of emergency based on his own dilatory conduct. See State of New Jersey, Department of Environmental Protection v. Environmental Protection Agency, 200 U.S. App. D.C. 174, 626 F.2d 1038, 1041 (D.C.Cir.1980); Shell Oil Co. v. Federal Energy Administration, 527 F.2d 1243, 1248 (TECA1975).
Focusing solely on the issue of whether defendant has violated the requirements of section 553(d) the Court finds that plaintiffs have demonstrated a substantial likelihood of success on the merits. In addition, the Court finds that the Secretary's decision to withhold cash and medical benefits on less than three weeks' notice is likely to have been arbitrary and capricious. See National Assn. of Indep. Tel. Producers & Distrib. v. FCC, 502 F.2d 249, 254 (2d Cir. 1974).
Weighing the other factors to be considered in ruling on a motion for a preliminary injunction,
the Court finds that entry of preliminary injunctive relief is appropriate at this stage. These refugees face substantial irreparable injury if they are deprived of cash and medical benefits. No substitute benefits are available to them under either federal or state law.
The Court has also considered the understandable difficulties and attendant uncertainties which confront the Secretary under the prevailing budgetary situation. It has been indicated to the Court that if the regulation does not go into effect as to the refugees in the State of Washington for another month the government may be required to expend an additional sum in the neighborhood of $ 2,000,000. This may ultimately necessitate reducing benefits available to other refugees. However, funds are available from the uncommitted funds Congress appropriate under the 1981 budget to continue the cash and medical assistance program as to refugees in the State of Washington for a limited period. Given the serious human problems created by the precipitous amendment to the regulations, the Court is of the view that it is in the public interest to require the Secretary to defer application of the challenged regulation as it applies to refugees in the State of Washington.
The final question to be resolved is the nature of the injunctive relief to be granted. Some courts have held that regulations issued in violation of section 553(d) are merely ineffective until passage of the 30-day period. See, e.g., Rowell v. Andrus, 631 F.2d 699, 704 (10th Cir. 1978). The Court recognizes that this approach should be questioned since it invites violations of section 553(d). Cf. State of New Jersey, Department of Environmental Protection v. Environmental Protection Agency, 626 F.2d 1038, 1049 (D.C.Cir.1980).
The Court must take into account the special circumstances of this case and the fact that the only challenge to this regulation comes from a group of refugees residing in the State of Washington who are particularly disadvantaged by reason of the very limited nature of the benefits available to them under the laws of that state after the regulation goes into effect. As far as the Court is aware there are no challenges to the regulation from the thousands of refugees scattered among other states throughout the country. The appropriate remedy here is to extend the time when the regulation goes into effect to meet the special needs of these plaintiffs and to cause only a limited delay so as to preserve the funds available insofar as possible in the interests of the sound administration of the Refugee Resettlement Program as a whole. As already indicated, any delay of the April 1 effective date will necessarily delay implementation of the regulation for at least a month. Accordingly, a preliminary injunction shall issue enjoining the Secretary from implementing the challenged regulation before May 1, 1982, but only so far as it relates to refugees resident in the State of Washington. This has the effect of initiating the 30-day waiting period required under 553(d) as of today for the refugees resident in the State of Washington.
A status conference with counsel shall be held at 10:00 a.m. on April 5, 1982, to determine what further proceedings are necessary to achieve an expeditious resolution of this case on the merits.