Gale R. JOHNSON, Plaintiff-Appellee, v. Donna E. SHALALA, Secretary of Health and Human Services, Defendant-Appellant

The Secretary of Health and Human Services appeals the decision of the district court granting summary judgment in favor of plaintiffs Tracy Defrance and Sandy Johnson (class representatives). The Secretary argues that the district court erred in certifying a class that included individuals who failed to meet either the 60-day limitations period or the exhaustion requirement in 42 U.S.C. § 406 (g) (1988). We affirm in part and reverse in part.

The United States Magistrate Judge had jurisdiction pursuant to 42 U.S.C. §§ 405 (g) and 1383(c)(3). This court has jurisdiction over the Secretary’s timely appeal pursuant to 28 U.S.C. § 1291 .

DISCUSSION

This case originally challenged the Secretary’s policy of treating in-kind loans as income under the Supplemental Security Income program. The named plaintiff, 1 Gale Johnson, lived with his elderly mother while awaiting approval of his SSI application. Johnson’s mother paid his share of the living expenses with the understanding that he would repay her when he started receiving SSI benefits.

The Social Security Administration had a systemwide policy of treating “in-kind” loans as income. The agency thus reflected the in-kind household…

concurring in part and dissenting in part:

I concur in the result reached by the majority opinion in Part I and Part III. But I disagree with the result the majority reaches in Part II, which reverses the district court’s decision to toll the 60-day filing requirement of 42 U.S.C. § 405 (g). 1 I believe that the district court was well within its discretion by ruling that the exhaustion requirement was waived and that the 60-day limitations period was tolled for all claimants whose Supplemental Security Income (“SSI”) payments were illegally reduced based on their receipt of in-kind loans.

I.

There are four categories of claimants covered by the district court’s class definition:

A.

The claimants in category (a) are covered by Part I of the majority opinion and are properly included in the class definition. Though not specifically addressed in the majority opinion, claimants in category (d) are properly included in the class because they have satisfied both the exhaustion requirement and the 60-day filing requirement.

B.

Claimants in category (b) were included in the class by the district court. Under Part II of the majority opinion these claimants are excluded from the…

2 F.3d 918 42 Soc.Sec.Rep.Ser. 121, Unempl.Ins.Rep. CCH 17442A Gale R. JOHNSON, Plaintiff-Appellee, v. Donna E. SHALALA * , Secretary of Health and Human Services, Defendant-Appellant. No. 92-35507. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 3, 1992. Decided Aug. 6, 1993. Stuart M. Gerson, Asst. Atty. Gen., Barbara Biddle and Howard S. Scher, U.S. Dept. of Justice, Washington, DC, for defendant-appellant. Randall W. Robinson, Idaho Legal Aid Services, Inc., Lewiston, ID, for plaintiff-appellee. Gill Deford and Kim Savage, National Senior Citizens Law Center, Los Angeles, CA, for plaintiff-appellee. Appeal from the United States District Court for the District of Idaho. Before: GOODWIN, FARRIS, and PREGERSON, Circuit Judges. FARRIS, Circuit Judge: 1 The Secretary of Health and Human Services appeals the decision of the district court granting summary judgment in favor of plaintiffs Tracy Defrance and Sandy Johnson (class representatives). The Secretary argues that the district court erred in certifying a class that included individuals who failed to meet either the 60-day limitations period or the exhaustion requirement in 42 U.S.C. Sec. 405 (g)…