for November 3, 1993. (Compl., Apps. T, V). On October 1, 1993, Gerber filed a complaint in this matter, and on October 6, 1993 he moved for interim relief. On November 2, 1992, the Secretary moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1) for lack of jurisdiction. On May 20, 1994, Judge Jacobs issued a decision waiving a portion of the overpayment to Gerber. This decision is currently pending before the Appeals Council.
Gerber argues that he has been harmed by unjustifiable delays while awaiting the Secretary's final decision and as such is entitled to interim relief. The interim relief he seeks would enjoin the Secretary from deducting $ 50 from his monthly benefits.
In response, the Secretary argues that judicial review is only available for "a final decision of the Secretary made after a hearing" (42 U.S.C. § 405(g)), and that there is no final decision in this instance. Thus, the Secretary argues, this court does not have jurisdiction pursuant to the statute.
Indeed, Gerber does not dispute that there has been no final decision in his case. Rather, Gerber argues that the exhaustion of remedies doctrine may be waived under certain circumstances and that this is one such situation.
The final decision required by statute consists of two elements: "(i) the 'jurisdictional', non-waivable requirement that a claim for benefits has been presented to the Secretary and (ii) the "waivable" requirement that the administrative remedies prescribed by the Secretary have been exhausted." City of New York v. Heckler, 742 F.2d 729, 734 (2d Cir. 1984), aff'd sub nom. Bowen v. City of New York, 476 U.S. 467, 106 S. Ct. 2022, 90 L. Ed. 2d 462 (1986) (quoting Mathews v. Eldridge, 424 U.S. 319, 328-30, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976) and Weinberger v. Salfi, 422 U.S. 749, 764-65, 45 L. Ed. 2d 522, 95 S. Ct. 2457 (1975)). Gerber has met the first, non-waivable, element by pursuing this claim. Id. at 736 (all a claimant need do is specifically present the claim that his benefits should not be terminated).
Although ordinarily it is within the Secretary's discretion to waive the exhaustion requirement, the second element of a final decision, "cases may arise where a claimant's interest in having a particular issue resolved promptly is so great that deference to the agency's judgment is inappropriate." Bowen, 476 U.S. at 483 (quoting Matthews, 424 U.S. at 330). In addition, a waiver of administrative exhaustion is appropriate when it does not detract from the underlying principles of the exhaustion doctrine. "Exhaustion is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review." Bowen, 476 U.S. at 484 (quoting Weinberger v. Salfi, 422 U.S. at 765).
Thus, "the Supreme Court has approved judicial waiver where plaintiff's legal claims are collateral to the demand for benefits, where exhaustion would be futile, or where the harm pending exhaustion would be irreparable." City of New York v. Heckler, 742 F.2d at 736 (quoting Matthews, 319 U.S. at 330-32). In applying this test, the Second Circuit "adopted a more general approach, balancing the competing considerations to arrive at a just result under the circumstances presented." Id.
The SSA took three years to determine that Gerber's trial work period began in 1981 rather than 1988. Furthermore, after another three years, the SSA still has not come to a final decision about the merits of this case. In fact, after two hearings, Judge Jacobs has already partly decided the case in Gerber's favor. If one considers that the issues before the SSA stem from 1981, there is no doubt that this delay is unconscionable. Indeed, only because Gerber was one of the successful class action plaintiffs in Bowen, did the start date of his trial work period become an issue. As the SSA has had more than ample time to use its expertise to sort out Mr. Gerber's benefits, the policies underlying the exhaustion doctrine can be accomplished only by waiving exhaustion in this instance.
Moreover, as in Bowen, the relief sought by Gerber in this court is collateral to his SSD claims. Gerber is solely dependent on SSD income. For him, the $ 50 monthly deduction from those benefits is not insignificant. (Gerber Aff. P 33). And in Bowen itself, the Court held that "the claimants in this case would be irreparably injured were the exhaustion requirement now enforced against them. . . . The ordeal of having to go through the administrative appeal process may trigger a severe medical setback. Many persons have been hospitalized due to the trauma of having disability benefits cut off." Id. at 483-84.
Accordingly, for the foregoing reasons, Gerber's motion for interim relief is granted and the Secretary's motion to dismiss is denied.
DATED: New York, New York
June 15, 1994
KEVIN THOMAS DUFFY, U.S.D.J.