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EDELMAN v. SHALALA

July 13, 1995

HERMAN EDELMAN, Plaintiff,
v.
DONNA SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.



The opinion of the court was delivered by: MARY LITTLE PARELL

 PARELL, District Judge

 This matter is before the Court on motion for summary judgment by plaintiff Herman Edelman and cross-motion for summary judgment by defendant Donna E. Shalala, the Secretary of Health and Human Services. Also before the Court is a motion for class certification by plaintiff. For the following reasons, defendant's motion for summary judgment is granted and plaintiff's motions for summary judgment and for class certification are denied. *fn1"

 FACTUAL AND PROCEDURAL BACKGROUND

 Plaintiff Herman Edelman, who was born on October 3, 1931, applied for social security retirement insurance benefits on October 23, 1993. *fn2" (Pl.'s Sr., Appendix at 2) (hereinafter "App."). In an award certificate dated November 12, 1993, plaintiff was informed that he was entitled to such benefits as of November 1993. (App. at 3.) On November 22, 1993, plaintiff appealed this notice of award alleging that his entitlement to benefits should begin in October 1993 rather than in November 1993. (App. at 4.) In a letter to plaintiff dated December 15, 1993 from Anne Jacobsky, the Assistant Regional Commissioner of the Social Security Administration, the determination by the Secretary that plaintiff's entitlement began in November 1993 was reiterated. (App. at 4.) Upon receipt of this letter, plaintiff requested that his case be re-examined. (App. at 5.) The Secretary's determination was thereafter re-examined and was affirmed on February 25, 1994. (Tr. 8-10.)

 On September 23, 1994, the parties stipulated to an expedited appeals process, (Tr. 1-3), and in accordance with the terms of this stipulation, plaintiff filed this civil action wherein he asserts that he is entitled to social security retirement insurance benefits for the month of October 1993. Shortly thereafter, plaintiff filed a motion for summary judgment. Defendant filed a cross-motion for summary judgment seeking an affirmance of her final decision that plaintiff is not entitled to receive benefits for the month of October 1993. Plaintiff subsequently filed a motion for class certification.

 DISCUSSION

 A court shall enter summary judgment under Federal Rule of Civil Procedure 56(c) when the moving party demonstrates that there is no genuine issue of material fact and the evidence establishes the moving party's entitlement to judgment as a matter of law. Celotex v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In order to defeat a motion for summary judgment, the opposing party must establish that a genuine issue of material fact exists. Jersey Cent. Power & Light Co. v. Lacey Township, 772 F.2d 1103, 1109 (3d Cir. 1985), cert. denied, 475 U.S. 1013, 89 L. Ed. 2d 305, 106 S. Ct. 1190 (1986). A nonmoving party may not rely on mere allegations; it must present actual evidence that creates a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (citing First Nat'l Bank of Arizona v. Cities Service Co., 391 U.S. 253, 290, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968)); Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). Issues of fact are genuine only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. at 248. *fn3"

 Section 202(a) of the Social Security Act ("The Act"), codified at 42 U.S.C. § 402(a), establishes the eligibility requirements for individuals seeking early retirement insurance benefits: an individual must be insured, have attained age sixty two and have filed an application for such benefits. 42 U.S.C. § 402(a). Section 202(a) was amended in 1981 by the Omnibus Budget Reconciliation Act ("OBRA"), Pub. L. No. 97-35, Section 2203, effective August 1981, and now provides that entitlement to retirement benefits for workers retiring at age sixty two begins with the first month "throughout which " the individual meets all the requirements for eligibility, including attainment of age sixty two. *fn4" Under prior law, an individual could receive benefits beginning with the first month "within which " all of the eligibility requirements were met.

 It is clear to this Court that one of the purposes of Congress in amending the Act was, as the Secretary has found, to change the first month for which an individual who reaches the age of sixty two becomes eligible for retirement benefits. That this was the intention of Congress is specifically evidenced by the substitution of the word "throughout" in place of the word "within." A requirement that an individual attain the age of sixty two "within" a given month in order to be entitled to benefits for that month is clearly distinguishable from a requirement that an individual be of the age sixty two "throughout" a given month in order to be entitled to benefits for that month. See Current v. Bowen, 1989 U.S. Dist. LEXIS 19001, No. 88-954, 1989 WL 79483 (E.D.N.Y. July 5, 1989). *fn6" Thus, the amendment to section 202(a) clearly does cause a change in the month within which an individual who reaches the age of sixty two becomes eligible to receive benefits.

 However, plaintiff further alleges that the Secretary's interpretation or construction of section 202(a) of the Act, specifically her interpretation of the language "throughout which," is arbitrary and capricious and, as such, is invalid.

 The Supreme Court in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984), set forth the framework for judicial review of an agency's construction of a statute which the agency is responsible for implementing and administering:

 
When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court simply does not impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is ...

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