that the Secretary's plan will assure that most class members will be identified and notified, although perhaps not as thoroughly as plaintiffs would wish. The Secretary will be permitted to implement the plan described in the supporting affidavits (Fussell I and II), on the condition that he begins to do so promptly and makes good faith efforts to proceed as expeditiously as possible. The Court is fully mindful of the harm the interruption of benefits causes those who are dependent upon them, and will entertain an appropriate motion by plaintiffs for further relief should it appear that the process of redetermination is being unnecessarily delayed.
The Secretary has requested a partial stay of the March 10th Order pending disposition of his appeal of it. The stay would apply only to those class members whose cases must be redetermined and those for whom interim payments have been ordered, but would not affect those whose claims are currently pending before the SSA, nor the five individual named plaintiffs in these consolidated cases.
The Secretary argues that the stay is necessary because implementation of the March 10th Order will entail substantial expense to the Social Security Trust Fund which it might not be able to recoup at a later date were the decision to be reversed on appeal. This he contrasts with the harm that a stay might do to class members, which he characterizes as minimal because class members will ultimately receive full back benefits if the Order is upheld on appeal.
The claimants, however, are hardly likely to concur in the description of a further delay in their receipt of benefits as a minimal hardship, and the Secretary's likelihood of success on appeal appears to this Court at the moment doubtful. This case is not one of first impression; numerous other courts have preceded this one to the conclusion that the regulations were not consonant with the statute. The court of appeals may be of a contrary mind, however. Accordingly, so much of the Order of March 10th as orders interim payments while the case is on appeal will be stayed, but only for a period sufficient to allow application to be made by the Secretary to the court of appeals for a stay pending appeal.
For the foregoing reasons, it is, this 22nd day of August, 1986,
ORDERED, that the Secretary's motion to alter or amend the March 10th Order is granted in part and denied in part; and it is
FURTHER ORDERED, that the definition of the class set forth in the March 10th Order is amended to exclude from the class as certified all individuals who have received a final decision on the merits from a court of competent jurisdiction concerning the denial or termination of their disability benefits under the Old-Age and Survivors Disability Insurance and/or the Supplemental Security Income programs; and it is
FURTHER ORDERED, that the Secretary's motion is denied in all other respects; and it is
FURTHER ORDERED, that plaintiffs' motion for "clarification" is denied, provided, however, that the Secretary implement his plan for compliance with the Order of March 10th as expeditiously as possible once appellate proceedings have been completed or the time for appeal has expired; and it is
FURTHER ORDERED, that the Secretary's motion for a partial stay is granted as to interim payments only for a period of thirty (30) days, or until the court of appeals acts upon a motion for a stay pending appeal, if filed with it within such time, whichever is the later.