Opinion · United States District Court
CERVANTEZ v. SULLIVAN, (E.D.Cal. 1989)
724 F. Supp. 757
- Type
- Opinion
- Court
- United States District Court
- Jurisdiction
- Federal
- Date
- 1989-10-31
- Topic
- general
CERVANTEZ v. SULLIVAN, (E.D.Cal. 1989) 724 F. Supp. 757 Jesse CERVANTEZ, on behalf of himself and all others similarly situated,Plaintiffs, v. Louis SULLIVAN, Secretary of the Department of Health andHuman Services, Defendant. No.
Citator
UpLaw has not yet analyzed CERVANTEZ v. SULLIVAN, (E.D.Cal. 1989). The absence of a flag is not a finding that it is good law.
CERVANTEZ v. SULLIVAN, (E.D.Cal. 1989)
724 F. Supp. 757
Jesse CERVANTEZ, on behalf of himself and all others similarly situated,
Plaintiffs, v. Louis SULLIVAN, Secretary of the Department of Health and
Human Services, Defendant.
No. CIV. S-89-529 LKK.
United States District Court, E.D. California.
October 31, 1989.
Sheila Lieber, Margot de Ferranti, U.S. Dept. of Justice, Civil Div., Washington, D.C., John R. Bolton, Asst. U.S. Atty., Sacramento, Cal., for defendant.
ADDENDUM TO ORDER PUBLISHED AT719 F. Supp. 899(1989)
1. The class certified pursuant to Rule23of the Federal Rules of Civil Procedure in this court's Order of August 8, 1989, as amended by the Order of September 13, 1989, with plaintiff Jesse Cervantez as the class representative, is defined as:
All persons residing in the Ninth Federal Judicial Circuit whose SSI benefits have been denied, terminated or reduced because of the Secretary's policy of counting unearned income that is garnished as if that income were in fact received, and (1) who received a final decision from theWest Page 758Secretary within sixty-five (65) days1prior to the lodging of plaintiff's complaint on April 4, 1989;2or (2) who had a request for administrative review pending within 65 days prior to the lodging of plaintiff's complaint; or (3) who received a decision notice at some level of the administrative process (i.e., initial decision, reconsideration, or administrative law judge decision) within 65 days prior to the lodging of plaintiff's complaint, and whose period of limitations for timely seeking further administrative review therefor had not expired at the time the complaint was lodged; and all persons residing in the Ninth Federal Judicial Circuit who received an initial determination or other notice of decision after the lodging of plaintiff's complaint on April 4, 1989, denying, reducing or terminating SSI benefits as a result of the Secretary's policy of counting unearned income that is garnished as if that income were in fact received.
Consistent with the court's definition of the class, the class-wide relief set forth in this order shall include all persons residing in the Ninth Federal Judicial Circuit whose SSI benefits have been or may be denied, terminated or reduced because of the Secretary's policy of counting unearned income that is garnished as if that income were in fact received, and who (1) received a final decision from the Secretary or a decision notice at some level of the administrative process (i.e., initial decision, reconsideration, or administrative law judge decision) on or after January 27, 1989, or (2) had an application for SSI benefits or a request for administrative review pending but not acted upon on or after January 27, 1989.
2. Defendant's policy of counting as income for purposes of determining eligibility and benefit amount under the SSI program, 42 U.S.C. § 1381-1383c, unearned income which has been garnished is declared invalid and unenforceable as in violation of the SSI statute.
3. The relevant portion of section 416.1123(b)(2) of Title 20 of the Code of Federal Regulations, to the extent it permits the counting of unearned income that is garnished and any other written or oral directives, guidelines, memoranda, etc., of the Social Security Administration which require or permit the determination of eligibility and amount of assistance for SSI benefits by counting unearned income which is being garnished are declared invalid and unenforceable as in violation of the SSI statute.3
4. Defendant Louis Sullivan, Secretary of the Department of Health and Human Services, his successors in office, his agents, employees, and all persons acting in concert with them are enjoined from calculating SSI eligibility and amount of assistance by counting unearned income which as been garnished from SSI applicants or recipients.
5. Defendant Louis Sullivan, Secretary of the Department of Health and Human Services, his successors in office, his agents, employees, and all persons acting in concert with them are enjoined from applying 20 C.F.R. § 1123(b)(2) and any other written or oral directives, guidelines, memoranda, etc., that require or permit the determination of eligibility and amount ofWest Page 759assistance for SSI benefits by counting unearned income which has been garnished from SSI applicants or recipients.
6. Defendant's decision upholding the reduction in plaintiff Jesse Cervantez' SSI benefits, which reduction resulted from counting as income money garnished from plaintiff's Social Security benefits is hereby reversed, and defendant is ordered to:
a. Redetermine plaintiff's correct monthly SSI benefit without counting the garnished portion of his Social Security benefits;
b. Within fifteen (15) working days after entry of this order, certify payment to plaintiff of the monthly SSI benefit to which he is entitled under this order; and
c. Within fifteen (15) working days after entry of this order, certify payment to plaintiff any retroactive SSI benefits to which he is entitled under this order.
7. Not later than twenty (20) working days from the date this order is entered, defendant is further ordered to send by teletype or other overnight means of communication to all appropriate offices, divisions, levels, departments, etc., of the Social Security Administration a directive explaining that the policy and regulation described above has been enjoined, and ordering:
a. That the determination of eligibility and amount of assistance for SSI benefits for all class members shall, beginning immediately, be effected without counting unearned income which is garnished as income to the applicant or recipient;
b. The immediate reprocessing, consistent with this court's orders, of the claims of any class members which are presently at any stage of the administrative process (i.e., initial decision, reconsideration, administrative law judge, Appeals Council).
8. Defendant is further ordered, as expeditiously as possible, but in no event later than the timelines set forth in this paragraph, to:
a. Identify and contact, to the extent possible, all class members by taking the following steps:
(1) No later than one hundred twenty (120) days after the effective date of this order, mail notices to all SSI recipients in the Ninth Federal Judicial Circuit with unearned income that may be subject to garnishment (except for those individuals whose only source of unearned income that may be subject to garnishment is Title II, who will receive notice as provided in subparagraph (a)(2) below), informing them that as a result of the court's order inCervantez v. Sullivan,they may be entitled to an increase in their SSI benefit amount if they have unearned income which is being garnished, and explaining the procedure they should follow if they believe their benefits may be affected by the court's order; SSI recipients who have unearned income all of which is determined with certainty not to be subject to garnishment (e.g., by reference to 5 C.F.R. § 581), need not receive any mailed notices. Any SSI recipients who have any unearned income whichmaybe subject to garnishment shall be mailed the notices described above in this paragraph, except for those who will receive notice as provided in subparagraph (a)(2) below.
(2) No later than one hundred twenty (120) days after the effective date of this order, mail notices to all Title II recipients in the Ninth Federal Judicial Circuit whose Title II benefits are being garnished, informing them that as a result of the court's order inCervantez v. Sullivan,if they have unearned income which is being garnished, they may be entitled to SSI benefits or, if they are already receiving SSI benefits, they may be entitled to an increase in their SSI benefit amount, and explaining the procedure they should follow if they believe their benefits may be affected by the court's order.
(3) Before printing the notices described in subparagraphs (a)(1) and (a)(2), defendant shall send copies to plaintiffs' counsel for comment.
(4) No later than one hundred twenty (120) days after the effective date of this order, provide public notice through posters to be prominently displayed in the reception areas of all Social Security AdministrationWest Page 760offices in the Ninth Federal Judicial Circuit for not less than one year and made available to plaintiffs' counsel for distribution by plaintiffs' counsel for public display. The posters shall include the name, address and telephone number of plaintiffs' counsel. Defendant shall produce no fewer than five hundred (500) posters, which shall be identical, some to be displayed in SSA offices (approximately 259) and the remainder to be sent to plaintiffs' counsel. During the 60-day period after the effective date of this order, defendant shall confer with plaintiffs' counsel to determine content and language of the posters.
b. Within five (5) working days after an individual presents him or herself to a local SSA office in response to any notice described above, begin verification and, within ten (10) working days after all verification of all factors relating to eligibility are received, if the individual is eligible, certify payment. To the extent possible, defendant will redetermine benefit amounts and certify payment without requiring individuals to come in person to SSA offices.
9. For members of the class as defined in paragraph 1, the Secretary shall redetermine their SSI benefits from (a) the date they applied for benefits, if they applied for SSI benefits and were denied or received a reduced amount of benefits as a result of the Secretary's policy of counting unearned income that is garnished, or (b) in the case of individuals already receiving SSI benefits, the date a reduction or termination of benefits went into effect, if their SSI benefits were reduced or terminated as a result of the Secretary's policy of counting unearned income that is garnished.
10. For individuals who were denied SSI benefits or whose SSI benefits were reduced or terminated before the class opening date, January 27, 1989, and did not timely pursue their administrative remedies (and who are therefore not members of the class as defined in paragraph 1), the Secretary shall redetermine their SSI benefits from the date this order is entered.
11. Within ninety (90) days after entry of this order, and every ninety (90) days ten report to this court describing defendant's compliance with this order. Said report shall include, but shall not necessarily be limited to, descriptions of the following:
a. All actions taken by the defendant to ensure the implementation of paragraphs 2 through 6 of this order, including the dates of such actions;
b. All actions taken by the defendant to comply with paragraph 7 of this order, including the date(s) of such actions;
c. All actions taken by the defendant to comply with paragraph 8 of this order, including the names and addresses of identified class members and the amount of corrected SSI benefits redetermined for and paid to each identified class member.
A copy of each report submitted to the court in accordance with this paragraph shall be served on counsel for plaintiffs.
12. The court shall retain jurisdiction to enforce this order and, if necessary, to modify or clarify any of its provisions upon noticed motion by counsel for either party.
IT IS SO ORDERED.
- The 65 days represents 60 days from the date of notice with an additional five (5) days from the date on the notice for mailing. Because 65 days before the lodging of plaintiff's complaint, on January 29, 1989, falls on a Sunday, the class opening date will be the next previous business day, January 27, 1989. ↩
- Pursuant to this court's order granting plaintiffs motion for clarification filed September 13, 1989, the relevant date for the opening of the class is the date upon which the complaint was initially lodged with the court along with the petition to proceedin forma pauperis,rather than the date the complaint was actually filed.Holden v. Heckler,584 F. Supp. 463,502-03(N.D. Ohio 1984);Adams v. Heckler,624 F. Supp. 63,64(E.D.Pa. 1985). ↩
- 20 C.F.R. § 416.1123(b)(2) provides: "We also include more than you actually receive if amounts are withheld from unearned income because of a garnishment or to make certain payments such as payment of your Medicare premiums." The portion of the regulation which permits inclusion of "certain payments such as payment of your Medicare premiums" is not subject to, or affected by, this order. ↩