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October 19, 1982

ANIBAL SOBERAL-PEREZ, Plaintiff, and BENITO CORTEZ, Plaintiff-Intervenor, against RICHARD S. SCHWEIKER, Secretary of Health and Human Services, Defendant.

The opinion of the court was delivered by: NEAHER


NEAHER, District Judge.

This is an action for declaratory and injunctive relief, monetary damages, and for review of certain final decisions of the Secretary of Health and Human Services (HHS). Plaintiff and plaintiff-intervenor (hereinafter "plaintiffs"), on behalf of themselves and all others similarly situated, challenge the Secretary's practices, policies and procedures in the disability insurance (DI) and the supplemental security income (SSI) programs administered by the Social Security Administration (SSA) as violative of the Social Security Act, 42 U.S.C. §§ 405(b) and 1383(c) (the Act), *fn1" the Civil Rights Act of 1964, 42 U.S.C. § 2000(d), and the Fifth Amendment Due Process Clause. *fn2"

 Specifically, the complaints challenge the sufficiency of the Spanish notices and Spanish-speaking personnel presently provided in the DI and SSI programs, claiming that the current SSA practice denies Hispanic *fn3" applicants and recipients equal access to and meaningful praticipation in the benefits programs.

 The action is now before the Court on the following motions:

 (1) Defendant's motion to dismiss certain allegations in the complaints under F.R.Civ.P. 12(b) or, in the alternative, for a protective order under F.R.Civ.P. 26(c);

 (2) Plaintiffs' motion for class certification under F.R.Civ.P. 23(c); and

 (3) Miguel Caraballo and Alcedo De La Cruz's motions for leave to intervene as plaintiffs in the action under F.R.Civ.P. 24(b).


 For purposes of the government's motion to dismiss, the following facts are taken as true. Conley v. Gibson, 355 U.S. 41, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).In 1947, plaintiff Anibal Soberal-Perez was born in Puerto Rico, and in 1965, after receiving a tenth grade education, he moved to the United States. His dominant language is Spanish, and he is unable to understand the English documents, instructions and advice, detailed below, which were provided him by SSA personnel. After several years of menial employment while suffering from respiratory and psychological impairments, Soberal-Perez applied concurrently for DI and SSI benefits. The initial determination was adverse to plaintiff, and he received written notice in English of his right to a reconsideration. Upon reconsideration, the initial determination was affirmed, and plaintiff received written notice in English of his right to a hearing before an administrative law judge (ALJ), to be represented by counsel, to present further evidence and to cross-examine adverse witnesses.

 On April 19, 1977, Soberal-Perez went to his local SSA office in Brooklyn, New York, and handed an SSA employee the notice of reconsideration and a letter from his doctor. The employee filled out a request for hearing form, asking plaintiff questions which neither he nor his friend whom he had brought to act as translator understood. The employee checked certain boxes on the form adjacent to statements waiving plaintiff's rights to appear and submit further evidence and indicated to plaintiff that he should sign the form, which he did without understanding the nature or meaning of the statements. On July 3, 1977, an ALJ denied plaintiff's claims for benefits, and plaintiff received written notice in English of the grounds for denial and the right to appeal.

 Subsequent to the Appeals Council affirmance of the ALJ's decision, this Court remanded the case to the Secretary for further proceedings. A supplemental hearing was held before an ALJ at which a translator was present and plaintiff was represented by his present counsel. By decision dated December 14, 1979, the Appeals Council adopted and partially modified the findings and conclusions of the ALJ, holding that plaintiff is entitled to neither DI nor SSI benefits.

 Plaintiff-intervenor Benito Cortez, approximately 58 years old, presents similar circumstances: mininal education in his native Puerto Rico; insufficient ability to communicate in English to understand SSA procedures; menial employment in the United States; circulatory and osteoarthritic impairments; and denial of disability benefits with unknowing waiver of procedural rights. However, unlike Soberal-Perez, upon this Court's order of remand, and subsequent to a supplemental hearing with a translator present, Cortez" claims were allowed. In a decision dated August 29, 1980, the Appeals Council adopted the ALJ's decision, and pursuant thereto Cortez was placed in payment status with retroactive payments for the period beginning April 1977.

 Movant Alcedo De La Cruz was born in the Dominican Republic in 1903. He too speaks primarily Spanish and is unable to understand the instructions and advice provided by SSA personnel.In August 1975, De La Cruz applied for SSA retirement benefits, and an application for SSI benefits was completed for him as well. He began receiving SSI benefits, and upon the advice of SSA personnel returned to work for a sufficient number of quarters to qualify for retirement benefits. By notice dated April 4, 1980, De La Cruz was informed that his earnings subsequent to August 1975 had not been properly included in his SSI computation, and that the overpayments would be recovered from his future checks. He requested a waiver of recovery of the overpayments by the SSA, based on his lack of understanding of the reporting requirements, bu the ALJ ruled, after a hearing at which a translater was present and plaintiff was represented by his present counsel, that he was at fault in causing the overpayments. When the Appeals Council denied plaintiff's request for review of the decision, the denial of his claim for waiver of recovery became a final decision of the Secretary.

 Movant Miguel Carballo was born in 1928 and moved to the United States after receiving an eighth grade education in Puerto Rico. Carballo worked as a cook for 25 years prior to applying for SSI and DI benefits for disability stemming from severe diabetes and a diabetic coma suffered in 1968. After separate hearings, Carballo was denied DI benefits and found eligible for SSI benefits. On reapplication for DI, Carballo was provided a translator at the hearing, but his claim was again denied, and the Appeals Council affirmed the denial. Carballo failed to bring a civil action for review of the agency action within the jurisdictional 60-day period after the Secretary's final decision and now claims that his failure was due to the absence of Spanish notices or instructions regarding the right to appeal. By stipulation and order filed June 3, 1982, Carballo's claim was remanded to the Secretary for further proceedings. *fn4"


 The Government challenges plaintiffs' assertion that the Court has jurisdiction over the subject matter of this action under 28 U.S.C. § 1361, arguing that 42 U.S.C. § 405 affords the exclusive basis for jurisdiction over the claims presented. *fn5" The issue arises from the language of § 405(h), which appears to restrict review of any decision of the Secretary to the mechanism established by § 405(g). *fn6" Although the Supreme Court has provides support for broad construction of § 405(h), see, e.g., Califano v. Sanders, 430 U.S. 99, 51 L. Ed. 2d 192, 97 S. Ct. 980 (1977); Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976); Weinberger v. Salfi, 422 U.S. 749, 45 L. Ed. 2d 522, 95 S. Ct. 2457 (1975), a plain reading of the statute, aided by the recent decision in Ellis v. Blum, 643 F.2d 68 (2d Cir. 1981), leads to the conclusion that § 1361 is an available jurisdictional basis in this action.

 The third sentence of § 405(h) precludes actions "brought under section 1331 or 1346 of Title 28 to recover on any claim arising under this subchapter." *fn7" Thus, to the extent the present claims seek to recover Social Security benefits, federal question jurisdiction is clearly foreclosed. The issue remains, however, whether the declaratory and injunctive relief sought by plaintiffs constitute claims "arising under" the Act.

 In three instances the Supreme Court has expressly left open the question whether § 405(h) forecloses mandamus jurisdiction, Califano v. Yamasaki, 442 U.S. 682, 698, 61 L. Ed. 2d 176, 99 S. Ct. 2545 (1979); Norton v. Mathews, 427 U.S. 524, 529-30, 49 L. Ed. 2d 672, 96 S. Ct. 2771 (1976); Mathews v. Eldridge, supra, at 332 n.12, and in three cases the Court of Appeals for this Circuit has held that § 1361 jurisdiction will lie to review SSA benefits claims procedure, Ellis v. Blum, supra; Barnett v. Califano, 580 F.2d 28 (2d Cir. 1978); White v. Mathews, 559 ...

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