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BRENNAN, J., dissenting

464 U. S.

In reaching this conclusion, I express no opinion on the merits of the underlying controversy because the Secretary has assumed, for the purpose of our consideration of the stay application, that the Ninth Circuit's requirement that the Secretary produce some evidence of medical improvement is sound.

Of course, in considering the motion to vacate the stay, it is also essential to balance the equities. However, as JUSTICE REHNQUIST recognized, the equities in this case strongly favor respondents, who are elderly, sick, or disabled persons to whom disability benefits may be crucial. Moreover, as JUSTICE REHNQUIST also recognized, this is a stay pending appeal to the Court of Appeals rather than a stay pending disposition of a petition for certiorari to this Court, and in such a case the granting of a stay by a Circuit Justice should be extremely rare and great deference should be shown to the judgment of the Court of Appeals. When these factors are also considered, I am compelled to conclude that the stay entered by JUSTICE REHNQUIST should be modified.

In summary, I would grant the motion to vacate the stay insofar as it relates to those class members (a) whose benefits were terminated on or after December 6, 1982, as well as (b) those whose right to seek administrative review of the termination of their benefits had not expired as of December 6, 1982. To the extent that the Court declines to modify the stay in this fashion, I respectfully dissent.

JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.

Before the Court is an emergency motion to vacate a stay granted by JUSTICE REHNQUIST pending appeal to the United States Court of Appeals for the Ninth Circuit. 463 U. S. 1328 (1983). In my view, the merits of the underlying jurisdictional issues are far from certain, while the equities clearly favor the class

right to review had expired more than 60 days before the filing of the suit. She goes on to argue only that the injunction should not apply to persons who are still pursuing their administrative remedies at this time. She does not explicitly quarrel with my conclusion that the District Court's injunction was proper as to all other persons whose right to seek administrative review had not expired as of December 6, 1982. Therefore, it appears that my only difference with the Secretary is that I would not require persons currently seeking administrative review to exhaust what is a futile remedy.

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of recipients whose disability benefits have been terminated. I would therefore vacate the stay.

The stay is specifically directed at ¶4(c) of a preliminary injunction issued by the District Court, which would have required that the Secretary reinstate the disability benefits of any applicant who requests such reinstatement in response to a notice already distributed by the Secretary. The stayed portions of the injunction also would have allowed the Secretary to terminate these benefits, after subsequent hearings, but only if the Secretary properly applied prior decisions of the Court of Appeals for the Ninth Circuit when conducting those hearings. See Patti v. Schweiker, 669 F.2d 582 (1982), and Finnegan v. Matthews, 641 F. 2d 1340 (1981) (in hearings to terminate disability benefits on the ground that the recipient is no longer disabled, the Secretary has burden of producing evidence of an improvement in medical condition). Thus, the question presented by the motion to vacate JUSTICE REHNQUIST'S stay is whether the payment of interim benefits to approximately 30,000 disabled individuals whose Social Security benefits have been terminated by the Secretary should be continued pending final decision on the merits by the Court of Appeals. The standard traditionally applied by a Circuit Justice when considering a stay application is whether there is a reasonable probability that four Justices would vote to grant certiorari, whether there is a fair prospect that a majority of the Court would conclude that the decision below was erroneous, and whether a balancing of the equities suggests that a stay should or should not be granted. See Gregory-Portland Independent School District v. United States, 448 U. S. 1342 (1980) (REHNQUIST, J., in chambers); Rostker v. Goldberg, 448 U. S. 1306, 1308 (1980) (BRENNAN, J., in chambers). Included within this last criterion, of course, is consideration of whether the applicant has demonstrated that irreparable harm is likely to result from the denial of the stay. Moreover, given the respect that is accorded interlocutory decisions of the lower federal courts, a stay application to a Circuit Justice on a matter still pending before a court of appeals, and on which the lower courts have already denied an interim stay, should be granted only in the most extraordinary cases. See O'Rourke v. Levine, 80 S. Ct. 623, 624, 4 L. Ed. 2d 615, 616 (1960) (Harlan, J., in chambers).

BRENNAN, J., dissenting

464 U. S.

JUSTICE REHNQUIST accepted the conclusion of the lower court that the "balance of hardships tips sharply toward the [recipients]." He nonetheless granted the stay because he was of the view that the likelihood that the Secretary would prevail on the various jurisdictional issues raised negates giving controlling consideration to the irreparable harm caused by the stay. I am not as optimistic, however, about the prospects for success on the merits of the Secretary's claims, and therefore I find the overwhelming hardships imposed on the recipients to be determinative.

For purposes of the present motion, I accept JUSTICE REHNQUIST'S conclusion that there is a reasonable probability that issues relating to the proper scope of the injunction issued by the District Court would garner enough votes for plenary consideration by the Court. I do not agree, however, that there is a fair prospect of success on the merits of these claims such that the Court ultimately would vacate or substantially amend the injunction issued by the District Court. When refusing to issue a stay pending appeal, the Court of Appeals filed a lengthy opinion clearly explaining why the beneficiaries in this case satisfied the jurisdictional requirements of 42 U. S. C. §§ 405(g), 405(h) (1976 ed. and Supp. V). 713 F. 2d 1432 (1983). Specifically, the court concluded (1) that termination of benefits by the Secretary satisfies the nonwaivable requirement that recipients first present a claim to the Secretary, see, e. g., Mathews v. Eldridge, 424 U. S. 319, 328-330 (1976); Wilson v. Edelman, 542 F. 2d 1260, 1270– 1271 (CA7 1976); (2) that the waivable requirement of a final decision by the Secretary has been met because regulations made exhaustion of administrative remedies futile or, alternatively, because exhaustion of the recipients' constitutional claim is not required, see, e. g., Mathews v. Diaz, 426 U. S. 67, 75-77 (1976); and (3) that the requirement that appeals be filed within 60 days of the Secretary's decision has been waived by the Secretary due to her failure to raise the issue before the District Court. Although after plenary consideration I might agree with much of JUSTICE STEVENS' analysis, I do not believe it is necessary at this time to provide further support for the conclusions reached by the Court of Appeals. Suffice it to say that, largely for the reasons stated by that court's opinion, and for the reasons specified by the large body of case law to which that opinion referred, I am

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far from convinced that the injunction issued by the District Court was jurisdictionally barred. See also Kuehner v. Schweiker, No. 82-1514 (CA3 Sept. 19, 1983). Indeed, even if, as JUSTICE STEVENS suggests, one or more of these holdings eventually proves erroneous and thereby eliminates jurisdiction over some members of the class, it is indisputable that many remaining recipients have properly presented their claims to the District Court. Accordingly, the probability of success on the merits is clearly not as certain as JUSTICE REHNQUIST has suggested.

Nor does the alleged judicial interference in the administrative process, which JUSTICE REHNQUIST's opinion emphasized, add to the likely success of the Secretary's appeal. In the situation presented by this motion, it is clear to me that it is the Secretary who has not paid due respect to a coordinate branch of Government by expressly refusing to implement the binding decisions of the Ninth Circuit. This is, indeed, the essence of the recipients' constitutional allegation of nonacquiescence on the part of the Secretary.

At most, therefore, the likelihood of success on the merits is very much in doubt. Therefore, when considering whether or not to grant a stay pending appeal, this factor cannot by itself dictate the result. Rather, it becomes necessary to balance the equities; and, in my view, the overwhelming evidence of irreparable harm that accompanies any termination of disability benefits should be the determinative factor in this emergency application.

As noted, on this consideration JUSTICE REHNQUIST accepted the lower courts' assessment of the comparative harms. I agree. Indeed, as the courts below correctly concluded, termination of the benefits in this case has caused "deprivation of life's necessities, further illness, or even death from the very disabilities that the Secretary deemed [the class members] not to have." Any financial or administrative inconvenience suffered by the Secretary cannot outweigh, or even approach, the human suffering that has been imposed on those disabled recipients of Social Security benefits who have been wrongfully terminated. And as the courts below noted, the potential payment of retroactive benefits after final decision in this case will do little to compensate the recipients for their current deprivations.

In sum, there is little question in my mind that the extraordinary circumstances necessary to stay the decision of the lower

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court cannot be found in this case. Accordingly, I would grant the emergency motion to vacate the stay, and allow the ordinary appeals process to proceed.

No. A-207. BRIMM v. UNITED STATES. C. A. 11th Cir. Application for stay, addressed to JUSTICE O'CONNOR and referred to the Court, denied.

No. 8, Orig. ARIZONA v. CALIFORNIA ET AL. Motion for comments on the proposed decrees submitted by the State parties and the Solicitor General is granted, and the parties are allowed until November 10, 1983, within which to file comments. JUSTICE MARSHALL took no part in the consideration or decision of this order. [For earlier order herein, see, e. g., 462 U. S. 1146.]

No. 86, Orig. LOUISIANA v. MISSISSIPPI ET AL. Exceptions to the Report of the Special Master are set for oral argument in due course. [For earlier order herein, see, e. g., 463 U. S. 1204.] SOUTH CAROLINA v. REGAN, SECRETARY OF Motion of the City of Baltimore et al. for leave to file a brief as amici curiae granted. [For earlier order herein, see, e. g., ante, p. 807.]

No. 94, Orig. THE TREASURY.

No. 81-757.

ALLEN v. WRIGHT ET AL.; and

No. 81-970. REGAN, SECRETARY OF THE TREASURY, ET AL. v. WRIGHT ET AL. C. A. D. C. Cir. [Certiorari granted, 462 U. S. 1130.] Motion of the Solicitor General for divided argument granted.

No. 82-687.

UNITED STATES v. ARTHUR YOUNG & CO. ET AL. C. A. 2d Cir. [Certiorari granted, 459 U. S. 1199.] Motion of Arthur Andersen & Co. et al. for leave to participate in oral argument as amici curiae, for divided argument, and for additional time for oral argument denied. Motion of respondents for divided argument granted.

No. 82-708. SUMMA CORP. v. CALIFORNIA EX REL. STATE LANDS COMMISSION ET AL. Sup. Ct. Cal. [Certiorari granted, 460 U. S. 1036.] Motion of National Audubon Society et al. for leave to file a brief as amici curiae granted.

No. 82-963. MASSACHUSETTS v. SHEPPARD. Sup. Jud. Ct. Mass. [Certiorari granted, 463 U. S. 1205.] Motion of Florida

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