condition has improved now or that it had improved at the earlier time when benefits were terminated.

On August 15, 1983, after the Ninth Circuit refused to issue an emergency stay, the Secretary notified approximately 30,000 members of the class that they could apply for reinstatement of benefits. The Secretary already has begun to receive applications. Thus the Secretary only requests that I stay the portion of Paragraph 4(c) which requires her to pay benefits to all applicants until she establishes their lack of disability through hearings complying with Patti and Finnegan.

My obligation as a Circuit Justice in considering the usual stay application is "to determine whether four Justices would vote to grant certiorari, to balance the so-called 'stay equities,' and to give some consideration as to predicting the final outcome of the case in this Court." Gregory-Portland Independent School District v. United States, 448 U. S. 1342 (1980) (REHNQUIST, J., in chambers). The Secretary's stay application does not come to me in the posture of the usual application, however. The Secretary does not ask me to stay the judgment of the Court of Appeals pending the disposition of a petition for certiorari in this Court. She asks instead that I grant a stay of the District Court's judgment pending appeal to the Ninth Circuit when the Ninth Circuit itself has refused to issue the stay.

Although there is no question that I have jurisdiction to grant the Secretary's request, it is also clear that "a stay application to a Circuit Justice on a matter before a court of appeals is rarely granted."" Atiyeh v. Capps, 449 U. S. 1312, 1313 (1981) (REHNQUIST, J., in chambers) (citation omitted); see O'Rourke v. Levine, 80 S. Ct. 623, 624, 4 L. Ed. 2d 615, 616 (1960) (Harlan, J., in chambers). For the reasons I am about to set out, I believe that the present case is sufficiently unusual to warrant the relief sought.

Ordinarily, in an action for an injunction, the decision of the court on the "merits" will be of greater concern to a re

viewing court than the particular provisions of an injunction, which are primarily entrusted to the discretion of the district court. In this case, however, I believe that the scope of the District Court's injunction would prompt review of the injunction by at least four Members of this Court should the Court of Appeals affirm it without modification. I believe this is true even though I assume that the Court of Appeals for the Ninth Circuit will certainly follow its Patti and Finnegan decisions when it hears the Secretary's appeal. I likewise assume that since there does not appear to be any significant circuit conflict on this point at present, four Justices of this Court would not be likely to grant a petition for certiorari should the Secretary seek review in this Court of the merits of a Ninth Circuit opinion reaffirming Patti and Finnegan.

But the District Court's injunction goes far beyond the application of Patti and Finnegan to concrete cases before it. I think that Paragraph 4(c) of the injunction issued by the District Court, because of its mandatory nature, its treatment of the statutory requirement of exhaustion of administrative remedies, and its direction to the Secretary to pay benefits on an interim basis to parties who have neither been found by the Secretary nor by a court of competent jurisdiction to be disabled, significantly interferes with the distribution between administrative and judicial responsibility for enforcement of the Social Security Act which Congress has established. While review of an injunction issued by a lower federal court independently of the "merits" of the issue involved in the case is not common, this Court has not hesitated to reverse a District Court where it concluded that the injunction did not comply with a provision of the Federal Rules of Civil Procedure, without ever reaching the "merits" of the question involved. See, e. g., Schmidt v. Lessard, 414 U. S. 473 (1974).

The injunction issued by the District Court in this case must be evaluated first in the light of the provisions for judi

cial review of determinations of eligibility for benefits by the Secretary. The principal provisions follow:

"Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, 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 or within such further time as the Secretary may allow. . . . The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . 49 Stat. 624, as amended, 42 U. S. C. § 405(g) (1976 ed., Supp. V).

"The findings and decisions of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under sections 1331 or 1346 of title 28 to recover on any claim arising under this subchapter." 42 U. S. C. §405(h). We have held that these provisions codify the doctrine of exhaustion of administrative remedies, circumscribe the methods by which judicial review of a determination of the Secretary may be obtained, and set forth the standard for the exercise of judicial review. Weinberger v. Salfi, 422 U. S. 749 (1975). We have also held that the scope of judicial review of the Secretary's determinations is a very limited one. Heckler v. Campbell, 461 U. S. 458, 466 (1983).

The scope of the District Court's injunction must also be evaluated in the light of familiar principles of administrative law enunciated in our decisions. In Vermont Yankee Nu

clear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 524 (1978), this Court said:

"[T]his Court has for more than four decades emphasized that the formulation of procedures was basically to be left within the discretion of the agencies to which Congress had confided the responsibility for substantive judgments. In FCC v. Schreiber, 381 U. S. 279, 290 (1965), the Court explicated this principle, describing it as 'an outgrowth of the congressional determination that administrative agencies and administrators will be familiar with the industries which they regulate and will be in a better position than federal courts or Congress itself to design procedural rules adapted to the peculiarities of the industry and the tasks of the agency involved.""

In FPC v. Transcontinental Gas Pipe Line Corp., 423 U. S. 326, 333 (1976), this Court similarly observed: "[I]n the absence of substantial justification for doing otherwise, a reviewing court may not after determining that additional evidence is requisite for adequate review, proceed by dictating to the agency the methods, procedures, and time dimension of the needed inquiry and ordering the results to be reported to the court without opportunity for further consideration on the basis of the new evidence by the agency. Such a procedure clearly runs the risk of 'propel[ling] the court into the domain which Congress has set aside exclusively for the administrative agency. SEC v. Chenery Corp., 332 U. S.

194, 196 (1947).”

With these general principles in mind, I turn to the particulars of the injunction issued by the District Court. It is unlike the usual "prohibitory" injunction which merely freezes the positions of the parties until the court can hear the case on the merits. See University of Texas v. Camenisch, 451 U. S. 390, 395 (1981). The injunction issued here is in substance, if not in terms, a mandatory one, which "like a mandamus, is an extraordinary remedial process which is granted, not as a matter of right but in the exercise of a

sound judicial discretion." Morrison v. Work, 266 U. S. 481, 490 (1925).

Paragraph 4(c) forces the Secretary immediately to pay benefits to every Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI) recipient whose benefits have been terminated within the last two years because of cessation of disability. It also forces the Secretary to pay benefits to every SSI recipient under the "Grandfather Clause" of the Social Security Act whose benefits have been terminated within the last three years because of cessation of disability. The Secretary's obligation to pay is triggered merely by the recipient's statement in his application that, in his subjective belief, his medical condition has not improved since the earlier determination. I have serious doubt, which I believe would be shared by other Members of this Court, whether this provision is consistent with 42 U. S. C. §405(i) or with this Court's admonition in Schweiker v. Hansen, 450 U. S. 785 (1981), that the courts have a duty "to observe the conditions defined by Congress for charging the public treasury."" Id., at 788 (quoting Federal Crop Insurance Co. v. Merrill, 332 U. S. 380, 385 (1947)).

The nature of the mandatory relief granted by the District Court in this case is exacerbated by the fact that the District Court defined the class to include numerous individuals who have never received "final decisions" from the Secretary on their claims within the meaning of 42 U. S. C. §405(g) and over whom arguably the District Court has no jurisdiction. In Weinberger v. Salfi, supra, the Court held that there was a nonwaivable and a waivable portion of §405(g)'s exhaustion requirement. The nonwaivable portion requires that "a claim for benefits shall have been presented to the Secretary" before judicial review can be sought. Mathews v. Eldridge, 424 U. S. 319, 328 (1976). Like this case, Mathews involved a prior recipient whose benefits were terminated. We held there that the nonwaivable exhaustion requirement had been satisfied because, after Eldridge re