The opinion of the court was delivered by: JACKSON
Thomas Penfield Jackson, U.S. District Judge
These consolidated cases
are again before the Court on defendant's motions to "alter or amend" this Court's Order of March 10, 1986 ("Order" or "March 10th Order") granting partial summary judgment for plaintiffs which included class-wide relief, and for a partial stay of that Order pending appeal. Plaintiffs have cross-moved for "clarification" of the same Order. The Order at issue implemented the Court's decision holding invalid certain regulations and rulings promulgated by defendant which required the Social Security Administration ("SSA") to determine disability claims on the basis of a claimant's inability to do "basic work activities," as opposed to an inability to do previous work, and prohibited the consideration of multiple nonsevere impairments in the aggregate. 629 F. Supp. 1496 (D.D.C. 1986).
The Court also granted plaintiff's motion for class certification in Weathers v. Heckler, Civil Action No. 84-3035, and defined the class she would be allowed to represent as "all similarly situated residents of the District of Columbia who, between 1978 and [March 10, 1986], have been denied SSI [Supplemental Security Income] or OASDI [Old-Age and Survivors Disability Insurance] benefits, or have had such benefits terminated, on the ground that they do not have a severe impairment within the meaning of the Secretary's rules, regulations and policies in the particulars found invalid hereby . . . ." Order at 20. The Secretary was prospectively enjoined from enforcing the invalid regulations and ordered to hold new disability hearings for all members of the class who were otherwise eligible for and requested such rehearings. He was also directed to reinstate benefits pending rehearing for class members whose benefits had been terminated pursuant to the invalid regulations.
The Secretary now seeks to have the Order revised in several respects: (1) to eliminate the requirement that he reinstate benefits previously terminated; (2) to exclude from the class individuals whose benefits were terminated, as distinguished from being denied, of whom, according to the Secretary, the plaintiff Weathers is not fairly representative; (3) to exclude from the class those individuals who failed to exhaust their own administrative remedies; (4) to exclude from the class individuals who may already have received a decision and judgment from a federal court, their respective claims now being res adjudicata no matter the outcome; and (5) to eliminate the apparent requirement for new hearings for all class members, some cases being amenable to disposition on the record.
Plaintiffs, on the other hand, seek to have the Order "clarified" - in effect, expanded - to prescribe detailed procedures for identifying and notifying class members and monitoring the Secretary's future compliance with the Order.
The Secretary contends that, in directing him to reinstate benefits pending rehearing for class members whose benefits have been terminated, the Order exceeds the powers conferred upon the Court by Section 205(g) of the Social Security Act ("the Act"), codified at 42 U.S.C. § 405(g) (1982). Section 205(g) provides for judicial review of only final decisions of the Secretary, and then gives district courts only the power to affirm, modify or reverse a decision of the Secretary, with or without remanding the cause for rehearing. Section 205(h) of the Act, 42 U.S.C. § 405(h), states that "no findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided." And section 205(i) of the Act, 42 U.S.C. § 405(i), declares that payment of benefits may be made only upon a final decision of the Secretary or a final judgment of any court of competent jurisdiction that a person is entitled to benefits. Here, there is no extant final decision of the Secretary or judgment of a court that anyone - including plaintiffs - is now actually entitled to benefits, a circumstance from which the Secretary argues that there is no statutory authority to order their payment pending rehearing. Absent such statutory authority, he says, the Order violates the United States' sovereign immunity.
The Secretary's argument is not, however, supported by the case law. In City of New York v. Heckler, 742 F.2d 729 (2d Cir. 1984), aff'd on other grounds, 476 U.S. 467, 106 S. Ct. 2022, 90 L. Ed. 2d 462, 54 U.S.L.W. 4536 (1986), the Second Circuit affirmed the district court's reinstatement of benefits for class members who had once been determined to be disabled but were subsequently stricken from the disability rolls pursuant to a policy it found invalid. The reinstatement of benefits was acknowledged to be merely an award of interim relief pending rehearings to determine anew the class members' permanent eligibility for them, and as he does here, the Secretary argued to the Second Circuit that temporary reinstatement was barred by the doctrine of sovereign immunity. The court of appeals disagreed, holding that the interim benefits were to be paid only to those class members who had previously, i.e., pre-termination, received what amounted to a "a final decision of the Secretary" that they were entitled to benefits, and having invalidated the procedure by which that decision had been rescinded, the district court had lawfully revived it provisionally pending properly-conducted redeterminations.
742 F.2d at 740.
The Secretary also submits that the reinstatement of benefits pending rehearing is statutorily "unauthorized" because a recent amendment to Section 223 of the Act, Pub. L. No. 97-455, § 2, 96 Stat. 2498 (1983) (codified at 42 U.S.C. § 423(g)), allowing the payment of interim benefits to certain claimants during the pendency of administrative appeals, demonstrates that Congress does not now intend, and has never intended, that interim benefits be paid to anyone except as it expressly authorizes. This argument, too, was addressed by the Second Circuit in City of New York v. Heckler, which stated:
742 F.2d at 740. See also Lopez v. Heckler, 725 F.2d at 1509-10.
The Court agrees that the 1983 amendment to Section 223 does not purport to express Congressional disapproval of, much less to place limits upon, the power of district courts to award interim relief otherwise appropriate in cases properly before them for review of the Secretary's decision to withhold benefits.
The March 10th Order itself limits the reinstatement of benefits to those class members "whose benefits had been terminated as a result of the defendant's policies determined unlawful by this Court and for whom new disability hearings are requested." Order at 21-22. It thus awards interim relief only to those who had once been possessed of a "final decision of the ...