SSR 79-30c: SECTION 204(a) and (b) (42 U.S.C. 404(a) and (b)) RECOVERY OF OVERPAYMENT -- PRERECOUPMENT ORAL HEARINGS

20 CFR 404.502 and 404.506-404.509

SSR 79-30c

CALIFANO v. YAMASAKI, 47 U.S.L.W. 4765 (June 20, 1979)

BLACKMUN, Supreme Court Justice:

Petitioner, the Secretary of the Department of Health, Education, and

Welfare (HEW), has determined that respondents, beneficiaries under the

Social Security Act, have been overpaid. He seeks to recoup those

overpayments by withholding future benefits to which respondents would

otherwise be entitled. Respondents in turn have requested reconsideration

or waiver of recoupment under § 204 of the Act, 42 U.S.C. § 404. The

primary questions in this case are whether petitioner must grant

respondents the opportunity for an oral hearing before recoupment begins,

and whether jurisdiction under § 205(g) of the Act, 42 U.S.C. § 405(g),

permits a federal district court to certify a nationwide class and grant

injunctive relief.

I

Section 204(a)(1) of the Social Security Act, 53 Stat. 1368, as amended,

42 U.S.C. § 404(a)(1), authorizes the recovery of overpayments made to a

beneficiary under the old-age, survivors', or disability insurance

programs administered by HEW. In particular, it permits the Secretary to

recoup erroneous overpayments by decreasing future payments to which the

overpaid person is entitled.

Section 204(b), however, expressly limits the recoupment authority

conferred by § 204(a)(1). Section 204(b) commands that

The Secretary has undertaken to define the terms employed in § 204(b).

Under his regulations, "without fault" means that the recipient neither

knew nor should have known that the overpayment of the information on

which it was based was incorrect. 20 CFR § 404.507 (1978). For example, a

recipient who justifiably relied upon erroneous information from an

official source within the Social Security Administration would be

"without fault." § 404.510.

§ 204(b).

Under his regulations, "without fault" means that the recipient neither

knew nor should have known that the overpayment of the information on

which it was based was incorrect. 20 CFR § 404.507 (1978). For example, a

recipient who justifiably relied upon erroneous information from an

official source within the Social Security Administration would be

"without fault." § 404.510.

The regulations say that to "defeat the purpose of the subchapter" is to

"deprive a person of income required for ordinary and necessary living

expenses." § 404.508(a). Those expenses are defined to include, among

other things, food, rent, and medical bills. § 404.508(a)(1) and (2).

Recoupment is "against equity and good conscience" when the recipient

"because of a notice that such payment would be made or by reason of the

incorrect payment, relinquished a valuable right . . . or changed his

position for the worse." § 404.6509. An example of detrimental reliance

that would be sufficient is permitting private hospital insurance to lapse

in the mistaken expectation of receiving federal hospital benefits.

Ibid..

The Secretary's practice is to make an ex parte determination

under § 204(a) that an overpayment has been made, to notify the recipient

of that determination, and then to shift to the recipient the burden of

either (i) seeking reconsideration to contest the accuracy of that

determination, or (ii) asking the Secretary to forgive the debt and waive

recovery in accordance with §

204(b). [2] If a recipient files

a written request for reconsideration or waiver, recoupment is deferred

pending action on that request. Social Security Claims Manual §§

5503.2(c), 5503.4(b) (Dec. 1978) (Claims Manual). The papers are sent to

one of the seven regional offices where the request is reviewed.

asking the Secretary to forgive the debt and waive

recovery in accordance with §

204(b). [2] If a recipient files

a written request for reconsideration or waiver, recoupment is deferred

pending action on that request. Social Security Claims Manual §§

5503.2(c), 5503.4(b) (Dec. 1978) (Claims Manual). The papers are sent to

one of the seven regional offices where the request is reviewed.

If the regional office decision goes against the recipient, recoupment

begins. The recipient's monthly benefits are reduced or

terminated [3] until the

overpayment has been recouped. Only if the recipient continues to object

is he given an opportunity to present his story in person to someone with

authority to decide his case. That opportunity takes the form of an

on-the-record de novo evidential hearing before an independent

hearing examiner. 20 CFR §§ 404.917, 404.931 (1978). The recipient may

seek subsequent review by the Appeals Council, id., at § 404.945, and

finally by a federal court. § 205(g) of the Act. 42 U.S.C. § 405(g). If it

is decided that the Secretary's initial determination was in error, the

amounts wrongfully recouped are repaid.

II

The Elliot Case [4]

The Secretary overpaid the Hawaii

respondents, [5] and notified

them of this determination to recoup the overpayments. After unsuccessful

attempts to obtain administrative relief, they brought suit in the United

States District Court for the District of Hawaii challenging the legality

of the Secretary's recoupment procedures. They alleged that, because the

notice they received was inadequate and because they were not given an

opportunity for an oral hearing before recoupment began, the recoupment

procedures violated both § 204 of the Act and the Fifth Amendment of the

Constitution

n the United

States District Court for the District of Hawaii challenging the legality

of the Secretary's recoupment procedures. They alleged that, because the

notice they received was inadequate and because they were not given an

opportunity for an oral hearing before recoupment began, the recoupment

procedures violated both § 204 of the Act and the Fifth Amendment of the

Constitution. They sought class certification, and requested both

declaratory and injunctive relief that would require the Secretary to

cease future recoupment until such time as he provided the class with

adequate notice and opportunity for a hearing. App. 11-22.

The District Court certified a class of "all social security old age and

disability benefit recipients resident in the State of Hawaii, who are

being or will be subjected to adjustment of their social security benefits

pursuant to 42 U.S.C. § 404(a) and (b) without adequate prior notice of

the grounds for such action and without a prior hearing on disputed issued

relating to such actions." App. 35. The court found jurisdiction under the

mandamus statute, 28 U.S.C. § 1361, and granted relief to respondents. The

court said that due process required that the Secretary provide an

opportunity for an informal oral hearing before an independent

decisionmaker prior to recoupment. In so holding, the court relied on Goldberg v. Kelly, 397 U.S. 254 (1970), which determined

that, under the Due Process Clause, a statutory right to welfare benefits

could not be terminated without prior notice and opportunity for an

evidential hearing. The court also held that the Constitution required

that the initial overpayment notice be modified to inform the recipient

more fully concerning recoupment procedures. Although the court did not

discuss respondent's statutory claim, it granted judgment for respondents

on both statutory and constitutional grounds and ordered injunctive relive

for the class. Elliot v. Weinberger, 371 F.Supp. 960 (Haw.

1974).

hat the Constitution required

that the initial overpayment notice be modified to inform the recipient

more fully concerning recoupment procedures. Although the court did not

discuss respondent's statutory claim, it granted judgment for respondents

on both statutory and constitutional grounds and ordered injunctive relive

for the class. Elliot v. Weinberger, 371 F.Supp. 960 (Haw.

1974).

The Buffington Case

Relying on annual earnings reports, the Secretary determined that the

individual respondents in Buffington had been overpaid for previous

years. [6] After receiving

notice, both named respondents sought administrative relief, but were

unable to halt recoupment. They then brought suit in the United States

District Court for the Western District of Washington. They, too, alleged

that the Secretary's recoupment procedures were contrary to both § 204 and

the Due Process Clause of the Fifth Amendment. They requested

certification of a nationwide class, an injunction ordering repayment of

amounts unlawfully withheld, and declaratory and mandamus relief that

would require the Secretary to provide notice and an opportunity for a

hearing before recoupment begin again. App. 188-201.

The District Court certified a nationwide class composed of "all

individuals eligible for [old age and survivor's benefits] whose benefits

have been or will be reduced or otherwise adjusted without prior notice

and opportunity for a hearing." The court, however, excluded from the

class residents of Hawaii and the Eastern District of Pennsylvania, where

suits raising similar issues were known to have been brought. Id., at

258-259. See, e.g. Mattern v. Weinberger, 519 F.2d 150 (CA3

1975). As a precautionary measure, the court also excluded all persons who

had participated as plaintiffs or members of a plaintiff class in

litigation against the Secretary on similar issues, if a decision on the

merits previously had been rendered. App. 259-260.

s raising similar issues were known to have been brought. Id., at

258-259. See, e.g. Mattern v. Weinberger, 519 F.2d 150 (CA3

1975). As a precautionary measure, the court also excluded all persons who

had participated as plaintiffs or members of a plaintiff class in

litigation against the Secretary on similar issues, if a decision on the

merits previously had been rendered. App. 259-260.

The court then granted summary judgment for the class. The court found

jurisdiction under the mandamus statute, 28 U.S.C. §

1361. [7] It enjoined the

Secretary from ordering recoupment without having provided recipients with

a prior opportunity for an informal hearing before an independent

decisionmaker. The court also ordered that the initial notice be amended

to provide more information about recoupment procedures. Buffington v. Weinberger, Civ. No. 734-73C2 (WD Wash. Oct. 22, 1974). App.

262-265.

The Court of Appeals

The United States Court of Appeals for the Ninth Circuit consolidated the

two cases for disposition on appeal. In an unreported opinion, Elliot v. Weinberger, Nos. 74-1611 and 7-3118 (Oct. 1,

1975), Ap. to Pet. for Cert. 40A-84A, that court found that the complaints

presented substantial constitutional questions and so § 1361 mandamus

jurisdiction was proper. It upheld the certification of the classes under

Fed. Rul. Civ. Proc. 23(b)(2), finding counsel was sufficiently skilled

and experienced to represent the class. It rejected the Secretary's

contention that a nationwide class should not have been certified. It

found nothing in Rule 23 indicating that such a class was improper, and it

believed as a practical matter that, because respondents did not seek

damages, no manageability problems were present. It indicated that to

require recipients to sue individually would result in an unnecessary

duplication of actions, the evil that Rule 23 was designed to prevent

should not have been certified. It

found nothing in Rule 23 indicating that such a class was improper, and it

believed as a practical matter that, because respondents did not seek

damages, no manageability problems were present. It indicated that to

require recipients to sue individually would result in an unnecessary

duplication of actions, the evil that Rule 23 was designed to prevent. On

the merits, the Court of Appeals, without directly addressing respondents'

statutory claims, affirmed the holdings that the Secretary's recoupment

procedures were unconstitutional.

Subsequent to that decision, this Court, in Mathews v. Eldridge, 424 U.S. 319 (1976), held that the Due Process Clause does

not require an oral hearing prior to termination of Social Security

disability insurance benefits. We then granted petitions for writs of

certiorari filed by the Secretary both in this case and in Mattern,

supra, vacated the judgments below, and remanded the cases for further

consideration in light of Eldridge. 425 U.S. 987 (1976).

On remand, the Court of Appeals adhered to the essential features of its

original decision. Elliot v. Weinberger, 564 F.2d 1219 (CA9

1977). The court reaffirmed its holding that it had jurisdiction under the

mandamus statute. It noted that, while Eldridge had indicated that

named plaintiffs would be able to assert jurisdiction based on § 205(g),

under Weinberger v. Salfi, 422 U.S. 749, 755, 764 (1975),

there was some doubt as to whether that statute would provide jurisdiction

for a class action seeking injunctive relief, and therefore the

extraordinary remedy of mandamus could be invoked. The court found that

these actions were not foreclosed by the jurisdictional limitations

contained in § 204(h), because these actions were brought to enforce

constitutional rights, not "to recover on any claim" for benefits.

to whether that statute would provide jurisdiction

for a class action seeking injunctive relief, and therefore the

extraordinary remedy of mandamus could be invoked. The court found that

these actions were not foreclosed by the jurisdictional limitations

contained in § 204(h), because these actions were brought to enforce

constitutional rights, not "to recover on any claim" for benefits.

On the merits, the court found Eldridge distinguishable. One of

three grounds cited in support of this conclusion is of particular

relevance here. The court expressly found that the Secretary's procedures

for handling waivers created an undue risk of erroneous deprivation. It

said that, unlike the medical decision, at issue in Eldridge, the

grant of a waiver frequently depended on credibility, which could not be

ascertained from the written submission on which the Secretary relied. The

court thus held that when waiver was requested, the Due Process Clause

required that the recipient be given an oral hearing before recoupment

begins. The court said a prior hearing was not required, however, in §

204(a) reconsideration cases if the dispute was a routine one centering on

a computational error or a payment problem that did not demand an

evaluation of credibility. [8] The court specified six requirements that the oral hearing should meet,

including rights to receive notice, to submit evidence, to cross-examine

witnesses, to have counsel, to have an impartial hearing officer, and to

receive a written decision. The court did not require that a transcript of

the hearing be made. 564F.2d, at 1235.

blem that did not demand an

evaluation of credibility. [8] The court specified six requirements that the oral hearing should meet,

including rights to receive notice, to submit evidence, to cross-examine

witnesses, to have counsel, to have an impartial hearing officer, and to

receive a written decision. The court did not require that a transcript of

the hearing be made. 564F.2d, at 1235.

The court also held that the notice must be "plainly and clearly

communicated." Ibid. The court suggested that this could be accomplished

by including in the notice such matters as the reason for overpayment, a

statement of the right to request reconsideration or waiver,a the forms

available for that purpose, a description of the nature of reconsideration

and waiver, and notice of the right to a pre-recoupment hearing. Id., at

1236.

The Secretary filed a petition for a writ of certiorari seeking review of

both the holding that the Due Process Clause required a pre-recoupment

oral hearing, and the determination that the class was properly certified.

The Secretary, however, did not request review of the holding that his

notice of recoupment was constitutionally defective. Certiorari was

granted. 439 U.S._____(1978).

III

A court, presented with both statutory and constitutional grounds to

support the relief requested usually should pass on the statutory claim

before considering the constitutional question. New York City Transit

Authority v. Beazer, _____U.S. _____,_____, and n. 22 (1979); United States v. CIO, 335 U.S. 106, 110 (1948); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347

1978).

III

A court, presented with both statutory and constitutional grounds to

support the relief requested usually should pass on the statutory claim

before considering the constitutional question. New York City Transit

Authority v. Beazer, _____U.S. _____,_____, and n. 22 (1979); United States v. CIO, 335 U.S. 106, 110 (1948); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347

(1936) (concurring opinion). Due respect for the coordinate branches of

government, as well as a reluctance when conscious of fallibility to speak

with our utmost finality, see Brown v. Allen, 344 U.S. 443,

540 (1953) (Jackson, J., concurring), counsel against unnecessary

constitutional adjudication. And if "a construction of the statue is

fairly possible by which [a serious doubt of constitutionality] may be

avoided," Crowell v. Benson, 285 U.S. 22, 62 (1932), a court

should adopt that construction. In particular, this Court has been willing

to assume a congressional solicitude for fair procedure, absent explicit

statutory language to the contrary. See Greene v. McElroy, 360 U.S. 474, 507-508 (1959).

The District Courts and Court of Appeals in the cases now before us gave

these principles somewhat short shrift in declining to pass expressly on

respondents' contention that § 204 itself requires a pre-recoupment oral

hearing. We turn to the statute first, and find that it fairly may be read

to require a pre-recoupment decision by the Secretary. With respect to §

204(a) reconsideration as to whether overpayment occurred, we agree that

the statute does not require that the decision involve a prior oral

hearing, and we reject respondents' contention that the Constitution does

so. With respect to § 204(b) waiver of the Secretary's right to recoup,

however, because the nature of the statutory standards makes a hearing

essential, we find in unnecessary to determine whether the Constitution

would require a similar result.

A

he statute does not require that the decision involve a prior oral

hearing, and we reject respondents' contention that the Constitution does

so. With respect to § 204(b) waiver of the Secretary's right to recoup,

however, because the nature of the statutory standards makes a hearing

essential, we find in unnecessary to determine whether the Constitution

would require a similar result.

A

On its face, § 204 requires that the Secretary make a pre-recoupment

waiver decision, and that the decision, like that concerning the fact of

the overpayment, be accurate. In the imperative

voice, [9] it says "there shall

be no adjustment of payments to, or recovery by the United Stats from, any

person" who qualifies for waiver. See Mattern v. Weinberger, 519

F.2d, at 166, and n. 32. Echoing this requirement, § 204(a) says that only

"proper" adjustments or recoveries are to be made. The implication is that

a recoupment from a person qualifying under § 204(a) would not be

"proper."

Insofar as § 204 is read to require a pre-recoupment decision, the

reading is in accord with the manner in which the Secretary presently

administers the statute. No recoupment is made until a preliminary waiver

or reconsideration decision has taken place, either by default after the

recipient has received proper notice, or by review of a written request.

Claims Manual §§ 5503.2(c), 5503.4(b). This interpretation is also

reinforced by a comparison with other sections of the Social Security Act.

Sections 204 is strikingly unlike §

225, [10] which expressly

permits suspension of disability benefits before eligibility is finally

decided. See Richardson v. Wright, 405 U.S. 208 (1972). On

the other hand, an analogy may be drawn between § 204 and § 303(a)(1), 42

U.S.C. § 503(a)(1), which this Court in California Human Resources

Dept. v. Java, 402 U.S. 121 (1971), interpreted to require

payment of unemployment benefits pending a final determination of

eligibility

f disability benefits before eligibility is finally

decided. See Richardson v. Wright, 405 U.S. 208 (1972). On

the other hand, an analogy may be drawn between § 204 and § 303(a)(1), 42

U.S.C. § 503(a)(1), which this Court in California Human Resources

Dept. v. Java, 402 U.S. 121 (1971), interpreted to require

payment of unemployment benefits pending a final determination of

eligibility. [11] Neither § 204

nor § 303(a)(1) expressly addresses the timing of a hearing, but both

speak in mandatory terms and imply that the mandated act -- here waiver of

recoupment, there payments of benefits -- is to precede other action.

B

The heart of the present dispute concerns not whether a pre-recoupment

decision should be made, but whether making the decision by regional

office review of the written waiver request is sufficient to protect the

recipient's right not to be subjected to an improper recoupment.

In this regard, requests for reconsideration under § 204(a), as to

whether overpayment occurred, may be distinguished from requests for

waiver of the Secretary's right to recoup under § 204(b). As the Courts of

Appeals in this case and in Mattern noted, request under § 204(a)

for reconsideration involve relatively straightforward matters of

computation for which written review is ordinarily an adequate means to

correct prior mistakes. Elliot, 564 F.2d., at 1231; Mattern, 582 F.2d, at 255-256. Many of the named respondents were found to have

been overpaid based on earnings reports they themselves had submitted. But

unlike the Court of Appeals in this case, we do not think that the rare

instance in which a credibility dispute is relevant to a § 204(a) claim is

sufficient to require the Secretary to sift through all requests for

reconsideration and grant a hearing to the few that involve credibility.

The statute authorizes only "proper" recoupment, but some leeway for

practical administration must be allowed

he Court of Appeals in this case, we do not think that the rare

instance in which a credibility dispute is relevant to a § 204(a) claim is

sufficient to require the Secretary to sift through all requests for

reconsideration and grant a hearing to the few that involve credibility.

The statute authorizes only "proper" recoupment, but some leeway for

practical administration must be allowed. Nor do the standards of the Due

Process Clause, more tolerant than the strict language here in issue,

require that pre-recoupment oral hearings be afforded in § 204(a) cases.

The nature of a due process hearing is shaped by the "risk of error

inherent in the truthfinding process as applied to the generality of

cases, not the rare exceptions." Mathews v. Eldridge, 424

U.S., at 344. It would be inconsistent with that principle to require a

hearing under § 204(a) when review of a beneficiary's written submission

is an adequate means of resolving all but a few §204(a) disputes. Mattern, 582 F.2d, at 258.

By contrast, written review hardly seems sufficient to discharge the

Secretary's statutory duty to make an accurate determination of waiver

under § 204(b). Under that subsection, the Secretary must assess the

absence of "fault" and determine whether or not recoupment would be

"against equity and good conscience." These standards do not apply under §

204(a). The Court previously has noted that a "broad 'fault' standard is

inherently subject to factual determination and adversarial input." Mitchell v. W. T. Grant Co., 416 U.S. 600, 617 (1974). As

the Secretary's regulations make clear, "fault" depends on an evaluation

of "all pertinent circumstances" including the recipient's "intelligence .

. . and physical and mental condition" as well as his good faith. 20 CFR §

404.507 (1978). We do not see how these can be evaluated absent personal

contact between the recipient and the person who decides his case

416 U.S. 600, 617 (1974). As

the Secretary's regulations make clear, "fault" depends on an evaluation

of "all pertinent circumstances" including the recipient's "intelligence .

. . and physical and mental condition" as well as his good faith. 20 CFR §

404.507 (1978). We do not see how these can be evaluated absent personal

contact between the recipient and the person who decides his case.

Evaluating fault, like judging detrimental reliance, usually requires an

assessment of the recipient's credibility, and written submissions are a

particularly inappropriate way to distinguish a genuine hard luck story

from a fabricated tall tale. See Goldbert v. Kelly, 397

U.S., at 269.

The consequences of the injunctions entered by the District Courts

confirm the reasonableness of interpreting § 204(b) to require a

pre-recoupment oral hearing. In compliance with those orders, the

Secretary, beginning with calendar year 1977, has granted what respondents

term "a short personal conference with an impartial employee of the Social

Security Administration at which time the recipient presents testimony and

evidence and cross-examines witnesses, and the administrative employee

questions the recipient." Brief for Respondents 46. Of the approximately

2,000 conferences held between January 1977 and October 1978, 30% resulted

in a reversal of the Secretary's decision. Brief for Petitioner 46. This

rate of reversal confirms the view that, without an oral hearing, the

Secretary may misjudge a number of cases that he otherwise would be able

to assess properly, and that the hearing requirement imposed by the Court

of Appeals significantly furthers the statutory goal that "there shall be

no" recoupment when waiver is appropriate. We therefore agree with the

Court of Appeals that an opportunity for a pre-recoupment oral hearing is

required when a recipient requests waiver under § 204(b).

IV

ses that he otherwise would be able

to assess properly, and that the hearing requirement imposed by the Court

of Appeals significantly furthers the statutory goal that "there shall be

no" recoupment when waiver is appropriate. We therefore agree with the

Court of Appeals that an opportunity for a pre-recoupment oral hearing is

required when a recipient requests waiver under § 204(b).

IV

Without full consideration of the question, the Court of Appeals

expressed doubts about the availability of full relief under § 205(g), the

Act's judicial review provision. It therefore invoked the extraordinary

remedy of mandamus, for which jurisdiction is provided by 28 U.S.C. §

1361. In this Court the Secretary contends that mandamus is not

appropriate. And though he concedes that jurisdiction over the claims of

the named plaintiffs was proper under § 205(g), he argues that class

relief is inappropriate under that section. The Secretary contends in the

alternative that even if class relief were appropriate, a nationwide class

should not have been certified, and, because the classes here include

individuals who have not filed for reconsideration or waiver, relief was

awarded to persons over whom the courts had no § 205(g) jurisdiction. The

Secretary also contends that injunctive relief cannot be awarded in a §

206(g) suit. While we do not reject the Secretary's contentions entirely,

we find that nothing in § 205(g) prohibits the pre-recoupment hearing

relief awarded in this case, and so we do not reach the question whether

mandamus would otherwise be available.

A

sons over whom the courts had no § 205(g) jurisdiction. The

Secretary also contends that injunctive relief cannot be awarded in a §

206(g) suit. While we do not reject the Secretary's contentions entirely,

we find that nothing in § 205(g) prohibits the pre-recoupment hearing

relief awarded in this case, and so we do not reach the question whether

mandamus would otherwise be available.

A

The Secretary argues that class relief is not available in connection

with any action brought under §

205(g), [12] and therefore that

class relief should not have been afforded in this case. In making this

argument, the Secretary relies on the language of § 205(g) which

authorizes suit by "[a]ny individual," speaks of judicial review of "any

final decision of the Secretary made after a hearing to which [the

plaintiff] was a party," and empowers district courts "to enter . . . a

judgment affirming, modifying, or reversing the decision of the

Secretary." This language, the Secretary says, indicates that Congress

contemplated a case-by-case adjudication of claims under § 205(g) that is

incompatible with class relief.

The Secretary contends that the decision in Weinberger v. Salfi, 422 U.S. 749 (1975), finding class relief inappropriate on

facts of that case, and the legislative history of §

205(a) [13] support his

argument in this regard. And though the Secretary concedes that every

court of appeals that has considered this issue has concluded that class

relief is available under §

205(g), [14] he distinguishes

those cases on the grounds they evinced insufficient respect for the

statute's plain language and exaggerated the need for class relief in §

205(g) actions. Restricted judicial review will not have a detrimental

effect on the administration of the Social Security Act the Secretary

says, because he will appeal adverse decisions or abide them within the

jurisdiction of the courts rendering them

cases on the grounds they evinced insufficient respect for the

statute's plain language and exaggerated the need for class relief in §

205(g) actions. Restricted judicial review will not have a detrimental

effect on the administration of the Social Security Act the Secretary

says, because he will appeal adverse decisions or abide them within the

jurisdiction of the courts rendering them. There is thus no need for

repetitious litigation in order to establish legal principles beyond the

confines of a particular case, and no need to afford class relief in cases

brought under § 205(g).

Section 205(g) contains no express limitation of class relief. It

prescribes that judicial review shall be by the usual type of "civil

action" brought routinely in district court in connection with the array

of civil litigation. Rule 1 of the Federal Rules of Civil Procedure, in

turn, provides that the Rules "govern the procedure in the United States

district courts in all suits of a civil nature." (Emphasis added.)

Those rules provide for class actions of the type certified in this case.

Fed. Rule Civ. Proc. 23(b)(2). In the absence of a direct expression by

Congress of its intent to depart from the usual course of trying "all

suits of a civil nature" under the Rules established for that purpose,

class relief ia appropriate in civil actions brought in federal court,

including those seeking to overturn determinations of the departments of

the Executive Branch of the Government in cases where judicial review of

such determinations is authorized.

ngress of its intent to depart from the usual course of trying "all

suits of a civil nature" under the Rules established for that purpose,

class relief ia appropriate in civil actions brought in federal court,

including those seeking to overturn determinations of the departments of

the Executive Branch of the Government in cases where judicial review of

such determinations is authorized.

We do not find in § 205(g) the necessary clear expression of

congressional intent to exempt actions brought under that statute from the

operation of the Federal Rules of Civil Procedure. The fact that the

statute speaks in terms of an action brought by "any individual" or that

it contemplates case-by-case adjudication does not indicate that the usual

rule providing for class actions is not controlling, where under that rule

certification of a class action otherwise is permissible. Indeed, a wide

variety of federal jurisdictional provisions speak in terms of individual

plaintiffs, but class relief has never been thought to be unavailable

under them. See, e.g., 28 U.S.C. § 1343 (civil rights; provides

jurisdiction over civil actions "authorized by law to be commenced by any

person"); 28 U.S.C. § 1361 (mandamus; empowers federal courts to compel

certain government officials and agencies "to perform a duty owed to the

plaintiff"); 29 U.S.C. § 1132(a) (Employee Retirement Income Security Act;

provides jurisdiction over a civil action brought under the Act "by a

participant or beneficiary"). It is not unusual that § 205(g), like these

other jurisdictional statutes, speaks in terms of an individual plaintiff,

since the Rule 23 class action device was designed to allow an exception

to the usual rule that litigation is conducted by and on behalf of the

individual named parties only.

vides jurisdiction over a civil action brought under the Act "by a

participant or beneficiary"). It is not unusual that § 205(g), like these

other jurisdictional statutes, speaks in terms of an individual plaintiff,

since the Rule 23 class action device was designed to allow an exception

to the usual rule that litigation is conducted by and on behalf of the

individual named parties only.

Moreover, class relief is consistent with the need for case-by-case

adjudication emphasized by the Secretary, at least so long as the

membership of the class is limited to those who meet the requirements of §

205(g). See Norton v. Mathews, 427 U.S. 524, 535-537, and

nn. 4-8 (1976) (STEVENS, J., dissenting). Where the district court has

jurisdiction over the claim of each individual member of the class, Rule

23 provides a procedure by which the court may exercise that jurisdiction

over the various individual claims in a single proceeding.

Finally, we note that class relief for claims as those presented by

respondents in this case is peculiarly appropriate. The issues involved

are common to the class as a whole. They turn on questions of law

applicable in the same manner to each member of the class. The ultimate

question is whether a pre-recoupment hearing is to be held, and each

individual claim has little monetary value. It is unlikely that

differences in the factual background of each claim will affect the

outcome of the legal issue. And the class action device saves the

resources of both the courts and the parties by permitting an issue

potentially affecting every social security beneficiary to be litigated in

an economical fashion under Rule 23.

We therefore agree that where the district court has jurisdiction over

the claims of the members of the class in accordance with the requirements

set out in § 205(g), it also has the discretion under Fed. Rule Civ. Proc.

23 to certify a class action for the litigation of those claims.

B

ly affecting every social security beneficiary to be litigated in

an economical fashion under Rule 23.

We therefore agree that where the district court has jurisdiction over

the claims of the members of the class in accordance with the requirements

set out in § 205(g), it also has the discretion under Fed. Rule Civ. Proc.

23 to certify a class action for the litigation of those claims.

B

The Secretary next argues that, assuming class actions in fact may be

maintained under § 205(g), it was error for the courts here to sustain the

nationwide class in the Buffington litigation. He argues that a

nationwide class is unwise in that it forecloses reasoned consideration of

the same issues by other federal courts and artificially increases the

pressure on the docket of this Court by endowing with national importance

issues that, if adjudicated in a narrower context, might not require our

immediate attention. Moreover, the Secretary, citing Dayton Board of

Education v. Brinkman, 433 U.S. 406 (1977), as an example,

argues that nationwide class relief is inconsistent with the rule that

injunctive relief should be no more burdensome to the defendant than

necessary to provide complete relief to the plaintiffs.

Nothing in Rule 23, however, limits the geographical scope of a class

action that is brought in conformity with that rule. Since the class here

was certified in accordance with Rule 23(b)(2), the limitations on class

size associated with Rule 23(b)(3) actions do not apply directly. Nor is a

nationwide class inconsistent with principles of equity jurisprudence,

since the scope of injunctive relief is dictated by the extent of the

violation established, not by the geographical extent of the plaintiff

class. Dayton Board, 433 U.S., at 414-420

ed in accordance with Rule 23(b)(2), the limitations on class

size associated with Rule 23(b)(3) actions do not apply directly. Nor is a

nationwide class inconsistent with principles of equity jurisprudence,

since the scope of injunctive relief is dictated by the extent of the

violation established, not by the geographical extent of the plaintiff

class. Dayton Board, 433 U.S., at 414-420. If a class action is

otherwise proper and if jurisdiction lies over the claims of the members

of the class, the fact that the class is nationwide in scope does not

necessarily mean that the relief afforded the plaintiffs will be more

burdensome than necessary to redress the complaining parties.

We concede the force of the Secretary's contentions that nationwide class

actions may have a detrimental effect by foreclosing adjudication by a

number of different courts and judges, and of increasing, in certain

cases, the pressures of this Court's docket. It often will be preferable

to allow several courts to pass on a given class claim in order to gain

the benefit of adjudication by different courts in different factual

contexts. For this reason, a federal court when asked to certify a

nationwide class should take care to ensure that nationwide relief is

indeed appropriate in the case before it, and that certification of such a

class would not improperly interfere with the litigation of similar issues

in other judicial districts. But we decline to adopt the extreme position

that such a class may never be certified. The certification of a

nationwide class, like most issues arising under Rule 23, is committed in

the first instance to the discretion of the district court. On the facts

of this case we cannot conclude that the District Court in Buffington abused that discretion, especially in light of its

sensitivity to on-going litigation of the same issue in other districts,

and the determination that counsel was adequate to represent the class.

C

most issues arising under Rule 23, is committed in

the first instance to the discretion of the district court. On the facts

of this case we cannot conclude that the District Court in Buffington abused that discretion, especially in light of its

sensitivity to on-going litigation of the same issue in other districts,

and the determination that counsel was adequate to represent the class.

C

The Secretary concedes that the named plaintiffs have satisfied the

requirements of § 205(g)

jurisdiction. [15] He argues,

however, that the District Courts erred in awarding relief to class

members who have been subjected to recoupment but who have not sought

either reconsideration of overpayment determinations or waiver of

recovery. The Secretary contends that these class members have failed to

obtain a "final decision" from the Secretary as required by § 205(g), as

construed in Weinberger v. Salfi, 422 U.S. 749 (1975), and Mathews v. Eldridge, 424 U.S. 319 (1976).

The relief to which the Secretary objects in this Court is the

determination that he must afford class members an opportunity for a

pre-recoupment oral hearing. With respect to that relief, the classes

certified were plainly too broad. Both the Elliott and the Buffington classes included persons who had not filed requests for

reconsideration or waiver in the past and would not do so in the

future. [16] As to them, no

"final decision" concerning the right to a pre-recoupment hearing has been

or will be made.

y for a

pre-recoupment oral hearing. With respect to that relief, the classes

certified were plainly too broad. Both the Elliott and the Buffington classes included persons who had not filed requests for

reconsideration or waiver in the past and would not do so in the

future. [16] As to them, no

"final decision" concerning the right to a pre-recoupment hearing has been

or will be made.

The Secretary errs, however, in suggesting that the lower courts ordered

that an opportunity for a pre-recoupment oral hearing be afforded to those

persons. The Court of Appeals aptly summarized its holding, and that of

the District Courts, as being that recipients are entitled to the

opportunity for a hearing "when they claim a waiver." 564 F.2d, at 1222.

Because the procedure for claiming waiver involves filing a written

request with the Secretary, we cannot agree that the Court of Appeals

ordered this relief for those who do not meet the jurisdictional

prerequisites of § 205(g). The Secretary's objection to the class

definition is well taken, but it provides no basis for altering the relief

actually granted in this case.

D

Finally, the Secretary contends that the District Courts erred in

granting injunctive relief. He argues that the grant of jurisdiction found

in § 205(g), which speaks only of the power to enter a judgment

"affirming, modifying, or reversing the decision of the Secretary," does

not encompass the equitable power to direct that the statute be

implemented through procedures other than those authorized by the

Secretary. Invoking the maxim that equitable relief is appropriate only

when a party has no adequate remedy at law, he says that respondents would

have an adequate remedy if a court simply reversed the Secretary's

decision not to grant them pre-recoupment oral hearings. In the face of

such an order he would be forced, he says, to suspend recoupment until the

recipient was afforded a hearing.

etary. Invoking the maxim that equitable relief is appropriate only

when a party has no adequate remedy at law, he says that respondents would

have an adequate remedy if a court simply reversed the Secretary's

decision not to grant them pre-recoupment oral hearings. In the face of

such an order he would be forced, he says, to suspend recoupment until the

recipient was afforded a hearing.

The Secretary's reading of the statute is too grudging. Absent the

clearest command to the contrary from Congress, federal courts retain

their equitable power to issue injunctions in suits over which they have

jurisdiction. See Porter v. Warner Holding Co., 328 U.S.

395, 398 (1946); Scripps-Howard Radio v. FCC, 316 U.S., 4,

9-11 (1942). Nothing in either the language or the legislative

history [17] of § 205(g)

indicates that Congress intended to preclude injunctive relief in § 205(g)

suits.

Injunctions can play an essential role in § 205(g) litigation. Without

the power to order a stay of recoupment pending decision, a court for all

practical purposes would be unable to "reverse" a decision concerning

pre-recoupment rights. In class actions, injunctions may be necessary to

protect the interests of absent class members and to prevent repetitive

litigation. While the grant of injunctive relief makes the Secretary's

duty to comply enforceable by contempt order, "[s]urely Congress did not

intend § 205(g) to provide reluctant federal officials with a means of

delay in the remote eventuality that they might not feel bound by the

judgment of a federal court." Norton v. Mathews, 427 U.S.

524, 535 (1976) (dissenting opinion). The conclusion that injunctive

relief is available under § 205(g) is supported both by our implicit

holding that a three-judge court was properly convened in Jimenez v. Weinberger, 417 U.S. 628 (1974), and by the opinions of four

Courts of Appeals. [18]

V

that they might not feel bound by the

judgment of a federal court." Norton v. Mathews, 427 U.S.

524, 535 (1976) (dissenting opinion). The conclusion that injunctive

relief is available under § 205(g) is supported both by our implicit

holding that a three-judge court was properly convened in Jimenez v. Weinberger, 417 U.S. 628 (1974), and by the opinions of four

Courts of Appeals. [18]

V

For these reasons, we hold that recipients who file a written request for

waiver under § 204(b) are entitled to the opportunity for a pre-recoupment

oral hearing; that those who merely request reconsideration under § 204(a)

are not so entitled; that class certification is permissible under §

205(g); that the Buffington court did not abuse its discretion in

certifying a nationwide class; that thee class did exceed the bounds

permitted by § 205(g), but that the class members who received relief all

satisfied the § 205(g) requirement that a request for waiver be filed; and

that injunctive relief may be awarded in a § 205(g) proceeding.

The judgment of the Court of Appeals is therefore affirmed in part and

reversed in part.

It is so ordered.

MR. JUSTICE POWELL took no part in the consideration or decision of this

case.

[1] In pertinent part, § 204(a)

provides:

"Whenever the Secretary funds that more or less than the correct amount

of payment has been made to any person under this subchapter, a proper

adjustment or recovery shall be made, under regulations prescribed by the

Secretary, as follows:

n part.

It is so ordered.

MR. JUSTICE POWELL took no part in the consideration or decision of this

case.

[1] In pertinent part, § 204(a)

provides:

"Whenever the Secretary funds that more or less than the correct amount

of payment has been made to any person under this subchapter, a proper

adjustment or recovery shall be made, under regulations prescribed by the

Secretary, as follows:

"(1) With respect to payment to a person more than the correct amount,

the Secretary shall decrease any payment under this subchapter to which

such overpaid 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."

Section 204(b) reads in full:

"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 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."

[2] Although during 1977 the

average overpayment to old-age and survivors' insurance beneficiaries who

were overpaid exceeded $500, only 3.4% of those thus subject to recoupment

sought waiver. Brief for Petitioner 45, and n. 33. These figures do not

include disability beneficiaries. Ibid . See also Elliot v. Weinberger, 371 F.Supp. 960, 967 (Haw. 1974).

inst

equity and good conscience."

[2] Although during 1977 the

average overpayment to old-age and survivors' insurance beneficiaries who

were overpaid exceeded $500, only 3.4% of those thus subject to recoupment

sought waiver. Brief for Petitioner 45, and n. 33. These figures do not

include disability beneficiaries. Ibid . See also Elliot v. Weinberger, 371 F.Supp. 960, 967 (Haw. 1974).

[3] The Secretary has altered

his procedures in several respects since the initiation of this

litigation, including: (i) rather than terminate all benefits until

recoupment is completed, the Secretary now in nonfraud cases usually

reduces the recipient's monthly payments by only 25%, see Claims Manual §

5515 (January 1979); and (ii) recipients who report excessive earnings and

are found to have been overpaid now receive notice before, rather than

after, recoupment begins. See Elliot v. Weinberger, 564 F.2d

1219, 1223 (CA9 1977). Neither party contends that these changes moot this

case.

[4] Respondent Evelyn Elliot

died in 1973. Counsel for the respondent class moved to substitute Nancy

Yamasaki as the respondent named in the caption of the case in this Court,

and that motion was granted._____U.S._____(1979). In order to be

consistent with the heretofore published reports of these cases, we refer

to the decisions in the District Courts and Court of Appeals by their

original captions.

[5] For respondent Isabelle

Ortiz, Jordan Silva, and John Vaquilar, the Secretary's determination was

based on annual excess earnings reports they filed. The Secretary

determined that respondents Raymond Gaines and Nancy Yamasaki were

overpaid because of administrative errors. Elliot v. Weinberger, 371 F.Supp., at 965-966.

District Courts and Court of Appeals by their

original captions.

[5] For respondent Isabelle

Ortiz, Jordan Silva, and John Vaquilar, the Secretary's determination was

based on annual excess earnings reports they filed. The Secretary

determined that respondents Raymond Gaines and Nancy Yamasaki were

overpaid because of administrative errors. Elliot v. Weinberger, 371 F.Supp., at 965-966.

[6] Respondent Fannie Buffington

received wife's benefits. Her husband filed a report which revealed that

his earnings had exceeded the statutory limit. Respondent Frances Biner

was asked to file an earnings report for 1972 after a check with her

employer showed that her earnings exceeded those previously reported. Elliot v. Weinberger, 564 F.2d, at 1224-1225.

[7] The District Court also

asserted jurisdiction under the Administrative Procedure Act, 5 U.S.C. §

701 et seq. Thereafter, in Califano v. Sanders, 430

U.S. 99 (1977), however, this court held that that Act does not provide a

grant of federal court jurisdiction. Respondents do not rely on that

statute here.

[8] The United States Courts of

Appeals for the Third Circuit on remand reaffirmed it prior holding that

the Due Process Clause required an oral hearing prior to recoupment when

waiver was requested under § 204(b), but it said that no such hearing was

ever required when reconsideration was requested under § 204(a). Mattern v. Mathews, 582 F.2d 248 (CA3 1978), cert. pending sub nom, Califano v. Mattern, No. 78-699.

rts of

Appeals for the Third Circuit on remand reaffirmed it prior holding that

the Due Process Clause required an oral hearing prior to recoupment when

waiver was requested under § 204(b), but it said that no such hearing was

ever required when reconsideration was requested under § 204(a). Mattern v. Mathews, 582 F.2d 248 (CA3 1978), cert. pending sub nom, Califano v. Mattern, No. 78-699.

[9] A number of statutes

authorizing the recovery of federal payments make an exception for cases

that are "against equity and good conscience." Most are entirely

permissive. They provide that recovery "is not required, e.g. 10 U.S.C. §§

1442, 14553 (serviceman's family annuity and survivors' benefit); or that

an agency "may waive" recovery if a proper showing is made, 5 U.S.C. §

4108(c) (civil service training expenses), 5 U.S.C. § 5922(b)(2) (foreign

station allowances); or that the agency head "shall make such provision as

he finds appropriate", 42 U.S.C. § 1383(b) (supplemental security income);

or simply that recovery "may be waived," 10 U.S.C. § 2774(a) (military

pay).

In contrast, § 204 is mandatory in form. It says "there shall be no"

recovery when waiver is proper. In this regard it resembles the "equity

and good conscience" waiver provisions found in only four other statutes:

38 U.S.C. § 4102(a) (veterans benefits); 42 U.S.C. § 1395gg(c) (Medicare);

45 U.S.C. § 231i(c) (Railroad Retirement Act); 45 U.S.C. § 352(d)

(Railroad Unemployment Insurance Act). Even those statutes are not

identical to § 204 in all material respects. While the use of the word

"shall," particularly with reference to an equitable decision, does not

eliminate all discretion, see Hecht Co. v. Bowles, 321 U.S.

321, 327-331 (1944), it at least imposes on the Secretary a duty to

decide

ailroad Retirement Act); 45 U.S.C. § 352(d)

(Railroad Unemployment Insurance Act). Even those statutes are not

identical to § 204 in all material respects. While the use of the word

"shall," particularly with reference to an equitable decision, does not

eliminate all discretion, see Hecht Co. v. Bowles, 321 U.S.

321, 327-331 (1944), it at least imposes on the Secretary a duty to

decide. And here where the provision for recovery, § 204(a), and the

provision for waiver, § 204(b), are phrased in equally mandatory terms, it

is reasonable to infer that in this particular statute Congress did not

intend to exalt recovery over waiver.

The legislative history of § 204(b) indicates merely that Congress

intended to make recovery more equitable by authorizing waiver. See H.R.

Rep. NO. 728, 76th Cong., 1st Sess., 19 (1939); Hearings on Social

Security before the House Committee on Ways & Means, 76 Cong., 1st

Sess., 2287-2288 (1939); S. Rep. No. 404, Pt. 1, 89th Cong., 1st Sess.,

256 (1965); S. Rep. NO. 774, 90th Cong., 1st Sess. 257 (1967).

[10] Section 225 provides:

"If the Secretary, on the basis of information obtained by or submitted

to him, believes that an individual entitled to [disability benefits] . .

. may have ceased to be under a disability, the Secretary may suspend the

payment of benefits . . . until it is determined whether or not such

individual's disability has ceased or until the Secretary believes that

such disability has not ceased."

[11] Section 303(a)

provides:

"The Secretary of Labor shall make no certification for payment to any

State unless he finds that the law of such State . . . includes provisions

for --

"(1) Such methods of administration . . . as are found by the Secretary

of Labor to be reasonably calculated to insure full payment of

unemployment compensation when due."

[12] In pertinent part, §

205(g) provides:

303(a)

provides:

"The Secretary of Labor shall make no certification for payment to any

State unless he finds that the law of such State . . . includes provisions

for --

"(1) Such methods of administration . . . as are found by the Secretary

of Labor to be reasonably calculated to insure full payment of

unemployment compensation when due."

[12] In pertinent part, §

205(g) provides:

"Any individual, after any final decision of the Secretary made after a

hearing to which he was a party . . . may obtain a review of such decision

by a civil action commenced within sixty days after the mailing to him of

notice of such decision or within such further time as the Secretary may

allow."

[13] The Secretary, noting the

sparseness of the legislative history of the Social Security Act on this

issue, points only to language indicating that § 205(g) was intended to

fill a gap in the original Act. Congress indicated that it amended the Act

because it did not "specify what remedy, if any, is open to a claimant in

the event his claim to benefits is denied by the [Social Security] Board."

S.Rep. No. 734, 76th Cong., 1st Sess., 52 (1939). The reference in this

passage to "a claimant" and "his claim," the Secretary believes, bolsters

his argument that Congress intended only case-by-case adjudication under §

205(g).

[14] See, e.g. Caswell v. Califano, 583 F.2d 9, 14n. 12 (CA1 1978); Jones v. Califano, 576 F.2d 12, 21-22 (CA 1978); Liberty Alliance of the

Blind v. Califano, 568 F.2d 333, 344-346 (CA3 1977); Johnson v. Mathews, 539 F.2d 1111, 1125-1126 (CA8 1976); Jimenez v. Weinberger, 523 F.2d 689, 694-697 (CA 1975),

cert. denied, 427 U.S. (1976).

intended only case-by-case adjudication under §

205(g).

[14] See, e.g. Caswell v. Califano, 583 F.2d 9, 14n. 12 (CA1 1978); Jones v. Califano, 576 F.2d 12, 21-22 (CA 1978); Liberty Alliance of the

Blind v. Califano, 568 F.2d 333, 344-346 (CA3 1977); Johnson v. Mathews, 539 F.2d 1111, 1125-1126 (CA8 1976); Jimenez v. Weinberger, 523 F.2d 689, 694-697 (CA 1975),

cert. denied, 427 U.S. (1976).

[15] Brief for Petitioner

54-55. There are five named representatives in the Elliott class.

The District Court found that the notice sent to respondents by the

Secretary did not advise them of the need to file a written request, but

that even so all had personally been in touch with the local Social

Security office within 30 days and objected to recoupment. The court also

found that, after suit was initiated, John Vaquilar, Evelyn Elliot,

Raymond Gaines, and Nancy Yamasaki filed written requests for

reconsideration and waiver, and that these requests would not have changed

their status had filing been timely. 371 F.Supp., at 965, and n. 8,966,

and n.14. The Secretary says that files of the Social Security

Administration also show that Jordan Silva filed a request for

reconsideration and waiver, which was denied. Brief for Petitioner 12 n.

16. Because Isabelle Ortiz never filed such a request, the Secretary

expresses some reservation as to whether she has met the requirements of §

205(g). Brief for Petitioner 55.

There are two named representatives of the Buffington class.

Fannie Buffington filed a request for reconsideration,m and Frances Biner

filed a request for waiver. 564 F.2d at 1224-1225.

Brief for Petitioner 12 n.

16. Because Isabelle Ortiz never filed such a request, the Secretary

expresses some reservation as to whether she has met the requirements of §

205(g). Brief for Petitioner 55.

There are two named representatives of the Buffington class.

Fannie Buffington filed a request for reconsideration,m and Frances Biner

filed a request for waiver. 564 F.2d at 1224-1225.

[16] Respondents also sought

and obtained a ruling that the Secretary had not provided constitutionally

adequate notice. The breadth of the classes is caused in part by the

inclusion of all those who had not received adequate notice, a class far

larger than the class of those who, after receiving notice, filed a

request for reconsideration or waiver with the Secretary. The secretary

does not challenge in this Court the Court of Appeals' ruling as to

notice, and none of he parties discuss whether a decision to send notice

could be a "final decision" within the meaning of § 205(g). We therefore

decline to consider whether the Court of Appeals has jurisdiction under §

205(g) to grant notice relief to the class members.

[17] See S.Rep. No. 734, 76th

Cong., 1st Sess. 52 (1939); H.R. Rep. No. 728, 76th Cong., 1st Sess., 43

(1939).

[18] See Caswell v. Califano, 583 F.2d 9, 14 n. 12 (CA1 1978); In re Letourneau, 559 F.2d 902, 294 (CA2 1977); Johnson v. Mathews, 539 F.2d

1111, 1125 1126 (CA8 1976); Jimenez v. Weinberger, 523 F.2d

689, 694-697 (CA7 1975), cert. denied, 427 U.S. 912 (1976). See generally Weinberger v. Salfi, 422 U.S. 749, 763 n.8 (1975), noting

this issue.