ON PETITION FOR REHEARING
JON O. NEWMAN, Circuit Judge:
The Secretary of Health and Human Services has petitioned for rehearing of this panel's decision of August 27, 1984, affirming a judgment of the District Court that provided relief to a class of mentally ill persons in New York State who were unlawfully denied disability benefits either through rejection of their applications or termination of their prior disability status. 742 F.2d 729 (2d Cir.1984), aff'g 578 F.Supp. 1109. The Secretary's initial petition reargued issues concerning the 60-day filing and exhaustion of remedies provisions of 42 U.S.C. § 405(g), which were the principal points raised on the main appeal; no dispute had been raised on the merits. We see nothing in the original petition that persuades us to alter our decision on those threshold issues.
On October 25, 1984, the Secretary supplemented her papers with additional arguments based upon the Social Security Disability Benefits Reform Act of 1984 ("Reform Act"), Pub.L. No. 98-460, 1984 U.S.Code Cong. & Ad.News (98 Stat.) 1794, enacted on October 9, 1984. We afforded plaintiffs an opportunity to respond to the Secretary's supplemental papers. The Secretary presents two arguments based on the Reform Act, each of which we have concluded lacks merit.
The Secretary's first argument is essentially an invocation of the maxim expressio unius. As she notes, the Reform Act explicitly provides a limited exception to the normal requirements of section 405(g), which will permit unnamed members of certain class actions to pursue their challenges to the termination of their disability benefits. Reform Act § 2(d)(3). The exception to section 405(g) aids unnamed members of a class certified on or before September 19, 1984, in a class action challenging the termination of benefits on the ground that medical improvement has not been shown — what the Reform Act calls "a class action relating to medical improvement." Though acknowledging
The Reform Act is remedial legislation, enacted principally to be of assistance to large numbers of persons whose disability benefits have been terminated. It would be a perverse view of Congressional intent if we were to infer from this beneficial legislation a determination on the part of Congress to deny other disability claimants the fruits of a judgment entered in their favor after a ruling that their claims had been unlawfully processed by the Secretary. What the Secretary is urging us to hold is that the Reform Act renders the finality and exhaustion requirements of section 405(g) more stringent than they were before the passage of the Act. We see no basis for reaching such a conclusion. In our view, those not specifically exempted by the Reform Act from the requirements of section 405(g) confront precisely the same threshold obstacles that section 405(g) created before the Reform Act was passed. On the initial argument of this appeal, the Secretary argued vigorously that those obstacles were insurmountable for the plaintiffs in this litigation. We disagreed for reasons set forth at length in our initial decision. In our view, the plaintiffs were entitled to prevail prior to enactment of the Reform Act, and they are not worse off after its passage.
The Secretary's second argument also proceeds from passage of the Reform Act. That Act requires that the cases of members of a class action relating to medical improvement shall be remanded to the Secretary. Reform Act § 2(d)(3). See Heckler v. Kuehner, 469 U.S. 977, 105 S.Ct. 376, 83 L.Ed.2d 312 (1984).
As with the Secretary's first argument, we see no reason to believe that Congress, in enacting the Reform Act, intended to deny to any social security claimant in a case not raising medical improvement issues the benefits of a district court judgment rendered in his favor and affirmed on appeal. The Secretary makes no claim that the remedies available to members of the Schisler class by virtue of the Reform Act are inconsistent with the remedies available to members of the instant class by virtue of the judgment of the District Court, and we discern no inconsistency. In the Reform Act Congress specified a remedy for those raising the medical improvement issue.
Finally, we note that section 5 of the Reform Act imposes a moratorium on continuing eligibility reviews for persons "determined to be under a disability by reason of a mental impairment" until revised criteria have been promulgated by the Secretary pursuant to the Act. The Secretary makes no claim that section 5 modifies any provision of the judgment in this case. Whether section 5 will have an effect upon the administrative actions to be taken by the Secretary in implementing the judgment in this case is a matter to be determined in the first instance at the administrative level.
For these reasons, the petition for rehearing is denied.