Unempl.ins.rep. Cch 15358asandra Everhart, Thomas Everhart, and Myron Zenick, Onbehalf of Themselves and All Others Similarlysituated, Plaintiffs-appellees, v. Berline Wise and Emil S. Zweizen, Plaintiffs-intervenors-appellees, v. Louis W. Sullivan, M.d., Secretary of Health and Humanservices, and Gwendolyn S. King, Commissioner Ofthe Social Security Administration, Intheir Official Capacities,defendants-appellants, 901 F.2d 838 (10th Cir. 1990)

In Sullivan v. Everhart, --- U.S. ----, 110 S. Ct. 960, 108 L. Ed. 2d 72 (1990), the Supreme Court reversed this court's determination in Everhart v. Bowen, 853 F.2d 1532 (10th Cir. 1988), that the Secretary's netting regulations, 20 C.F.R. Secs. 404.504 and 416.538, were invalid due to inconsistency with the underlying statutes, 42 U.S.C. §§ 404(a) (1) (A), (B) & 404(b) and 42 U.S.C. §§ 1383(b) (1) (A) & (B). In Everhart v. Bowen, 853 F.2d at 1539, we affirmed the district court's resolution of this issue, but reversed the district court's entry of a statewide injunction prohibiting application of the regulations. In reversing our judgment, the Supreme Court held that the regulations reflected a permissible construction of the statutes involved and that the definition of the netting period contained in the regulations did not render the netting procedure arbitrary and capricious. Sullivan v. Everhart, 110 S. Ct. at 966-67.

The Court did not address the plaintiffs' contention that the regulations violate due process, because this court had not done so. Id. at 967-68; see also Everhart v. Bowen, 853 F.2d at 1533 (describing constitutional claim). The Court remanded the case to this court for further proceedings. We, in turn, VACATE the district court's ruling invalidating the netting regulations and entry of the statewide injunction and REMAND to the district court for consideration of the plaintiffs' constitutional claim.

SO ORDERED.