*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). 564 F.2d 609 order follows. appropriate

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 hearing, ^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 Medical 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 declare 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 Services 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 the 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 a 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 requires 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 fare 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- 373 F.Supp. 1349 1974), tinuance of welfare benefits to hear- we are dealing dispute with a be ing endangered practicing their tween very physician survival. As the government, stated in Goldberg Kelly, supra, court v. which arose alleged at out of the 264, physician. 90 at conduct of the S.Ct. 1018: the crucial factor in this con- [T]hus We it is clear think that the statutes and not present

text —a factor case of provisions the administrative code government contractor, the blacklisted oppor- under attack are constitutional. The discharged government 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 to 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 medicaid 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 three-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. ability 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 said 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 made 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 40 L.Ed.2d 406] if 30:4D-7(f) aggrieved by N.J.S.A. that decision to the afore- appealed therein at 1919. Id. 97 S.Ct. Finally, appeals said intermediate Vail, supra, In Juidice v. the District have been filed application could direct had held unconstitutional those sec- Court Division of the New Appellate with the judiciary tions of the law of the State Jersey Superior for a decision contempt pro- New York which concerned proce- validity forum as to the ceedings judgments. to enforce civil Re- It can complains. he now of which dure decision, versing that potential point at that there seen that importance again emphasized plaintiff available avenues of relief There comity. doctrine of the Court held which, have culminated in pursued, if litigation judicial either administrative action to the parties between the same disobedience of a court-sanc- [w]hether herein. subpoena, resulting tioned proc- to a leading contempt ess had an clearly this case civil, court, quasi-criminal, is labeled claims opportunity present any nature, proceeding. we think the salient criminal state have in might he This is all that required. See, Juidice v. best be left to the courts of the Vail, supra 97 S.Ct. at Furthermore, New under the principles comity, statute and the regulations here under at- federalism and traditional equity jurispru- tack are clearly susceptible of a construc- grant dence. I would the motion to dismiss. the state judiciary obviating the STERN, Judge (concurring). necessity for' a federal court to decide the I am in complete agreement with per constitutional issue presented See, herein. opinion curiam and I write only on the issue Baird, Bellotti v. 146-51, of abstention by Judge reached Fisher. I (1976).1 cannot see we should consider staying It must also be taken into consideration our hands in this matter and defer to some if that we stay our hand here it will accord state tribunal before which nothing now proper respect for a state function under pends. the principle of comity. Keeping in mind has been suspended, and the the country is made up of separate fact that he “could have immediately tested governments, the union and the na- constitutionality of the statutes and tional government will fare best if the regulations here under attack taking states and their institutions are left free to advantage of a variety procedures” of state

perform 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 the 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 equitable 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 and “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 “strong” 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 doctrine of law 44-45, 91 S.Ct. 746. Younger comity requires plain- consideration of and its progeny are an effort to reconcile tiffs to choose state court rather than a paradox fundamental parallel two federal court in which to enforce federal court systems exercising overlapping jur- rights. majority growing reviews a isdiction within the same time and space. of law in body the lower federal courts *6 equitable The doctrine of abstention is suggests that the reality accommodation, a mere Younger-Huffman rule rests on some to smooth the to, functioning judicial “strong peculiar relationship in, branches of both the national existing proceed- state and state governments in a ings” Ante, on the part system. state. It de- mands that a questionable federal court stay addi- its hand only when a inapplicable tion to the doctrine state court has already as- case, jurisdiction to the facts of this sumed though purport- over the controversy ing to decline to decide between parties. whether I view purpose “strong state approach interest” is cor- of the doctrine to be the avoidance of rect, the Court overlooks the fundamen- needless embarrassment to the state tal fact which Younger-Huffman renders courts from federal litigation which, by wholly inapplicable here: there is no virtue of the Clause, Supremacy could proceeding state of any kind. cause federal courts effectively to divest Cf. In re Jury Impaneled Grand January state jurisdiction courts of over law- 21, 1975, (3rd 1976). 541 F.2d 373 Cir. If suits. we here, were to plaintiffs refuse to hear In the absence of a pending lawsuit, we would be them sending away to begin however, I cannot see a federal a new suit elsewhere. plaintiff should be denied a federal forum In my view, the applicability of the in which to contend that his federal equitable abstention doctrine rights does not de- have been violated by state action. pend upon such labels civil, as Such a criminal, conclusion implies no criticism

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. 49 L.Ed.2d 1067 (1976). alone, however,

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 363 F.Supp. 692, (E.D.Va.1973). A state has an inter-

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 argument 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.