Hurley v. Secretary of Health & Human Services

I concur in that part of the order which enjoins and directs the appellees to revise and mail notices to affected persons.

I dissent from the remand portion of the order which directs further proceedings in the district court on the issues outlined therein. Though I urged a remand for the limited purpose of class certification when the motion for injunction pending appeal was first presented to the panel, the remand now ordered is markedly expanded far beyond what is required for this panel to meet its responsibility.

Although not formally briefed, the applicability of the Eleventh Amendment to…