author: STANLEY S. HARRIS, District Judge.

text:
    Don DURNS, Plaintiff, v. BUREAU OF PRISONS, et al., Defendants.
    Civ. A. No. 84-1327.
    United States District Court, District of Columbia.
    March 29, 1985.

      Don Durns, pro se.
    Asst. U.S. Atty. Patricia D. Carter, Washington, D.C., for defendants.
   MEMORANDUM OPINION AND ORDER

STANLEY S. HARRIS, District Judge.

This is an action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1982), to obtain a copy of the plaintiffs presentence report (PSR). The pro se plaintiff, Don Durns, is an inmate of the Federal Correctional Institution in Leavenworth, Kansas. The defendants, the Bureau of Prisons and officials thereof, filed a motion for summary judgment on the ground that a specific statute governing disclosure of the PSR requires the application of FOIA exemption (b)(3) to this request. Therefore, they contend, the PSR properly was withheld. The Court concludes that the PSR is not completely exempt from disclosure under exemption (b)(3). The plaintiff is entitled to a copy of his PSR unless the Government can show that specific portions of the PSR otherwise are subject to an exemption.

Judge Pratt of this court noted, in Lininger v. United States Department of Justice, CA No. 84-1129 (D.D.C. Oct. 30, 1984) (Memorandum Opinion), that the “status of presentence reports under FOIA has generated a significant amount of case law, particularly in this circuit.” Id. at 1. The FOIA grants access to documents and records of the federal agencies. In Carson v. United States Department of Justice, 631 F.2d 1008 (D.C.Cir.1980), the Court of Appeals for this circuit held that a PSR in the possession of the United States Parole Commission is an “agency record” for the purpose of the FOIA. Id. at 1009. That decision was reaffirmed in Lykins v. United States Department of Justice, 725 F.2d 1455 (D.C.Cir.1984). Under the FOIA, disclosure of agency records is the rule and government information must be disclosed unless it falls within one of the nine exemptions of the Act. See Lykins, 725 F.2d at 1466; Metropolitan Life Insurance Co. v. Usery, 426 F.Supp. 150, 156 (D.D.C.1976). Upon remand to the district court, Lykins ultimately was decided on the basis of a procedural problem and the applicability of the exemptions was never determined (although the case had been remanded for such a determination). Lykins, No. 82-241 (D.D.C. Sept. 28, 1984) (Memorandum). Lininger was, therefore, the first decision in this jurisdiction to address the FOIA exemptions in holding that exemption (b)(3) cannot be read to prevent complete disclosure of a PSR, particularly when, as was true there, the prisoner had been permitted to read his entire PSR prior to sentencing.

The PSR unquestionably is prepared for the specific objective of aiding a trial judge in the difficult task of sentencing. Thereafter, the same document is used by the affected agencies in making significant determinations relating to the custody and parole of the prisoner. Thus, its accuracy is of considerable importance. See Fed.R. Crim.P. 32(c)(3). It also includes information that, if released to the prisoner, could result in considerable harm. For example, the PSR may reveal the identity of informers or endanger the life of law enforcement personnel. It also may include diagnostic opinions that, if disclosed, might disrupt a rehabilitative program. Rule 32 of the Federal Rules of Criminal Procedure addresses these concerns. While the sentencing court is required to permit the defendant and his counsel to read the PSR at a reasonable time before imposing sentence, protections against negative consequences have been adopted. The ultimate sentencing recommendations are excluded, and the Court is given discretion to withhold (1) diagnostic opinions which, in its opinion, might seriously disrupt a rehabilitative program, (2) any sources of information obtained upon a promise of confidentiality, or (3) any other information which might result in harm, physical or otherwise, to the defendant or others.

The Government argues that Rule 32 supplies the statutory basis for nondisclosure under FOIA’s exemption (b)(3). Exemption (b)(3) excludes from disclosure agency records that are specifically exempted from disclosure by statute, provided that such statute:

(A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;
* * * * * *

5 U.S.C. § 552(b)(3). The Government asserts that Rule 32 falls within subsection (b)(3)(A) because, from the language of the statute, “it is absolutely clear” that the decision to permit an individual to retain a copy of his PSR rests solely with the sentencing judge, and, thus, an agency which receives a copy of the PSR has no discretion on the issue.

The Court declines to accept this construction. First, on its face, Rule 32 provides the sentencing judge with great discretion, unlike the provisions of subsection (b)(3)(A). Furthermore, the notes accompanying Rule 32 state that Rule 32 does not speak to the issue of access to the PSR at the institution, explicitly noting that “thus the Bureau of Prisons and the Parole Commission are free to make provision for disclosure to inmates and their counsel.” Notes of Advisory Committee on Rules, Fed.R.Crim.P. 32. Rule 32 may not be read to apply to the defendants so as to justify their withholding of the PSR under exemption (b)(3)(A).

In the alternative, the Government argues that even if Rule 32 does not comply with subsection (b)(3)(A), it does comply with subsection (b)(3)(B). That is, it establishes particular criteria for withholding or refers to particular types of matters to be withheld. However, for the same reason Rule 32 does not apply to the agencies under subsection (b)(3)(A), it also does not apply under subsection (b)(3)(B) because the Bureau of Prisons does not fall within the purview of Rule 32.

In a supplemental memorandum in support of defendants’ motion for summary judgment, the Government asserts that the Parole Commission and Reorganization Act, 18 U.S.C. § 4208 (1982), serves as the basis for complete nondisclosure when read in conjunction with Rule 32. The Court does not accept this reasoning, but does conclude that § 4208 provides for nondisclosure of specific parts of a PSR.

Section 4208(b) provides that at least 30 days prior to any parole determination, the prisoner shall be provided with reasonable access to a report or other document to be used by the Parole Commission in making its determination. 18 U.S.C. § 4208(b)(2). However, the statute parallels the language of Rule 32 by exempting from disclosure diagnostic opinions which, if disclosed, would seriously disrupt an institutional program, information which, if disclosed, would reveal a confidential source, or any information which, if disclosed, might result in harm to the defendant or others. If any document (or any portion thereof) is deemed by the Parole Commission, the Bureau of Prisons, or any other agency to fall within these exclusions, it is the duty of the Commission, the Bureau, or any other agency to summarize the basic contents of the material withheld, bearing in mind the need for confidentiality or the impact on the inmate, or both, and to furnish such a summary to the inmate. 18 U.S.C. § 4208(c).

Section 4208(c) establishes particular criteria for withholding certain types of information as is required for exemption from disclosure under 5 U.S.C. § 552(b)(3)(B). It is based on a congressional determination of the public’s interest in maintaining the confidentiality of specific portions of a PSR. Thus, it brings PSRs within exemption (b)(3) to the extent that potentially harmful parts of the presentence report may be withheld from disclosure under the FOIA.

In conclusion, then, the presentence report, as an agency record, is subject to disclosure under the FOIA except as to the potentially harmful elements described in 18 U.S.C. § 4208(c). The Government is free to address the specific elements of a PSR which, in its view, should not be disclosed. It is noted, however, that in this case the Government indicated in its motion for summary judgment that the plaintiff had the opportunity to review his PSR with no deletions pursuant to Rule 32 prior to sentencing. At this point, it thus would be difficult to find that any of the portions previously revealed to the plaintiff must now be withheld.

In accordance with the foregoing, it hereby is

ORDERED, that the defendants’ motion for summary judgment is denied. It hereby further is

ORDERED, that what the Court accepts as the plaintiff’s motion for summary judg.ment (notwithstanding its technical infirmities) is granted. A copy of the plaintiff’s PSR shall be provided to him, and the case is dismissed.

SO ORDERED.

      . On December 28, 1984, the plaintiff submitted a supplemental pleading seeking to amend his complaint to obtain copies of AO Form 235 (Recommendation of the Sentencing Judge) and USA Form 792 (Recommendation of the United States Attorney). Those requests are denied because the plaintiff has not shown that he has exhausted his administrative remedies prior to seeking judicial review. See 5 U.S.C. § 552(a)(6)(C); see also Hedley v. United States, 594 F.2d 1043, 1044 (5th Cir.1979).

      . The plaintiff filed a pleading on July 12, 1984, variously entitled "Petitioner’s Motion to Dismiss the Respondents Attorneys Motion for Summary Judgment," "Motion to Dismiss,” "Memorandum in Support to Dismiss Respondents Motion,” and “Petitioner’s Motion for Summary Judgment.” The Government has treated this as a motion for summary judgment, notwithstanding the pleading's noncompliance with Rule 1—9(i) of the Rules of this Court. The Court does also.

      . A split has developed among the circuits regarding the characterization of PSRs as agency records or as court documents. See Cotner v. United States Parole Comm'n, 747 F.2d 1016 (5th Cir.1984) (vacating district court judgment that presentence report was a court document); Berry v. United States Dep't of Justice, 733 F.2d 1343 (9th Cir.1984) (presentence reports are agency records when they are in the possession of the Bureau of Prisons). But see Lindsey v. United States Bureau of Prisons, 736 F.2d 1462 (11th Cir.1984) (presentence report remained a court document after its transmittal to Bureau of Prisons); Crooker v. United States Parole Comm’n, 730 F.2d 1 (1st Cir.1984) (presentence reports are not agency records subject to disclosure under FOIA); United States v. Charmer Industries, Inc., 711 F.2d 1164 (2d Cir.1983) (presentence report is a court document). Obviously, this court is bound by our circuit’s rulings.

      . The Government unquestionably is correct in taking the position that the sentencing judge could provide a copy of the PSR on request by a prisoner, if the judge in his discretion concluded that such an action would not have negative consequences within the contemplation of Rule 32(c)(3)(A). See Rule 32(c)(3)(E). Considerable litigation in this area could be avoided if a prisoner who wishes a copy of his PSR were to request it initially from his sentencing judge. No suit under the FOIA would have to be filed unless such a request were denied.

      . See American Jewish Congress v. Kreps, 574 F.2d 624, 628 (D.C.Cir.1978) (exemption (3)’s two subsections are independently sufficient).

      . Accord Berry v. Dep’t of Justice, 733 F.2d 1343, 1354 (9th Cir.1984); Lininger v. United States Dep’t of Justice, No. 1129 (D.D.C. Oct. 30, 1984) (Memorandum Opinion).

      . That § 4208(a) directly addresses the Parole Commission and the Bureau of Prisons supports the Court’s view that Rule 32 was not meant to control those agencies’ disclosure activities.

      . The PSR at issue is not before the Court. The disposition of this case is without prejudice to the Government’s right, within ten days, to ask the Court for authority to delete anything in the PSR which might be protected from disclosure under 18 U.S.C. § 4208(c)(l)-(3).


source: Caselaw Access Project

author: DIANA E. MURPHY, District Judge.

license: Public Domain

text:
    Jacqueline McKENZIE, by her guardian ad litem, Linda GALLANT, on behalf of herself and others similarly situated, Plaintiffs, v. Margaret M. HECKLER, Secretary of the Department of Health and Human Services, Defendant.
    Civ. No. 4-84-182.
    United States District Court, D. Minnesota, Fourth Division.
    March 29, 1985.

      Laurie N. Davison, Legal Aid Society, Minneapolis, Minn., for plaintiffs.
    Mac Davis, Dept. of Health and Human Services, Baltimore, Md., and Paul Day, Asst. U.S. Atty., Minneapolis, Minn., for defendant.
   MEMORANDUM OPINION AND ORDER

DIANA E. MURPHY, District Judge.

Plaintiff Jacqueline McKenzie, and the class she represents, seek a supplemental order requiring the Secretary of the Department of Health and Human Services (the Secretary) to issue instructions to local Social Security offices to implement this court’s Memorandum Opinion and Order dated February 7,1985. 602 F.Supp. 1150. The Secretary responded by filing a motion for a stay and for reconsideration of the court’s February order, pursuant to Fed.R. Civ.P. 60(b). These matters are now before the court.

The Secretary argues that she is entitled to relief under Fed.R.Civ.P. 60(b) because of a recently issued decision of the Eighth Circuit Court of Appeals, Burnett v. Heckler, 756 F.2d 621 (8th Cir.1985). She concedes that the Court of Appeals was not specifically considering the application of the SSI windfall offset, 42 U.S.C. § 1320a-6 (1982), amended by § 2615(a) of the Deficit Reduction Act of 1984, 98 Stat. 1132 (to be codified at 42 U.S.C.A. § 1320a-6 (West Supp.1982)), to reduce the amount of a claimant’s RSDI benefits. She notes, however, that the Court of Appeals was forced to analyze the SSI offset provision to decide the attorney’s fees issue in Burnett. The Secretary states that the Court of Appeals disagreed with the Burnett trial court’s position that the offset does not apply to concurrent cases where SSI benefits are paid retroactively prior to RSDI benefits merely because they were calculated first. She believes that this court relied on the Burnett trial court and should stay the judgment until it reconsiders its previous decision.

Plaintiffs argue, on the other hand, that the recent Burnett decision is extremely narrow and does not support reconsideration of this court’s judgment. Moreover, they contend that a stay is inappropriate since the Secretary has demonstrated no irreparable harm and a 60(b) motion does not affect the finality of a judgment.

The issue before the Court of Appeals in Burnett was limited to the correct method of calculating attorney’s fees which could be withheld from retroactive RSDI benefits. The court stated several times that the application of the SSI offset provision was not at issue. Burnett v. Heckler, 756 F.2d 621, 622-623 and 621 (8th Cir.1985). In footnote 4 of the opinion, however, the panel opinion analyzed the former version of the SSI offset provision and indicated that it should apply to concurrent cases where retroactive SSI benefits are calculated and paid before retroactive RSDI benefits.

The plaintiffs argue that this analysis is dictum. They note that the plaintiff in Burnett had explicitly conceded that application of the previous version of the offset provision to reduce her RSDI benefits by the amount of her retroactive SSI benefits was proper.

This court obviously regards the panel’s analysis in footnote 4 with respect and looks to it for guidance. Nonetheless, it does not appear that Burnett should change the ultimate result in this case. The analysis in footnote 4 focuses only on the former version of the offset provision, 42 U.S.C. § 1320a-6 (1982). This version did not govern the claims of any class member except Jacqueline McKenzie. Payments to all other class members are determined by the amendment to the offset provision contained in Section 2615(a) of the Deficit Reduction Act of 1984. That amendment specifically eliminates the windfall caused by the calculation of retro-, active SSI benefits as if no retroactive RSDI benefits had already been awarded.

The Secretary has previously argued that even using the amended offset provision, another windfall is created if she is forced to calculate and pay retroactive RSDI benefits before retroactive SSI benefits. She contends that such a policy would limit the SSI benefits which could be sent to reimburse the state for any interim assistance a claimant may have received. The Burnett court had no occasion to address the Secretary’s argument about this typé of alleged double dipping. But see Gallo v. Heckler, 600 F.Supp. 1513 (E.D.N.Y.1985).

The Secretary’s attempt to characterize a claimant’s retention of retroactive RSDI benefits calculated and paid prior to retroactive SSI benefits as a windfall is unconvincing. Her argument ignores the clear intent of Congress, as evidenced in 42 U.S.C. § 407, to protect retroactive awards of RSDI benefits from claims by state welfare agencies for interim welfare assistance. The Secretary’s policy arbitrarily transforms a claimant’s retroactive RSDI benefits, benefits which are not based on need but on the contribution of the claimant, into retroactive SSI benefits which can be paid to the state. Such a policy causes real harm to the claimants.

The parties were not arguing in Burnett that the Secretary’s policy of calculating benefits causes a reduction in a claimant’s retroactive RSDI benefits in direct conflict with 42 U.S.C. § 407. The panel did not have to reconcile the Secretary’s policy with § 407. The Court of Appeals has recently stressed that two statutes should be interpreted to give effect to each. Owens v. Heckler, 753 F.2d 675 (8th Cir.1985) (Secretary’s regulations regarding the treatment of student’s Social Security benefits in AFDC program conflicts with the purpose of the Social Security program.) This court has attempted to give effect to the amended version of the SSI offset, as well as to the protections of 42 U.S.C. § 407.

Even if this court is wrong in its determination that the Secretary’s policy violates the Social Security Act, plaintiffs are entitled to the relief granted in the February 7, 1985 order because the Secretary violated the Administrative Procedure Act (APA) and the Freedom of Information Act (FOIA). The challenged provisions of the Program Operations Manual System (POMS), §§ GN02610.005 and GN02610.045, should have been promulgated as a rule with advance notice and an opportunity for the public to comment. The Secretary may not delay the calculation and payment of retroactive RSDI benefits to these class members since she has not followed the proper rulemaking procedure.

For all of the above reasons, the court finds that the Burnett decision does not entitle the Secretary to relief under Fed.R. Civ.P. 60(b). No other basis for relief under the rule has been advanced.

Nor has the Secretary shown that a stay is appropriate. A motion under Fed.R.Civ.P. 60(b) does not justify a stay. Moreover, the Secretary has not demonstrated that she would suffer irreparable harm from implementing the court’s decision.

The Secretary has informed the court that she has completed the instructions necessary to process payment to the McKenzie class. Those instructions should be sent immediately to the appropriate local offices to effect the Memorandum Opinion and Order dated February 7, 1985.

ORDER

Accordingly, based upon the above and all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that

1. Defendant’s motion for a stay and for relief from judgment under Fed.R. Civ.P. 60(b) is denied.

2. Plaintiffs’ motion for a supplemental order is granted and the Secretary shall issue instructions to appropriate offices and employees to implement the Memorandum Opinion and Order dated February 7, 1985 within three working days of the date of this order. These instructions shall assure the prompt processing of the retroactive RSDI benefits of class members.

      . The Memorandum Opinion and Order of February 7, 1985 certified a class of Minnesota residents whose applications for Supplementary Security Income (SSI) and Disability Benefits (RSDI) have been or will be adjudicated concurrently, and whose retroactive SSI benefits will be paid to the local welfare agency pursuant to an interim assistance agreement. The court held that the Secretary’s policy of postponing the calculation and payment of retroactive RSDI until after retroactive SSI benefits have been calculated violates the Social Security Act and the Administrative Procedure Act (APA). Accordingly, the court enjoined the Secretary from calculating and paying retroactive SSI benefits prior to calculating and paying retroactive RSDI benefits to any class member. The court also enjoined the Secretary from deducting the SSI benefits to McKenzie paid to Hennepin County from her retroactive RSDI award.
      Further review of the facts can be found in the Memorandum Opinion and Order of February 7, 1985.

      . Section I.B. of the Brief for Appellee in Burnett v. Heckler, 756 F.2d 621 (8th Cir.1985), was headed as follows:

        The District Court’s Application of Section 1127 Is Proper to Reduce the Claimant’s Benefits But Not to Reduce the Base Upon Which An Attorney Fee Is Computed.

      . While Congress has created an exception to 42 U.S.C. § 407 authorizing the Secretary to pay retroactive SSI benefits to county welfare agencies for reimbursement of interim assistance, it made no such exception for retroactive RSDI benefits.

      . It must be recognized that these class members are, by definition, totally disabled and destitute. They have all worked and contributed to the Social Security System for years, believing that it would assist them if they were to become disabled. Upon applying for Social Security benefits, however, they have been mistakenly denied. Many of these class members have had to appeal as many as three times and submit to various physical examinations before receiving a favorable decision. The struggle to obtain their rightful benefits may take years. In the meantime, these class members have been forced to seek welfare. Under these circumstances, retention of their retroactive RSDI benefits is not a windfall, but serves as compensation for the suffering caused by the wrongful denial of benefits.

      . Because of these violations of the APA and the FOIA, plaintiff Jacqueline McKenzie is also entitied to the relief previously granted.


author: CAFFREY, Chief Judge.

text:
    Hortensia Bossi De ALLENDE, et al., Plaintiffs, v. George P. SHULTZ, Secretary of State, et al., Defendants.
    Civ. A. No. 83-3984-C.
    United States District Court, D. Massachusetts.
    April 1, 1985.

      Leonard B. Boudin, New York City, Allan R. Rosenberg, Putnam, Bell & Russell, Boston, Mass., for plaintiffs.
    William P. Joyce, Asst. U.S. Atty., Boston, Mass., and Robert L. Bombaugh, Thomas W. Hussey, David V. Bernal, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for defendants.
   MEMORANDUM

CAFFREY, Chief Judge.

This is a civil case which presents the following question: Does the Department of State’s refusal to grant a nonimmigrant visa to Hortensia Allende, widow of former Chilean President Salvador Allende, impermissibly impinge on the First Amendment rights of plaintiffs, American scholars, politicians and religious leaders who have invited Mrs. Allende to the United States to speak and exchange views with them on topics of common concern?

The case comes before the Court on defendants’ motion to dismiss, or in the alternative, for summary judgment.

Facts

In February, 1983, after receiving speaking invitations from several of the plaintiffs, Mrs. Allende applied to the United States Embassy in Mexico City for a non-immigrant tourist visa. She wished to come to the United States for approximately 10 days. The consular officer in Mexico City determined that, under § 212(a)(28)(C) of the Immigration and Nationality Act (the Act), Mrs. Allende was ineligible to receive a visa. This statutory provision, hereinafter referred to as subsection (28), prohibits the issuance of visas to “[a]liens who are members of or affiliated with ... (iv) the Communist or any other totalitarian party ... of any foreign state ..., (v) any section, subsidiary, branch, affiliate or subdivision of any such association or party ....” 8 U.S.C. § 1182(a)(28)(C). Mrs. Allende is a member of both the World Peace Council (WPC) and the Women’s International Democratic Federation (WIDF), organizations reputed to be international fronts for the Communist Party of the Soviet Union.

The Act also provides, however, that an alien who is found to be ineligible to receive a visa under subsection (28) may nevertheless be admitted to the United States if the Attorney General, in his discretion, approves a recommendation of waiver proffered to him by the Secretary of State. 8 U.S.C. § 1182(d)(3)(A). Thus, in accordance with standard procedure, the consular officer at Mexico City sought an advisory opinion from the Department of State (Department) as to whether the Department should recommend to the Attorney General that Mrs. Allende be allowed to enter the United States. After considering Mrs. Allende’s application, the Department decided that she was ineligible to receive a visa not only under subsection (28), but also under section 212(a)(27) (hereinafter referred to as subsection (27)). This subsection excludes from the United States “[a]liens who the consular officer or the Attorney General knows or has reason to believe seek to enter the United States solely, principally, or incidentally to engage in activities which would be prejudicial to the public interest, or endanger the welfare, safety, or security of the United States.” 8 U.S.C. § 1182(a)(27). Because there can be no waiver of ineligibility for aliens excluded under this subsection, the Embassy at Mexico City returned Mrs. Allende’s passport to her and informed her that her application had been denied pursuant to 8 U.S.C. § 1182(a)(27). Thereafter, this action was instituted by American citizens who claim that the denial of Mrs. Allende’s visa application violates their First Amendment rights of free speech and association.

Defendants’ Motion to Dismiss

Defendants move to dismiss this case on the grounds that this Court lacks subject matter jurisdiction, plaintiffs lack standing to sue, and the complaint fails to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). Because defendants .base their 12(b)(6) claim primarily on their arguments relating to the first two issues, it is necessary to address only the questions of standing and jurisdiction.

Defendants’ assert that plaintiffs lack standing to challenge the denial of Mrs. Allende’s visa application, because the denial affects neither plaintiffs’ right to cross the nation’s borders nor their ability to communicate with Mrs. Allende by mail or telephone or to meet with her in Mexico City. These arguments, however, were soundly rejected by the Supreme Court in Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). After reaffirming the well-established principle that the Constitution protects not only the right to convey information and ideas, but also the right to receive them, 408 U.S. at 762-63, 92 S.Ct. at 2581-82, the Court in Mandel explicitly recognized that “First Amendment rights are implicated” in the Government’s refusal to grant a visa to an alien with whom American citizens wish to speak. Id. at 765, 92 S.Ct. at 2582. With respect to the Government’s contention in that case that telephones and other technological developments adequately replace personal contact, the Court also noted:

This argument overlooks what may be particular qualities inherent in sustained, face-to-face debate, discussion and questioning .... [W]e are loath to hold on this record that existence of other alternatives extinguishes altogether any constitutional interest on the part of the appellees in this particular form of access.

408 U.S. at 765, 92 S.Ct. at 2582.

In light of these declarations by the Supreme Court, I rule that plaintiffs have standing to challenge defendants’ decision to exclude Mrs. Allende from the United States. See also Abourezk v. Reagan, 592 F.Supp. 880, 883-84 n. 10 (D.D.C.1984) and cases cited therein.

Defendants further contend, however, that this Court lacks jurisdiction to hear plaintiffs’ claims. They maintain that both the Constitution and historical principles of sovereignty bestow “the responsibility for regulating the relationship between the United States and our alien visitors ... [on] the political branches of the Federal Government.” Mathews v. Diaz, 426 U.S. 67, 81, 96 S.Ct. 1883, 1892, 48 L.Ed.2d 478 (1976). Although the United States Supreme Court has consistently recognized that the sensitive and fluctuating nature of international relations dictates “a narrow standard of review of decisions made by Congress or the President in the area of immigration and naturalization,” id. at 82, 96 S.Ct. at 1892, the Court has nevertheless emphasized that the government’s power in this area is not entirely immune from judicial scrutiny. Fiallo v. Bell, 430 U.S. 787, 793 n. 5, 795-96 n. 6, 97 S.Ct. 1473, 1478 n. 5, 1479-80 n. 6, 52 L.Ed.2d 50 (1977). The exercise of judicial review, though necessarily limited in scope, is particularly appropriate in cases like the one at bar which involve fundamental rights of United States citizens. Id., Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972); Abourezk v. Reagan, 592 F.Supp. at 883-84 n. 10. I therefore rule that this Court has jurisdiction over the action presently before it.

Because plaintiffs have standing to bring suit and this Court has jurisdiction to hear their claims, I further rule that defendants’ motion to dismiss should be denied.

Defendants’ Motion for Summary Judgment

Defendants maintain that they are entitled to summary judgment because they have presented legally adequate reasons for their refusal to grant Mrs. Allende a visa. The validity of their contention must be analyzed within the framework of the Supreme Court’s landmark decision, Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). In that case, plaintiffs, who were American students and scholars, challenged the Government’s refusal to issue a visa to Ernest E. Mandel, a Belgian journalist and sélf-proclaimed “revolutionary Marxist.” Mr. Mandel’s visa application was rejected because the Department of State determined, pursuant to subsection (28), that he was ineligible to receive a visa, and the Attorney General thereafter declined to exercise his discretion to waive the Department’s finding of ineligibility. In upholding the Attorney General’s decision to exclude Mandel, the Court stated:

In the case of an alien excludable under § 212(a)(28), Congress has delegated conditional exercise of this power to the Executive. We hold that when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant. What First Amendment or other grounds may be available for attacking exercise of discretion for which no justification whatsoever is advanced is a question we neither address nor decide in this case.

408 U.S. at 770, 92 S.Ct. at 2585 (emphasis added).

The lower federal courts have interpreted Mandel to require the Government to provide a justification for an alien’s exclusion when that exclusion is challenged by United States citizens asserting constitutional claims. E.g., Burrafato v. United States, 523 F.2d 554, 556 (2nd Cir.1975), cert. denied 424 U.S. 910, 96 S.Ct. 1105, 47 L.Ed.2d 313 (1976); Abourezk v. Reagan, 592 F.Supp. 880, 881 (D.D.C.1984). The line of precedents from the lower courts further reveals that the explanation given must be “facially legitimate and bona fide” not only in a general sense, but also within the context of the specific statutory provision on which the exclusion is based. See Abourezk, 592 F.Supp. 880; El-Werfalli v. Smith, 547 F.Supp. 152 (S.D.N.Y.1982); NGO Committee on Disarmament v. Haig, No. 82 Civ. 3636, slip op. (S.D.N.Y. June 10, 1982), aff’d, 697 F.2d 294 (2d Cir.1982).

In this case, the Department bases its determination of Mrs. Allende’s excludability on 8 U.S.C. § 1182(a)(27). As noted above, subsection (27) renders ineligible for admission to the United States:

Aliens who the consular officer or the Attorney General knows or has reason to believe seek to enter the United States solely, principally, or incidentally to engage in activities which would be prejudicial to the public interest, or endanger the welfare, safety or security of the United States; ....

The unclassified affidavits of Under Secretary of State Lawrence S. Eagleburger and Deputy Assistant Secretary of State Louis P. Goeltz set forth two reasons for the denial of Mrs. Allende’s visa application pursuant to subsection (27). The affidavits state, first, that Mrs. Allende is a member of two organizations affiliated with the Communist Party of the Soviet Union, Eagleburger Affidavit ¶ 12; Goeltz Affidavit ¶ 17; and second, that her admission to the United States “for the purpose and during the period specified in the application would have been prejudicial to the conduct of the foreign affairs of the United States,” Eagleburger Affidavit H 12; Goeltz Affidavit ¶ 16.

To rule on the legitimacy of these explanations, it is unnecessary for this Court to scrutinize the parameters of subsection (27), as other courts have felt obliged to do. See Abourezk, 592 F.Supp. 880; El-Wefalli, 547 F.Supp. 152. It is sufficient merely to consider what classifications lie outside the scope of this provision. Among the classes of aliens to which subsection (27) does not apply are those which fall squarely within the ambit of one of the other thirty-two statutory categories of ineligibility listed in § 212(a) of the Act. If Congress had intended subsection (27) to encompass the substance of categories other than (27), it presumably would not have included those other categories. “It is the duty of the court to give effect, if possible, to every clause and word of a statute, avoiding ... any construction which implies that the legislature was ignorant of the meaning of the language it employed.” Montclair v. Ramsdell, 107 U.S. 147, 152, 2 S.Ct. 391, 394, 27 L.Ed. 431 (1882). See also 2A N. Singer, Sutherland Statutory Construction, § 46.06 (4th ed. 1984). (“A statute should be construed so that ... no part will be inoperative or superfluous, void or insignificant____”) Subsection (28) establishes the ineligibility of foreigners who are associated with communist or totalitarian organizations. Because subsection (28) directly encompasses Mrs. Allende’s membership in WPC and WIDF, I rule that her affiliation with these organizations is not, in itself, a “facially legitimate and bona fide” reason for her exclusion within the meaning of subsection (27).

Defendants’ second reason for excluding Mrs. Allende, namely that her admission “would have been prejudicial to the conduct of the foreign affairs of the United States,” Eagleburger Affidavit, 1112, is entirely conclusory. In Abourezk v. Reagan, the Department of State sought to justify the exclusion of certain aliens on the basis of the precise explanation proffered here. The court in that case rejected the Department’s justification, stating:

In the absence of additional details, it could reasonably be concluded that the Department of State denied visas to these alien applicants because it did not agree with or feared the content of whatever communication they might make while in this country. This conclusion would be especially relevant in these cases where the visa denials were defended, at least in part, on the ground that the Department of State considered the aliens’ proposed ‘activities’ in the United States to be prejudicial—yet the only activities that had been planned were protected speech and association.
In the view of the Court, an alien invited to impart information and ideas to American citizens in circumstances such as these may not be excluded under subsection (27) solely on account of the content of his proposed message. For although the government may deny entry to aliens altogether, or for any number of specific reasons, it may not, consistent with the First Amendment, deny entry solely on account of the content of speech.

592 F.Supp. at 887 (citations omitted).

Judge Greene’s cogent analysis in Abourezk applies equally well to the case at bar.

Additionally, the Department’s own interpretation of the scope of subsection (27) demonstrates that vague notions of foreign policy do not provide a sufficient basis for the invocation of this provision. The Department’s Foreign Affairs Manual explains:

It was the intent of Congress that the provisions of paragraph (27) of Section 212(a) of the Act be used to safeguard the security of the United States. They must not be used as “catch-all” provisions for refusing visas in cases which do not fit in other paragraphs of Section 212(a).

Foreign Affairs Manual, vol. 9 (Visa TL-880, ¶ 1) (emphasis added).

Because defendants’ reasons for excluding Mrs. Allende pursuant to subsection (27) neither present nor describe any set of facts which could be construed to fall specifically within the meaning of this provision, summary judgment cannot be granted on the basis of defendants’ unclassified affidavits.

In support of their motion for summary judgment, defendants also submit for the Court’s in camera inspection classified documents which purportedly explain in detail the specific reasons for the Department’s denial of Mrs. Allende’s visa application. This Court, however, declines to examine these impounded materials or to consider them as a basis on which to grant summary judgment, because the Court of Appeals for the First Circuit has held repeatedly that summary judgment may not be granted on the basis of materials to which the party opposing summary judgment is denied access.

The circuit court has articulated two reasons for its position. First, Federal Rule of Civil Procedure 56 allows a trial court presented with a motion for summary judgment to consider only “materials that would be admissible in evidence or otherwise usable at trial.” Association for Reduction of Violence v. Hall, 734 F.2d 63, 67 (1st Cir.1984), quoting 6 J. Moore, Moore’s Federal Practice, ¶ 56.11 [1.-8], at 206-7 (2d ed. 1983). The court has therefore admonished that “material that does not come within the above broad category should not be considered.” Id. Second, the very nature of the adversary system demands that both parties be given full access to any information which may form the basis for a judgment. In Bane v. Spencer, 393 F.2d 108 (1st Cir.1968), cert. denied, 400 U.S. 866, 91 S.Ct. 108, 27 L.Ed.2d 105 (1970), the court declared:

[T]he defendant should not be able to use the [impounded] records as a sword to seek summary judgment and at the same time blind plaintiff so that he cannot counter. Defendant’s affidavit must contain on its face, for plaintiff to see, whatever defendant wishes to rely upon to seek summary judgment.

Id. at 109.

Although this Court is aware that there may be a point at which the theoretical ideals of the adversary system must bow to the practical necessities of preserving national security and international relations, that point has not yet been reached in this case. It is noteworthy that the defendants have offered neither a summary of the information contained in the classified materials, like that which the court provided in Abourezk, 592 F.Supp. at 888, and El-Werfalli, 547 F.Supp. at 154, nor a detailed explanation for their inability to do so, like that suggested by the court in Phillippi v. Central Intelligence Agency, 546 F.2d 1009, 1013 (D.C.Cir.1976).

In Abourezk, a case which raised the same legal issues presented here, the District Court granted summary judgment for the defendants on the basis of information contained in classified affidavits which the court examined in camera. In support of its decision to review these impounded documents, the court cited Hayden v. National Security Agency Central Security Service, 608 F.2d 1381 (D.C.Cir.1979), cert. denied, 446 U.S. 937, 100 S.Ct. 2156, 64 L.Ed.2d 790 (1980), and Phillippi v. Central Intelligence Agency, 546 F.2d 1009 (D.C.Cir.1976) for the proposition that in camera inspections are not unusual in cases involving classified materials. Abourezk, 592 F.Supp. at 887, n. 25. I rule, however, that Hayden and Phillippi are inapposite to the situation presented here. Each of those suits was brought under the Freedom of Information Act, 5 U.S.C. §§ 552 et seq., and the plaintiffs in each case sought only to procure certain information which the defendant agencies claimed was privileged. In neither case did the defendant attempt to use classified information offensively to obtain judgment in its favor.

Because it would be improper for this Court to consider the classified materials which defendants submitted in support of their motion for summary judgment, and because defendants’ unclassified affidavits fail to establish a “facially legitimate and bona fide” reason for the denial of Mrs. Allende’s visa application, I rule that defendants’ motion for summary judgment should be denied. The denial of this motion is made without prejudice to its renewal if defendants can produce unclassified material establishing, as a matter of public record, a “facially legitimate and bona fide” reason for their refusal to grant Mrs. Allende a visa.

Order accordingly.

      . Although Mrs. Allende is named as a plaintiff in this case, plaintiffs cannot and do not contend that any provision of law grants Mrs. Allende the right to enter this country, or that she herself has standing to raise the constitutional claims asserted by the other plaintiffs. Her role in this case is essentially a symbolic one. See Kleindienst v. Mandel, 408 U.S. 753, 762, 92 S.Ct. 2576, 2581, 33 L.Ed.2d 683 (1972); Abourezk v. Reagan, 592 F.Supp. 880, 882 (D.D.C.1984). In this opinion, therefore, the word "plaintiffs” is used to refer only to United States citizens.

      . It may be noted that, had the Government excluded Mrs. Allende on the basis of subsection (28) rather than subsection (27), the legitimacy of the reasons presented in the unclassified affidavits and set forth above would be dubious at best. In the years since the Supreme Court decided Mandel, Congress has restricted the bases on which the Secretary of State may decline to recommend that the Attorney General waive a finding of ineligibility under subsection (28). The McGovern Amendment, 22 U.S.C. § 2691, provides that the Secretary of State should not withhold such a recommendation of waiver for foreign policy reasons, but only for reasons relating to national security. In this case, the reason given for Mrs. Allende's exclusion, other then her membership in WPC and WIDF, is the Department’s determination that her admission "would have been prejudicial to the conduct of the foreign affairs of the United States.” Eagle-burger Affidavit, ¶ 12. The Secretary of State could not, on the basis of such a reason, decline to recommend the admission of an alien found to be excludable under subsection (28).


author: COHEN, Senior District Judge:

text:
    Leo BONSER, Administrator, United Industrial Workers of North America Welfare and Pension Fund, Robert and Theresa Elia, Frederick E. Doll and Bryan Varn, Plaintiffs, v. STATE OF NEW JERSEY, Shirley A. Meyer, Comm’r New Jersey Department of Health, Dorothy Powers, Chairman, New Jersey State Hospital Rate Setting Commission, Newcomb Hospital, John F. Kennedy Memorial Hospital and John F. Kennedy Medical Center, Defendants.
    Civ. A. No. 84-1259.
    United States District Court, D. New Jersey.
    April 1, 1985.

      Thomas A. Giblin, Alycia Lynch (on brief), Cranford, N.J., for plaintiffs.
    Irwin I. Kimmelman, Atty. Gen., of New Jersey by Charlotte Kitler, Deputy Atty. Gen. (argued), Trenton, N.J., for defendants State of N.J., Shirley A. Meyer, Com’r of N.J. Dept. of Health, Dorothy Powers, Chairman of N.J. State Hosp. Rate Setting Com’n.
    Shapiro, Eisenstat & Gabage, by Samuel L. Shapiro, Vineland, N.J., for defendant Newcomb Hosp.
    Toll, Sullivan & Luthman, by Edward Sullivan, Cherry Hill, N.J. for defendant John F. Kennedy Memorial Hosp.
    Toolan, Abbott & Domenichetti, by Jay M. Hollander, Perth Amboy, N.J., for defendant John F. Kennedy Memorial Center.
   OPINION

COHEN, Senior District Judge:

This action, challenging the constitutionality of New Jersey’s hospital rate setting system, is presently before the Court on the motions of plaintiffs seeking a preliminary injunction, an injunction to stay certain New Jersey state court proceedings, certification of both a plaintiff class and a defendant class, and leave of the Court to amend the complaint.

INTRODUCTION -

Plaintiffs in this matter are Leo Bonser, the Administrator of the United Industrial Workers of North America Welfare and Pension Fund (hereinafter the Fund) and several individuals who, through union membership, are beneficiaries of the Fund. Defendants are the State of New Jersey, the Commissioner of its Department of Health, the Chairman of the State Hospital Rate Setting Commission and several hospitals located in New Jersey. Each of the individual plaintiffs is also a defendant, or potential defendant, in other legal actions commenced in the state courts by the hospitals seeking to collect for services performed but which remain unpaid by the Fund.

The ultimate issue in this case concerns the validity of an amendment to the New Jersey Health Care Facilities Planning Act of 1971, N.J.S.A. 26:2H-1 et seq. (West Supp.1984-85) (Planning Act), which created a Hospital Rate Setting Commission (the Commission) to determine and approved a schedule of rates for hospital services based on a patient’s diagnosis rather than the specific costs incurred in the patient’s treatment.

In practice, this system works in the following fashion: when a patient is diagnosed upon admission to a hospital, that diagnosis is compared with a list of approximately 350 Diagnosis Related Groups (DRG’s) and his or her bill is calculated based upon the DRG into which he or she is placed. In addition, the DRG amount is multiplied by a “payor factor” which creates a difference between the amounts charged to various payors such as the Fund and, for example, Blue Cross.

The reasoning behind, and the goal of, the DRG system is to encourage hospitals to treat their patients in the most efficient and cost effective manner possible. In essence, if a hospital can treat a patient for less money than that authorized by the Commission, it can retain the excess. If, however, the hospital’s costs exceed those authorized, it may not bill the Fund for the additional amount. Moreover, the DRG system provides for an administrative appeals process whereby the bill for an individual, properly within a particular DRG, can be appealed in order to avoid grossly excessive or inequitable charges.

The primary basis of plaintiffs’ attack on the DRG system is that it is allegedly preempted by the Employee Retirement Income Security Act (ERISA), 29 U.S.C.A. § 1001 et seq. (West Supp.1984). ERISA is a comprehensive body of federal law, designed to promote and protect the interests of employees and their beneficiaries in pension and welfare benefit plans, which supersedes any and all state laws insofar as they relate to any employee benefit plan described in the Act. Id. § 1144(a). In addition, plaintiffs contend that the DRG system is preempted by the National Labor Relations Act, 29 U.S.C.A. § 141 et seq. (West Supp.1984), and violates the equal protection and due process clauses of the United States and New Jersey Constitutions, as well as the supremacy clause of the United States Constitution.

Plaintiffs, by their motions, seek injunctions of two types, each initially requiring a separate analysis. First, they seek to have this Court enjoin any further proceedings in several New Jersey state court collection actions brought by the defendant hospitals against a number of the individual beneficiaries of the Fund who are plaintiffs herein. Second, plaintiffs seek a preliminary injunction enjoining the State of New Jersey and the defendant hospitals from any further implementation or enforcement of the DRG system. We shall first consider the request for an injunction to stay the state court proceedings.

INJUNCTION TO STAY STATE COURT PROCEEDINGS

The granting of an injunction of this type is quite unusual and requires a two-step analysis. First, we must determine whether the action falls within the ambit of the Anti-Injunction Act, 28 U.S.C.A. § 2283 (West Supp.1984). If it does, then an injunction cannot be issued regardless of the facts of the underlying case. See 17 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 4224 (West 1978). However, if the Anti-Injunction Act is not applicable, we must then consider the merits of the injunction request itself. Mitchum v. Foster, 407 U.S. 225, 243, 92 S.Ct. 2151, 2162, 32 L.Ed.2d 705 (1972); Vendo Co. v. Lektro-Vend. Corp., 433 U.S. 623, 645 n. 1, 97 S.Ct. 2881, 2895 n. 1, 53 L.Ed.2d 1009 (1977) (Stevens, J. dissenting) (providing a clear statement of relevant factors).

We begin with the Anti-Injunction Act which states that “[a] court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” 28 U.S.C.A., § 2283 (West Supp.1984). The Supreme Court has stated that the test to be applied in determining whether Congress has expressly authorized an exception to the Anti-Injunction Act is “whether an Act of Congress, clearly creating a federal right or remedy enforceable in a federal court of equity, could be given its intended scope only by the stay of a state court proceeding.” Mitchum v. Foster, 407 U.S. at 238, 92 S.Ct. at 2160.

It can hardly be contested that ERISA does not create a federal right or remedy enforceable in a federal court of equity. See Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 522-23, 101 S.Ct. 1895, 1905-06, 68 L.Ed.2d 402 (1981). Thus, the first prong of the Mitchum test is satisfied. Satisfaction of the second prong, namely, that the Act could be given its intended scope only by imposing the requested stay, is less clear. The Sixth Circuit, in discussing this second prong, concluded that

When a district court finds that an action in a state court will have the effect of making it impossible for a fiduciary of a pension plan to carry out out its responsibilities under ERISA, the anti-injunction provisions of § 2283 do not prohibit it from enjoining the state court proceedings.

General Motors Corp. v. Buha, 623 F.2d 455, 459 (6th Cir.1980) (citations omitted). The issue in Buha was whether pension benefits from an ERISA covered plan were subject to garnishment by a creditor of a plan beneficiary. Certainly, the plan administrator in Buha would have been frustrated in his attempts to carry out his responsibilities if third parties were allowed to garnish the benefits of a plan beneficiary.

In the instant case, the state court proceedings which plaintiffs seek to enjoin are collection actions brought by hospitals in New Jersey to recover from several individual Fund beneficiaries the difference between the DRG amount billed and the “actual costs” incurred which were paid by the Fund.

It is somewhat unclear at this point whether ERISA can be given its intended scope only through a stay of the state court actions. Were this Court to eventually find the DRG system to be preempted by ERISA, the issue presently being litigated in the state courts (the validity of the debt) could be rendered moot. However, should we eventually find that ERISA has not preempted the DRG system, then the actions in state court would be entirely appropriate. It must be noted that this matter is before us on plaintiffs’ motion for a preliminary injunction. The preemption issue is the ultimate issue of the case and one that we need not decide at this juncture.

Assuming, arguendo, that ERISA falls within an exception to the Anti-Injunction Act, we must nonetheless consider the propriety of the issuance of a stay. As the Third Circuit has recently stated:

A preliminary injunction is not granted as a matter of right. It may be granted, however, if the moving party demonstrates both a reasonable probability of eventual success in the litigation and that the party “will be irreparably injured pendente lite if relief is not granted.” The trial court may also consider the possibility of harm to other interested persons from the grant or denial of the injunction, as well as harm to the public interest. The grant or denial of a preliminary injunction is committed to the sound discretion of the district judge, who must balance all of these factors in making a decision.

Spartacus, Inc. v. Borough of McKees Rocks, 694 F.2d 947, 949 (3d Cir.1982) (citations omitted). Accordingly, if a movant is unable to show either of the first two factors the injunction to stay may be denied.

Regarding the issue of irreparable injury

The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, weighs heavily against a claim of irreparable harm.

Oburn v. Shapp, 521 F.2d 142, 151 (3d Cir.1975) (quoting Virginia Petroleum Jobbers Ass’n v. FPC, 259 F.2d 921, 925 (D.C.Cir.1958) (emphasis in original) (quoted with approval in Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 952, 39 L.Ed.2d 166 (1974)).

In the instant case, movants face the potential in the state court actions of having judgments entered against them in varying amounts. Any resulting harm can be corrected at a later date and, therefore, is not irreparable.

In our analysis of this matter we have considered whether the option of abstention by this Court should be taken. In essence, it appears that the necessity of plaintiffs’ federal court action could be obviated by a finding in state court that the DRG amounts billed have become the “actual charges” within the meaning of the Fund’s terms. Our reading of the Third Circuit opinion in Kennecott Corp. v. Smith, 637 F.2d 181 (3d Cir.1980) has convinced us, however, that the instant case, seeking as it does a determination of preemption by ERISA, is not one wherein the Court should abstain. As in Kennecott Corp.,

it is undisputed that the challenged New Jersey provisions apply to [the Fund]. Moreover, the New Jersey statute is clear on its face, and it is not susceptable of being construed in a way that would render it unnecessary to examine its impact on the purposes of [ERISA], In a preemption case, once it is evident that both a federal and a state law apply to a given situation, resolution of the case turns on an analysis of the policies of federal law.

Id. at 185. Thus, the question ultimately before us is whether the policies of federal law, enunciated by the enactment of ERI-SA, are compatible with those set forth by New Jersey’s hospital cost containment provisions. If any ambiguity exists, it appears to be in the Fund’s terms relating to “actual charges,” not in the New Jersey statute.

Plaintiffs miss the mark with the argument in their supplemental brief that by denying a stay the Court will, in effect, be denying them a forum mandated by Congress. Such is not the case. That forum is presently being used by plaintiffs in this case. Although, from the standpoint of practicality, it might be desirable for the parties to voluntarily move their state court cases to an inactive trial list pending the outcome of this matter, such a consideration does not warrant the requested stay. The issue of the constitutionality of the New Jersey plan is properly before this Court. The state court collection actions will simply decide whether the hospitals have been paid the amount of money due them. Should this Court eventually find the DRG system to be invalid, relief can be construed in a way which will repair any injuries suffered by the Fund beneficiaries.

Because plaintiffs here have failed to show that they will suffer immediate irreparable harm, we shall deny their motion to stay the pending state court proceedings.

PRELIMINARY INJUNCTION

We now consider plaintiffs’ request that we issue a preliminary injunction in order to enjoin any further implementation or enforcement of the DRG system. Unlike their request for a stay of the state court proceedings, this request does not require consideration of the Anti-Injunction Act. Thus, we need only consider the following four factors which have been discussed supra at pages 1230-1231. The factors are (1) reasonable probability of eventual success, (2) irreparable injury pendente lite if the relief is not granted, (3) potential harm to others from the grant or denial of relief, and (4) potential for harm to the public interest. See, e.g., Spartacus, Inc., 694 F.2d at 949 (3d Cir.1982). As will become more evident in our discussion below, we are most concerned with plaintiffs’ constitutional arguments as they relate to the first of these factors.

Preemption By ERISA

In their attempt to satisfy the first factor, plaintiffs maintain that New Jersey’s hospital rate setting plan has been preempted by ERISA. If plaintiffs are correct, New Jersey’s plan must be struck down. It is important to note that the Court, at this time, is concerned only with the “reasonable probability of [plaintiffs’] success” on the merits of this matter. Id. We are not attempting to make the findings ultimately necessary to resolve this controversy. It must also be noted that plaintiffs bear the burden of establishing the propriety or necessity of the issuance of this extraordinary remedy. See Kontes Glass Co. v. Lab Glass, Inc., 250 F.Supp. 193 (D.N.J.1966) aff’d 373 F.2d 319 (3d Cir.1967). See generally 11 Wright & Miller, Federal Practice and Procedure: Civil § 2948 (West 1973).

There can be no doubt that ERISA was intended by Congress to have a very broad scope of coverage and that numerous attempts to regulate pension and welfare plans at the state level have been preempted. See Shaw v. Delta Airlines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983) (provision of New York Human Rights Law affecting employee benefit plans preempted by ERISA insofar as it prohibits practices that are lawful under federal law); Alessi, 451 U.S. 504, 101 S.Ct. 1895, 68 L.Ed.2d 402 (1981) (provision of New Jersey Workers’ Compensation Act affecting pension payments was preempted by ERISA). Indeed, the language of ERI-SA itself indicates that state regulations are superseded insofar as they “relate to any employee benefit plan described in section 1003(a)” of the Act. 29 U.S.C.A. § 1144(a) (West 1975). Such relation can be direct or indirect and still be preempted by ERISA. Alessi, 451 U.S. at 525, 101 S.Ct. at 1907.

This broad preemptive scope, however, is not limitless.

Some state actions may affect employee benefit plans in too tenuous, remote, or peripheral a manner to warrant a finding that the law “relates to” the plan. Cf. American Telephone and Telegraph Co. v. Merry, 592 F.2d 118, 121 (2d Cir.1979) (state garnishment of a spouse’s pension income to enforce alimony and support orders is not pre-empted).

Shaw, 463 U.S. 85, - n. 21, 103 S.Ct. 2890, 2901-02 n. 21, 77 L.Ed.2d 490. The Supreme Court has yet to fully define the preemptive limits of ERISA.

A recent case from the District of New Jersey has held that ERISA did not preempt New Jersey’s Insolvency and Reorganization “Preference” statute, N.J.S.A. 14A:14-14. Deiches v. Carpenters’ Health & Welfare Fund of Philadelphia, 572 F.Supp. 766 (D.N.J.1983). Following the Supreme Court’s reasoning in Alessi, supra, the court in Deiches focused on the effect of the State’s statute on the employee benefit plan. Id. at 769. Accord Shaw, 463 U.S. at - n. 21, 103 S.Ct. at 2901-02 n. 21.

Plaintiffs contend that the New Jersey’s hospital rate setting scheme interferes with the administration of the Fund because it sets rates based on a patient’s diagnosis rather than on the actual costs incurred. The language of the Fund states that “actual charges” will be paid but fails to formally define this term. Plaintiffs maintain that the welfare plan cannot be administered in a consistent manner in a multistate area because the method used to calculate actual charges may vary from state to state. Plaintiffs cannot contend, however, that any standard billing system, used in all New Jersey hospitals, or in all hospitals within the Fund’s geographical area, has been disrupted by the implementation of the DRG system. Nor can they properly maintain that the administrative appeals process, which is used when a hospital bill appears to be excessive, imposes a new burden upon them. The fiduciary duty of the Fund administrator should require that he challenge the propriety of any bills appearing to be excessive thus seeking the lowest effective cost for the Fund’s beneficiaries. The mere fact that he may have to seek redress in a different forum than that to which he is accustomed is insufficient cause for us to find this new system preempted by ERISA. Keeping in mind that' we are not now ruling on the merits of plaintiffs’ case, the Court is not convinced that plaintiffs have presented what amounts to a “reasonable probability” of eventual success.

In a supplemental brief in support of their motion, plaintiffs rely on a recent case from the Southern District of New York, Rebaldo v. Cuomo, 749 F.2d 133 (2d Cir.1984). In that case, the district court had held that a portion of New York’s Public Health Law was preempted by ERI-SA. The law in question in Rebaldo, mandated that certain persons, including small insurance funds, pay a different rate than that paid by large corporate insurers like Blue Cross. Through the use of the “pay- or factor” it appears that the New Jersey DRG system may lead to the same result. The District Judge in Rebaldo found that the New York law “referred” to ERISA plans within the meaning of that act and was thus preempted. However, the Court of Appeals for the Second Circuit has recently vacated Rebaldo, holding that the law in question therein was not preempted in that it did not “relate” to the plan within the meaning of ERISA. Id. at 138.

Even if this Court were persuaded that plaintiffs had demonstrated a reasonable probability of success we would still hesitate to issue a preliminary injunction because of other relevant factors.

As heretofore stated, in this circuit a preliminary injunction will not issue unless the moving party can make a clear showing of “immediate irreparable injury.” Ammond v. McGahn, 532 F.2d 325, 329 (3d Cir.1976). “An injunction may not be used to eliminate the possibility of a remote future injury, or. a future invasion of rights. Rather, the plaintiff must demonstrate a ‘presently existing threat of irreparable injury.’ ” Sovereign Order of Saint John of Jerusalem—Knights of Malta v. Messineo, 572 F.Supp. 983, 989 (E.D.Pa.1983) (citation omitted). We are not convinced that the “harms” alleged to be suffered by plaintiffs rise to the level required. Plaintiffs’ brief refers to problems encountered by the Fund as a result of the DRG system, yet these problems seem to relate more to their preemption argument than to a showing of irreparable harm.

Next, we note that plaintiffs have not made mention of any potential harm which would be suffered by persons other than parties to this matter which would differ from that already discussed. In fact, the potential for a harm which this Court finds most pressing, the disruption of the state’s hospital/health care systems, would likely occur if we granted the relief sought by plaintiffs at this time and enjoined the State of New Jersey, and every hospital therein, from any further implementation of the DRG system. Thus, in balancing potential harms, it is clear that plaintiffs’ request should be denied.

Finally, we consider the public policies involved in this case. The principal policy function of the hospital rate setting procedure is cost containment. The spiraling cost of health care over the past decade has seriously hampered the ability of health care insurers (and uninsured individuals) to provide for adequate care at a reasonable cost. See Senate Institutions, Health and Welfare Comm., Statement to Senate No. 446, May 22, 1978. See also, N.J.S.A. 26:2H-1 (West Supp.1984-85). Whether this policy is sufficient to withstand preemption by ERISA is not a question for our consideration at this time. This policy does, however, strongly favor a denial of plaintiffs’ request for a preliminary injunction. If the state’s rate setting procedure is saving money and aiding cost containment, which appears likely, these policy arguments strongly favor its continuance pending a final decision on its propriety.

After balancing these four factors, we hold that plaintiffs have not demonstrated either the need for, or the wisdom of, a preliminary injunction.

Preemption By NATIONAL LABOR RELATIONS ACT

As a secondary ground for support of their position that the DRG system has been preempted by federal law, plaintiffs cite the National Labor Relations Act. 29 U.S.C.A. § 141 et seq. (West Supp.1984) (NLRA). Unlike ERISA, the NLRA does not contain any explicit preemptive language. As a result, traditional preemption principles have been applied to challenges of this type. See Brown v. Hotel and Restaurant Employees and Bartenders International Union Local 54, — U.S. -, 104 S.Ct. 3179, 82 L.Ed.2d 373 (1984).

In Brown, preemption analysis was based on the rationale that the NLRB has primary jurisdiction over the interpretation and application of labor law, presumes federal preemption where the regulated conduct is actually protected by federal law and in conflict with the questioned state law. Brown, — U.S. at -, 104 S.Ct. at 3186. The state law at issue in Brown, the New Jersey Casino Control Act, N.J.S.A. 5:12-1 et seq. (West Supp.1984-85), created certain criteria whereby any official of a union representing casino industry employees could be disqualified from holding office. There, the Court held that no substantive conflict existed between the Casino Control Act and the NLRA so as to cause preemption. Brown, — U.S. at -, 104 S.Ct. at 3190. Unlike Brown, which considered the clearly established right of employees “to bargain collectively through representatives of their own choosing,” id., the instant case involves a systematic hospital rate setting plan affecting every individual in New Jersey, not just union health plan members. Yet, plaintiffs summarily contend that the DRG system interferes with an important federal interest, i.e., the right of employees and employers to bargain collectively, and is thus preempted by federal law.

Plaintiffs also cite Alessi, 451 U.S. at 525, 101 S.Ct. at 1907. There, in dicta, the Court stated that when “pension plans emerge from collective bargaining, the additional federal interest in precluding state interference with labor-management negotiations calls for pre-emption of state efforts to regulate pension terms.... As a subject of collective bargaining, pension terms themselves become expressions of federal law, requiring pre-emption of intrusive state law.” Id. (citations omitted) (emphasis added).

The law in question in Alessi had totally eliminated one method of calculating pension benefits. Such a law is clearly intrusive on a pension plan and thus preempted. The law in question in the instant case is so much less intrusive than that in Alessi that we cannot find, in light of Brown, that preemption is likely.

Also in summary fashion, plaintiffs contend that the DRG system conflicts with the due process and equal protection clauses of the United States and New Jersey Constitutions as well as the supremacy clause of the United States Constitution. We do not find any of these arguments to be meritorious. As a result, plaintiffs’ motion for a preliminary injunction shall be denied.

CLASS CERTIFICATION

In addition to their requests for injunctive relief, plaintiffs seek certification of both a plaintiff and a defendant class. Under Fed.R.Civ.P. 23 a number of specific requirements must be met prior to class certification.

Initially, the movant must satisfy each of the following four requirements:

(1) that the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of those of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.

Fed.R.Civ.P. 23(a). Once each of these requirements is met, the movant must show that one of the criteria listed in Fed.R. Civ.P. 23(b) is also satisfied.

Considering these requirements individually and in order, it appears that plaintiffs immediately face significant problems. They contend that their class would consist of all of the beneficiaries of the Fund since July 20, 1978, which, they maintained numbered 4,038 in 1983. However, as was pointed out in defendants’ brief opposing class certification, the Fund provides benefits to participants in a number of states other than New Jersey.

At oral argument, plaintiffs conceded that the number of beneficiaries located in New Jersey was far fewer than their 4,000 member figure. In addition, they conceded that they did not even know how many of their members had received bills from hospitals for amounts in excess of what the plan terms “actual costs.” From all indications, it would appear that the true dispute in this case is between the Fund and the State of New Jersey, thus making class certification unnecessary.

Were the Court to assume that the numerosity requirement has been met, another significant problem is encountered by plaintiffs in the fourth factor, that the representative parties will fairly and adequately protect the interests of the class. By this action, plaintiffs are challenging the constitutionality of New Jersey’s hospital rate setting system. As plaintiffs have conceded in their papers, there have been instances where the Fund (and as a result its beneficiaries) has clearly benefitted from the DRG system. In fact, at oral argument the Fund’s attorney stated that it was believed that the Fund would have saved money during the first ten months of 1984 had it gone along with the DRG system. It is conceivable then, that from within the broad plaintiff class alleged to exist, there will be members who will feel their interests are best protected by an interpretation of the plan’s terms in a way authorizing payment of the DRG amount rather than by scrapping the DRG system altogether. The potential for antagonism between the interests of the Fund and certain of its members is sufficient to warrant our denial of certification of the proposed plaintiff class. See Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 247 (3d Cir.), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975) (citing Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir.1968)).

Given the fact that we find plaintiffs’ request for class certification to be unwarranted, in at least two respects, it is unnecessary for us to consider the requirement imposed by Fed.R.Civ.P. 23(b).

In addition to the request for certification of a plaintiff class, plaintiffs seek to have a defendant class certified. Such a class would consist of all of the 118 health care facilities located in New Jersey which participate in the DRG program. Presently, three of these hospitals are named defendants in this action. Plaintiffs are also seeking leave to amend their complaint in order to add two more hospitals as defendants. As with their request for certification of a plaintiff class, plaintiffs must satisfy each of the requirements of Rule 23(a) and one of the requirements of Rule 23(b). As with their other certification motion, plaintiffs encounter difficulty with the numerosity requirement of Rule 23(a)(1).

By their action plaintiffs seek to have New Jersey’s DRG system declared unconstitutional due to preemption by ERISA. Should this Court find the system to be preempted, that finding will apply to everyone in New Jersey—both individuals and hospitals. This point, together with the fact that at this time plaintiffs can readily join any of the hospitals which are bringing actions seeking money from Fund beneficiaries, leads us to the conclusion that a defendant class is unwarranted and unnecessary. See Aiello v. City of Wilmington, Del., 426 F.Supp. 1272 (D.Del.1976); see also Ihrke v. Northern States Power Co., 459 F.2d 566 (8th Cir.1972), vacated as moot, 409 U.S. 815, 93 S.Ct. 66, 34 L.Ed.2d 72 (1972). In this instance, we agree with, and find applicable, what was said by the Eighth Circuit in Ihrke,

The determination of the constitutional question can be made by the Court and the rules and regulations determined to be constitutional or unconstitutional regardless of whether this action is treated as an individual action or as a class action. No useful purpose would be served by permitting this case to proceed as a class action.

Ihrke, 459 F.2d at 572. We shall thus deny plaintiffs’ motion for certification of a defendant class. As with the request for certification of a plaintiff class we find it unnecessary to reach the requirements set forth in Rule 23(b).

In addition to the motions already discussed, plaintiffs seek leave of the Court to amend their complaint to add several Fund beneficiaries as plaintiffs and several New Jersey hospitals as defendants. No opposition to such amendment has been received by the Court and, at oral argument, defendants’ attorneys indicated that they did not oppose such amendment. The Court shall grant this motion and shall review any future motions of this type with an eye toward liberal amendment and joinder.

ORDER

This matter having come before the Court on the motions of plaintiffs, LEO BONSER, Administrator of the UNITED INDUSTRIAL WORKERS OF NORTH AMERICA WELFARE and PENSION FUND, et al., for a preliminary injunction, an injunction to stay certain state court proceedings, certification of a plaintiff class and a defendant class, and for leave to amend their complaint; and

For the reasons stated in the Court’s opinion filed this date;

It is on this 1st day of April, 1985, ORDERED that plaintiff’s motions for preliminary injunction, stay of state court proceedings and class certifications be and the same hereby are denied;

It is further ORDERED that plaintiffs’ motion to amend their complaint be and the same hereby is granted.

      . The "payor factor” is a multiplier which distinguishes between one payor (e.g. the Fund) and another. These differences are derived from "quantifiable economic benefits rendered to the ... [hospital].” N.J.S.A. 26:2H-18 (West Supp. 1984-85). Examples of the economic benefits which are noted in the statute include the promptness and volume of payments by a pay- or. Id. In essence, the payor factor appears similar to a volume discount which might be offered by some other supplier of goods or services.

      . The collection actions pending in state courts between the hospitals and the Fund beneficiaries have apparently arisen because the Fund will pay only for what it identifies as “actual charges." In some cases, the DRG amount exceeds the amount which the Fund will pay resulting in an underpayment which is being sought from the patients.

      . The Court is troubled by the interpretation of the welfare plan which is put forth by plaintiffs. In their brief, plaintiffs seem to argue that the term "actual charges” excludes the terms used by the hospital rate setting scheme. In a portion of the welfare plan appended to the affidavit of plaintiffs’ counsel, it is stated that "the plan will pay up to 80 percent of the reasonable and customary covered expenses for medical care and services incurred.... Covered expenses are those charges necessary for the treatment of a sickness or injury, actually incurred on account of such sickness or injury. The charges must be reasonable and commensurate with prices generally furnished in the area concerned. (Exhibit A to the October 23, 1984 affidavit of Alicia Lynch, Esquire) (emphasis added). The Court wonders whether the difficulties being encountered by certain plan beneficiaries would not be best resolved by an action seeking an interpretation of the above quoted portion of the plan. It would seem reasonable to read this language as authorizing payments to hospitals based on the DRG system as being those charges which are "reasonable and commensurate with prices generally furnished in the area concerned.”
      Such an action has not, to our knowledge, yet been instituted.

      . It should be noted that the Federal government has recently enacted a DRG system similar to New Jersey's for use with the national medicare system. See 42 U.S.C.A. § 1395ww(d) (West 1984).

      . As was candidly conceded at oral argument by the attorneys for plaintiffs, the welfare fund herein challenging the DRG system would have saved money for the first ten months of 1984 if it had gone along with the DRG system and paid the DRG amount for the hospitalization of its beneficiaries.


author: ROBERT L. CARTER, District Judge.

text:
    Rosita PAGAN, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    No. 84 Civ. 448 (RLC).
    United States District Court, S.D. New York.
    April 1, 1985.

      Binder and Binder, Hauppauge, N.Y., for plaintiff; Charles E. Binder, Hauppauge, N.Y., of counsel.
    Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for defendant; Neal S. Mann, Sp. Asst. U.S. Atty., Annette H. Blum, Regional Attorney-Region II, Leonora Pennell Baker, Special Asst. Regional Atty., Dept. of Health and Human Services, of counsel.
   OPINION

ROBERT L. CARTER, District Judge.

This is an action brought by plaintiff under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to review a final determination of the Secretary of Health and Human Services denying plaintiff’s application for disability insurance benefits.

Plaintiff Rosita Pagan filed an application for benefits on September 16, 1982, based on disability because of diabetes, hypertension, phlebitis and arteriosclerosis. She alleged an onset date of April 29, 1982. The application was denied initially and on reconsideration. A hearing was held on May 23, 1983, and on June 15, 1983, the Administrative Law Judge (AU) found that the plaintiff was not disabled. The plaintiff then submitted additional medical evidence to the Appeals Council, which considered the new evidence, but adopted the decision of the AU as the Secretary’s final determination.

Pagan was born on July 26, 1923, and was fifty-nine years old at the time of her hearing. She has a seventh grade education, obtained in Puerto Rico, and is illiterate in English. Her past relevant work is that of a laborer in an electronics factory, where she worked for twenty-eight years before the onset of her alleged disability. Her job was to assemble pieces of electronic components, using an electric machine. According to Pagan, the job required her to sit for all eight hours of the working day. (Tr. 77).

The medical evidence in the record may be summarized as follows:

On April 29, 1982, Pagan became ill at work, and was taken to Prospect Hospital where she was admitted complaining of chills, fever, and generalized aches and pains. (Tr. 8, 33, 90). The hospital report shows a two to three-year history of diabetes and a six-year history of hypertension for which she takes the drugs diabinese and aldomet. The report also notes a history of thrombophlebitis (development of solid masses of blood constituents in the veins, causing inflammation) of the right leg, with intermittent edema, though with good pulsation bilaterally. (Tr. 90). Pagan was treated with bed rest, aldomet and insulin, and discharged ten days later. Upon discharge, the attending physician, Dr. Manuel Vazquez, diagnosed viremia (presence of a virus in the bloodstream), diabetes, hypertensive arteriosclerosis, and chronic deep thrombophlebitis. (Id.).

By letter dated September 10, 1982, Dr. Vazquez stated that he had been treating Pagan since December, 1978, for diabetes, arteriosclerosis, hypertension and phlebitis of the right leg. Dr. Vazquez said that plaintiffs “condition had been intermittently worse requiring hospitalization on several occasionsf,]” and opined that she was “in no condition to work.” (Tr. 92).

Dr. Vazquez submitted additional medical reports on February 4, 1983 (Tr. 100), May 17, 1983 (Tr. 107), and July 23, 1983 (Tr. 7), indicating that Pagan continued to suffer from diabetes, hypertensive arteriosclerosis, and phlebitis of the right leg. Dr. Vazquez assessed Pagan as physically capable of occasionally lifting or carrying up to twenty-five pounds, and able to perform finger and hand manipulations without limitation. He found her able to sit for four hours and to stand or walk for two hours each during the course of an eight-hour day, but he added that she could sit, stand, or walk for only one hour at a time. In the margin of the reporting form, Dr. Vazquez noted that Pagan’s “capacity changes with her symptoms[,]” and at the bottom of the page he stated that her “condition is intermittently worse. At times she is completely disabled.” (Tr. 7).

At the government’s request, Pagan was examined by Dr. S. Anand on November 16, 1982. Pagan complained of headaches, dizziness, shortness of breath, chest pain, and arthritis. The physical examination was normal in most respects. However, there was plus-two pedal edema without cyanosis, clubbing or varicose veins, and pain on bending of the knees. (Tr. 94). In addition, X-rays of Pagan’s chest showed enlargement of the heart and minimal uncoiling of the aorta. (Tr. 96). The impression of the radiologist, Dr. H. Rabiner, was cardiomegaly. (Id.). Dr. Anand diagnosed plaintiff as suffering from diabetes, hypertension, arthritis and chest pain not secondary to atherosclerotic heart-disease. (Tr. 95).

Dr. Robert Small, a board-certified internist, examined plaintiff on August 3, 1983, at the request of plaintiff’s counsel. Plaintiff complained of chest congestion, shortness of breath and an inability to climb stairs. (Tr. 8). The physical examination was unremarkable except for blood pressure of 160/102 and edema of both legs. (Id.). Dr. Small found that plaintiff was suffering from chronic painful phlebitis of both legs, which rendered her “permanently and totally disabled from any gainful employment of any type[,]” complicated by diabetes and severe high blood pressure. (Id.).

At the hearing, Pagan testified that she lives with her husband in a second-story walk-up apartment in the Bronx, New York. (Tr. 37-38). Her daily activities include doing the household cooking, dusting furniture, making the beds, doing the dishes and watching television. (Id.). Her husband helps her with the shopping and cleaning (Tr. 37). Plaintiff lies down and elevates her leg two or three times a day for one or two hours at a time (Tr. 35, 39). She socializes with friends and relatives who occasionally come to visit (Tr. 40).

Pagan testified that her leg is swollen and painful (Tr. 34) and that she suffers constant pain in her back (Tr. 36-37), and pain in her chest when her blood pressure rises, which happens “[a]lmost all the time[, o]n a monthly basis.” (Tr. 35). She said she cannot take buses or subways because she has difficulty standing and walking. She estimated that she can stand for less than half an hour (Tr. 35) and can sit for up to one hour (Tr. 36). She said that she climbs the stairs to her apartment about three times a day. (Tr. 38).

In his decision, the ALJ concluded that plaintiff’s impairments did not prevent her from returning to her past relevant work as an assembler, and therefore that plaintiff was not disabled under the terms of the Social Security Act. Specifically, the ALJ found that though Pagan suffered from severe hypertension, there was no evidence of phlebitis, and her allegations of severe and debilitating pain were exaggerated (Tr. 16-17).

DISCUSSION

The Secretary’s findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g); Richard v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). In this ease, the Secretary found that there was no evidence that Pagan suffered from phlebitis. She reached this conclusion despite the opinion of the treating physician, Dr. Vazquez, that Pagan suffered from deep thrombophlebitis of the right leg, with edema and pain. In cases where the claimant’s treating physician has expressed an opinion, “the Secretary is required to give considerable—and if uncontradicted, conclusive—weight” to that opinion. Ferraris v. Heckler, 728 F.2d 582, 585 (2d Cir.1984) (citations omitted).

There is no substantial medical evidence to contradict Dr. Vazquez’s opinion and to support the Secretary’s finding of no phlebitis. The Secretary claims to have relied on the findings of the consulting physician, Dr. Anand, who did not mention phlebitis in his report. But Dr. Anand’s findings, though not identical to Dr. Vazquez’s, do not contradict Dr. Vazquez’s, and certainly do not constitute substantial evidence of no phlebitis. Like Dr. Vazquez, Dr. Anand diagnosed pedal edema (Tr. 94); edema of the leg can be a symptom of phlebitis. See Harrison’s Principles of Internal Medicine 48, 170 (R. Petersdorf, R. Adams, E. Braunwald, K. Isselbacher, J. Martin, J. Wilson eds. 10th ed. 1983). The other medical evidence in the record directly contradicts the Secretary’s findings: notwithstanding a notation of good pulsation bilaterally, the records of Prospect Hospital note a history of thrombophlebitis with edema (Tr. 90), and Dr. Small, the internist, diagnosed chronic painful phlebitis of both legs, rendering Pagan completely disabled. (Tr. 8).

The non-medical evidence in the record also does not constitute substantial evidence supporting the Secretary. Pagan testified that in the course of a day she does some light chores around the house unassisted, climbs the flight of stairs to her apartment three times, and shops and cleans with her husband’s help. (Tr. 37-38). She also said that she needs to lie down and elevate her leg two or three times a day for one or two hours at a time, and that she cannot use buses or subways because she has difficulty standing and walking (Tr. 35, 39). Though this testimony demonstrates that Pagan was not “completely helpless or unable to function,” Gold v. Secretary of Health, Education and Welfare, 463 F.2d 38, 41 n. 6 (2d Cir.1972), it does not constitute substantial evidence of no phlebitis. On the contrary, Pagan’s limited ability to get around and her need periodically to elevate her leg support Dr. Vazquez’s findings. Dr. Vazquez’s diagnosis of phlebitis is therefore uncontradicted, and binding on the Secretary.

The Secretary’s ultimate finding—that Pagan could return to her old job—is likewise not supported by substantial evidence. Pagan reported that her old job required her to sit for all eight hours of the working day. (Tr. 77). The Secretary did not say that she disbelieved Pagan’s report on this score; nor is there any reason to disbelieve Pagan. Dr. Vazquez assessed Pagan as able to sit for no more than four hours out of eight and to walk or sit for two hours each out of eight, and added that Pagan could neither sit, stand nor walk for more than one hour at a time. No other physician assessed Pagan’s residual capacities. Pagan herself testified that she could sit for no more than an hour and stand for no more than thirty minutes. She also stated that though she is able to do some chores and climb stairs, she must lie down and elevate her leg two or three times daily for one or two hours at a time. In light of Dr. Vazquez’s uncontradicted assessment, which binds the Secretary, and Pagan’s own testimony, the Secretary’s finding that Pagan could return to a job that would require her to sit for all eight hours of her workday is simply mystifying.

Having found the Secretary’s findings that Pagan did not suffer from phlebitis and that Pagan could return to her old job to be unsupported by substantial evidence, the court could end its review here. However, the court finds that the Secretary committed other reversible errors in Pagan’s case. Rather than see the Secretary repeat those errors on remand, the court addresses those errors now.

The Second Circuit has established an analytical framework that AU’s must follow in assessing disability: “Initially, the AU should see whether the treating physician has determined that the claimant is disabled. He should then examine the record for conflicting evidence. Upon finding conflicting evidence, he should compare the probative value of the treating physician’s opinion with the probative value of the conflicting evidence. He should do so with the recognition that the treating physician’s determination is generally ‘entitled to more weight than that of a doctor who has only seen the claimant once....’” Bluvband v. Heckler, 730 F.2d 886, 893 (2d Cir.1984) (citations omitted).

The ALJ in the instant case did not follow the framework. Instead, the ALJ assumed, ab initio, that the report of the treating physician deserved less weight than that of the consultative physician (who had seen the claimant only once) because the former “contained no clinical findings from which measure [sic] the degree of claimant’s impairment.” (Tr. 16). This is precisely the position taken by the ALJ in Bluvband v. Heckler, supra. There, the Second Circuit reversed and remanded the case, holding that “[i]t was improper for the ALJ to disregard the ... framework by requiring from the start that [the treating physician’s] expert opinion be accompanied by concrete and detailed clinical support.” Id. at 893. See also Eiden v. Secretary of Health, Education and Welfare, 616 F.2d 63, 65 (2d Cir. 1980) (“there is no requirement that medical testimony ‘be supported by “objective” clinical or laboratory findings,’ ”) citing Cutler v. Weinberger, 516 F.2d 1282, 1287 (2d Cir. 1975). In the instant case, the Secretary is instructed on remand to follow the analytical framework and to accord the treating physician’s report “considerable—and if uncontradicted, conclusive—weight.” Ferraris v. Heckler, supra, 728 F.2d at 585.

The Secretary also erred in her evaluation of Pagan’s allegations of pain. The AU is certainly permitted to assess the credibility of an individual’s allegations of pain and to make an independent judgment; however, “this independent judgment should be arrived at in light of all the evidence regarding the extent of the pain.” Rivera v. Schweiker, 717 F.2d 719, 724 (2d Cir.1983) (emphasis in original) (citations omitted).

In this case, Pagan complained of pain in her back, chest and legs. In his evaluation of Pagan’s allegations, however, the AU considered only leg pain, and disregarded entirely the claims of chest and back pain. Clearly, the AU did not fulfill his obligation to consider all the evidence. Moreover, in assessing Pagan’s claim of leg pain, the AU based his opinion that the pain was not disabling on the fact that Dr. Anand’s examination indicated that there was a full range of motion in all major points including the knees. The AU also noted his own observations that Pagan did not appear to be in pain during her hearing and that her activities were “not those of a person who suffers extreme pain.” (Tr. 16). He apparently did not rely at all upon the fact that the cause of the claimant’s leg pain, according to Dr. Vazquez, is recurrent edema of the right leg due to deep thrombophlebitis. (Tr. 107). Dr. Small also linked Pagan’s leg pain to phlebitis. (Tr. 8). Again, the AU failed to consider all the evidence in assessing pain. On remand, the Secretary must consider the medical evidence of phlebitis; subjective allegations of pain accompanied by objective medical evidence should be given great weight. Rivera v. Schweiker, supra, 717 F.2d at 725.

CONCLUSION

The Secretary’s findings that Pagan did not suffer from phlebitis, and can return to her old job are not supported by substantial evidence. The case is remanded to the Secretary for a determination whether there is other work which the claimant could perform. See 20 C.F.R. §§ 404.1520, 416.920; Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982). The court cannot make this determination on its own; it is up to the Secretary to apply the “grid,” 20 C.F.R. Sub-part P, Appendix 2, to determine whether Pagan can do other work in the national economy. “[W]hen the Secretary ha[s] not applied the grid, application of the grid by the courts exceeds the scope of judicial review ...” Johnson v. Heckler, 741 F.2d 948, 952 (7th Cir.1984). See also Rivera v. Schweiker, supra, 717 F.2d at 725 (case must be remanded where Secretary has not yet considered whether claimant could engage in gainful activity less strenuous than previous employment).

IT IS SO ORDERED.

      . The abbreviation “Tr." is a reference to the page number in the administrative record filed as part of defendant's answer.

      . “Plus-two” is a measure of interstitial fluid pressure, on a scale of one to four. "One-plus edema means edema that is barely detectable, and 4+ edema means edema in which the limbs are swollen to diameters 1.5 to 2 times normal.” A. Guyton, Textbook of Medical Physiology 376 (6th ed. 1981).

      . Substantial evidence means " ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938).

      . The record does not make clear whether Dr. Anand is a man or woman. The masculine pronoun is used for convenience only.

      . The Secretary, however, is not bound by Dr. Vazquez’s use of the word "disabled.” Because "disability” is a term of art with a narrow definition under the Social Security Act, the responsibility for deciding the ultimate issue of disability is the Secretary’s. 20 C.F.R. § 404.1527; Kaminski v. Califano, 465 F.Supp. 367, 379 (S.D. N.Y.) (Weinfeld, J.), aff’d mem. sub nom. Kaminski v. Department of Health, Education and Welfare, 614 F.2d 1288 (2d Cir.1979), citing Hofacker v. Weinberger, 382 F.Supp. 572, 576 (S.D. N.Y.1974) (Carter, J.).

      . Even if the Secretary were free to discount a treating physician’s opinion simply because the opinion was unaccompanied by clinical findings, it would have been error for the Secretary to do so in the instant case. The record shows unambiguously that Dr. Vazquez’s opinion was supported by clinical and laboratory findings. Dr. Vazquez submitted Pagan’s hospital discharge summary, which included her history, the physical findings on admission (including demeanor; body temperature; ear, nose and throat examination; chest and heart examination; ventricular rate; examination of the abdomen and extremities), as well as diagnostic tests (blood sugar, urine analysis, and electrocardiogram). Dr. Vazquez’s May 17, 1983 update noted a positive Homan’s sign on the right—a clinical finding noting discomfort behind the right knee on forced dorsiflexion of the foot, signaling thrombosis of the leg. (Tr. 27).