plaintiff Elliott was forced to seek emer- gency welfare assistance from the State of Hawaii after her social security payment for June 1972 was withheld. ”§ 1361 states: “The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty to the plaintiff.” 20 Whether § 1361 was supposed to expand mandamus juris- diction beyond common law rules is an open question. Compare Burnett v. Tolson, 474 F.2d 877, 880 n. 5 and n. 6 (4th Cir. 1973) with Peoples v. U. S. Dept. of Agriculture, 427 F.2d 561, 565 (D.C. Cir. 1970). See generally, TB J. MOORE, FEDERAL PRACTICE § 1361, at 536 (2d ed. 1973). 63a traditional rules for mandamus writs, § 1361 applies to this case.** At common law, mandamus would is- sue when three elements coexisted, namely, 1) a clear right in the plaintiff to the relief sought; 2) a clear duty on the part of the defendant to do the act in question; * and 3) the lack of another adequate rem- edy. Carter v. Seamans, 411 F.2d 767, 773 (5th Cir. 1969). As to the third requirement, the Plaintiffs, if de- nied federal jurisdiction, may not have an adequate remedy elsewhere, see Burnett v. Tolson, supra note 20, at 82-83. The state courts may not be able to issue the requested injunctive relief, see State of ™ The court does not decide the 28 U.S.C. §1331(a) and 5 U.S.C. § 701 et seq. issues raised by the Plaintiffs, but notes in passing that support exists for either jurisdictional base. 5 U.S.C. § 706(2) applies to this case, and the A.P.A. has been viewed as a jurisdictional grant independent of other stat- utes. Bass v. Richardson, 338 F. Supp. 478, 482 (S.D. N.Y. 1971); (for authorities pro and con) see generally, Aguayo v. Richardson, 473 F.2d 1090, 1101-02 (2d Cir. 1973); Mills v. Richardson, 464 F.2d 995, 1001 n. 9 (2d Cir. 1972). Al- though the amount in controversy requirement may preclude § 1331(a) jurisdiction, some courts have indicated that when the deprivation of constitutional rights is at issue, the jur- isdictional amount is automatically satisfied. Accord, Spoek v. David, 469 F.2d 1047 (3d Cir. 1972); Cortright v. Resor, 325 F. Supp. 797, 809 (E.D. N.Y. 1971). Contra, Lynch v. House- hold Finance Corp., 405 U.S. 538, 547 (1972). See generally, Burnett v. Tolson, supra note 20, at 880 n. 4. 22 This traditional requirement is sometimes stated as a duty plainly and positively ascertained, and free from doubt. Wilber v. U.S. ex rel. Kadrie, 281 U.S. 206, 218-19 (1930); Prairie Band of Pottawatomie Tribe of Indians v. Udall, 355 F.2d 364, 367 (10th Cir. 1966). 64a Alabama v. Rogers, 187 F.Supp. 848, 852 (M.D. Ala. 1960); R. Arnold, The Power of State Courts to Enjoin Federal Officers, 73 YALE L. J. 1385 (1964), and any removal to a federal court from a state court would lie within the defendants’ sole discretion. Moreover, the first and second require- ments are met when the application of a Supreme Court ruling to the instant case clearly shows the existence of plaintiff’s constitutional right and its denial by the defendant. Mead v. Parker, 464 F.2d 1108 (9th Cir. 1972); Burnett v. Tolson, supra note 20; Daigle v. Warner, 348 F.Supp. 1074 (D.C. Ha- waii 1972), rev’d on non-jnrisdiction grounds, —— F.2d (9th Cir. 1973).* While the applicability of the relevant Supreme Court ruling should be beyond doubt in the opinion of the district court judge, it need not be so certain as to preclude a different opinion from another court. For example, in Daigle, supra, the Chief Judge of this District Court under § 1361 applied Argersinger v. Hamlin, 407 U.S. 25 (1972) to summary courts-martial. The Ninth Circuit later reversed, differing with the Dis- 28 In Mead, a case wherein the adequacy of a prison library was challenged, the Ninth Circuit held that § 1361 jurisdiction applied because Gilmore v. Lynch, 319 F. Supp. 105 (N.D. Cal. 1970) aff'd sub nom. Younger v. Gilmore, 404 U.S. 15 (1971) had established constitutional standards for prison libraries. In Burnett, the Fourth Circuit asserted § 1361 jur- isdiction in a case wherein the prior refusal to allow pamphlet distribution in a public area on a military base was said to be governed by Flower v. U.S., 407 U.S. 197 (1972) which declared unconstitutional the arrest (under 18 U.S.C. § 1382) of a leafleteer previously barred from a military base. 65a trict Court’s use of Argersinger without attackir~ its assertion of § 1361. In this case, the Plaintiffs rely upon Goldberg v. Kelly, 397 U.S. 254 (1970) (herein- after “Goldberg”) to establish the existence of the constitutional right to adequate notice and prior hear- ings in Administration recoupment cases. One court has already approved § 1361 jurisdiction and the application of Goldberg to the termination and re- coupment of medicare benefits under Administra- tion regulations similar to those involved in this case. Martinez v. Richardson, supra note 9. Accordingly, the applicability of Goldberg to this case is sufficiently apparent to establish for § 1361 jurisdictional pur- poses the plaintiff’s clear right and the defendant’s clear duty.” * In Knuckles v. Weinberger, F. Supp. —— (N.D. Cal. (1973), wherein the regulations under § 404 of the Act were challenged on due process grounds, Judge Wollenberg distin- quished the Mead case, and ruled that § 1361 jurisdiction did not exist because the applicability of Goldberg to this type of case was not certain enough to support mandamus juris- diction. With all due respect to Judge Wollenberg, I disagree that the application of Goldberg is unclear, and that Mead is distinguishable. The court’s awareness in Mead that the library in question was more deficient than the one in Gilmore does not necessarily reflect an understanding that § 1361 jurisdiction applies only when the constitutional infirmity is absolutely identical to (in kind) and exceeds (in degree) that ruled upon in a Supreme Court case. Rather the aware- ness of the greater library deficiency in Mead may have been directed towards the statement of claim issue in the case: “We have no doubt that, under Gilmore v. Lynch, supra, and Johnson V. Avery 1969, 393 U.S. 483, 89 S.Ct. 747, 21 L.E.2d 718, the named petitioners have stated a prima facie case under both theories,” supra, at 1111. When discussing § 1361 66a Due Process and Hearings Prior to Recoupment: Goldberg establishes the principle that when the impact of an erroneous administrative decision upon the individual is so severe as to deprive him of the means by which to live, due process requires that the individual have an opportunity to be heard and to cross-examine witnesses before any adverse decision is effected. Specifically, Goldberg held that a hearing had to be afforded the individual before his state welfare benefits were terminated. In reaching its decision, the Goldberg Court focused upon three con- siderations: The impact of an erroneous decision upon the individual, the government’s interest in ful- filling the purpose of welfare legislation by protect- ing against administrative mistakes, and the govern- ment’s interest in conserving the public fise and minimizing administrative burdens. The toldberg Court found that “termination of [welfare] aid pend- ing resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits,” at 264. It also found that important governmental interests were served by ensuring that welfare was given to eligible re- cipients without interruption. Finally, it found that jurisdiction, the Mead court stated (without mentioning Gilmore) that although § 1343 would not apply, .. . “the wrong done, if any, is just as much a violation of the federal Constitution as if done by a state official,” supra, at 1111. The court’s qualification of the wrong by “if any” suggests that the Plaintiff’s right and the Defendant’s duty need not be as absolutely certain as Judge Wollenberg would seem to require. 67a the additional burden on the government’s adminis- tration and fise did not outweigh the first two con- siderations in favor of providing a prior hearing. The application of Goldberg to this case is simply inescapable.” Since most social security recipients *In Richardson v. Wright, 405 U.S. 208 (1972) (Bren- nan, Douglas, and Marshall, JJ., dissenting), three Justices dissented to the Court’s decision to decline ruling on the application of Goldberg to the termination of social security disability benefits. The dissenters also expressed the view that Goldberg should be so applied. Accord, Note, Procedural Due Process and the Termination of Social Security Dis- ability Benefits, 446 S. CAL. L. REV. 1263 (1973). Goldberg has also been applied in public housing cases. See e.g., Caul- der v. Durham Housing Authority, 433 F.2d 998 (4th Cir. 1970), cert. denied, 401 U.S. 1003 (1971). The cases cited by the Defendant are clea’ _listinguish- able. It is true that in Kelly v. Wyman, 294 ¢.Supp. 893, 901 n. 20 (S.D. N.Y. 1968), aff’d sub nom. Goldberg, the court did suggest in dicta that its ruling might not apply to the federally administered Old-Age, Survivors, and Dis- ability Insurance Program. Howe [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1792%3A1. Public record. Not legal advice.