2. Plaintiffs' As-Applied Challenge
Plaintiffs ask the court to enjoin the Secretary from applying systematically step two in a manner inconsistent with the Social Security Act's definition of disability. See Bowen v. Yuckert, 482 U.S. 137, 107 S. Ct. 2287, 2298-99, 96 L. Ed. 2d 119 (1987) (O'Connor, J., concurring) ("Respondent's evidence suggests that step 2 has been applied systematically in a manner inconsistent with the statute."). Plaintiffs have presented evidence of past misapplication practices, but those practices were not the basis for the court's preliminary injunction. See supra section II.A. To maintain the injunction plaintiffs must at the very least establish that such misapplication will likely occur, and they cannot do so. SSR 85-28, one of the Secretary's most recent interpretations of step two, has never been in effect in New Jersey because of this court's preliminary injunction. Plaintiffs present no more than mere speculation to show that the Secretary will misapply step two if the court vacates its injunction. See Dixon v. Bowen, 673 F. Supp. 123, 128 (S.D.N.Y. 1987) (denying without prejudice preliminary injunction in similar circumstances because "plaintiffs have not presented any evidence indicating that the Secretary currently intends to misapply step 2 or [SSR 85-28]"). Because plaintiffs cannot demonstrate that they will likely succeed on the merits of their claim, and because there is no other claim to support a preliminary injunction, the court must vacate the injunction now in force. However, the court will do so without prejudice to plaintiffs' right to apply for injunctive relief should the Secretary misapply step two. See id. To help bring this litigation to an ultimate resolution, the court will order plaintiffs to show cause in sixth months why their complaint should not be dismissed, and at that time the court can determine whether their as-applied challenge remains viable.
D. Plaintiffs' Motion for Partial Summary Judgment
Plaintiffs have moved for partial summary judgment on the issues of whether the Secretary promulgated SSR 85-28 (1985) and certain additional instructional materials in violation of the APA, and whether the Secretary will continue to misapply step two of the sequential evaluation process. For the same reasons that plaintiffs have failed to convince the court that they are likely to succeed on the merits of these two contentions, the court must deny their motions for partial summary judgment.
The standard for granting summary judgment is a stringent one, but it is not insurmountable. A court may grant summary judgment only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir. 1986); Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). In deciding whether there is a disputed issue of material fact the court must view all doubt in favor of the nonmoving party. Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n. 2 (3d Cir. 1983), cert. denied, 465 U.S. 1091, 79 L. Ed. 2d 910, 104 S. Ct. 2144 (1984); Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870, 874 (3d Cir. 1972). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
Recent Supreme Court decisions mandate that "a motion for summary judgment must be granted unless the party opposing the motion can produce evidence which, when considered in light of that party's burden of proof at trial, could be the basis for a jury finding in that party's favor." J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir. 1987) (Becker, J., concurring) (citing Anderson, 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505, and Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). Moreover, once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Thus, even if the movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment. Anderson, 477 U.S. at 249-50.
The court has found that plaintiffs have failed to demonstrate likelihood of success on their claim of an APA violation because they cannot convince the court that SSR 85-28 is not an interpretive ruling and therefore subject to the APA's notice and comment requirement. Although plaintiffs met their initial summary judgment burden of demonstrating an absence of genuine issue of material fact, the Secretary has met plaintiffs' challenge by demonstrating that the challenged ruling is interpretative rather than legislative. The court must therefore deny plaintiffs' motion for summary judgment on this issue.
The court has also found that plaintiffs have failed to demonstrate likelihood of success on their claim that the Secretary will continue to misapply step two. Plaintiffs have not even met their initial burden of establishing the absence of a genuine factual issue on this question. Nothing that they have put forward is probative of their claim that the Secretary will misapply the severity regulation if the court permits him to apply step two to New Jersey claimants. The court must therefore deny plaintiffs' motion for summary judgment on this issue as well.
E. The Secretary's Motion for Summary Judgment on Plaintiffs' APA Claim
Plaintiffs' only APA-based challenge to SSR 85-28 is that it is subject to notice and comment procedures. To succeed on their claim that the Secretary promulgated SSR 85-28 (1985) and certain additional instructional materials in violation of the APA's notice and comment procedure, plaintiffs must show that the challenged rulings are legislative rather than interpretive. They cannot do so. See supra section II.C.1. Because the court has determined that the SSR and additional instructions are interpretive rulings and therefore not subject to the notice comment procedures set forth in 5 U.S.C. § 553(b) (1982), the court must grant the Secretary's motion for summary judgment on this issue.
F. Retrospective Expansion of the Class
In its opinion granting plaintiffs' motion for class certification the court noted that "it may see fit to broaden or narrow the temporal scope of the class in the future." Wilson v. Bowen, 622 F. Supp. 649, 658 (D.N.J. 1985). The court's order indicated that "the plaintiff class does not include, at this time, any such persons who received decisions of the Secretary on or before July 25, 1984 and who failed either to file a complaint in federal district court or appeal to the next level of administrative review within 60 days after the date of receipt of such decision." Id. at 662. The Secretary now asks the court to rule that it will not expand the class to include such individuals.
In support of his position the Secretary explains that a class action brought pursuant to 42 U.S.C. § 405(g) (1982) cannot be maintained on behalf of class members who could not have brought actions for review under that section on their own behalf. See Califano v. Yamasaki, 442 U.S. 682, 701, 61 L. Ed. 2d 176, 99 S. Ct. 2545 (1979). Section 405(g) provides the exclusive avenue of judicial review for denial or termination of Social Security benefits. See Weinberger v. Salfi, 422 U.S. 749, 763-64, 45 L. Ed. 2d 522, 95 S. Ct. 2457 (1974). Section 405(g) provides in part: "Any individual, after any final decision of the Secretary made after a hearing to which he was a party, . . . may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision." The Secretary argues that section 405(g) prevents the court from expanding the class to include disappointed claimants who failed to file a district court action in sixty days.
The Secretary recognizes that the sixty-day period specified in section 405(g) is a limitation period rather than a jurisdictional provision and therefore may be tolled in certain cases. See Bowen v. City of New York, 476 U.S. 467, 480, 90 L. Ed. 2d 462, 106 S. Ct. 2022 (1986) ("application of a 'traditional equitable tolling principle' to the 60-day requirement of § 405(g) is fully 'consistent with the overall congressional purpose' and is 'nowhere eschewed by Congress'") (quoting Honda v. Clark, 386 U.S. 484, 501, 18 L. Ed. 2d 244, 87 S. Ct. 1188 (1967)). In City of New York the class members
"did not and could not know that . . . adverse decisions had been made on the basis of a systematic procedural irregularity that rendered them subject to court challenge. Where the Government's secretive conduct prevents plaintiffs from knowing of a violation of rights, statutes of limitations have been tolled until such time as plaintiffs had a reasonable opportunity to learn the facts concerning the cause of action. Since in this case the full extent of the Government's clandestine policy was uncovered only in the course of this litigation, all class members may pursue this action notwithstanding the 60-day requirement."