As a precautionary measure, the court also excluded all persons who had participated as plaintiffs or members of a plaintiff class in litigation against the Secretary on similar issues, if a decision on the merits previously had been rendered. App. 259-260.

The court then granted summary judgment for the class. The court found jurisdiction under the mandamus statute, 28 U.S.C. § 1361.' It enjoined the Secretary from ordering recoupment without having provided recipients with a prior opportunity for an informal hearing before an independent decisionmaker. The court also ordered that the initial notice be amended to provide more information about recoupment procedures. Buffington v. Weinberger, Civ. No. 734-73C2 (WD Wash. Oct. 22, 1974). App. 262-265.

The Court of Appeals

The United States Court of Appeals for the Ninth Circuit consolidated the two cases for disposition on appeal. In an unreported opinion, Elliot v. Weinberger, Nos. 74-1611 and 74-3118 (Oct. 1, 1975), App. to Pet. for Cert. 40A-84A, that court found that the complaints presented substantial constitutional questions and so § 1361 mandamus jurisdiction was proper. It upheld the certification of the classes under Fed. Rule Civ. Proc. 23(b) (2), finding counsel was sufficiently skilled and experienced to represent the class. It rejected the Secretary's contention that a nationwide class should not have been certified. It found nothing in Rule 23 indicating that such a class was improper, and it believed as a practical matter that, because respondents did not seek damages, no manageability problems were present. It indicated that to require recipients to sue individually would result in an unnecessary duplication of actions, the evil that Rule 23 was designed to prevent. On the merits, the Court of Appeals, without directly addressing respondents' statutory claims, affirmed the holdings that the Secretary's recoupment procedures were unconstitutional.

Subsequent to that decision, this Court, in Mathews v. Eldridge, 424 U.S. 319 (1976), held that the Due Process Clause does not require an oral hearing prior to termination of Social Security disability insurance benefits. We then granted petitions for writs of certiorari filed by the Secretary both in this case and in Mattern, supra, vacated the judgments below, and remanded the cases for further consideration in light of Eldridge. 425 U.S. 987 (1976).

On remand, the Court of Appeals adhered to the essential features of its original decision. Elliot v. Weinberger, 564 F. 2d 1219 (CA9 1977). The court reaffirmed its holding that it had jurisdiction under the mandamus statute. It noted that, while Eldridge had indicated that named plaintiffs would be able to assert jurisdiction based on § 205(g), under Weinberger v. Salfi, 422 U.S. 749, 755, 764 (1975), there was some doubt as to whether that statute would provide jurisdiction for a class action

'The District Court also asserted jurisdiction under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. Thereafter, in Califano v. Sanders, 430 U.S. 99 (1977), however, this Court held that that Act does not provide a grant of federal court jurisdiction. Respondents do not rely on that statute here.

seeking injunctive relief, and therefore the extraordinary remedy of mandamus could be invoked. The court found that these actions were not foreclosed by the jurisdictional limitations contained in § 205(h), because these actions were brought to enforce constitutional rights, not "to recover on any claim" for benefits.

On the merits, the court found Eldridge distinguishable. One of the three grounds cited in support of this conclusion is of particular relevance here. The court expressly found that the Secretary's procedures for handling waivers created an undue risk of erroneous deprivation. It said that, unlike the medical decision, at issue in Eldridge, the grant of a waiver frequently depended on credibility, which could not be ascertained from the written submission on which the Secretary relied. The court thus held that when waiver was requested, the Due Process Clause required that the recipient be given an oral hearing before recoupment begins. The court said a prior hearing was not required, however, in § 204(a) reconsideration cases if the dispute was a routine one centering on a computational error or a payment problem that did not demand an evaluation of credibility. The court specified six requirements that the oral hearing should meet, including rights to receive notice, to submit evidence, to cross-examine witnesses, to have counsel, to have an impartial hearing officer, and to receive a written decision. The court did not require that a transcript of the hearing be made. 564F. 2d, at 1235.

The court also held that the notice must be "plainly and clearly communicated." Ibid. The court suggested that this could be accomplished by including in the notice such matters as the reason for overpayment, a statement of the right to request reconsideration or waiver, the forms available for that purpose, a description of the nature of reconsideration and waiver, and notice of the right to a pre-recoupment hearing. Id., at 1236.

The Secretary filed a petition for a writ of certiorari seeking review of both the holding that the Due Process Clause required a pre-recoupment oral hearing, and the determination that the class was properly certified. The Secretary, however, did not request review of the holding that his notice of recoupment was constitutionally defective. Certiorari was granted. 439 U.S. (1978).

A court, presented with both statutory and constitutional grounds to support the relief requested usually should pass on the statutory claim. before considering the constitutional question. New York City Transit Authority v. Beazer, U.S. —_—_—_—_—, —— , and n. 22 (1979); United States v. CIO, 335 U.S. 106, 110 (1948); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936) (concurring opinion). Due respect for the co

'The United State Courts of Appeals for the Third Circuit on remand reaffirmed its prior holding that the Due Process Clause required an oral hearing prior to recoupment when waiver was requested under § 204(b), but it said that no such hearing was ever required when reconsideration was requested under § 204(a). Mattern v. Mathews, 582 F. 2d 248 (CA3 1978), cert. pending sub nom. Califano v. Mattern, No. 78-699.

ordinate branches of government, as well as a reluctance when conscious of fallibility to speak with our utmost finality, see Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring), counsel against unnecessary constitutional adjudication. And if "a construction of the statue is fairly possible by which [a serious doubt of constitutionality] may be avoided," Crowell v. Benson, 285 U.S. 22, 62 (1932), a court should adopt that construction. In particular, this Court has been willing to assume a congressional solicitude for fair procedure, absent explicit statutory language to the contrary. See Greene v. McElroy, 360 U.S. 474, 507-508 (1959).

The District Courts and Court of Appeals in the cases now before us gave these principals somewhat short shrift in declining to pass expressly on respondents' contention that § 204 itself requires a pre-recoupment oral hearing. We turn to the statute first, and find that it fairly may be read to require a pre-recoupment decision by the Secretary. With respect to § 204(a) reconsideration as to whether overpayment occurred, we agree that the statute does not require that the decision involve a prior oral hearing, and we reject respondents' contention that the Constitution does so. With respect to § 204(b) waiver of the Secretary's right to recoup, however, because the nature of the statutory standards makes a hearing essential, we find it unnecessary to determine whether the Constitution would require a similar result.

A

On its face, § 204 requires that the Secretary make a pre-recoupment waiver decision, and that the decision, like that concerning the fact of the overpayment, be accurate. In the imperative voice, it says "there shall be no adjustment of payments to, or recovery by the United States from, any person" who qualifies for waiver. See Mattern v. Weinberger,

'A number of statutes authorizing the recovery of federal payments make an exception for cases that are "against equity and good conscience." Most are entirely permissive. They provide that recovery "is not required," e.g., 10 U. S. C. §§ 1442, 1453 (serviceman's family annuity and survivors' benefit); or that an agency "may waive" recovery if a proper showing is made, 5 U. S. C. § 4108(c) (civil service training expenses), 5 U. S. C. § 5922(b) (2) (foreign station allowances); or that the agency head "shall make such provision as he finds appropriate", 42 U. S. C. § 1383(b) (supplemental security income); or simply that recovery "may be waived," 10 U.S.C. § 2774(a) (military pay).

In contrast, § 204 is mandatory in form. It says "there shall be no" recovery when waiver is proper. In this regard it resembles the "equity and good conscience" waiver provisions found in only four other statutes: 38 U. S. C. § 3102(a) (veterans benefits); 42 U. S. C. § 1395gg(c) (Medicare); 45 U. S. C. § 231i(c) (Railroad Retirement Act); 45 U. S. C. § 352(d) (Railroad Unemployment Insurance Act). Even those statutes are not identical to § 204 in all material respects. While the use of the word "shall," particularly with reference to an equitable decision, does not eliminate all discretion, see Hecht Co. v. Bowles, 321 U.S. 321, 327-331 (1944), it at least imposes on the Secretary a duty to decide. And here where the provision for recovery, § 204(a), and the provision for waiver, § 204(b), are phrased in equally mandatory terms, it is reasonable to infer that in this particular statute Congress did not intend to exalt recovery over waiver.

The legislative history of § 204(b) indicates merely that Congress intended to make recovery more equitable by authorizing waiver. See H. R. Rep. No. 728, 76th Cong., 1st Sess., 19 (1939); Hearings on Social Security before the House Committee on Ways & Means, 76th Cong., 1st Sess., 2287-2288 (1939); S. Rep. No. 404, Pt. 1, 89th Cong., 1st Sess., 256 (1965); S. Rep. No. 774, 90th Cong., 1st Sess., 257 (1967).

519 F.2d, at 166, and n. 32. Echoing this requirement, § 204(a) says that only "proper" adjustments or recoveries are to be made. The implication is that a recoupment from a person qualifying under § 204(a) would not be "proper."

Insofar as § 204 is read to require a pre-recoupment decision, the reading is in accord with the manner in which the Secretary presently administers the statute. No recoupment is made until a preliminary waiver or reconsideration decision has taken place, either by default after the recipient has received proper notice, or by review of a written request. Claims Manual §§ 5503.2(c), 5503.4(b). This interpretation is also reinforced by a comparison with other sections of the Social Security Act. Sections 204 is strikingly unlike § 225,10 which expressly permits suspension of disability benefits before eligibility is finally decided. See Richardson v. Wright, 405 U.S. 208 (1972). On the other hand, an analogy may be drawn between § 204 and § 303(a) (1), 42 U.S.C. § 503(a) (1), which this Court in California Human Resources Dept. v. Java, 402 U.S. 121 (1971), interpreted to require payment of unemployment benefits pending a final determination of eligibility." Neither § 204 nor § 303(a) (1) expressly addresses the timing of a hearing, but both speak in mandatory terms and imply that the mandated act-here waiver of recoupment, there payments of benefits-is to precede other action.

B

The heart of the present dispute concerns not whether a pre-recoupment decision should be made, but whether making the decision by regional office review of the written waiver request is sufficient to protect the recipient's right not to be subjected to an improper recoupment.

In this regard, requests for reconsideration under § 204(a), as to whether overpayment occurred, may be distinguished from requests for waiver of the Secretary's right to recoup under § 204(b). As the Courts of Appeals in this case and in Mattern noted, requests under § 204(a) for reconsideration involve relatively straightforward matters of computation for which written review is ordinarily an adequate means to correct prior mistakes. Elliot, 564 F. 2d., at 1231; Mattern, 582 F. 2d, at 255-256. Many of the named respondents were found to have been overpaid based on earnings reports they themselves had submitted. But unlike the Court of Appeals in this case, we do not think that the rare instance in which a credibility dispute is relevant to a § 204(a) claim is sufficient to require the Secretary to sift through all requests for reconsideration

10Section 225 provides:

"If the Secretary, on the basis of information obtained by or submitted to him, believes that an individual entitled to [disability benefits] ... may have ceased to be under a disability, the Secretary may suspend the payment of benefits... until it is determined whether or not such individual's disability has ceased or until the Secretary believes that such disability has not ceased."

"'Section 303(a) provides:

"The Secretary of Labor shall make no certification for payment to any State unless he finds that the law of such State... includes provisions for

"(1) Such methods of administration... as are found by the Secretary of Labor to be reasonably calculated to insure full payment of unemployment compensation when due."

and grant a hearing to the few that involve credibility. The statute authorizes only "proper" recoupment, but some leeway for practical administration must be allowed. Nor do the standards of the Due Process Clause, more tolerant than the strict language here in issue, require that pre-recoupment oral hearings be afforded in § 204(a) cases. The nature of a due process hearing is shaped by the "risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions." Mathews v. Eldridge, 424 U.S., at 344. It would be inconsistent with that principle to require a hearing under § 204(a) when review of a beneficiary's written submission is an adequate means of resolving all but a few § 204(a) disputes. Mattern, 582 F. 2d, at 258.

By contrast, written review hardly seems sufficient to discharge the Secretary's statutory duty to make an accurate determination of waiver under § 204(b). Under that subsection, the Secretary must assess the absence of "fault" and determine whether or not recoupment would be "against equity and good conscience." These standards do not apply under § 204(a). The Court previously has noted that a "broad 'fault' standard is inherently subject to factual determination and adversarial input." Mitchell v. W.T. Grant Co., 416 U.S. 600, 617 (1974). As the Secretary's regulations make clear, "fault" depends on an evaluation of "all pertinent circumstances" including the recipient's "intelligence... and physical and mental condition" as well as his good faith. 20 CFR § 404.507 (1978). We do not see how these can be evaluated absent personal contact between the recipient and the person who decides his case. Evaluating fault, like judging detrimental reliance, usually requires an assessment of the recipient's credibility, and written submissions are a particularly inappropriate way to distinguish a genuine hard luck story from a fabricated tall tale. See Goldberg v. Kelly, 397 U.S., at 269.

The consequences of the injunctions entered by the District Courts confirm the reasonableness of interpreting § 204(b) to require a pre-recoupment oral hearing. In compliance with those orders, the Secretary, beginning with calendar year 1977, has granted what respondents term "a short personal conference with an impartial employee of the Social Security Administration at which time the recipient presents testimony and evidence and cross-examines witnesses, and the administrative employee questions the recipient." Brief for Respondents 46. Of the approximately 2,000 conferences held between January 1977 and October 1978, 30% resulted in a reversal of the Secretary's decision. Brief for Petitioner 46. This rate of reversal confirms the view that, without an oral hearing, the Secretary may misjudge a number of cases that he otherwise would be able to assess properly, and that the hearing requirement imposed by the Court of Appeals significantly furthers the statutory goal that "there shall be no" recoupment when waiver is appropriate. We therefore agree with the Court of Appeals that an opportunity for a prerecoupment oral hearing is required when a recipient requests waiver under § 204(b).