Califano v. Molina Brief for the Lawyers' Committee for Civil Rights Under Law as Amicus Curiae

    In T he

u p ra tt? CEnurt xtf l ljr  HHwxUb S t a i r s
O ctober  T e r m , 1978

No. 77-1511

J o se ph  A . Ca l if a n o , S e c r e t a r y  of  H e a l t h ,
E d u c a t io n , a n d  W e l f a r e , e t  a l .,

Petitioners,v.
E v e l y n  E l l io t t  a n d  B e n it o  M o l in a , et  a l .

J o se ph  A . Ca l if a n o , 
E d u c a t io n , a n d

S e c r e t a r y  of H e a l t h , 
W e l f a r e , et  a l .,

Petitioners,
V .

F a n n ie  B u f f in g t o n  a n d  F r a n c e s  B in e r , et  a l .

On Writ of Certiorari to the United States Court of Appeals 
for the Ninth Circuit

BRIEF FOR THE LAWYERS’ COMMITTEE FOR 
CIVIL RIGHTS UNDER LAW AS AMICUS CURIAE

Charles A. Bane 
Thomas D. Barr 

Co-Chairmen
Norman Redlich

Trustee
Robert A. Murphy 
Norman J. Chachkin 
Richard S. Kohn 
Stuart E. Schmitz 

Staff Attorneys 
Lawyers’ Committee for 

Civil Rights Under Law 
73S Fifteenth Street, N.W. 
Suite 520
Washington, D.C. 20005 
(202) 628-6700

Attorneys for Amicus Curiae

W i l s o n  - E p e s  P r i n t i n g  C o . .  In c . - 7 8 9 - 0 0 9 6  - W a s h i n g t o n , D . C .  2 0 0 0 1



TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................  II

INTEREST OF AMICUS CURIAE ..............   1

STATEMENT .......... .............................................................  4

ARGUMENT ...............................................................    7

Page

CERTIFICATION OF A NATIONWIDE CLASS 
IS CONSISTENT WITH THE FEDERAL RULES 
OF CIVIL PROCEDURE AND PROPER JUDI­
CIAL ADMINISTRATION; MOREOVER, IT IS 
PARTICULARLY APPROPRIATE IN CASES 
INVOLVING POLICIES OF NATIONWIDE AP­
PLICATION ADOPTED AND IMPLEMENTED 
BY FEDERAL OFFICIALS ............................. ........  7

A. The District Court Did Not Abuse Its Discre­
tion in Entertaining a Nationwide Class Ac­
tion to Deal with a Problem Which Is Nation­
wide in Scope But Subject Also to Nationwide 
Control by the Petitioner..... ..................... ........  S

B. No Valid Policy Considerations Support The
Government’s Contention That Nationwide 
Class Actions Should Not Be Permitted.......  10

C. Nationwide Injunctive Relief In a Nationwide
Class Action Is Authorized by Rule 23(b) (2) 
and Did Not Constitute an Abuse of Discre­
tion in This Case.................... .............................  16

17CONCLUSION



II

TABLE OF AUTHORITIES
Cases: Page

Albemarle Paper Co. V. Moody, 422 U.S. 405
(1975) .......... .......................................... ....................  7

Aznavorian V. Califano, 47 U.S.L.W. 4037 (U.S.,
Dec. 12, 1978), rev’g on other grounds, 440 F.
Supp. 788 (S.D. Cal. 1977) .......... ............ ..............  9

Bermudez V. Department of Agriculture, 160 U.S.
App. D.C. 150, 490 F2d 718 (D.C. Cir.), cert.
denied, 414 U.S. 1104 (1973) ................................. 9

Blonder-Tongue Laboratories, Inc. v. University
Foundation, 402 U.S. 313 (1971) ............. ............  12

Califano v. Mandley,-------U.S. -------- , 56 L Ed.2d
658 (1978) ...... .......................... ................................  4

Dayton Board of Education V. Brinkman, 433 U.S.
406 (1977) ............ ....................... ....................... . 16

Divine V. Commissioner of Internal Revenue, 500
F2d 1041 (2d Cir. 1974)...........................................  13,14

Edelman V. Jordan, 415 U.S. 651 (1974) ............ . 17
Elliott V. Weinberger, 371 F. Supp. 960 (D. Ha­

waii 1974), aff’d in part and rev’d in part, 564
F2d 1219 (9th Cir. 1977) ______ ____ ____ ____ 3, 4, 6,11

Franks V. Bowman Transportation Co., 424 U.S.
747 (1976) _____________________________ _______ 7

Gilmore V. City of Montgomery, 417 U.S. 556
(1974) _ ........................ ........ .............. ......... ...... . 4

Green v. CoEally, 330 F. Supp. 1150 (D.D.C. 1971), 
aff’d subAnom., Coit v. Green, 404 U.S. 997
(1971) ........ ................................................................  3

Hoehle V. Likens, 530 F2d 229 (8th Cir. 1976).... 17
Illinois V. Harper & Row Publishers Inc., 301 F.

Supp. 484 (N.D. 111. 1969) ................................ ..... 10,15
In Re Plumbing Fixture Cases, 298 F.Supp. 484

(Jud. Pan. Multi. Lit. 1968) _______________ __ _ 15
Liberty Alliance of the Blind v. Califano, 568 F2d 

333 (3rd Cir. 1977) 7



Ill

Mattern v. Weinberger, 377 F. Supp. 906 (E.D. Pa.
1974), vacated, 519 F2d 150 (3rd Cir. 1975), 
vacated, Mathews V. Mattern, 425 U.S. 987 
(1976), on remand, 427 F. Supp. 1318 (E.D.
Pa. 1977), rev’d, 582 F2d 248 (3rd Cir. 1978), 
pet. for cert, filed, 47 U.S.L.W. 3318 (U.S. Nov.

TABLE OF AUTHORITIES—Continued
Page

May Department Stores Co. V. Williamson, 549 F2d
1147 (8th Cir. 1977) .......................................... 11,12,15

Metropolitan Area Housing Alliance V. HUD, 69
F.R.D. 633 (N.D. 111. 1976) ...................................  9

Milliken V. Bradley, 418 U.S, 717 (1974) ................  16
Montgomery Ward & Co. v. hanger, 168 F2d 182

(8th Cir. 1948) ............ .......................................... .... 11
Murry v. Department of Agriculture, 413 U.S. 508

(1973), aff’Q, 348 F. Supp. 242 (D.D.C. 1972).... 9
Norton V. Weinberger, 418 U.S. 902 (1974), vacat­

ing on other grounds, 364 F. Supp. 1117 (D. Md.
1973) ............ ............................. ........ .......... ..............  9

Parklane Hosiery Co. V. Shore, 47 U.S.L.W. 4079
(U.S. Jan. 9, 1979) ................................ .............. . 13

Philbrook v. Glodgett, 421 U.S. 707 (1975) .......... . 6
Rizzo v. Goode, 423 U.S. 362 (1976) ....................... . 16
Rocky Ford Housing Authority v. Department of

Agriculture, 427 F. Supp. 118 (D.D.C. 1977).... 9
Rowe V. Bailar, Civ. No. 77-1943 (D .D .C.)............. 2
Ste. Marie v. Eastern R.R. Ass’n, 72 F.R.D. 443

(S.D. N.Y. 1976) ........ ........ ................................... 10
Underwood v. Hills, 414 F. Supp. 526 (D.D.C.

1976) .............................................. .............................  9
United States V. Larionoff, 431 U.S. 864 (1977),

aff’g 533 F2d 1167 (D.C. Cir. 1976) ....... ............  10
West Virginia V. Charles Pfizer & Co., 314 F. Supp.

710 (S.D. N.Y. 1970), aff’d, 440 F2d 1079 (2d 
Cir.), cert, denied sub nom., Cotier Drugs Inc.
V. Charles Pfizer & Co., 404 U.S. 871 (1971)...... 10

Whitcomb V. Chavis, 403 U.S. 124 (1971).............. . 16



IV

Woe v. Mathews, 408 F. Supp. 419 (E.D. N.Y.
1976) ............ ........_...... ........ ............ .........................  17

Woodward v. Rogers, 344 F. Supp. 974 (D.D.C.
1972) ..........     10

Wooley v. Maynard, 430 U.S, 705 (1977) ................  16
Wright v. Blumenthal, Civ. No. C-76-1426 (D.

D.C.) ......................................  . . .2 ,3 ,4
Statutes and Rules:

28 U.S.C. § 1361 ..........................................  7
42 U.S.C. § 204(b) ........................... 8
42 U.S.C. § 205 (g) ...........................  7
42 U.S.C. § 1407 ............................................. .............. 15
Sup. Ct. Rule 1 9 .........................   14
Sup. Ct. Rule 23(1) (c) .......... .......................... ............  8
Sup. Ct. Rule 40(1) (G) _______________ __________  6
Sup. Ct. Rule 40(5) ............ ......... ......... .........................  6
Sup. Ct. Rule 42(2) ................ ........... ........ .............  i
Fed. R. Civ. P. 23 (a) __________________ ____  7
Fed. R. Civ. P. 23(b) (1) .................... . . . . . .  ' I  10
Fed. R. Civ. P. 23 (b) (2) ................ ............ .......2, 7, 9,11,16
Fed. R. Civ. P. 23(b) (3) ............................................  io, 15

Other Authorities:

Advisory Committee Note on Rule 23 Fed. R. Civ.
P., 39 F.R.D. 98 .......... .......................... ....... ............  2

C. Wright, The Law of Federal Courts 306 (2d ed.
1970) ............................................................................  11

TABLE OF AUTHORITIES—Continued
Page



In The

(tort nf tl̂ r Inttrii
Octo ber  T e r m , 1978

No. 77-1511.

J o seph  A . Ca l if  a n  o, Se c r e t a r y  of  H e a l t h ,
E d u c a t io n , a n d  W e l f a r e , et  a l .,

Petitioners, v. ’
E v e l y n  E l l io t t  a n d  B e n it o  M o l in a , et  a l .

J o se ph  A . Ca l if a n o , S e c r e t a r y  of H e a l t h ,
E d u c a t io n , a n d  W e l f a r e , e t  a l .,

Petitioners, v. ’
F a n n ie  B u f f in g t o n  a n d  F r a n c e s  B in e r , et  a l .

On Writ of Certiorari to the United States Court of Appeals 
for the Ninth Circuit

BRIEF FOR THE LAWYERS’ COMMITTEE FOR 
CIVIL RIGHTS UNDER LAW AS AMICUS CURIAE

INTEREST OF AMICUS CURIAE *

The Lawyers’ Committee for Civil Rights Under Law 
was organized in 1963 at the request of the President of 
the United States to involve private attorneys in the na­
tional effort to assure civil rights to all Americans. The 
Committee membership today includes two former At­
torneys General, ten past Presidents of the American 
Bar Association, a number of law school deans, and many

* The parties’ letters o f consent to the filing of this brief are 
being lodged with the Clerk pursuant to Rule 42(2).



2
of the nation’s leading lawyers. Through its national 
office in Washington, D.C., and its offices in Jackson, 
Mississippi, and eight other cities, the Lawyers’ Commit­
tee over the past fifteen years has enlisted the services 
of over a thousand members of the private bar in ad­
dressing the legal problems of minorities and the poor in 
voting, education, employment, housing, municipal serv­
ices, the administration of justice, and law enforcement.

One of the principal tools for obtaining redress under 
the federal civil rights legislation for violations of con­
stitutional and statutory rights is the class action. In 
fact, the Advisory Committee’s Note to the 1966 amend­
ment to Rule 23 indicates that Rule 2 3 (b )(2 ) is in­
tended to function as an effective vehicle for the bring­
ing of suits alleging racial discrimination. See Advisory 
Committee Note reprinted at 39 F.R.D. 98, 102. The 
Lawyers’ Committee and its local committees, affiliates, 
and volunteer attorneys are presently litigating numer­
ous class action lawsuits aimed at the vindication of 
civil rights of large numbers of people. Our interest in 
these consolidated appeals derives from the fact that we 
have utilized nationwide class actions in this effort, and 
currently are involved in two such actions: Rowe v. 
Bailor, Civ. No, 77-1943 (D.D.C.) (involving discrimina­
tory employment practices in the Postal Service’s bulk 
mail handling facilities throughout the country), and 
Wright v. Blumenthal, Civ. No. C-76-1426 (D.D.C.) 
(seeking to compel the Internal Revenue Service to end. 
the practice of granting tax-exempt status to private 
schools which practice racial discrimination in their ad­
missions policies).

In the cases now before this Court, the plaintiffs suc­
cessfully challenged the procedure utilized by the Secre­
tary of HEW to recoup overpayments to beneficiaries of 
Title II of the Social Security Act on the ground that 
Petitioner’s failure to give adequate notice and the oppor­
tunity for an oral evidentiary hearing before recoup­
ment violated the due process clause of the Fifth Amend­



3

ment. The correctness of this ruling is the principal 
issue presented, but the Court has also agreed to consider 
an additional question raised by the government in its 
petition:

Whether a nationwide class action, on behalf of per­
sons who have not met the jurisdictional require­
ments of j§ 205(g) of the Social Security Act, may 
be maintained to challenge the procedures used to 
process Social Security cases.

The Court of Appeals held, correctly in our view, that 
maintenance of the Buffington case as a nationwide class 
action under Rule 23(b) (2) was not only proper but 
would also advance the interests of judicial administra­
tion and serve the ends of justice. 564 F.2d at 1229-30. 
The government contests this ruling and seems to argue 
that both nationwide certification and the issuance of 
injunctive relief were inappropriate. Adoption of this 
position would have ramifications far beyond the confines 
of these cases, and could hinder our ability to obtain 
meaningful relief in a broad range of civil rights eases.1

1 Wright V. Blumenthal is an apt illustration of why this is so. 
In 1969, on behalf o f individual black parents and students in Mis­
sissippi, the Lawyers’ Committee filed suit in the federal district 
court in the District of Columbia to enjoin United States Treasury 
officials from granting tax-exempt status to private schools in 
Mississippi which had racially discriminatory adminissions policies. 
The suit was brought as a class action on behalf of black parents of 
school children attending the Mississippi public schools. In Green 
v. Connolly, 330 F. Supp. 1150 (D.D.C. 1971), aff’d sub nom. Coit 
V. Green, 404 U.S. 997 (1971), the court entered a declaratory judg­
ment in the plaintiffs’ favor and issued an injunction restraining the 
IKS from approving any applications for tax-exempt status from 
any private school located in Mississippi unless the school demon­
strated, in accordance with criteria specified in the order, that it had 
a nondiscriminatory admissions policy. Not only did the Service fail 
to implement this Order in Mississippi, but because the injunctive 
order bound the defendants only with respect to schools in that state, 
the Service took no action to establish whether private schools 
located in other states which applied for tax-exempt status had non­
discriminatory policies, even though such schools often interfered



4

The Lawyers’ Committee therefore files this brief as a 
friend of the Court urging that, in the event the Court 
reaches the class action question,2 it affirm, this aspect 
of the Court of Appeals’ judgment.

STATEMENT

These suits were brought to challenge the recoupment 
procedures of the U.S. Department of Health, Education 
and Welfare in recovering overpayments to recipients of 
benefits under Title II of the Social Security Act. In 
each instance, the plaintiffs sought class certification, al­
though the scope and the geographical boundaries of the 
classes are dissimilar.

Elliott v. Califano was filed in the United States Dis­
trict Court for the District of Hawaii. A class was certi­
fied consisting of all social security old-age, survivors’, 
and disability insurance beneficiaries in Hawaii whose 
benefits were or might be subject to recoupment.3 (The 
government has registered no objection to the statewide 
class designated in this case.)

with implementation o f desegregation, plans required by federal 
court order, see Gilmore V. City of Montgomery, 417 U.S. 556 (1974). 
Accordingly, to avoid the necessity of state-by-state adjudication, in 
1976, salaried attorneys on the staff of the Lawyers’ Committee, to­
gether with other attorneys, filed a nationwide class action on be­
half of 63 individual plaintiffs in seven states (now styled Wright v. 
Blumenthal) to compel the IRS to cease granting tax-exempt status 
to private schools throughout the United States which practice racial 
discrimination. This suit is still pending.

12 The government advanced several of the same contentions in
Califano v. Mandley,------ U .S .------- , 56 L.Ed.2d 658 (1978), but the
Court vacated the judgment and remanded without reaching the 
issue of nationwide relief.

3 The Court divided the class into two subclasses depending upon 
whether their exposure to recoupment was based upon their own 
annual earnings reports or upon other evidence, such as the admin­
istrator’s discovery of his own error. Elliott v. Weinberger, 371 
F. Supp. 960, 964 n,6 (D. Hawaii 1974).



5

Buffington v. Califano was filed in the United States 
District Court for the Western District of Washington 
by two named plaintiffs. On April 8, 1974, the court 
certified a nationwide class of recipients of old-age and 
survivors’ benefits4 5 6 “ whose benefits have been or will 
be reduced or otherwise adjusted without prior notice 
and opportunity for a hearing.”  The government filed a 
motion to alter the definition of the class and, to meet 
the stated objections,® the plaintiffs suggested changes 
which were adopted by the court. The class was rede­
fined to exclude residents of Hawaii and of the Eastern 
District of Pennsylvania® and “ all other individuals who 
are plaintiffs or members of a plaintiff class in an action 
against the instant defendant challenging his practice of 
reducing or otherwise adjusting social security benefits 
without prior notice and opportunity for a hearing, if a 
decision on the merits in any such action was entered on 
or before October 18, 1974.” App. at 259-261.

4 Since there was no named plaintiff receiving disability pay­
ments, the nationwide class excludes recipients of this type of bene­
fit. Consequently, recipients of disability payments who reside in 
Hawaii presently receive an oral evidentiary hearing prior to any 
adjustments while disability recipients in the rest of the country 
do not.

5 In a memorandum of law filed on October 3, 1974, the govern­
ment argued that the court should exercise its discretion to modify 
the definition of the class for four reasons: “ (1) the wealth of 
similar litigation currently pending throughout the country, (2) the 
extreme administrative burden which nationwide certification would 
impose, (3) the very real legal and practical problems pertaining to 
res judicata and collateral attack, and (4) relevant considerations 
of judicial efficiency and the orderly pursuit of justice.” Record, 
Court of Appeals, Vol. II, p. 404.

6 The Court was advised that the United States District Court for 
the Eastern District of Pennsylvania had held the recoupment pro­
cedures to be violations of due process, and that the government 
was appealing the adverse judgment. Mattern V. Weinberger, 377 
F. Supp. 906 (E.D. Pa. 1974), vacated, 519 F.2d 150 (3rd Cir. 
1975), vacated, Mathews v. Mattern, 425 U.S. 987 (1976), on re­
mand, 427 F. Supp. 1318 (E.D. Pa. 1977), rev’d, 582 F.2d 248 (3rd 
Cir. 1978), pet. for cert, filed, 47 U.S.L.W. 3318 (U.S. Nov. 7, 1978).



6

In the Court of Appeals, the government claimed, inter 
alia, that the district court in Buffington abused its dis­
cretion in certifying a nationwide class action. The 
Ninth Circuit rejected this argument, characterizing the 
case as the “ classic type of action envisioned by the 
drafters of Rule 23 to be brought under subdivision 
(b) (2 ).” 564 F.2d at 1229. Addressing the govern­
ment’s contention that the class should not have been 
designated because it was too large, the court held that 
there were no manageability problems in this (b) (2) 
class action and stressed the salutary effect of class 
certification in avoiding a multiplicity of actions raising 
precisely the same constitutional claims adjudicated in 
the case at bar. On the merits, the Court of Appeals 
sustained the district courts’ determinations that the 
Secretary’s recoupment procedures were constitutionally 
defective and affirmed the grants of injunctive relief.

Amicus cannot tell from the government’s argument, 
set forth in § II.B.4. of its brief, whether it takes the 
position (a) that nationwide certification was an abuse 
of the trial court’s discretion on the facts of this case, 
(b) that nationwide certification is never proper under 
Rule 23, or (c) that it was the issuance of injunctive 
relief, and not certification of a nationwide class, which 
requires reversal. We respectfully suggest to the Court 
that the government’s treatment of these issues is not 
only confusing but also inadequate, and that the govern­
ment has failed to comply with Supreme Court Rules 
40(1) (G) and 40(5). Under these circumstances, and 
because resolution of the issue will not affect the merits 
of this appeal, we urge the Court to defer consideration 
of the question entirely. Cf. PhUbrook v. Glodgett, 421 
U.S. 707, 721 (1975). If, on the other hand, the Court 
determines to decide the issue, we urge that the judg­
ment of the Court of Appeals on this aspect o f the case 
be affirmed.



7

ARGUMENT

CERTIFICATION OF A NATIONWIDE CLASS IS 
CONSISTENT WITH THE FEDERAL RULES OF 
CIVIL PROCEDURE AND PROPER JUDICIAL AD­
MINISTRATION; MOREOVER, IT IS PARTICU­
LARLY APPROPRIATE IN CASES INVOLVING 
POLICIES OF NATIONWIDE APPLICATION ADOPT­
ED AND IMPLEMENTED BY FEDERAL OFFICIALS7

The government maintains that the district court 
abused its discretion in certifying a nationwide class in 
Buffington, but it offers no adequate justification for its 
conclusion. The government nowhere contends, for ex­
ample, that the formal requisites of Fed. R. Civ. P. 23(a) 
and (b) (2) are not satisfied in Buffington. The action is 
clearly one falling within Rule 23(b) (2) since “ the party 
opposing the class has acted or refused to act on grounds 
generally applicable to the class, thereby making appro­
priate final injunctive relief or corresponding declaratory 
relief with respect to the class as a whole.”  Moreover, 
the prerequisites of Rule 23(a) are met since (1) the 
class is so numerous that joinder of all members is im­
practical, (2) there are questions of law or fact common 
to the class, (3) the claims or defenses of the representa­
tive parties are typical of the claims or defenses of the

7 Petitioner argues that any form of class action is improper 
under § 205(g) of the Social Security Act, which it says provides 
the only means o f reviewing the determination of a claim by the 
Secretary, because absent class members may not have exhausted 
administrative appeals. We do not address this narrow question, 
although we note that such class actions have been sustained. E.g., 
Liberty Alliance of the Blind v. Califano, 568 F,2d 338, 343-47 (3rd 
Cir. 1977). Furthermore, in Title VII cases, this Court has clearly 
rejected the notion that class-based relief in the context of back pay 
awards and seniority can be barred for those unnamed class mem­
bers who have not filed administrative complaints with the. EEOC. 
Franks v. Bowman Transportation Co., 424 U.S. 747, 771 (1976); 
Albemarle Paper Co. v. Moody, 422 U.S. 405,. 414 (1975). Our view 
of the government’s other arguments on the nationwide class claim 
is the same whether jurisdiction is predicated on § 205(g) or on 28 
U.S.C. § 1361.



8

class, and (4) the representative parties will fairly and 
adequately protect the interests of the class. Rule 23 does 
not on its face contain any proscription or limitation on 
classes nationwide in scope.8

Instead, the government apparently relies on imper­
fectly articulated notions of judicial policy which it be­
lieves are impaired by nationwide class actions. Properly 
viewed, these considerations support the use of nationwide 
class actions in circumstances like those of Buffington,

A. The District Court Did Not Abuse Its Discretion in 
Entertaining a Nationwide Class Action to Deai with 
a Problem Which Is Nationwide in Scope But Subject 
Also to Nationwide Control by the Petitioner.

According to statistics set forth in the Petitioner’s 
brief, 1.25 million Social Security old age, and survivor’s 
beneficiaries are overpaid annually. (Pet. Br. at 45-46.) 
The recoupment procedures set forth in § 204(b) of the 
Social Security Act are therefore applicable to large num­
bers of people throughout the country. Where individual 
plaintiffs challenge the sufficiency of such procedures on 
purely legal grounds unrelated to the particular circum­
stances of individual beneficiaries, nationwide class certifi­
cation is not only permissible, but it is desirable in order 
to promote judicial efficiency and avoid a multiplicity of 
lawsuits raising the same issue on a state-by-state or 
judicial district-by-judicial district basis. All such cases 
would involve recoupment procedures which affect all re­
cipients in the same manner. Repetitive litigation would 
maximize rather than protect against the risk of incon­
sistent adjudications of the Secretary’s responsibilities,

8 The government argued in the Court of Appeals that the district 
court violated due process by its failure to require notice to the 
class, and abused its discretion in certifying a nationwide class 
because it was unmanageable, but has not raised either of these 
points in its brief. Therefore, neither issue is before this Court. 
Supreme Court Buie 23(1) (c).



9

which could be resolved only by the decision of this Court.9 
Hence, the district courts should have the discretion to 
certify a nationwide class action when in their judgment 
there are no problems of manageability and such treat­
ment of an important legal issue would be desirable.

Nationwide classes have been certified in numerous 
federal cases under Fed. R. Civ. P. 23(b) (2), including 
social security cases, although this Court has not previ­
ously had occasion to address the question explicitly, e.g., 
Aznavoricm v. Califano, 47 U.S.L.W. 4037 (U.S., Dec. 12, 
1978), rev’g on other grounds, 440 F. Supp. 788 (S.D. 
Cal. 1977) (individuals eligible for Supplemental Security 
Income); Murry v. Department of Agriculture, 413 U.S. 
508 (1973), aff’g 348 F. Supp. 242 (D.D.C. 1972) (food 
stamp recipients subject to “ tax dependent”  disqualifi­
cation); Norton v. Weinberger, 418 U.S. 902 (1974), 
vacating on other grounds, 364 F. Supp. 1117 (D. Md. 
1973) (children otherwise eligible for social security bene­
fits who were not living with or were not supported by 
their father at the date of his death); Be'rmudez v. De­
partment of Agriculture, 160 U.S. App. D.C. 150, 490 
F.2d 718 (D.C. Cir.), cert, denied, 414 U.S. 1104 (1973) 
(impoverished persons denied retroactive food stamp ad­
justments after wrongful withholding due to administra­
tive error) ; Rocky Ford Housing Authority v. Depart­
ment of Agriculture, 427 F. Supp. 118 (D.D.C. 1977) 
(individuals and organizations which would benefit from 
implementation of rural rent supplement program) ; 
Underwood v. Hills, 414 F. Supp. 526 (D.D.C. 1976) 
(tenants in housing projects subsidized under § 236 of 
National Housing A c t ) ; Metropolitan Area Housing 
Alliance v. HUD, 69 F.R.D. 633, 638-39 (N.D. 111. 1976) 
(owners and renters of residential properties covered by

9 Nevertheless, Petitioner argues against nationwide class certifi­
cation because it may cause this Court to review rulings affecting 
procedures of national application “prematurely” . See pp. 12-15, 
infra.



10
mortgages insured by the Federal Housing Authority sub­
ject to dispossession under a HUD “vacancy require­
ment” ) ; Woodward v. Rogers, 344 F. Supp. 974 (D.D.C. 
1972) (passport applicants required to swear or affirm 
allegiance) ; see also, Ste. Marie V. Eastern R.R. Ass’n, 
72 F.R.D. 443 (S.D.N.Y. 1976) (female employees of 
defendant located in eighteen-state area).

Nationwide class actions have also been certified in 
Rule 23(b) (1) and Rule 23(b) (3) actions. E.g., United 
States v. Larinoff, 431 U.S. 864 (1977), aff’g 533 F.2d 
1167, 1181-1187 (D.C. Cir. 1976); Illinois v. Harper & 
Row Publishers, Inc., 301 F. Supp. 484, 492-94 (N.D. 111. 
1969); West Virginia v. Charles Pfizer & Co., 314 F. 
Supp. 710, 723 (S.D.N.Y. 1970), aff’d, 440 F.2d 1079 
(2d. Cir.), cert, denied sub nom. Colter Drugs, Inc. v. 
Charles Pfizer & Co., 404 U.S. 871 (1971).

This substantial experience with nationwide class ac­
tions demonstrates that the problems contemplated by the 
government either have not arisen or have been properly 
handled through the district courts’ discretion.10

B. No Valid Policy Considerations Support The Gov- 
vernment’s Contention That Nationwide Class Actions 
Should Not Be Permitted.

The government’s argument that nationwide class cer­
tification should be discouraged because it precludes

10 In Buffington, the district court exercised its discretion by limit­
ing the scope of the nationwide class so as to exclude not only the 
statewide class members in Hawaii covered by the Elliott order and 
the class members in the Eastern District of Pennsylvania covered 
by Mattern v. Weinberger, supra, but also

. . .  all other individuals who are plaintiffs or members of a 
plaintiff class in an action against the instant defendant chal­
lenging [the same practice] . . .  if a decision on the merits in 
any such action was entered on or before [the entry of judg­
ment in Buffington].

This exclusion assured that the order entered by the Buffington 
court would in no way conflict with any other order of any other 
federal district court which had previously ruled on the issues raised 
in Buffington and thereby subject the Secretary to conflicting injunc­
tive obligations.



11

multiple consideration of the same legal issue by federal 
courts flies in the face of Rule 23. “ The class action was 
an invention of equity . . . mothered by the practical 
necessity of finding a procedural device so that mere num­
bers would not disable large groups of individuals, united 
in interest, from enforcing their equitable rights nor grant 
them immunity from, their equitable wrongs. . . .”  Mont­
gomery Ward & Co. v. Longer, 168 F.2d 182, 187 (8th 
Cir. 1948). One of its important functions is to eliminate 
the possibility of repetitive litigation. C. Wright, T h e  
L a w  of F ed era l  Courts  306 (2d ed. 1970). And, as the 
Court of Appeals said in Elliott:

[i]t  would be a practical absurdity were the Secre­
tary to provide the due process safeguards enunciated 
herein to the exclusion of all save the named plain­
tiffs. Multiplicity of actions based on the same con­
stitutional claims advanced here would inevitably 
result.
Obviating such unnecessary duplication is the very 
purpose for which Rule 23(b) (2 )  was designed. 
Maintenance of the instant case as a class action is 
not only proper, but it also will effectuate the in­
terests both of judicial administration and of justice.

564 F.2d at 1229-30.
Despite the common sense of this observation, the gov­

ernment frequently relitigates the same issue, rather than 
seeking review in this court of adverse rulings, in an 
effort to obtain authorization to administer national pro­
grams as it desires in at least part of the country.

Such repetitive litigation strategy was roundly criti­
cized in May Department Stores v. W i l l i a m s o n ,F.2d 
1147 (8th Cir. 1977) (concurring opinion). There, the 
Eighth Circuit held that the U.S. Postal Service is not 
immune from garnishments to effectuate state court judg­
ments. In his concurring opinion, Judge Lay suggested, as 
an alternative to the Court’s holding on the merits, that



12

the U.S. Postal Service should be collaterally estopped 
from relitigating the issue. In 1975, the Seventh Circuit 
had decided the identical issue against the government. 
Motions for rehearing and rehearing en banc in that case 
had been denied, and the government had elected not to 
petition for certiorari. Nevertheless, the Postal Service 
continued to claim immunity, at enormous judicial— and 
ultimately public— expense:

The government’s refusal to follow the dictates of the 
Seventh Circuit decision has created a wave of repe­
titious litigation and confusion in federal district 
courts throughout the United States. . . .  At least a 
dozen other district courts in five circuits have heard 
garnishment requests and entered orders of memo­
randa in accord with the Seventh Circuit opinion. . . . 
The government is appealing many of these decisions, 
admittedly in an attempt to obtain a favorable opin­
ion from another circuit before seeking review by the 
Supreme Court.

549 F.2d at 1150.

Judge Lay condemned the practice of repeated litigation 
under these circumstances, proposing application of the 
collateral estoppel doctrine and citing Blonder-Tongue 
Laboratories, Inc. v. University Foundation, 402 U.S. 313 
(1971). (549 F.2d at 1149.) He emphasized that, where 
the only issue is one of narrow statutory construction (as 
with the Social Security provision before the Court here), 
consideration by several Courts of Appeals is not bene­
ficial to the Supreme Court. The “government litigation 
strategy of forum shopping is grossly outweighed by the 
tremendous burden and costs placed on the federal courts 
by its continuing relitigation of the same issue.”  549 
F.2d at 1150.

The government argues that it is desirable to have 
different aspects of an issue explored by the lower courts, 
and that nationwide class certification effectively pre­



13

eludes this. The government relies on Divine v. Commis­
sioner of Internal Revenue, 500 F.2d 1041, 1049 (2d Cir. 
1974), for the proposition that it would be “ imprudent, 
if  not irresponsible” for any one judicial decision to fore­
close further consideration by other courts. The Divine 
court’s comment, however, was based upon peculiarities of 
tax refund suits and its reasoning actually supports the 
use of nationwide class actions in other, appropriate cases 
such as Buffington,

Divine involved the question whether a corporation 
could properly reduce its earnings and profits to account 
for compensation expenses incurred through sales of stock 
to employees at reduced prices pursuant to restricted stock 
options. In addition to their argument on the merits, the 
taxpayers contended that the IRS was collaterally 
estopped by virtue of a decision by the Seventh Circuit 
against the government on the identical question. Finding 
this Court’s pronouncements on collateral estoppel not 
controlling11 in the context of the question before it, the 
Court of Appeals turned to policy considerations to re­
solve the question.

First, the Court took pains to distinguish cases arising 
under the tax laws from other statutes, on the basis of 
the former’s unusual complexity and the complicated 
array of facts typically involved in any case. Second, the 
Court pointed out, because the IRS has traditionally re­
fused to regard the decisions of the Courts of Appeals 
as binding beyond the circuit, the only dispositive answer 
can come from this Court. Since a conflict among Cir­
cuits is often a necessary prerequisite to Supreme Court 
review, the Court of Appeals was unwilling to adopt a 
position that would have the effect of inhibiting expedi­
tious Supreme Court review. 500 F.2d at 1049. The

11 See Parklane Hosiery Co. V. Shore, 47 U.S.L.W. 4079 (U.S., 
Jan. 9, 1979).



14

reason for rejecting the collateral estoppel argument, ac­
cording to the Divine court, was to avoid a result which 
“ would decrease the probability that a conflict [leading 
to Supreme Court review] will be created as quickly as 
possible.” Id. 1049-1050.

Unlike the questions of tax law addressed by the Court 
in Divine, the issue in this case is a narrow question of 
pure law not likely to be affected by the factual context 
of cases in different jurisdictions. Rather than permit­
ting consideration of disparate fact patterns, the govern­
ment’s policy of repetitive litigation simply delays the 
ultimate resolution of the substantive question-—precisely 
what the Divine court was trying to avoid.

The government also argues that nationwide class 
action certification may lead this Court to grant review 
of an issue which it might not consider pressing but for 
the nationwide impact of a decree. Many factors go into 
this Court’s decision to grant certiorari to review the de­
cisions of the Courts of Appeals, and the scope of the 
relief ordered may be a relevant consideration in assess­
ing the public importance of the matter. Supreme Court 
Rule 19. However, nationwide class relief is apt to be 
granted only in cases involving implementation of fed­
eral programs affecting millions of individuals (another 
indication of public importance).

This Court is fully capable of protecting its discre­
tionary jurisdiction. In some cases, it may affirm the 
judgment of the lower court on the merits without fur­
ther consideration. In others, it may issue a stay of any 
injunctive order pending full consideration by the Court. 
The Court may vacate the judgment and remand for 
reconsideration if  it appears that the issues were not 
properly ventilated, or if  intervening changes in the law 
have altered the posture of the legal issue presented. 
E.g., Mattem  v. Weinberger, s-wpra. Amicus suggests 
that the government’s concern is not with this Court’s



15

docket but rather with its own timetable for seeking 
review by the Court.

The certification of a nationwide class action is not 
only appropriate under Rule 23, but is a judicious 
method of achieving finality of decision as soon as possi­
ble in order to achieve consistent application of policy in 
a federally administered benefit program. If the govern­
ment is dissatisfied with the decision, it may seek a 
stay from the District Court, Court of Appeals, or this 
Court while it brings a case up for review. This is 
preferable to the altogether too frequent practice of 
relitigating the issue in the several Circuits without seek­
ing Supreme Court review of unfavorable judgments. 
This practice can result in undesirable, geographically 
piecemeal implementation of federal program require­
ments and even constitutional rulings. As Judge Lay 
stated in May Department Stores v. Williamson supra, 
549 F.2d at 1150:

[w]here there exists an important national question, 
as here, and there is an obvious means available to 
achieve finality of decision, the government should 
not avoid review simply because it believes the 
Supreme Court might rule against it, or because it 
disagrees with the decision of a lower federal court.12

112 Certification of a nationwide class action is also consistent with 
the policies underlying creation o f the Judicial Panel on Multidis­
trict Litigation, see 28 U.S.C. § 1407. These policies promote the 
just and efficient conduct of civil actions involving one or more 
common questions of fact pending in different judicial districts and 
avoid the potential for conflicting contemporaneous pretrial rulings 
by coordinate district and appellate courts. See In Re Plumbing 
Fixture Cases, 298 F. Supp. 484, 490-492 (Jud. Pan. Multi. Lit. 
1968). In Illinois v. Harper & Row Publishers, Inc., supra, a case 
involving a transfer under § 1407, the district court to which the 
case was transferred certified a Rule 23 (b )(3 ) nationwide class 
action.



16

C. Nationwide Injunctive Relief In a Nationwide Class 
Action Is Authorized by Rule 23(b)(2) and Did Not 
Constitute an Abuse of Discretion in This Case.

The government’s argument that the court erred in 
directing the petitioner to afford the same due process 
hearings to all recipients of Old Age and Survivors’ 
benefits can be characterized only as frivolous. Rule 23 
(b) (2) itself provides for injunctive relief on behalf of 
the entire class:

2) the party opposing the class has acted or refused 
to act on grounds generally applicable to the class, 
thereby making appropriate final injunctive relief 
with respect to the class as a whole.

It is true that in some areas, notably in cases involv­
ing issues of federalism, this Court has indicated that 
injunctive relief should be sparingly applied. See, e.g., 
Rizzo v. Goode, 423 U.S. 362 (1976). But see, Wooley 
V. Maynard, 430 U.S. 705 (1977). Any such considera­
tions are absent from this case.

The cases cited by the Petitioner are totally inapposite. 
Dayton Board of Education v. Brinkman, 433 U.S. 40£, 
420 (1977) ; Whitcomb v. Chavis, 403 U.S. 124, 160-161 
(1971) ; and Milliken v. Bradley, 418 U.S. 717 (1974) 
all involve the parameters of injunctive relief by federal 
district courts in school desegregation and state legisla­
tive reapportionment cases. They do not support the 
broad proposition that equity jurisprudence does not per­
mit the courts to redress wrongs on behalf of a class 
similarly situated to the named plaintiffs. Indeed, con­
trary to the implication in Petitioner’s argument that the 
injunction in this case benefits persons not suffering 
injury, by definition there is no difference between the 
named plaintiffs and the class they represent.

Furthermore, injunctive, rather than declaratory, re­
lief is necessary to provide full protection to the plain­



17

tiffs and the members of the class. The Secretary’s ac­
tions in this and other cases make it clear that he will 
apply decisions unfavorable to the recoupment policy 
only in those jurisdictions covered by district court or 
appellate court decisions enjoining his policy. Absent 
injunctive relief during the pendency of any appeals, 
recipients, whose benefits are reduced to accomplish 
repayment or who are required to refund the amount 
overpaid by a different method pursuant to § 204, with­
out adequate notice or hearing, would be required to sue 
the government to recover illegally recouped funds. Such 
claims may well be regarded as retroactive benefits and 
recovery barred by the doctrine of sovereign immunity. 
Cf. Edelman v. Jordan, 415 U.S. 651 (1974).

While injunctive relief would require the government 
to forego recoupment without notice or hearing until 
final appellate review has been secured, with possible 
loss of payment (either because class members may no 
longer be receiving benefits or because they have no inde­
pendent means), on balance, the social security recipients’ 
interest outweighs the government’s under circum­
stances where the statutory provision at issue is designed 
to forego recoupment except in narrowly prescribed situa­
tions. In addition, judicial economy is served by injunc­
tive relief if  such relief avoids the possibilities of addi­
tional litigation by, for example, avoiding mootness which 
would also result in multiple actions. Hoehle v. Likens, 
530 F.2d 229 (8th Cir. 1976) ; Woe v. Mathews, 408 
F.Supp. 419, 429 (E.D.N.Y. 1976).

CONCLUSION

In suggesting that judicial policy precludes certification 
of nationwide class actions in all cases, the Petitioner 
seeks to prove too much. Nothing in Rule 23 supports 
such a notion and the district courts have followed the 
dictates of informed discretion in granting class relief



18

national in scope, especially when the validity of admin­
istrative practices under federal benefit programs are 
successfully challenged. The determination of when na­
tionwide adjudication is appropriate should remain where 
it properly belongs— within the sound discretion of the 
federal district courts. Nothing in the Petitioner’s brief 
suggests that that discretion was abused in this case and, 
accordingly, this aspect of the decision below should be 
affirmed.

Respectfully submitted,

Charles A. Bane 
Thomas D. Barr 

Co-Chairmen

Norman Redlich 
Trustee

Robert A. Murphy 
Norman J. Chachkin 
Richard S. Kohn ,
Stuart E. Schmitz 

Staff Attorneys 
Lawyers’ Committee for 

Civil Rights Under Law 
733 Fifteenth Street, N.W. 
Suite 520
Washington, D.C. 20005 
(202) 628-6700

Attorneys for Amicus Curiae