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December 13, 1976

BERTHE LETOURNEAU, on behalf of herself and all other persons similarly situated, Plaintiffs,
F. DAVID MATHEWS, et al., Defendants

The opinion of the court was delivered by: DUFFY



 Plaintiff Berthe Letourneau, a Canadian citizen who has worked in this country since 1944, became a permanent resident alien on October 24, 1967. From 1968 to 1972, she worked as a librarian for the French Embassy in New York City. During that period she reported her earnings, paid federal income tax, and paid Social Security self-employment tax.

 On January 24, 1972, Letourneau applied to the Social Security Administration ("S.S.A.") for hospital insurance benefits, 42 U.S.C. §§ 426, 426a, and medical insurance benefits, 42 U.S.C. § 1395o. The request for hospital coverage was denied on the ground that plaintiff's earnings did not fall within the definition of "self-employment income" contained in 42 U.S.C. § 411(c)(2)(C) because she was not, as required by that section, a citizen of the United States. The medical coverage was granted because Section 1395 o does not contain the same citizenship requirement. The plaintiff later applied for retirement insurance benefits and for reconsideration of the denial of hospital insurance. These claims were initially denied by the S.S.A. On March 26, 1974, an Administrative Law Judge affirmed the denials. The Appeals Council of the S.S.A. sustained the Administrative Law Judge's determination on October 8, 1974.

 The action before me challenges these determinations as a denial of equal protection of the laws. See Sugarman v. Dougall, 413 U.S. 634, 37 L. Ed. 2d 853, 93 S. Ct. 2842 (1973); Graham v. Richardson, 403 U.S. 365, 91 S. Ct. 1848, 29 L. Ed. 2d 534 (1971). Presently before this Court are motions for class action certification, or in the alternative discovery in aid of class certification, and for the convening of a three-judge court under 28 U.S.C. § 2282. *fn1" It is defendants' primary contention that 42 U.S.C. § 405(h) and the decision in Weinberger v. Salfi, 422 U.S. 749, 45 L. Ed. 2d 522, 95 S. Ct. 2457 (1975) precludes the granting of these motions.

 In Salfi, the plaintiff brought a class action against the Secretary of Health Education and Welfare ("the Secretary") and various S.S.A. officials challenging a provision of the Social Security Act which excluded wives and stepchildren from the statutory definition of "widow" and "child" unless their relationship with the deceased was longer than nine months. It was argued that this duration-of-relationship test created an irrebuttable presumption in violation of the due process clause of the Fifth Amendment.

 The district court concluded that it had federal question jurisdiction under 28 U.S.C. § 1331 and convened a three-judge court. The district court panel certified a class consisting of those otherwise eligible for benefits but were foreclosed by this duration-of-relationship requirement and granted summary judgment holding the requirement to be unconstitutional.

 On appeal the Supreme Court ruled that the district court had erred in finding jurisdiction under 28 U.S.C. § 1331, federal question jurisdiction. The Court ruled that the subject matter jurisdiction of the district courts had been restricted by the enactment of 42 U.S.C. § 405(h):

"The findings and decisions of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under section 41 of Title 28 to recover or any claim arising under this subchapter."

 The Court noted that prior to 1948, Section 41 contained all of the Title 28 grants of jurisdiction except for several specialized grants of jurisdiction which are unrelated to the Social Security Act. 422 U.S. at 756 n.3.

 The Court rejected arguments that Section 405(h) merely codified the exhaustion of remedies doctrine. It did rule, however, that there was jurisdiction under 42 U.S.C. § 405(g) over the claims of the named plaintiff because she had satisfied each requirement of that section. It provides in part as follows:

"Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such a decision by a civil action commenced within sixty days after mailing to him of notice of such decision or within such further time as the Secretary may allow. Such action shall be brought in the district court . . ."

 The defendants have conceded, and it appears to this Court, that there is jurisdiction over the claims of Berthe Letourneau under Section 405(g). The claims of the proposed class members are in a different posture. The Salfi Court indicated that where jurisdiction lies solely under Section 405(g) class action certification is inappropriate because of the inability of class members to meet the exhaustion of remedies requirement:

"As to class members, however, the complaint is deficient in that it contains no allegations that they have filed an application with the Secretary, much less that he has rendered any decision, final or otherwise, review of which is sought. The class thus cannot satisfy the requirement for jurisdiction under 42 U.S.C. § 405(g). Other sources of jurisdiction being foreclosed by § 405(h), the District Court was without jurisdiction over ...

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