Lydia AGUAYO et al., Appellants-Plaintiffs,
v.
Elliot R. RICHARDSON, Secretary of the United States
Department of Health, Education and Welfare, et
al., Appellees-Defendants.
Nos. 479, 508, Dockets 72-2195, 72-2243.
United States Court of Appeals,
Second Circuit.
Argued Dec. 1, 1972.
Decided Jan. 18, 1973.
Adеle M. Blong, New York City (Steven J. Cole, Henry A. Freedman, and NLSP Center on Social Welfare Policy and Law, Inc., New York City, of counsel), for appellants Aguayo, and others and Upstate Welfare Rights Organization, and others.
Paula Omansky, New York City (Norman Redlich, Corp. Counsel, City of New York, of counsel), for appellants City of New York and Jule Sugarman.
Joseph P. Marro, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty. for the S. D. N. Y., Jerome T. Levy, and Thomas Scarlett, Department of Health, Education and Welfare, of counsel), for the Federal appellees.
Amy Juviler, Asst. Atty.Gen. (Louis J. Lefkowitz, Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen. and Constance B. Margolin, Law Apprentice, New York City, of counsel), for appellees Lavine and New York State Dept. of Social Services.
Robert J. Egan, Marion P. Ames, New York City, and Mildred A. Shanley, Middle Village, N. Y., of counsel, for various civic and social organizations appearing as amici curiae in support of the contentions of appellants-plaintiffs.
Before FRIENDLY, Chief Judge, and WATERMAN and HAYS, Circuit Judges.
FRIENDLY, Chief Judge:
This appeal is from an order of Judge Bauman in the District Court for the Southern District of New York,
I. The Nature of the Two Projects.
The two projects, known as Public Service Work Opportunities Project (PSWOP) and Incentives for Independence (IFI), were formulated by the State Department of Social Services and approved by HEW for one year.2 The State envisions PSWOP as providing public service work opportunities for those AFDC recipients who are able to work but for whom regular employment, training or public service employment has not been available or appropriate. Approximately 25% of the State's AFDC cases, comprising those recipients living in fourteen welfare districts in New York City, two counties in the metropolitan area surrounding the City, three upstate urban areas and six counties in the rest of the state, are to be included in PSWOP.
The local departments of social services in PSWOP districts must see to it that employable recipients3 of AFDC benefits register with the appropriate office of the New York State Employment Service. Semi-monthly interviews are to be scheduled for the recipients with employment counselors so that an employment plan, for a private sector job, training, public service employment (in IFI districts only), or a PSWOP job, can be developed. If the state employment service is unable to find other employment or a training program within thirty days, assignment of the recipient to a PSWOP job becomes mandatory. PSWOP employ can involve work for any state, city, town or village agency or school district located in the county. Broadly speaking, the work will be of the sort which, because of budgetary problems or otherwise, would not be undertaken except for PSWOP; workers in the program are not to displace those who would otherwise be employed.
No individual will be required to participate in PSWOP unless satisfactory child-care arrangements can be developed, and each case must be assessed to determine adequacy, although the state requires that "[d]iligent efforts . . . be made by [the recipient] and the social services district to obtain child care services or the assistance of others to provide such care." Public Service Work Opportunities Project (for ADC and ADC-U Recipients) Policy and Procedures, at 3 [hereinafter PSWOP Policy and Procedures].
PSWOP workers will not receive earnings over and above their welfare benefits. The number of hours to be worked will be determined by dividing the amount of the participant's grant by the hourly wage to be received, but in no case will an individual be required to work more than eight hours a day or forty hours a week. The hourly rate will be the state minimum wage or the wage paid to employees for comparable work in the unit of government in which the project is conducted, whichever is higher. Participants will be reimbursed for lunch and transportation costs, and all work-related expenses incident to participation are to be paid "so that no recipient will incur any actual net reduction in income due to such participation." HEW Action Memorandum (re PSWOP), May 31, 1972, at 5.4 Participants will also be covered by workmen's compensation. See N.Y.Soc.Serv. Law Sec. 350k-3(d).
Failure to accept a justifiable referral or to participate properly after such a referral "without good cause" is a ground for termination of assistance, 18 N.Y.C.R.R. Sec. 385.6. Upon request a fair hearing must be granted prior to termination, but if the recipient has not accepted the referral or has not continued to participate in the program and then receives an adverse determination at the hearing, a thirty-day suspension of benefits is mandated even though the recipient agrees to immediate compliance. See 18 N.Y.C.R.R. Sec. 385.7.
The Incentives for Independence (IFI) demonstration project has four components: (1) a combination of two public service employment programs-PSWOP and the Emergency Employment Act (EEA) Public Service Employment Program-for adults unable to find regular employment; (2) an earnings exemption; (3) work motivation for school youth through participation in community work projects; and (4) a counseling service for the parents or caretakers of truant children. The project covers approximately 2.5% of the state's AFDC and Home Relief5 recipients and will be conducted in three areas-a welfare center in New York City (Bay Ridge), a suburban county (Rockland), and a rural county (Franklin)-all of which are contained in or are coextensive with areas in which PSWOP will function.
As with PSWOP, all nonworking employable recipients will be required to participate in counseling, to report for job interviews and to accept work or training if offered, and no recipient will be considered employable unless a satisfactory child-care plan is available. Individuals in IFI districts can be assigned to PSWOP jobs if employment or training programs in the regular economy are unavailable, and their work obligations and benefits will be identical to those of other individuals in PSWOP programs, except that the sanction for noncompliance in IFI districts is a flat $66 per month reduction in assistance until the individual complies. A limited number of recipients in IFI districts, however, will be assigned to "public service employment" jobs, subsidized by EEA funds, which will pay the higher of the minimum wage or the prevailing wage for persons in similar public occupations. Unlike PSWOP workers, employees in public service employment will work full-time and be paid full wages. Participants will receive workmen's compensation, health insurance, unemployment insurance, and all other fringe benefits conferred on employees of the same employer; their work conditions and promotional opportunities will also be the same as those of regular employees.
A certain portion of the wages paid in these public service employment jobs will be ignored when determining the recipient's eligibility for a supplementary welfare assistance grant. This "income disregard," which differs from that normally mandated by the federal government for AFDC recipients in regular employment, see Sec. 402(a)(7), (8) of the Social Security Act, 42 U.S.C. Sec. 602(a)(7), (8), by lowering the income level at which supplementary assistance payments terminate,6 will be applied in IFI districts to all AFDC and Home Relief recipients in public service employment or in regular employment.7
Furthermоre, the children of families receiving AFDC or Home Relief in IFI districts who are 15 years of age and attending school full-time (and are not otherwise ineligible)8 are required to participate in "Work Motivation for Youth." This program will require the child to work for up to six hours semimonthly during the school year and up to sixty hours during the summer vacation. Participants will be paid $1.60 per hour for no more than 150 hours per year. Refusal to comply will result in a $6.25 semi-monthly reduction in the family grant, unless the parent certifies that he or she is trying to get the child to cooperate. Also, when a child fails regularly to attend school, the parent or caretaker in a family receiving assistance must accept counseling services or face a reduction in the grant.
II. The Processing of the Projects by the HEW, and the
Proceedings in this action.
The New York legislature originally provided for a work relief program for AFDC recipients in April 1971. See N.Y.Soc.Serv.Law Sec. 350-k (McKinney Supp.1972). In a letter written soon after enactment to George K. Wyman, then Commissioner of the State Department of Social Services, HEW stated that the work program was inconsistent with several federal requirements and could not receive federal funds. In August 1971, following discussions with President Nixon on welfare reform, Governor Rockefeller announced that New York would seek approval from HEW under Sec. 1115 of the Social Security Act, 42 U.S.C. Sec. 1315,9 for an experimental work relief project, thus permitting a temporary waiver of certain federal requirements. New York submitted formal applications for the PSWOP and IFI projects on September 9 and 10, 1971, which were then revised and resubmitted on November 11, 1971.
On November 24, 1971, HEW approved both projects, contingent, however, on submission by New York of further information before December 31, 1971. The conditions called for revised and more detailed budgets, further information on personnel administration, and, with respect to IFI, requests for further waivers and rather extensive additional information on proposed implementation, including "a plan for general project activities (screening, referral, monitoring, etc.)." New York forwarded on December 28, 1971, letters not appearing in the record, which purported to meet HEW's conditions. On February 9 and 10, 1972, HEW responded, finding many of the budgetary specifications to be inadequate and requiring complete budgetary submissions as well as additional information on numerous operational aspects "prior to implementing the project." State officials, on February 22, 1972, provided HEW with two two-page letters responsive to some but-particularly as to IFI-not all of HEW's requests. The letters requested permission to begin implementation April 1, 1972.
Before any HEW responses, the District Court for the District of Columbia, enforcing an agreement between HEW and the National Welfare Rights Organization in settlement of an earlier suit brought under the Freedom of Information Act, on March 13, 1972, required HEW to withdraw its November 24, 1971, approval and to allow the Center on Social Welfare Policy and Law thirty days to examine the proposed projects and present an analysis to HEW.10 On April 11, 1972, the Center sent HEW and NYSDSS an extensive letter prepared by Adele Blong, who has given the individual and organization plaintiffs superb representation, analyzing what it considered the defects of IFI and PSWOP and urging HEW not to authorize the programs. NYSDSS responded in two undated letters to HEW, one identifying the many objections raised by the Center and the other seeking to answer them.
Without having received further information from New York, the HEW staff prepared "Action Memoranda" which were presented to the Secretary on May 31, 1972, recommending approval of the projects but detailing certain necessary information still lacking from New York. On June 1, 1972, the Secretary approved the application for section 1115 demonstration projects, but again required further information prior to implementing each project. The further information requested included, inter alia, evidence of the availability of child care facilities, details of the fair hearing procedures to be used, and a statement that all work-related expenses would be reimbursed. On June 14 and 27, 1972, the State sent letters containing assurances of compliance and information concerning, respectively, PSWOP and IFI. Two weeks later, apparently without further official communication between HEW and NYSDSS, the state officials notified local welfare agencies to begin implementation of the projects on August 1, 1972.
The complaint herein was filed on August 2, 1972. Upon application by the plaintiffs, the district court, on August 4, issued an order temporarily suspending the HEW's approval of the projects to the extent that it permitted imposition of loss of benefits as a sanction and restraining the state defendants from imposing any sanction for nonparticipation; at the hearing Judge Bauman extended the stay pending resolution of the motion for a preliminary injunction.11 On October 16 the court rendered an opinion. Judge Bauman held that the welfare organizations lacked standing and that the City of New York (and implicitly also Commissioner Sugarman) had standing to raise only what are hereafter referred to as the statutory claims. He found that all claims of constitutional violation were insubstantial, that federal jurisdiction nevertheless existed by virtue of Sec. 10 of the Administrative Procedure Act, 5 U.S.C. Sec. 702, but that the statutory claims had not been shown to be meritorious. Accordingly, he denied the motion for a temporary injunction. Another panel of this court denied a further stay, except for several days to allow appellants to petition the Supreme Court. On November 16, 1972, after a hearing in chambers, Mr. Justice Marshall ordered that the stay be continued pending argument before this court, and directed that the appeal be heard on an expedited basis. We continued the stay pending decision. Unhappily the variety and difficulty of the questions raised have prevented our rendering this as soon as we should have wished.
III. Standing.
As is usual in welfare cases, before coming to the merits we must weave our way through a maze of problems relating to standing and jurisdiction. The complaint raised both constitutional and statutory claims, which we state at this point only insofar as necessary to an understanding of the preliminary issues. It alleged, as against the state defendants, that because the two projects were imposed on only a portion of those eligible for AFDC benefits, these defendants violated the equal protection clause of the Fourteenth Amendment, and that the New York statutes with respect to hearings for suitability for the projects and the failure to develop specific standards and procedures applicable to the participants violated the due process clause.12 The most important statutory claims were that the projects were so basically inconsistent with the Social Security Act as to lie beyond the power of approval of demonstration projects vested in the Secretary of HEW by 42 U.S.C. Sec. 1315; that the record before the Secretary was inadequate to warrant such approval under the standards laid down in Citizens to Preserve Overton Park, Inc. v. Volpe,
At first blush it would seem almost too clear for argument that relief recipients within the general class at which a work program is aimed would have standing to challenge it on both constitutional and statutory grounds. Compare Sierra Club v. Morton,
Relying on Sierra Club v. Morton, supra,
The question whether the welfare organizations have standing under the civil rights statute, 42 U.S.C. Sec. 1983, and its jurisdictional implementation, 28 U.S.C. Sec. 1343(3), is more difficult. Section 1983 confers a cause of action on "any citizen of the United States or other person within the jurisdiction thereof" who has been deprived under color of state law "of any rights, privileges, or immunities secured by the Constitution and laws." Neither this language nor the history recently reviewed in Lynch v. Household Finance Corp.,
The complaint asserted that implementation of the projects for a year would impose additional administrative costs on New York City, which Administrator Sugarman estimated to aggregate a net amount exceeding $2,500,000 per annum. Although the state defendants contend that this figure is excessive, they do not dispute that the City will be confronted with substantial added costs. The district court held that the City had standing to assert the statutory claims against the federal defendants, as is not here disputed, but that, under Williams v. Mayor and City Council of Baltimore,
The upshot of all this is:
1) At least plaintiff Cadogan has standing to raise both constitutional and statutory claims.
2) At least some of the welfare organizations have standing to raise statutory claims.
3) The City has standing to raise statutory claims, and Sugarman has standing to raise both constitutional and statutory claims. The City lacks standing to assert constitutional claims against the State; we need not decide whether it is totally deprived of standing to raise constitutional claims against the federal defendants.
IV. Jurisdiction
Such difficulty as exists with respect to jurisdiction stems from the $10,000 jurisdictional amount requirement in the general federal question statute, 28 U.S.C. Sec. 1331, and the ruling in Snyder v. Harris and the companion case of Gas Service Co. v. Coburn,
Some avenues of escape proрosed by plaintiffs must be rejected. The Social Security Act is not an "Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States," 28 U.S.C. Sec. 1343(3), so as to remove the jurisdictional amount requirement for the statutory claims. McCall v. Shapiro,
We are also unwilling to follow the district court in avoiding the jurisdictional amount problem with respect to the statutory claims by reliance on Sec. 10 of the Administrative Procedure Act, 5 U.S.C. Sec. 702, as an independent grant of jurisdiction. The Supreme Court has not squarely faced this recurring problem. Professor Davis, Administrative Law Treatise, Sec. 23.02 (Supp.1970), cites Rusk v. Cort,16
Combining those claims in which we have found standing with this court's liberal application of the doctrine of pendent jurisdiction, Astor Honor, Inc. v. Grosset & Dunlap, Inc.,
As instructed by Thorpe v. Housing Authority of the City of Durham,
We note preliminarily that consideration of these claims, like those in Citizens to Preserve Overton Park, Inc. v. Volpe,
Appellants claim that the Secretary exceeded his authority under 42 U.S.C. Sеc. 1315 in two respects. The first is that there was no basis on which the projects could be deemed "likely to assist in promoting the objectives" of the specified parts of the Social Security Act. Appellants argue that the objective of federal participation in the AFDC program, as stated in 42 U.S.C. Sec. 601, is to assist the states "to furnish financial assistance and rehabilitation and other services" which will encourage "the care of dependent children in their own homes or in the homes of relatives"-not to force their parents or relatives, or themselves, to work.
This takes too narrow a view of Congress' purpose. To begin, Congress must have realized that extension of assistance to cases where parents, relatives or the child himself was capable of earning money would diminish the funds available for cases where they were not. While common sense would lead to that conclusion, one does not have to resort to that useful tool. As shown in King v. Smith, supra,
Next in breadth is appellants' contention that 42 U.S.C. Sec. 1315 does not permit the Secretary to waive any requirement of Sec. 602 which might result in the curtailment or denial of assistance.24 Conceding that on its face 42 U.S.C. Sec. 1315 permits waiver of the basic requirement that aid be furnished "to all eligible individuals" within the state, 42 U.S.C. Sec. 602(a)(10), appellants rely on bits of legislative history which, in their view, demonstrate that the sole purpose of Sec. 1315 was to permit experiments in administrative techniques free from the requirement of 42 U.S.C. Sec. 602(a)(1) for statewide uniformity. If that was the sole purpose, it would be hard to understand why the waiver authority was so extensive. In fact, the passages in the Committee reports on which appellants rely, S.Rep.No.1589, 87th Cong., 2d Sess. 19-20, 1962 U.S.Code Cong. & Adm.News, pp. 1943, 1961-62 (1962); H.R.Rep.No.1414, 87th Cong.2d Sess. 24 (1962), do not carry the day for them; the Senate Report says that "[t]he public assistance titles of the Social Security Act contain a number of requirements on the States for approval of a State plan" which "often stand in the way of experimental projects designed to test out new ideas and ways of dealing with the problems of public welfare recipients," and cites the statewise uniformity requirement only as "one example." We likewise find unpersuasive the arguments that the examples given in the Congressional hearings and in the HEW Handbook of Public Assistance Administration issued on its enactment concerned the development of new services and improving administration. This is rather a case, in Mr. Justice Frankfurter's phrase, "for applying the canon of construction of the wag who said, when the legislative history is doubtful, go to the statute." Greenwood v. United States,
This bring us to the question whether the Secretary had a rational basis for determining that the programs were "likely to assist in promoting the objectives" of Part A of Subchapter IV. The Action Memorandum on PSWOP informed the Secretary that the New York Department of Social Services expected the following results:
A. Decreased costs of public assistance.
B. Increased self-support or self-care of recipients.
C. Increased initiative of recipients.
D. Increased self-respect of recipients.
E. Increased community participation.
F. Improved public attitude toward public welfare.
The Action Memorandum on IFI said:
The State anticipates that "Incentives for Independence" will increase self-support or self-care of present recipients. The impact of the project on the behavior and attitudes of welfare recipients will be analyzed. The State also wishes to determine whether such a program is administratively feasible or efficient, and whether it modifies the attitude of the public towаrd welfare. The objectives of the project include:
1. Employment of able-bodied adults.
2. Development and use of employability skills in young adults.
3. Education and motivation of school-age children.
It is impossible to deny that attainment of these goals, or even of some of them, would meet the test of 42 U.S.C. Sec. 1315. Appellants' criticisms, apart from those already rejected, are rather that the programs simply cannot in fact achieve the objectives or any of them. In its comprehensive letter submitted to the Department and transmitted to the Secretary along with the Action Memorandums, the Center on Social Welfare Policy and Law criticized the projects on numerous grounds, among others, alleged differentials between the payments to the participants and those to regular employees,25 the coercive effects of the programs, lack of adequate standards with respect to child care, the absence of specificity concerning the types of jobs to which welfare recipients will be assigned and the standards that would justify refusal to participate, the unlikelihood that experience in the types of jobs indicated as likely candidates would qualify a welfare recipient for employment in the general economy, and the improbability that many such jobs will be available.26 It also developed other possible and less harsh means for improving public attitude toward the welfare program, e. g., by demonstrating how large a proportion of the reсipients were in fact unemployable and the absence of employment opportunities. As indicated, the State submitted two memoranda, which were also transmitted to the Secretary, one identifying the objections and the other endeavoring to answer them, an endeavor that was successful at least to a substantial degree.
We are satisfied that the materials before the Secretary sufficed for "a consideration of the relevant factors" by him and that there was no "clear error of judgment" on his part. Overton Park, supra,
Still another set of objections by the individual and welfare organization appellants is that the Secretary had inadequate information concerning many details. However, the material furnished by the State in justifying the programs and applying for approval27 adequately covered the policy, budgetary and logistical essentials, and the statute-speaking in terms of an otherwise unfettered "judgment"-does not require that, before the Secretary approves an experiment, every i must be dotted and every t crossed. A more important objection is that the material before the Secretary affirmatively showed the incapacity of state and local welfare and employment agencies to take on this added task. New York City eagerly joins in claiming it cannot do the job the State has assigned it. Appellants call attention to the phrasing of a letter from HEW's Assistant Administrator, Research and Administrations, to the Center saying only:
We have no reason at this time to assume that New York will be unable to carry out the provisions of the demonstrations
and argue that this is a far cry from a finding that the ability exists. But this case does not involve "adjudication required by statute to be determined on the record after opportunity for an agency hearing," 5 U.S.C. Sec. 554(a), to which alone the requirement of findings, 5 U.S.C. Sec. 557(c), applies. Moreover, the same letter continues:
A major purpose of the evaluation will be to assess the administrative feasibility of IFI and PSWOP.
If, for example, the programs succeeded in some districts and failed in others, this might reveal whether a difference in the quality of administration was the reason and whether increased expenditure on or better organization of administration was essential. Only if the materials showed such administrative incapacity as to negate any appreciable possibility of success would the Secretary's approval be arbitrary and capricious. This was not the case. Rather, as indicated in our summary of HEW's review, supra, HEW, as conditions to implementing the programs pursuant to its November 1971, and June 1972 approvals, demanded assurances of the State's capacity to perform, with which it was presumably satisfied.28
Appellants' final statutory claim29 is that the Secretary's action is ineffective because it did not expressly waive compliance with 42 U.S.C. Sec. 602(a)(19), which requires every State plan to provide for the prompt referral30 of certain welfare recipients to the Secretary of Labor for participation in the WIN program. It is not immediately apparent from the language of Sec. 602(a)(19) whether this merely demands such a program, which the New York State AFDC plan has, or outlaws any other state work program, as held by a three-judge court in this circuit in a decision, Dublino v. New York State Department of Social Service,
The "stick" in the WIN program is the provision, 42 U.S.C. Sec. 602(a)(19)(F), whereby individual aid may be reduced (or, in one instance eliminated) whenever an individual has been found by the Secretary of Labor to have refused without good cause to participate in a project established under the program, or has "refused without good cause to accept employment in which he is able to engage which is offered through public employment offices of the State, or is otherwise offered by an employer if the offer of such employer is determined, after notification by him, to be a bona fide offer of employment." Although on their face the two latter provisions, the first of which would be here applicable, do not seem to be limited to employment procured through the WIN program, in which event waiver of 42 U.S.C. Sec. 602(a)(19) clearly would not be required here, they appear to have been generally read as limited to persons participating in WIN programs see e. g., Woolfolk v. Brown, supra,
VI. The Constitutional Issues
We deal first with appellants' claims that the different treatment of the 25% of the State welfare recipients in the areas chosen for inclusion in PSWOP and the 2.5% of such recipients chosen for inclusion in IFI from that accorded welfare recipients in the rest of the State violates the Equal Protection Clause of the Fourteenth Amendment.
Dandridge v. Williams,
So long as its judgments are rational, and not invidious, the legislature's efforts to tackle the problems of the poor and the needy are not subject to a constitutional straitjacket. The very complexity of the problems suggests that there will be more than one constitutionally permissible method of solving them.
If the standard of review is as limited as held in Dandridge, appellants' equal protection claim does not reach the level of substantiality. However, it has been recently suggested, see Gunther, The Supreme Court, 1971 Term, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1, 17-24 (1972), that the Court is developing a standard more stringent than that limned in Dandridge but lower than "strict scrutiny"-whether as a replacement for the "two-tiered equal protection" which many have found unsatisfactory, see Weber v. Aetna Casualty & Surety Co.,
A purpose to determine whether and how improvements can be made in the welfare system is as "legitimate" or "appropriate" as anything can be. This purpose is "suitably furthered" by controlled experiment, a method long used in medical science which has its application in the social sciences as well. As Mr. Justice Brandeis said in his famous dissent in New State Ice Co. v. Liebmann,
Appellants' due process objections center about the procedures for determining whether welfare recipients аre employable within the criteria of the two projects or, even if so, have "good cause" for declining a particular job opportunity.32 While we do not consider appellants' contention that the standards for determining eligibility and good cause are too vague for fair enforcement to be substantial, we are concerned with the adequacy of the opportunity for a hearing. Although the plans provide for a "fair hearing" under 18 N.Y.C.R.R. Sec. 385 before assistance to an AFDC recipient can be suspended for unjustified failure to accept a job opportunity or to continue to work thereon, appellants argue that this right is unconstitutionally burdened by the provisions of 18 N.Y.C.R.R. Sec. 385.7 that if the result of the hearing is adverse, the recipient shall "be disqualified for thirty days thereafter" and until such time as he is willing to comply. This seems to mean that even if the recipient accepts the determination of the hearing and is willing to take a referral immediately, he would nevertheless be deprived of assistance for thirty days.
The procedural aspect of this element of the case is somewhat puzzling. The thirty-day suspension provision of 18 N.Y.C.R.R. Sec. 385.7 is one of general application, not part of the two projects here sought to be enjoined. Although 28 U.S.C. Sec. 2281 applies to statewide regulations as well as to statutes, see Oklahoma Gas Co. v. Russell,
The State's brief says that so long as the injunction issued by the district court in Dublino, supra,
The question of the constitutionality of Sec. 385.7 has its difficulties. Presumably the argument in favor of the thirty-day suspension is that it constitutes the only effective sanction against the assertion of claims for a hearing in every case, with a consequent breakdown of the entire work program, since otherwise an adverse determination would simply require the recipient to do what he should have done long before. Yet a somewhat similar argument concerning proliferation of hearings did not win favor in Goldberg v. Kelly,
We are reluctant to decide such a difficult question with the almost total absence of briefing the defendants have afforded. The State's entire discussion of the point takes less than a page; the only citations are Goldberg, which scarcely assists it, and a statement in Dublino, supra,
In light of the State's representation that the thirty-day suspension will not be enforced so long as the Dublino injunction remains in effect, the district judge could have thought there was no immediate need for granting temporary injunctive relief on that issue. We believe, however, the plaintiffs should have protection, if that injunction should be dissolved, pending judicial resolution of the validity of the thirty-day suspension clause. On this issue, although not on the rest of the case, we consider plaintiffs to have met the test of Hamilton Watch Co. v. Benrus Watch Co.,
As so modified, the order denying the temporary injunction is affirmed. The stay heretofore entered is continued until ten days after the filing of this opinion and if, within that period, an application for a further stay is madе to the Supreme Court pursuant to its Rules 50 and 51, until the decision thereof. No costs.
Notes
In light of the naming of the individual defendants we have no occasion to consider the propriety of the unnecessary joinder of the Department of HEW and the New York State Department of Social Services
Statutory authorization for IFI's development and its submission to HEW can be found in N.Y.Soc.Serv.Law Sec. 29-a (McKinney's Consol.Laws, c. 55 Supp. 1972). The statutory basis for PSWOP is less clear. The state seems to rely on id. Sec. 350-k, subd. 1, see PSWOP Policy and Procedures, at 1, even though that section provides for what seems to be a statewide program. But since the question of state authorization has not been raised, and because we cannot say that legislative approval of a statewide program does not include the power to establish demonstration projects, we will join the parties in assuming that PSWOP has been properly established by the State
But for two additional exemptions, employability for purposes of PSWOP is defined by N.Y.Social Serv.Law Sec. 131, subd. 4 (McKinney Supp.1972), which closely parallels the standards set out in the federal work incentive (WIN) program. Compare 42 U.S.C. Sec. 602(a)(19)(A). Also exempt from PSWOP are: (1) mothers or relatives caring for children under 6 years old; and (2) mothers or female caretakers of children if the father or other adult male relative in the home is registered. However, any exempt recipient may register on a voluntary basis
Thе appellants argue that the State program will not in fact reimburse the participant for all work-related expenses. They contend, for example, that the State will not pay for additional cold-weather or personal grooming items required because of the need to go to work. Although the State's PSWOP Policy and Procedures at 8, does not clearly delineate the types of expenses for which reimbursement will be granted, the State must make provision for payment of "any expenses reasonably related to the earning of income," since HEW has not explicitly or impliedly waived Sec. 402(a)(7) of the Social Security Act, 42 U.S.C. Sec. 602(a)(7), for the PSWOP program. See HEW Handbook of Public Assistance Administration, pt. IV, Sec. 3140.1 (1964); cf. Connecticut State Dep't of Public Welfare v. HEW,
Appellants also contend that the State Dep't of Social Services, Administrative Letter 72 PWD-121, Aug. 10, 1972, limits the allowance for lunch expenses to $1.00 per day and the monthly allowance for transportation and lunches to $40.00 per month. But the letter seems to have been addressed only to changes in public work projects for employable Home Relief recipients and not to PSWOP or IFI. See 18 N.Y.C.R.R. Sec. 385.10(a), (e)(5); n. 5 infra.
Home Relief is a state program of public welfare for families not eligible for federally funded assistance. See N.Y.Soc. Serv.Law Secs. 157-58 (McKinney Supp. 1972). There is no indication that the appellants are attacking that pаrt of the IFI program which affects Home Relief recipients
Under the federal formula, the first $30 per month of income earned in regular employment and one-third of the balance are exempt. All expenses incident to employment are then also disregarded. Under the IFI formula, the cost of day care is exempted as is the first $60 per month of expenses: one-third of the remainder up to 150% of the federal payments level is then exempted, and one-quarter is exempted thereafter. The IFI formula will generally yield smaller exemptions because under the federal formula (1) all expenses incident to employment are exempted, (2) the one-third exemption is uniformly applied to the balance, and (3) the exemption for expenses incidental to employment is taken after one-third of the gross income has been exempted. See Connecticut State Dep't of Public Welfare v. HEW,
Currently employed AFDC recipients in IFI districts will not be subject to the revised income disregard
Under existing state law, there is a $30 per month income disregard for Home Relief recipients. N.Y.Soc.Serv.Law Sec. 159-b (McKinney Supp.1972). Home Relief recipients in IFI districts will benefit from an increased income disregard. See n. 6 supra.
The child would not be eligible if, for example, he or she were required to participate in a supplementary or remedial educational program or were required at home for family care
In the case of any experimental, pilot, or demonstration project which, in the judgment of the Secretary, is likely to assist in promoting the objectives of . . part A of subchapter IV of this chapter [the AFDC program], in a State or States-
(a) the Secretary may waive compliance with any of the requirements of section . . . 602 . . . of this title, as the case may be, to the extent and for the period he finds necessary to enable such State or States to carry out such project . . . .
National Welfare Rights Organization v. Richardson (Civ. 2178-71, D.D.C. March 13, 1972)
The state officials were permitted to continue the projects on a voluntary basis but elected not to do so on the ground that projects so restricted would not yield the desired information
The complaint alleges that the hearing provisions violate the due process clause of the Fifth, not the Fourteenth, Amendment. Although the approval process of HEW might bring the matter within the purview of the Fifth Amendment, we assume-since the briefs were clearly directed to this point-that reference to the Fourteenth Amendment was intended
It should be clear that we are here discussing only the issue of standing; jurisdiction with respect to the statutory claims is another matter because of the $10,000 amount requirement of 28 U.S.C. Sec. 1331
We are unpersuaded by the state defendants' argument that Mrs. Cadogan has suffered no damage from participating in PSWOP by working mornings in the New York City Hall library sorting books for the few days befоre PSWOP was temporarily restrained. If she could not lawfully be compelled to do the work she is doing, that is damage enough
As in Almenares v. Wyman, supra,
Byse and Fiocca, Section 1361 of the Mandamus and Venue Act of 1962 and "Nonstatutory" Judicial Review of Federal Administrative Action, 81 Harv.L.Rev. 308, 329 n. 76 (1967), point out that the only explicit discussion of jurisdiction-in Justice Brennan's concurring opinion,
Professor Davis also cites Leedom v. Kyne,
As will later be shown, at least one of these, the due process claim with respect to hearings, was substantial
The task of reviewing courts would be greatly facilitated by such statements, however brief and informal
As noted in Overton Park, supra,
The project requests were for three-year programs for PSWOP and a one-year program for IFI. The June 1, 1972, approval letter from HEW for PSWOP granted approval for one year and provided that requests for approval to continue for a second year were to be made on the basis of an evaluation of the first nine months of the program's activities. In addition, the HEW Handbook of Public Assistance Administration Sec. 8240 provides for rescission of approval at any time during a project's life
The May 31, 1972, approval letter for PSWOP, and also counsel for the state appellees at oral argument, indicated that the need for these new projects arose not from deficiencies in the scope or structure of WIN, but from the limited extent of its implementation in New York. Apparently the state preferred to have projects in which the initiative for implementation rested in its own hands
Counsel for the plaintiffs urge that, in addition to possible wage differentials, participants in IFI and PSWOP will be disadvantaged relative to participants in WIN because "WIN guarantees the availability of a full range of services designed to insure . . . that the family will be aided in making the necessary adjustment . . ." While WIN regulations, 45 CFR Sec. 220.35(b)(2)(i) make a wide range of supportive services, listed in id. Sec. 220.18 et seq., available to AFDC reсipients, the WIN program in no way guarantees their availability. Indeed, the HEW WIN Handbook Sec. 80.6 (1972) states that the only service which must be provided before certification under 42 U.S.C. Sec. 602(a)(19) is a medical examination, and that the only service which must be available before entering a work project is child care. Both these services appear to be elements of the New York projects in equal measure and with parallel provisions for insuring adequacy
We refer here to the imposition of conditions for AFDC eligibility in addition to those included in the Act which may lead to suspension or termination based on refusal to participate. As indicated above, n. 4, we do not envision any loss in the amount of assistance by participants
In light of the terms of the program we do not understand how such differentials could occur except for the point that PSWOP participants will not share in "the extras or fringe benefits earned by regular employees." We are not told what such extras or fringe benefits would be in the case of public employees in so early a stage of employment. In any event we do not believe that the absence of such benefits violates congressional policy in the welfare area. 42 U.S.C. Sec. 609(a)(1)(B), now repealed, required only that the rates of pay be "not less than the minimum rate (if any) provided by or under State law for the same type of work and not less than the rates prevailing for similar wоrk in the community," the same phrase used in PSWOP and IFI. We have found no regulation reading the language of Sec. 609(a)(1)(B) to include fringe benefits. The successor to Sec. 609, the WIN program, 42 U.S.C. Sec. 633(e)(4), is even less favorable to welfare recipients; it requires only that "[n]o wage rates provided under any agreement entered into under this subsection shall be lower than the applicable minimum wage for the particular work concerned." The Work Incentive Program Handbook, Sec. 9360(2)-3 adds that if no minimum wage is applicable, "the wage must not be substantially less favorable than the wage normally paid for similar work in that labor market, but in no event, less than three-quarters of the Federal minimum wage." Again, nothing is said expressly pertaining to fringe benefits, and we have been cited to no practice for their inclusion. It must also be realized that participants in the programs here attacked receive substantial benefits in the way of free child care and assurance of immediate resumption of assistance not provided for the ordinary worker
The State has indicated that it will require local departments of social services in PSWOP areas to develop a "sufficient number and variety" of projects to insure that all unemployed employable AFDC recipients receive jobs. See PSWOP Policy and Procedures, at 6
In contrast to Citizens to Preserve Overton Park, supra,
Plaintiffs argued also that a provision in HEW's Handbook of Public Assistance Administration directing that "[a]pplications [for Sec. 1315 approval] will be appraised with respect to the clarity of the plan and the ability of the agency to provide for methods or organization, administration, and staffing which holds reasonable promise of carrying out the project effectively" imposes a stricter standard to which HEW must be held. See Cappadora v. Celebrezze, supra,
In their complaint, plaintiffs also raised HEW's failure to waive the provisions of 42 U.S.C. Sec. 602(a)(7) and (8) as to PSWOP. These sections would appear to require any AFDC program to disregard certain income received by recipients, and PSWOP contains no provision for such disregard. However, plaintiffs in their brief to this court specifically note that at the preliminary injunction stage they are raising only the failure to waive section 602(a)(19) and prefer to raise the othеr claims of inadequate waiver at the trial. But see footnote 4 supra
42 U.S.C. Sec. 602(a)(19) as in effect at the time of the Secretary's approval in June, 1972, required "referral" to the Secretary of Labor. The 1971 Amendments to the WIN program, 85 Stat. 802 (December 28, 1971), effective July 1, 1972, directed that each AFDC shall register with the state WIN agency, which in turn shall "certify" eligible participants to the Secretary of Labor
Appellants argue that if 2.5% sufficed for IFI, it should also have sufficed for PSWOP. But IFI is a relatively minor variation on PSWOP, and the State could rationally determine that a larger sample was needed to test the basic program than the embroidery upon it
Appellants suggest that good cause would exist if the project did not meet the State's minimal requirements, such as:
Reasonable assurance that work will be performed in such a manner to insure that the work is useful;
Persons assigned to such projects will not be used to replace, to perform any work ordinarily and actually performed by regular employees of any department or other unit of government, or to replace or to perform any work which would ordinarily be performed by craft or trade in private employment. (In the event of an extreme emergency, such as a flood, fire, etc., such a restriction could be waived so long as the work to be performed was work normally undertaken by the sponsor of the project.);
Appropriate standards of health, sаfety and other conditions are established and maintained. Participants should be given adequate protection against hazards or activities which would adversely affect their health;
Sanitary facilities should be supplied or available, and a basic standard of cleanliness be maintained;
Participants shall be required to perform only those physical activities which are within their established physical capabilities;
Adequate first-aid supplies shall be available at the site of the project
We recognize the perennial question whether the attack would be on Sec. 385.7 as such or only "as applied" in connection with PSWOP and WIN, in which event a three-judge court would not be needed since these projects are not statewide. Moody v. Flowers,
We think it appropriate to note how little help we have received from the defendants' briefs-a circumstance not unusual in welfare cases. Three-quarters of the State's brief deals with questions of standing and jurisdiction; it contains no table of cases as required by F.R.A.P. 28(b). The largely conclusory brief of the federal defendants contains neither an index nor a table of cases, similarly required. Although the appeal was heard on an expedited basis, it had been pending in the district court for several months, and counsel must have anticipated that an appeal would be taken whatever the result below