MEMORANDUM AND ORDER
Jones, District Judge.
Plaintiffs bring this action to secure rights to due process notice and a hearing before benefits received pursuant to Title XVI of the Social Security Act (Supplemental Security Income Program) are reduced, suspended, or terminated. On July 10, 1974, this Court upon finding that the plaintiffs' complaint raised serious constitutional questions, enjoined the defendant from terminating the plaintiffs' benefits for the duration of this litigation unless adequate notice and an opportunity for a prior hearing were given. The Court also ordered that any benefits previously withheld be restored. There is presently before this Court cross motions for summary judgment, a motion by the plaintiffs to maintain a class action, and a motion by the defendant to dissolve or amend the Court's July 10th order. Oral argument on all pending motions was heard by the Court on January 15, 1975.
Plaintiffs contend that jurisdiction has been conferred on this Court by 28 U.S.C. §§ 1331, 1361 and by 5 U.S.C. §§ 701-06. Defendant argues that 28 U.S.C. § 1331 (federal question) does not give the Court jurisdiction because the plaintiffs have failed to demonstrate that more than $10,000 is in controversy. He contests jurisdiction under 28 U.S.C. § 1361 (mandamus) because the plaintiffs are not seeking to compel a clear ministerial duty. Finally, defendant contends that 5 U.S.C. §§ 701-06 (Administrative Procedure Act) is not an independent grant of jurisdiction to the federal district courts.
Since it is now clear in this Circuit that the Administrative Procedure Act does provide an independent basis of jurisdiction for claims such as the plaintiffs here allege, it is unnecessary to discuss defendant's other jurisdictional objections. See Pickus v. U.S. Board of Parole, 507 F.2d 1107, 165 U.S. App. D.C. 284 ( 1974).
II. THE MERITS
On October 30, 1972, Congress established the Supplemental Security Income Program (SSI), which is an income maintenance program for the aged, blind and disabled. Pub. L. No. 92-603, 86 Stat. 1329, 42 U.S.C.A. §§ 1381-85. The Act, which became effective on January 1, 1974, replaced state-administered programs with a new federal program which establishes uniform eligibility criteria. H.R. Rep. No. 92-231, 1972 U.S. Cong. & Admin. News 4992; see 42 U.S.C.A. § 1381.
As originally enacted, the SSI provided that a person found permanently and totally disabled under an approved state plan would automatically be considered disabled for purposes of SSI if he received aid during December 1973 and remained continuously disabled. Pub. L. No. 92-603, § 1614(a)(3)(A) (commonly known as the disability grandfathering clause). On December 31, 1973, one day before the SSI program was to become effective, Congress amended Pub. L. No. 92-603 to require that in addition to receiving benefits during December 1973, an individual must have received benefits for 1 month prior to July 1973. Pub. L. No. 93-233, § 9(2), 42 U.S.C.A. § 1382c(a)(3)(E). The purpose of this amendment was "to prevent the conversion to the Federal program of persons who in months immediately prior to the January 1974 change-over to SSI may have been improperly placed on the State aid to the disabled rolls." H.R. Rep. No. 93-871, 1974 U.S. Cong. & Admin. News 484; see S. Rep. No. 553, 93d Cong., 1st Sess. 250 (1973). Thus the plaintiffs, who became eligible for state disability benefits after July 1, 1973, but before December 31, 1973 (rollback cases), are not automatically grandfathered into the SSI program, but must meet the federal definition of disabled in order to qualify for SSI benefits. 42 U.S.C.A. § 1382c(a)(3)(A) -(B).
Although no statutory provision existed as of January 1, 1974, to pay benefits to rollback cases as such, the Secretary of Health, Education and Welfare used a statutory provision that was ostensibly aimed at initial applicants who were found to be presumptively disabled to continue payments to rollback cases who had not been initially determined. See 42 U.S.C.A. § 1383(a)(4)(B); 20 C.F.R. § 416.954. Title 42, section 1383(a)(4)(B) provides that before an initial determination of eligibility the Secretary may pay benefits for a period of up to 3 months to those he judges to be presumptively disabled. By regulation, the Secretary classified rollback cases as presumptively disabled. 20 C.F.R. § 416.954. Under this system, if the initial determination is adverse to the party's claim for SSI benefits, presumptive disability benefits cease immediately. The unsuccessful claimant has the right to have his determination reconsidered in a proceeding where notice and hearing rights are provided. However, no benefits are provided after an adverse initial determination.
At the urging of the defendant Secretary of Health, Education and Welfare, Congress passed, on March 28, 1974, legislation extending the period during which the Secretary might pay presumptive disability benefits from 3 months to the period ending on December 31, 1974. Pub. L. No. 93-256, § 1, 42 U.S.C.A. § 1383 note; see H.R. Rep. No. 93-871, 1974 U.S. Cong. & Admin. News 485. The Secretary's discretion to determine whether or not rollback cases were to be paid presumptive disability benefits was recognized specifically. Id. Also, Congress provided "that no such benefits may be paid on the basis of presumptive disability for any month after the month in which the Secretary of Health, Education, and Welfare has made a determination as to whether such an individual is disabled, as defined in section 1614(a)(3)(A) of that Act [section 1382c(a)(3)(A) of this title]." Id. Plaintiffs are rollback cases who have received adverse initial determinations, but who have not yet had their cases reconsidered, and thus they would not be entitled statutorily to SSI benefits except for this Court's July 10 order.
Regulations provide a four stage procedure to review both initial and continuing eligibility determinations. 20 C.F.R. §§ 416.1401-.1451. After an initial determination, there are the reconsideration, hearing, and appeals stages within the agency, and the final stage is judicial review. See 42 U.S.C.A. § 1383(c). Regulations provide that a person who was once found eligible for SSI benefits cannot have them reduced, suspended, or terminated until the reconsideration stage, which includes notice and hearing rights, is completed. 20 C.F.R. §§ 416.1417, .1419-.1420. Although an initial applicant may proceed to the reconsideration stage if an adverse initial determination is made, the initial applicant is not entitled to benefits pending the reconsideration determination.
The defendant does not question the right of a person once found eligible under federal standards to due process procedural rights before his benefits are terminated. See Goldberg v. Kelly, 397 U.S. 254, 25 L. Ed. 2d 287, 90 S. Ct. 1011 (1970); 20 C.F.R. § 416.1420. Nor do the plaintiffs argue that all initial applicants should receive benefits after an adverse initial determination and until the reconsideration stage is completed.
The crux of the disagreement between the parties is whether the plaintiffs' position is more analogous to that of those already found eligible for SSI benefits or to that of the initial applicant.
As the plaintiffs point out, the leading case that defines the type of interest that must be present before due process procedural protections apply is Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1971). After warning that the nature of the interest, not its weight, is crucial, the Court went on to state:
To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. . . .
Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law -- rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Thus, the welfare recipients in Goldberg v. Kelly, supra, had a claim of entitlement to welfare payments that was grounded in the statute defining eligibility for them. The recipients had not yet shown that they were, in fact, within the statutory terms of eligibility. But we held that they had a right to a hearing at which they might attempt to do so.