*1 assessing against we are fees Because alone, only charges those while made
EEOC the action pursued
the EEOC should be appeal it. taken
assessed Since was charges
by plaintiffs, relating appeal by the paid
should not be EEOC. Because charges
it is were made not certain while the attorneys defendants action, involved in
EEOC necéssary charges tó sort out relevant value.
and their
V argues that the AFM
The EEOC because trial,- attorney’s
did move for fees awarded fees. Because
they not be trial, during for fees how-
the Local moved
ever, allowing prejudice no can see we. after remand. Souza motion See
Southward,
(1st Cir., 1977).
An GREENSPAN, Plaintiff,
Bernard Individually KLEIN, and as Commis
Ann
sioner, Department of Institutions Jersey, Ger
Agencies, Individually Di Reilly, and as
ald J.
rector, of Medical Assistance Division Services, severally jointly,
and Health alternative, Defendants.
and in the A. No. 76-439.
Civ. Court,
United States Jersey.
D. New 23, 1977.
Dec. Kendall, Elizabeth, Asch, P. Elson
Karl J., plaintiff. N. Gen. of N. J. Atty. Hyland,
William F. Gen., Atty. Tren- Deputy Popkin, Robert E. ton, J.,N. for defendants.
861 requesting-a hеaring, ^plain- than Rather OPINION an a and obtained order complaint tiff filed WEIS, Judge, and FISH- Circuit Before this Court on March to show cause STERN, Judges. and ER restraining order was temporary 1976. A to cause directed The order show denied. PER CURIAM. reasons a defendants to advance its a preliminary motion for was sus- Plaintiff, physician provider, a well as reinstatement of granted as not be Pro- Assistance from the Mеdical pended physician- a as provider. Jersey of of New gram the State .injunction was preliminary motion a brings He allegation of of fraud. basis an pointed out to and it was denied suit, seeking,- among things, other this required of nature an re- injunction to temporary permanent and three-judge See convening also him Plaintiff program. store Upon appeal 28 § U.S.C. 10:49-1.- asks this Court to declarе Sections order, this remanded the Appeals vacated Jersey the New Admin- 18 10:49-63 of and that a to this and directed three- case Code, 10:49-1.18, and istrative N.J.A.C. convened, despite the fact court judge 10:49-63, Jersey the New and Statutes a-,request not make such did seq., 30:4D-1 et seq., 30:4D-1 et N.J.S.A. Klein, See, Greenspan v. pleadings. in his unconstitutional. 1977). This (3rd 856 Cir. three- 550 F.2d program of The medicaid convened. court was thereafter and feder- Jersey New is state-administered is whether or question presented sole It is and ally state-funded. of the provisions and not the statutes medi- indigent recipients with assist certain are unconsti- code involved administrative is administered expenses. This cal plaintiff of they deprive tutional insofar as Department of the Commissioner of the hearing. N.J.A.C. 10:49- a pretermination through Human Servicеs the Director that, may Director 6.3(b) provides “[t]he and Division of Medical Assistance any suspend any provider service Health Services. when, opinion, such action is hearing in his con- public The Division of Medical Assistance necessary to welfare protect investigation of the medicaid bill- Pro- ducted the interests of the Medical Assistance plaintiff. The ing practices gram.” of thе Division had claims alleges submitting that he to be in a appear Plaintiff Program the New Medicaid relationship contractual with the State of receiving payment therefor treatment agencies administering New and the which not rendered or was ren- was either thus it would seem that program, this direct, person- nurse his dered without interest his property he has at least some supervision. investiga- As а al result continuing participation in the medicaid temporari- Division tion the Director must program. be an suspended participation ly plaintiff from or not he is entitled to a swered whether program pending the medicaid pretermination hearing post or a termina hearing, should one be administrative hearing. The time and nature of the suspension ad- requested. The notice of rеquires hearing weighing indi Greenspan suspension vised was public vidual interest. upon this “based a review conducted (2nd Weinberger, 602 Case F.2d Cir. you Division which indicates submitted 1975). Due process, a situation of claims received for services payment nature, require hearing does not by you.” Additionally, plain- rendered stage any specific point in the initial or at hearing
tiff advised that if a was to proceedings long so as a requisite requested, to be the Director had notified Love, point. held at some See Dixon twenty no later than from the days date
receipt of the notice of his suspension. (1977).
Plaintiff,
position,
in support of his
di-
no “brutal need”
present
as was
in .Gold-
Goldberg
our
v. Kelly,
attention to
rects
berg Kelly, supra,
and other cases such as
Hathaway
v. Matthews,
(7th
F.2d
case,
however,
held that wel-
1976);
Matthews, 430
Cir.
Klein v.
F.Supp.
recipients
farе
receiving financial aid under
(D.N.J.1976);
Dept
Ross v. Wisconsin
York
general
State’s
Relief
Home
Pro-
Services,
Health and Social
F.Supp.
*3
could not
gram
be terminated without
(E.D.Wisc.1973).
a
50
Rather, as in Russi v.
pretermination hearing because the
Weinberger,
(E.D.Va.
discon-
text —a factor
case of
provisions
the administrative code
government contractor,
the blacklisted
oppor-
under attack are constitutional. The
discharged govеrnment employee,
tunity
prompt post
termination hear-
tax-payer
exemption,
denied a tax
or vir-
ing
the requirements
proc-
satisfies
of due
tually anyone else whose
en-
government
Accordingly,
prelimi-
ess.
the motions for a
titlements are ended —is that termination
denied.
nary
permanent
injunction
are
aid
controversy
resolution of
.and
constitutionality
of the statute
an
eligibility may deprive
eligible
over
resolved,
three-
regulations having been
recipient
the very
means
which to
All
re-
hereby
court
dissolved.
live' while he waits.
he lacks inde-
n
Since
issues in the case should be
maining
resources,
pendent
his situation becomes
presented
Judge
Fisher.
immediately desperate. His need to con-
centrate upon
daily
the means
FISHER,
Judge
S.
CLARKSON
subsistence,
turn, adversely
affects his
dissenting).
(concurring and
ability to seek redress from the welfare
agree
majority
I
with the
Although
bureaucracy.
constitu-
are
regulations
the statutes
present
note
case we
that the
appropriate
tional,
my view this is
action of the Director
the Medicaid Pro
enunci-
principles
abstention.
case for
gram did not
plaintiff’s right
cases,
terminate the
the landmark abstention
ated in
tо practice
simply
746,
medicine. The Director
Harris,
37,
U.S.
S.Ct.
his
in the
right
participate
terminated
v. Pur
(1971) and Huffman
27 L.Ed.2d
1200,
provider
as a
program
sue, Ltd., 420 U.S.
95 S.Ct.
repetition
hearing.
(1975),
of a
need
do not
given
have been
principles
here. These
very
negates
nature
process
of due
“[T]he
in the
application, especially
even wider
any concept of
univer-
procedures
inflexible
Hernandez, 431
cases
Trainor
recent
sally applicable
imaginable
situa-
every
52 L.Ed.2d
434, 97 S.Ct.
U.S.
McElroy, 367
tion.” Cafeteria Workers v.
Vail,
Juidice v.
(1977), and
6 L.Ed.2d
S.Ct.
view that
(1961). We
are of the
a civil
Hernandez, supra,
Jersey in this
In Trainor
interest of the
of New
Hernandez
against
brought
its adminis-
action had
and in
program
integrity
of the
court
the Director
be conceded
in the state
tration is vital. While it must
seeking
Department of Public Aid
a constraint
Illinois
Dr. Greenspan
is under
alleged to
payments
of welfare
fi-
the return
some
obviously
will
about
bring
Hernan-
received
wrongfully
cannot
have been
interest
his'part,
nancial loss
action,
writ of
of that
part
dez. As
overriding public
with the
compete
executed
issued and
attachment
proper
involved
administration
without
Jersey.
property
There is
of Hernandez
in New
medicаid
is the federal
fact
Court interference with
to the Illinois
pursuant
aor
notice
contempt process
the state’s
is' “ah of-
contesting the
Instead of
Act.
Attachment
to the state’s interest
.
action,
fense
'.
Hernan-
in that
attachment
writ
great
likely
every
bit as
as it would
District Court
the Federal
suit in
dez filed
proceeding,”
be were this a criminal
un-
Act was
alleging
Attachment.
Huffman,
supra, 420
agreed
thrеe-judge court
A
constitutional.
Moreover, such
interference with
issued
with
contempt process
only “unduly
proper-
the attached
directing the return
legitimate
with the
activities
reversed, holding
interfere^]
ty.
supra,
Stat[e],” Younger,
Younger and Huff-
principles
at 750—but also “can read-
the Dis-
applied by
have been
man
reflecting negative-
‘as
ily
interpreted
explained
The Court
trict Court.
аbility
the state court’s
to enforce
ly upon
war-
circumstances
extraordinary
[n]o
” Huffman,
principles.’
su-
constitutional
present
relief
equitable
ranting
*4
at
S.Ct. at 1208.
pra,
U.S.
that
suggestion
is no
There
here.
in bad
brought
(footnotes
state action
1217-1218
omit-
Id. 97
at
S.Ct.
harassing ap-
purpose
or for the
ted).
faith
case comes
urged
It is
pellees.
pase
concepts
these
to the
Applying
sаid in
that we
exception
within
hand,
following
facts
should
.noted.
37,
Harris, 401 U.S.
[Younger v.
and
Following plaintiff’s suspension
the fil-
746,
might exist
27 L.Ed.2d
97 S.Ct.
669]
suit,
ing of this law
defendants offered
and
“flagrantly
a state statute
where
plaintiff
hearing
be con-
immediate
constitution-
express
violative of
patently
hearing
completely
ducted
examiner
clause,
every
sentence
al prohibitions
unconnected with
At
state government.
manner
and in whatever
paragraph,
and
point, plaintiff
immediately
could have
might be
an effort
against whomever
of the statutes
constitutionality
tested the
53-54,
it.” 401
apply
U.S.
made
by taking
under attack
regulations
here
Buck,
755,
Watson
(quoting
Ct. at
S.
procedures.
of state
advantage
variety
of a
967,
402,
962,
61 S.Ct.
an administrative
requested
He could have
such a find-
(1941)). Even if
L.Ed. 1416
30:4D-7(f),
hearing
made
under N.J.S.A.
doubt,
below,
we
was madе
ing
suspension
to lift the
interlocutory motion
have
1916), it would not
(see supra at
Appel-
to the
then made an
light of our cases.
warranted in
New
Superior
Gourt of
late Division of
Finishing, Inc. v.
Georgia
Compare North
2:5-6(a)
Jersey
under R.
of the New
Jersey
Inc.,
Di-Chem,
U.S.
Rules,
were de-
1969 if that motion
Court
v. W.
(1975) with Mitchell
have
plaintiff could
Alternatively,
nied.
Co.,
T. Grant
[94
to him
in the
afforded
participated
perfоrm their separate functions. Huff- course, is for me beside the point. Of Pursue, man v. Ltd., supra.2 court, could have sued but he
Finally, emphasis chose not to. If the mere existence be afforded the fact that of a state forum in private which a individ- Medical Assist- *5 may ance ual Program preclude sue were to the designed implement to suing court, individual from in statutory and federal no regulatory scheme to assist poor the one could ever sue a federal to obtain state in quality medical care and Younger enable of the doctrine v. Harris was not State to receive benefits for plaintiffs medical assistance to force to elect provided by the Federal forums; See, rather than federal it Security Social Act. was de- 42 U.S.C. 301 et § Thus, signed jurisdiction to the seq. protect the of state State of New Jersey is vitally litigate interested in courts where a seeks to administering this pro- gram and also in identical issues in federal courts. insuring the integrity of both the program itself and the Furthermore, the interest with which the participants such as recipient the the State of New views outcome of provider. New Jersey, which has a vital hardly the lawsuit seems reason interest in thе pertinent procedures so as to the to choose a state requiring for vindicate important policies and safe- rather than a federal to decide the guard the fiscal integrity of the Medical nothing issues when is before the Program, Assistance has taken action with jurisdiction. I do not know courts of either respect to the allegedly fraudulent activi- measure the state’s interest in all of how to ties of a medicaid program provider. The in it litigations appears the varied State, courts therefore, of that should have courts, even if such a state and federal but the opportunity to decide the constitutional measure devised, could be I fail to see how issues raised this litigation. For these the degree of state interest in the outcome reasons, I that believe the determination has any relevance to the forum which is to that we make herein should are asked to render the decision. upon differing it Carey Sugar, reason sufficient 425 U.S. 1. See also important (1976). point. went on the But it also emphasize, rule, that no which we desire to ought interesting cases where officers of to note earlier to issue It is applied. authority only equitаble in the For to enforce doctrines with State clothed Grange reasonably v. Ben question, in Massachusetts State stance in a case unless law ton, necessary pre- to [47 from doubt and when free through (1926), the (Emphasis Mr. Jus L.Ed. Court irreparable great 387] harm. vent tice Holmes stated that added). inconsistency no Court below found [t]he seen no two Acts and we have between the closely of аnd “in aid or quasi-criminal the doctrine Younger the of Extension the I believe Nor do to.” related its on comity turn would here
situation
is-
such an
decide
Supreme
Act
Judiciary
of
enactment
By
head.
anal-
generalized
of some
basis
on the
sue
conferred
470, Congress
1875, 18 Stat.
of
a state’s
“strength” of
ysis
lower
jurisdiction
federal
“
challenge.
under
statute
to be
particular
‘ceased
courts
Those
courts.
federal
ante,
caveat,
own
majority’s
between
dealing
fair
of
tribunals
restricted
inti-
“suggest
not
it does
though
became
states
different
of
citizens
unconcerned
is
vindi-
mate that
reliances
powerful
primary
practice
regulation
the Constitu-
proper
with
given
every right
cating
is some-
state’s concern
the United
pharmacy,”
treaties
laws, and
tion, the
warrant our
Landis, enough
“strоng”
J.&
not
how
Frankfurter
F.
States.’
(1928).”
deficiency
clear the
deference,
makes
Business
obviously
is
A state
approach.
[94
such
Thompson,
Steffel
that term
concerned, whatever
“strongly”
505]
legis-
has enacted
mean,
it
whenever
may
v. Vail or Trainor
Nothing
Juidice
“concerned,” in
a state
lation.
In both of
compels
Hernandez
abstention.
litiga-
sense,
with
cases,
the federal
was al-
these
give it
does
party
it is a
to which
ready
embroiled in a state court action
pro-
litigation
compel
right to
sum,
suit.
I stand
instituting
courts.
within its own
only
ceed
by my dissenting opinion
Gorp.
in Rite Aid
my view,
It is
J.,
rather,
Pharmacy
v. Bd. of
N.
the basis of
(D.N.J.1976).
doctrine
F.Supp.
1180-1181
lies in the concep-
tion of “Our Federalism” enunciated by
it
is ascertained that
Once
no state
Mr. Justice Black in that seminal case.
proceeding
pending,
no dоctrine of law
44-45,
the state courts. the contrary, On there is no that the state judiciary is capable
as fully as federal to apply
the federal constitution to enactments of
legislature, see,
g.,
e.
Stone v.
Powell,
n.
n.
That is no reason for
federal courts to decline to exercise juris- questions
diction over federal once a
plaintiff has elected seek his relief
here. In the absence of a pending state
proceeding raising the same claim be-
tween same litigants, ought we not to
send him to the state merely courts be-
cause the state has “interest” in the litigation. outcome Zwickler v. Koota, Cf. Mitchum v. Fos-
ter, (1972);
L.Ed.2d 705 Cottrell v. Virginia Co.,
Electric & Power
est whenever its statutes are challenged
as violative of federal law. interest, strong, give
no matter how does not right have the issue decided in the forum of its choice.1 sense, largest аrgument In the the State’s comity Why
turns on its head. should the litigation pro- State be concerned whether this ceeds here sovereignties elsewhere? If the courts of both equally competent are to vindi- rights, they equally compe- cate federal are tent to vindicate state interests as well? In the lawsuit, absence of what “in- plaintiffs’ terest” the State have in does choice of forum? *7 Usher, Bankrupt. Walter L.
In re USHER, Appellant, L.
Walter USHER, Appellee. T.
Viola
No. B77-282A. Court, States
United Georgia,
N. D. Division.
Atlanta 28, 1977.
Dec.