concurring specially:
While I agree with the result reached by the majority, I do not concur with the majority’s unnecessary conclusion that the government will probably succeed on the merits. That is an open question. While I think the district court was justified in relying on United States ex rel. Paktorovics v. Murff, 260 F.2d 610 (2d Cir.1958), I agree that the interests of the government and the public are sufficiently strong to delay implementation of the plan pending appeal.
I conclude that the majority incorrectly applies Ruiz v. Estelle, 650 F.2d 555 (5th Cir. Unit A 1981). Our binding precedent specifically adopted the view of the District of Columbia Circuit in Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841 (D.C.Cir.1977), which stated in part:
“The court is not required to find that ultimate success by the movant is a mathematical probability, and indeed, as in this case, may grant a stay even though its own approach may be contrary to movant’s view of the merits. The necessary ‘level’ or ‘degree’ of possibility of success will vary according to the court’s assessment of the other factors.”
650 F.2d at 565.
Since I find the contentions of the parties in equipoise, I reject the dictum of the majority as set out in Parts II. A. 1. and II. B. 1.