Torres v. New York State Department of Labor, 70 Civ. 2408.

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Citation318 F. Supp. 1313
Docket NumberNo. 70 Civ. 2408.,70 Civ. 2408.
PartiesRoberto TORRES and Walter Dinger, Plaintiffs, v. NEW YORK STATE DEPARTMENT OF LABOR and Martin P. Catherwood, Industrial Commissioner, Defendants.
Decision Date14 September 1970

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Emilio P. Gautier, Manhattan Legal Services Corp., Dennis R. Yeager, Douglas D. Broadwater, New York City, for plaintiff.

Louis J. Lefkowitz, Atty. Gen. of the State of New York, New York City, for defendants; Samuel A. Hirshowitz, Brenda Soloff, Asst. Atty. Gen., New York City, of counsel.

MEMORANDUM OPINION

LASKER, District Judge.

In this class action brought under the Civil Rights Act, 42 U.S.C. § 1983, plaintiff seeks to convene a three-judge court for the purpose of obtaining a declaratory judgment declaring §§ 597, 598 and 620 of the New York Labor Law, McKinney's Consol.Laws, c. 31, unconstitutional insofar as they authorize the suspension or termination of unemployment compensation benefits without a prior hearing. Plaintiff also seeks an injunction against the enforcement of these statutes. Jurisdiction is conferred on this court by 28 U.S.C. §§ 1343(3), (4), and by 28 U.S.C. §§ 2201, 2202.

I. FACTS

Plaintiff Torres is an unemployed porter who lost his job with Kinney National Service, Inc. in January 1970. The New York State Department of Labor made an initial determination, effective January 26, 1970, that he was eligible for unemployment compensation. He began to receive such compensation, but subsequently the Department suspended and then terminated the benefits as of March 23, 1970, without providing plaintiff a hearing. After receiving notice of the termination, plaintiff secured a hearing for May 14, 1970.

The stated reason for the termination of benefits was that plaintiff had provoked his discharge. His former employer had the right to produce a witness whose testimony at the hearing would be necessary to substantiate the employer's version of the discharge. This witness failed to appear, however, and the hearing was adjourned indefinitely by the referee. Plaintiff then instituted this action by an order to show cause, which sought a temporary restraining order that would have required the Department of Labor to restore payments to plaintiff and to other members of the class he purports to represent. (As to the class, see infra.) On June 16, 1970, at the argument brought on by the order to show cause, the State Attorney General's office (representing the defendants) notified the court that a hearing for Torres was scheduled for the following day. I declined to issue a temporary restraining order at that time as to the class, but reserved decision pending the results of the hearing.

The plaintiff, his attorney, and representatives of both the employer and the defendant Industrial Commissioner appeared at the hearing. The referee held that the Department's initial ex parte determinations of voluntary leaving and willful false statement were sustained, that the termination of benefits was proper, and that plaintiff would have to return the benefits he had received. The plaintiff has the right to appeal that decision within the State administrative framework. New York Labor Law § 598.

Following the referee's determination, the plaintiff moved in this court for an order determining that this action may proceed as a class action, and for a preliminary injunction. Defendants opposed this request on the ground that the named plaintiff Torres was no longer representative of any class of people challenging pre-hearing termination of benefits, because he himself had received a full-fledged hearing. Defendants further contended that as a result of the hearing the entire matter is moot.

The questions before me, therefore, are the following: (1) whether the case is moot as to Torres or the other members of the class; (2) whether Torres is a proper representative of the class; (3) whether the action should proceed as a class action; (4) whether preliminary relief should be granted at this time; and (5) whether a substantial constitutional question has been raised justifying the convening of a three-judge court under Title 28 U.S.C. § 2281.

I have concluded that the matter is not moot; that Torres has standing as a representative of the class; that the matter should proceed as a class action; that no preliminary relief is warranted; and that a decision as to the convening of a three-judge court is premature for reasons explained below.

II. MOOTNESS

Defendants maintain that "no meaningful relief" could be afforded to Torres once he received the hearing which he requests in his complaint, and that, accordingly, the action should be dismissed. They cite United States ex rel. Michael Machado v. Wilkins, 423 F.2d 385 (2d Cir. 1970), and Phipps v. McGinnis, 69 Civ. 3236 (S.D.N.Y. May 13, 1970), in support of this position. Neither case is controlling here, however, for the significant reason that Torres has requested the restoration of the unemployment insurance benefits which were withheld prior to his hearing. Assuming that on the merits his contentions on the constitutional issues are upheld and that it was ultimately found that he was entitled to benefits, it would be quite feasible to restore those payments, since they are liquidated and easily ascertainable. Machado, in contrast, brought a habeas corpus proceeding, and no meaningful relief was available to him because by the time the case reached the Court of Appeals he had been released from prison. Phipps did not request monetary relief either, and even if he had, his damages, if any, would have been most speculative.

Furthermore, it is indisputable that "voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i. e., does not make the case moot." United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). For a defendant to establish that a case involving important public issues is moot, he must "demonstrate that `there is no reasonable expectation that the wrong will be repeated.' The burden is a heavy one." Id., 345 U.S. at 633, 73 S.Ct. at 897. Here, far from demonstrating that pre-hearing termination of benefits will not reoccur either as to Torres or the class he seeks to represent, defendants deny that such terminations are a "wrong" and presumably, believing in the correctness of their position, will continue the practice unless ordered otherwise. Under these circumstances, injunctive relief could be appropriate, for there certainly "exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive." Id., 345 U.S. at 633, 73 S.Ct. at 898. See Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969); United States v. Concentrated Phosphate Export Association, 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968); Pierce v. LaVallee, 293 F.2d 233, 234 (2d Cir. 1961); Moya v. DeBaca, 286 F. Supp. 606, 607 (D.New Mexico 1968).

The observations of the Supreme Court in Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1962), are applicable. There the Court, ruling in a malapportionment case, stated (375-376, 83 S.Ct. 806):

"Moreover, we think the case is not moot by reason of the fact that the Democratic Committee voted to hold the 1962 primary on a popular vote basis. But for the injunction issued below, the 1962 Act remains in force; and if the complaint were dismissed it would govern future elections. In addition, the voluntary abandonment of a practice does not relieve a court of adjudicating its legality, particularly where the practice is deeply rooted and long standing. For if the case were dismissed as moot appellants would be `free to return to * * * their old ways.'"

An additional factor that operates to preserve this case from mootness results from the fact that the action was denominated a "class action" from the outset. Once a suit is filed as a class action, it should be assumed to be one, and treated as such, even prior to the actual, formal determination that it is a class action. 3B Moore's Federal Practice, para. 23.50, p. 23-1103. Since this case was presumptively a class action from the beginning, it was a class action at the time that Torres was given his hearing. The fact that the named plaintiff Torres received the essential element of his requested relief did not and does not benefit the other members of the class; certainly as to them the action is not moot and should not be dismissed. Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir. 1968); Cypress v. Newport News General & Nonsectarian Hosp. Assn., 375 F.2d 648, 658 (4th Cir. 1967); 3B Moore's Federal Practice, para. 23.40, p. 23-651/23-652. See the discussion of standing, infra.

III. STANDING

Defendants contend that Torres is not a representative party within the meaning of Rule 23, Fed.R.Civ.Proc., because he has already received the hearing which the class of people he purports to represent are seeking. This argument is substantially similar to the defendants' position as to mootness, and it is unpersuasive for similar reasons. In the first place, the hearing which Torres received was not the kind of hearing which the "class" seeks; it was a post-termination rather than pre-termination hearing. In a sense, Torres' status as of the time he brought this action could never be changed and could lead neither to mootness nor to his being unrepresentative. Giving Torres a hearing following the termination of his benefits cannot alter the fact that he was declared ineligible and deprived of unemployment compensation benefits before he was given a hearing. Thus, his status as a representative of others who are subjected to a prehearing termination has not changed.

Furthermore, in cases involving substantial questions of constitutional rights, there is a well...

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