No Resolution of Social Security No-Match Lawsuit Until March 2009

An injunction blocking the Department of Homeland Security's Safe-Harbor Procedures for Employers Who Receive a No-Match Letter from the Social Security Administration (SSA) will likely remain in force through early next year.

After issuing a supplemental final rule on October 28, DHS filed a motion with Judge Charles Breyer of the U.S. District Court for the Northern District of California requesting that the injunction be lifted. DHS also requested that the court accelerate the suit's schedule to allow all motions to be heard and decided in time for the SSA to begin preparing its next round of no-match letters in January 2009.

The court instead set a schedule that will ensure no decision will be made on the injunction until March 2009 at the earliest.

Breyer blocked implementation of the Safe Harbor rule last year, questioning whether DHS had satisfied regulatory flexibility analysis requirements. DHS claims the publication of the supplemental final rule, which reaffirms the text of the August 2007 final rule without substantive change, addresses the court's concerns.

The supplemental rule was effective upon publication, but cannot be implemented until the court lifts its injunction.