Sandra STORY and Jeanette Simpson, Individually and on behalf of their minor children, and on behalf of all others similarly situated, Plaintiffs, and Susie Mae Weems, Individually and on behalf of her minor dependents, and on behalf of all others similarly situated, Intervenors, v. Emmett S. ROBERTS, Secretary, Department of Health and Rehabilitative Services, State of Florida, et al., Defendants.
No. 72-641-Civ-J.
United States District Court, M. D. Florida, Jacksonville Division.
Dec. 20, 1972.
352 F. Supp. 473
Chester G. Senf, Jr., and Robert Horne, Jacksonville, Fla., for defendants.
Before SIMPSON, Circuit Judge, and McRAE and SCOTT, District Judges.
WILLIAM A. MCRAE, District Judge:
Plaintiffs and intervenors, public welfare recipients, invoke the jurisdiction of this Court pursuant to
A temporary restraining order was issued by a single district judge pursuant to
The initial consideration for the Court is whether a three-judge district court is a proper forum for the disposition of this class action. Since it appears from the complaint that injunctive relief is sought against a state officer from enforcing a state statute on the ground that the statute is unconstitutional, a three-judge district court is re-
In addition to attacking the Florida Statute, and regulations thereunder, on constitutional grounds, plaintiffs and intervenors assert that
In accordance with a well-settled principle of constitutional law, the Court will proceed to dispose of this case on the statutory claim without reaching the constitutional issues. King v. Smith, supra, See e.g. Harmon v. Brucker, 355 U. S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958).
Defendants submit that the statute in question is not inconsistent with the Social Security Act of 1935. In support of their contention they point to
The Social Security Act of 1935 clearly provides that a child is eligible for and entitled to AFDC assistance if he is both “dependent” and “needy.”
Retroactive Welfare Benefits
In this class action against the Secretary, Department of Health and Rehabilitative Services, State of Florida, and others, defendants assert that even if
Defendants’ position has been adopted in the recent case of Rothstein et al. v. Wyman, 467 F.2d 226 (2nd Cir. 1972), wherein the Second Circuit reversed the district court‘s decision awarding retroactive welfare benefits from state funds. The ratio decidendi of Rothstein is twofold. First, the court held that the lower court‘s ruling was an improvident exercise of its general equity jurisdiction when measured by principles of comity, federalism and equity. Second, the circuit court ruled that even if the district court‘s equitable remedy of granting retroactive relief had been proper, the eleventh amendment prevents the court from ordering the state to expend withheld benefits even though the court, under the authority of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), can enjoin continued withholding of such benefits.
After a careful examination of the well-reasoned opinion of Rothstein, this Court does not find that case to be controlling in the present action. The court in Rothstein set forth three congressional interests to be furthered by a court in ordering retroactive welfare payments. They are: (1) retroactive payments might aid in deterring willful state violations of federal requirements; (2) federal policy of satisfying ascertained needs of impoverished persons; and (3) federal interest as grantor to oversee that granted funds are used properly.
This Court believes that federal welfare interests will be furthered in the instant case without unnecessarily exacerbating federal-state relations. The facts presently before the Court, unlike those present in Rothstein, show first that a state statutory provision similar to the one in question, which imposed an additional eligibility requirement, had been considered invalid by the Department of Health, Education and Welfare (HEW),
With these facts in mind, it is clear that the granting of retroactive relief appropriately falls within this Court‘s general equity jurisdiction.
With reference to the proposition that the eleventh amendment precludes the exercise of the Court‘s equity jurisdiction in ordering retroactive payments, this Court, notwithstanding Rothstein, holds that the eleventh amendment presents no barrier. Zarate et al. v. State Department of Health and Rehabilitative Services, 347 F.Supp. 1004 (S.D.Fla.1971) aff‘d mem., 407 U.S. 918, 92 S.Ct. 2462, 32 L.Ed.2d 803 (1972) reh. denied, 409 U.S. 903, 93 S.Ct. 107, 34 L.Ed.2d 166 (1972). See McDonald v. The Department of Public Welfare of the State of Florida, 430 F.2d 1268 (5th Cir.1970).
The three-judge district court in Zarate, supra, held in effect that the awarding of retroactive benefits was an appropriate part of the court‘s injunctive order, and therefore consistent with the doctrine of Ex Parte Young. This decision was appealed directly to the Supreme Court pursuant to
In addition, a three-judge district court, Thompson v. Shapiro, 270 F.Supp. 331, 338 (D.Conn.1967), awarded “monies unconstitutionally withheld” to plaintiffs as part of the court‘s relief, and the eleventh amendment was seen as no barrier to such relief. The district court was affirmed on appeal by the Supreme Court. 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). See Gaddis v. Wyman, 304 F.Supp. 717 (S.D.N.Y.1969), aff‘d sub nom., Wyman v. Bowens, 397 U.S. 49, 90 S.Ct. 813, 25 L.Ed.2d 38 (1970).
Furthermore, in McDonald, supra, the Fifth Circuit held that the district court‘s decision invalidating a durational residency requirement was retroactive; and a welfare recipient who had been denied assistance because of the requirement was entitled to benefits unlawfully withheld. See Machado v. Hackney, 299 F.Supp. 644 (W.D.Tex.1969) (three-judge district court awarding retroactive payments to plaintiffs when Supreme Court found state regulation inconsistent with Social Security Act). Accord, Harkless v. Sweeny Independent School District, 427 F.2d 319 (5th Cir. 1970) cert. denied, 400 U.S. 991, 91 S.Ct. 451, 27 L.Ed.2d 439 (1971) (award of back pay to wrongfully dismissed school teacher as an integral part of the equitable remedy of injunctive reinstatement). See e.g., Alexander and Townsend v. Weaver, 345 F.Supp. 666 (N.D.Ill.1972); Doe v. Swank, supra, (retroactive relief awarded).
The decision of Westberry v. Fisher, 309 F.Supp. 12 (D.Maine 1970) (eleventh amendment is a bar to the awarding of retroactive welfare benefits) relied on by defendants and the Second Circuit in Rothstein, is in conflict with the weight of authority as evidenced by Zarate, Shapiro v. Thompson, and the Fifth Circuit‘s holding in McDonald.
It is, accordingly,
Ordered and adjudged:
1.
2. Defendants are hereby permanently enjoined from implementing
3. Intervenor, and all others similarly situated, who have been denied public welfare benefits solely on account of
SIMPSON, Circuit Judge (concurring in part and dissenting in part):
I concur fully in the majority‘s holding that the Social Security Act does not authorize a state to condition welfare assistance payments upon a mother‘s institution of a support action against those persons legally responsible for the support of her dependent children, as the Florida Legislature has attempted by
It is helpful as a starting point to examine briefly the background against which the Eleventh Amendment came into being. In Chisholm v. Georgia, 1793, 2 U.S. (2 Dall.) 419, 1 L.Ed. 440, the Supreme Court required the State of Georgia to be an unwilling defendant in an action brought by South Carolina citizens as executors of the estate of a former Georgian for payment due on bonds the decedent had received from debtors who had thereafter had their property confiscated by Georgia. This holding contradicted what some Federalists of the time, The Federalist, No. 81 (Hamilton), had represented as the meaning of the judicial power of the federal court as delineated in
“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”
U.S.Const. Amend. XI .
Clearly, “(t)o suits against a State, without her consent, brought by citizens of another State . . . the Eleventh Amendment erected an absolute bar“. Monaco v. Mississippi, 1934, 292 U.S. 313, 329, 54 S.Ct. 745, 750-751, 78 L.Ed. 1282, 1287. Further, the Eleventh Amendment is now uniformly interpreted to apply to suits against a state by its own citizens. Hans v. Louisiana, 1890, 134 U.S. 1, 14-15, 10 S.Ct. 504, 507, 33 L.Ed. 842, 847.
In our case the State of Florida is patently the actual party to the performance of the retroactive benefits sought. It is the only party under obligation to make the payments. Once we enjoin the defendant state officials from relying on Section 409.245 in the future, as individuals, they have no personal interest in the subject matter of the suit and defend only as representing the State. Payment of the retroactive benefits prayed for could only be by the State from State funds. The situation is analogous to that in Sundry African Slaves v. Madrazo, 1828, 26 U.S. (1 Pet.) 110, 7 L.Ed. 73. There the Court, as to a claim against the Governor of Georgia as governor, where the demand was made upon him, not personally but officially, for money in the Treasury of the
The authorities relied upon by the majority in support of the award of retroactive payments I find unpersuasive. I think we should align ourselves with the position taked by the Second Circuit in Rothstein v. Wyman, 1972, 467 F.2d 226, Part III, page 236.
I read Ex parte Young, 1908, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, as standing simply for the proposition that a suit to restrain threatened unconstitutional action by an individual who is a state officer is not to be deemed a suit against the state. See 209 U.S. at 159-160, 28 S.Ct. at 453-454. Ex parte Young is distinguishable in the present circumstances first of all because we do not reach the constitutional question raised. Further, the majority here entertains a request going far beyond restraint of a state official. As noted, the demand is upon Florida‘s treasury.
In Zarate et al. v. State Department of Health and Rehabilitative Services, S.D.Fla.1971, 347 F.Supp. 1004, aff‘d mem. 1972, 407 U.S. 918, 92 S.Ct. 2462, 32 L.Ed.2d 803, relied upon by the majority, Florida was found to violate the Equal Protection Clause of the Fourteenth Amendment by conditioning welfare benefits either upon the beneficiary‘s possession of U. S. citizenship or upon the alien beneficiary‘s residence in the United States for a certain number of years. Similarly, retroactive benefits were granted in McDonald,1 Shapiro,2 Gaddis,3 and Harkless4 after constitutional infirmities were found to exist.
It is true that in Machado v. Hackney, W.D.Tex.1969, 299 F.Supp. 644, the court granted retroactive benefits where the Texas welfare statute involved was merely found to be inconsistent with the Social Security Act. However, the Machado court relied on King v. Smith, 1968, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118, which in turn did not mention this issue of retroactive payments, and offered no authority for granting such payments. The Alexander5 court did not refer to the Eleventh Amendment, discussing instead only the general issue of retroactive application of judicial decisions not involving a state as an unwilling defendant.
Finally, in Doe6 although the majority of the divided district court, 332 F. Supp. at 64, instructed the defendant state official to compute the amount wrongfully withheld from each of the individual plaintiffs denied aid and to remit such amounts to them, it did not discuss the effect of the Eleventh Amendment upon the granting of such relief. It is of course impossible to tell from the cryptic “judgment affirmed” language of the memorandum decision of the Supreme Court whether or not this problem was before the Court at all. Its lack of discussion in either of the district court opinions is some indication at least that the Supreme Court was not presented with it.
Without clearer precedent I am not disposed further to strip from the Eleventh Amendment its historic meaning by requiring retroactive payments from the State‘s Treasury absent a finding of constitutional violation. Cf. Rothstein
“. . . the Eleventh Amendment stands in the way. It is for (Florida), and not for the federal courts, to decide what policy is to be followed with respect to retroactive payments in the circumstances of this record.” 467 F.2d 241-242.
* The eleventh amendment to the Constitution of the United States provides that “the Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”