This case is back before the court for a third time. Plaintiffs now move to redefine the class certified on October 24, 1985, seeWhite v. Heckler, 108 F.R.D. 85 (S.D.N.Y.1985) (Carter, J.), or, in the alternative, to modify the judgment entered on May 23, 1986. SeeWhite v. Bowen, 636 F.Supp. 1235 (S.D.N.Y.1986) (Carter, J.).
The United States District Court for the Southern District of New York (Carter, J.) certified the class and defined it to include "all persons residing in New York State who concurrently applied for, or were concurrently determined eligible for," OASDI and SSI benefits, and whose retroactive OASDI benefits "were or will be reduced" because the Secretary "has paid or will pay to a local social services agency an amount alleged to be [a portion of] the . . . recipient's retroactive SSI benefits" as reimbursement to that agency for interim welfare assistance. White v. Heckler, 108 F.R.D. 85, 86 (S.D.N.Y. 1985). In granting the Secretary's motion for judgment on the pleadings, the district court held, 636 F.Supp. 1235 (S.D.N.Y. 1986), that the Secretary's practice is not inconsistent with the language and legislative history of both the original windfall offset provision of the Act, 42 U.S.C. § 1320a-6 (1982), and such provision as amended by the Deficit Reduction Act of 1984, Pub.L. No. 98-369, § 2615, 1984 U.S. Code Cong. Admin.News (98 Stat.) 1132 (codified at 42 U.S.C. § 1320a-6 (Supp. III 1985)).
First, it would be unreasonable to expect that a claimant, diligently attempting to discern the meaning of the Secretary's regulations, would examine Congressional hearings dealing with the Social Security Act. Cf.Hyatt, 807 F.2d at 381; White v. Heckler, 108 F.R.D. 85, 87 & 90 (S.D.N.Y.1985) (policy mandated by internal SSA memorandum and Program Operations Manual System was covert, even though it was " revealed in pages of the Federal Supplement" ). Second, I am not persuaded that there is anything in the Congressional testimony that would place a claimant on notice of a covert heightened severity test.
ROBERT L. CARTER, District Judge. On October 24, 1985, the court, in an opinion with which familiarity is assumed, certified this case as a class action. White v. Heckler, 108 F.R.D. 85 (S.D.N.Y. 1985) (Carter, J.). Clee v. Heckler and Ortega v. Secretary were consolidated with this case by Stipulation and Order dated April 1, 1986.