The opinion of the court was delivered by: CALDWELL
Before us is defendant's motion for relief from a portion of our memorandum and order of July 2, 1984. 587 F. Supp. 55. For the reasons discussed hereinafter, the motion is denied.
Two of these modifications were rather innocuous and entailed minor changes in the implementation date for the instructions and in the wording in a paragraph regarding the contents of the notice to be sent to individuals for whom an overpayment waiver was not approved. The third modification suggested by plaintiff, however, was of much greater import in that plaintiff opposed the Secretary's notice regarding cross program recovery of overpaid SSI benefits from Title II Social Security benefits. As support for her position, plaintiff relied on the case of Ellender v. Schweiker, 575 F. Supp. 590 (S.D. N.Y. 1983). The Ellender court held that such cross recovery, even with a beneficiary's consent, is illegal. Based on Ellender, this court's decision was that the paragraph dealing with cross collection was to be excluded from notices utilized by the Secretary.
Our memorandum and order on the modifications were filed on July 2, 1984, and included instructions that the Secretary's procedures, as modified, be put into effect within sixty (60) days. On August 15, 1984, approximately two weeks before the time set for implementation of the procedure, the Secretary filed the current "motion for relief from judgment" and supporting brief. Essentially the Secretary has contended that this court's conclusions with regard to cross program recovery were erroneous. The Secretary, however, had ample opportunity to oppose the modifications suggested by plaintiff and did not do so timely. She now seeks to bring the cross recovery matter to our attention by use of a motion after failing to comply with a briefing schedule set by court order. For us to allow such a practice is to invite repetition of attempted sidestepping of orderly procedure. This we decline to do. We realize that the Secretary could point to her sizable caseload as an excuse for her inaction, but in the above-captioned matter the plaintiff is represented by counsel in a small legal services office, and not by a large law firm with paralegals and law clerks to help him meet his obligations to this court, which he has capably done on a constant basis. Thus, we feel the workload burdens on all counsel in this case are comparable.
We are greatly concerned that this case has dragged on in excess of two years since the complaint was filed on October 27, 1982. After the filing of numerous motions, briefs, and other documents, numbering forty-six in all, on September 2, 1983, we found that the Secretary's procedures for recouping purported overpayments from SSI beneficiaries required revision. 571 F. Supp. 872. Those procedures have yet to be implemented, even though our memorandum and order of July 2, 1984, established the time for implementation as sixty days from the July date. As previously indicated, the Secretary waited until approximately two weeks before she was to implement the revised procedures to file her current motion. Thus, even if this motion was not filed solely as a dilatory tactic, the Secretary nevertheless was well aware that it would further and perhaps improperly delay resolution of this case.
Under our local rules, the Secretary's failure to file timely opposition may result in her being deemed unopposed to the modifications suggested by plaintiff. Though this stance may seem harsh, it is no more inequitable than permitting a party to do nothing initially and then later assert a position that could have and should have been raised earlier. Certainly we need not examine the merits of the Secretary's position on cross recovery. However, in the interest of putting to rest further disputes on the procedures to be implemented by the Secretary and avoid further delay of their implementation, we shall briefly examine the issue.
The relevant statute, 42 U.S.C. § 407, which clearly prohibits the transfer or assignment of one's rights to future Social Security benefits and exempts these benefits from all process, provides as follows:
(a) Inalienability of right to future payments
The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other ...