Jones v. BowenJones v. Bowen
MEMORANDUM OPINION AND ORDER
Plaintiffs filed this action against Otis Bowen, M.D., Secretary of Health and Human Services on behalf of workers (and their dependents and survivors) who were or will be denied original social security numbers (“SSNs”), new SSNs or duplicate cards without notice or the opportunity to contest the denial. Federal jurisdiction is asserted under
BACKGROUND
Three aliens
a. are residing, have resided, or will reside in Illinois, Indiana, Michigan, Minnesota, Ohio and Wisconsin since June 1, 1982; and
b. are applying, have applied, or will apply for an initial SSN, a duplicate card, or a different SSN to correct a scrambled account; and
c. are being denied, have been denied, or will be denied initial SSNs duplicate social security cards, or different SSNs to correct a scrambled account.
Complaint ¶ 5. Applicants were denied original SSNs, new SSNs, or duplicate social security cards without notice or a hearing.
The Secretary of Health and Human Services (the “Secretary”) administers the social security program pursuant to the Social Security Act (the “Act”),
Final decisions of the Secretary are reviewable in the United States District Court.
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____
The complaint alleges that the regulations and the Secretary’s policy of administering SSNs and duplicate cards fail to provide notice of the denial of an applicant’s request or an opportunity to contest the decision. Because an applicant is never apprised of a final appealable decision, he or she is precluded from filing a civil action under
Discussion
I. Requirements of
1. Numerosity
A proposed class must be so numerous that joinder of all members is impracticable. The complaint need not allege the exact number or identity of class members. 1 Newberg, Newberg on Class Ac
The named plaintiffs reason that “a substantial number of people must be within the group of applicants who were denied an SSN without a hearing.” Plaintiffs’ Memorandum at 5. Although the Secretary does not keep records of the number of SSNs that are denied, he advised plaintiffs that approximately 13,805,995 applications have been processed from August, 1982 to the present. Plaintiffs suggest that if one of every ten thousand applicants is denied, the class would include approximately 1,380 members. Id. at 5-6. They argue that judicial economy and the inability of class members to pursue their claims individually further support a finding that class members are sufficiently numerous. Id. at 7.
The Secretary argues that the class is not precisely defined and that it is over-broad. Because the named representatives are all Illinois residents, he contends that a class that also includes Indiana, Michigan, Minnesota, Ohio and Wisconsin residents is overbroad. Defendant’s Memorandum at 11. Further, the proposed class is not limited to those individuals who fulfilled the requirements necessary for the issuance of an SSN or a duplicate card, were denied an SSN or duplicate card and have not yet obtained one. Id. at 12. Finally, the Secretary maintains that the class cannot include the dependents and survivors of SSN applicants because their benefits are not necessarily affected by the denial of the applicant’s request for an SSN. Id. at 13.
The class is sufficiently numerous that joinder would be impractical; plaintiffs’ inability to identify the exact size of the class does not preclude certification. As plaintiffs point out, the specific number of SSN applications denied since June 1, 1982 is known only to the Secretary. Through discovery, plaintiffs have obtained information relating to SSN applications submitted in Region V, which includes Illinois, Indiana, Michigan, Minnesota, Ohio and Wisconsin. The certification of a class of persons who reside or will reside in Region V is appropriate in an action challenging a particular HHS procedure.
Joinder is impracticable in this case because the purported class includes future claimants who “are applying ... or will apply for an initial SSN, a duplicate card, or a different SSN” and whose applications “are being denied ... or will be denied.” These individuals are unknown and unidentifiable. Their inclusion in a class action for declaratory or injunctive relief is appropriate. See Tonya K. v. Chicago Board of Education,
2. Commonality
The party seeking class certification must further demonstrate that there is at least one question of law or fact common to the class.
The class members in this action each raise a common legal question: whether the Secretary must provide written decisions and hearings to persons who are denied SSNs or duplicate cards. It is the review procedure—or lack of a procedure—that is at issue here, not the particular reasons for the denial of plaintiffs’ applications. There is no merit to the Secretary’s argument that this litigation requires a separate factual inquiry into the circumstances of each claim. The absence of a review procedure to permit applicants to challenge the denial of an SSN impacts upon all unsuccessful applicants and constitutes a policy or standardized conduct toward the plaintiff class. Accordingly, the requirement of commonality is met.
3. Typicality
In order to certify a class, the claims or defenses of the representative parties must be typical of the claims or defenses of the class.
The Secretary argues that despite common issues of law or fact between class members and the representatives, the particular factual circumstances of each representative preclude them from satisfying the typicality requirement. Defendant’s Memorandum at 14-15. Class members present a variety of factual scenarios: some are direct applicants for SSNs, others are dependents; some seek initial SSNs, others merely seek duplicate cards, etc. Accordingly, defendant argues, no single plaintiff’s circumstances are typical of the entire class.
Each class member asserts a claim that arises from the same course of conduct and is based on the same legal theory. The focus of the litigation is the fact that all members were denied SSNs or duplicate cards without written notice or the opportunity to contest the determination; the particular reason why each claim was denied does not destroy typicality. The issue is each member’s right to a procedure to contest the denial of an SSN—not his or her right to the SSN itself. After the common question of entitlement to a review procedure is resolved, questions concerning each applicant’s right to an SSN may be resolved separately through the implementation of this procedure. The typicality element is therefore satisfied.
4. Adequacy of Representation
To determine whether the named plaintiffs adequately represent the interests of the class, the court examines two factors: (1) whether there exist any conflicts of interest between the representatives and the rest of the class members, and (2) whether the named plaintiffs’ coun
A. Adequacy of the Named Representatives
The named representatives of a class must be members of the class at the time of certification. Davis v. Ball Memorial Hospital, Inc.,
To the extent that the three remaining representatives were denied SSNs or duplicate cards and have not yet obtained them, they may adequately represent the interests of the absent class members. Their interest in a review procedure to contest the denial of SSNs and duplicate cards is identical to that of every class member. The declaratory and injunctive relief sought will affect the named representatives and all class members equally. Subject to the dismissal of the two representatives as set forth above, the named plaintiffs will adequately represent the interests of the class.
B. Adequacy of Counsel
Plaintiffs are represented by the Legal Assistance Foundation of Chicago. This organization has prosecuted a number of class actions in this circuit and its attorneys have been deemed “experts in class actions and Social Security law.” Marcus v. Heckler,
II. Requirements of
In addition to the prerequisites of subdivision (a), a class action must satisfy at least one of the requirements of subdivision (b) of
Section (b)(2) contains two requirements. First, the party opposing the class must have acted or refused to act on “grounds generally applicable to the class.” Second, final injunctive relief or declaratory relief must be appropriate. Both requirements are satisfied in this case.
By adopting and implementing a “no process” policy for denying applications for SSNs or duplicate cards, the Secretary has refused to act on grounds generally applicable to the class. Further, final injunctive and declaratory relief is appropriate in this case. Plaintiffs request a declaration that the Secretary’s no process policy violates the Social Security Act and the Due Process Clause- of the Fifth Amendment. They seek an injunction that prohibits the Secretary from enforcing the no process policy and orders him to subject denials of SSNs and duplicate cards to the administrative appeals process set forth in the regulations. See
Conclusion
For the reasons stated above, the following class is certified pursuant to
All persons and the dependents and survivors (as defined in
a. are residing, have resided, or will reside in Illinois, Indiana, Michigan, Minnesota, Ohio and Wisconsin subsequent to June 1, 1982; and
b. are applying, have applied, or will apply for an initial SSN, a duplicate card, or a different SSN to correct a scrambled account; and
c. are being denied, have been denied, or will be denied initial SSNs, duplicate social security cards, or different SSNs to correct a scrambled account; and
d. have not subsequently obtained original SSNs, new SSNs or duplicate cards.
Plaintiffs William Jones and Jeanette Poe are disqualified as representative plaintiffs and, therefore, are dismissed.
Notes
. German Poe is an alien who requested a different SSN in January 1985 to correct a scrambled account. His request was orally denied.
Gloria Coe, an alien, applied for an SSN in April 1987. Her request was orally denied.
Francisco Noe, an alien, requested a duplicate social security card in September 1986 to replace the one he had lost. He was orally denied the issuance of a new card.
. William Jones is a United States citizen who lost his social security card and was denied a duplicate card in 1986. He subsequently was issued a new card.
. To the extent that the named representatives, residents of Illinois, do not adequately represent the interests of class members who are residents of other states, the appropriate remedy is to select different or additional representatives rather than to deny certification.
. A nationwide class is not inconsistent with principles of equity jurisprudence because the scope of injunctive relief is dictated by the extent of the violation established rather than by the geographical extent of the plaintiff class. Califano v. Yamasaki,
. The court has the discretion to redefine a class to ensure compliance with the strictures of Fed. R.CÍV.P. 23. See 7A Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1760 at 128 (1986).