Rothstein v. Wyman

• Decision Date: 07 December 1970
• Docket Number: No. 69 Civ. 2763.,69 Civ. 2763.
• Citation: 336 F. Supp. 328
• Parties: Edna ROTHSTEIN et al., Plaintiffs, v. George K. WYMAN, as Commissioner of the Department of Social Services of the State of New York, and the Department of Social Services of the State of New York, Defendants.
• Court: U.S. District Court — Southern District of New York

336 F. Supp. 328

Edna ROTHSTEIN et al., Plaintiffs, v. George K. WYMAN, as Commissioner of the Department of Social Services of the State of New York, and the Department of Social Services of the State of New York, Defendants.

No. 69 Civ. 2763.

United States District Court, S. D. New York.

December 7, 1970.

The Legal Aid Society of Westchester County by Norman B. Lichtenstein, White Plains, N. Y., Leonard S. Clark by Burr C. Hollister, Nassau County Law Services Committee, Inc., Westbury, N. Y., M. James Spitzer, Jr., National Welfare Rights Organization, New York City, Edward V. Sparer, Philadelphia, Pa., for plaintiffs.

Louis J. Lefkowitz, Atty. Gen., State of New York by Amy Juviler and Michael Colodner, Asst. Attys. Gen., New York City, for defendants.

OPINION

MOTLEY, District Judge.

Plaintiffs are AABD¹ and AFDC² welfare recipients residing in Nassau and Westchester Counties, New York. Over a year ago they brought this proceeding to challenge § 131-a of the New York Social Services Law, McKinney's Consol.Laws, c. 55 and the regulations promulgated thereunder which provide a lower monthly public assistance grant to welfare recipients in counties immediately adjacent to New York City than is provided to recipients residing inside City boundaries.³ Plaintiffs attack the differential in public assistance grants as being violative of 1) the Social Security Act and federal regulations, 42 U.S.C. § 602(a) (1) and § 1382(a) (1); 45 C.F.R. § 233.20; Federal Handbook of Public Assistance, Part II, § 4000 et seq., and (2) the Equal Protection Clause of the Fourteenth Amendment.

The facts and prior stages of this litigation have been sufficiently described. See Rothstein v. Wyman, 303 F. Supp. 339 (S.D.N.Y.1969), vacated, 398 U.S. 275, 90 S.Ct. 1582, 26 L.Ed.2d 218 (1970). For the present purpose it is enough to briefly summarize the history of this case.

Plaintiffs' instant motion for an injunction is, in effect, the renewal of a similar motion made in June, 1969. At that time a three-judge court found that plaintiffs had shown a likelihood of success on their constitutional claim and granted preliminary relief on that basis. Rothstein v. Wyman, supra. The Court delayed its decision on the federal statutory claim because of a pending review of the matter by the Department of Health, Education and Welfare (hereinafter "HEW").

On appeal the Supreme Court held that the federal statutory claim should be preliminarily decided in advance of any decision on constitutional grounds. The Court vacated the injunction and remanded the case to the District Court

"for an opportunity to pass on the propriety of granting interim relief in accordance with conventional equitable principles on the basis of appellees' statutory claims, or if the question is reached, continuing the present injunction in light of this Court's decision in Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153 25 L.Ed.2d 491 (1970)." Rothstein v. Wyman, supra, 398 U.S. at 276, 90 S.Ct. at 1583.

After this remand, the three-judge court met and remanded the case to the present single judge for a hearing on the statutory claim. At that hearing the attorneys for the parties agreed that the trial of the action on the merits should be advanced and heard with the hearing on the preliminary injunction. The court accepted this agreement and pursuant to Rule 65(a) (2), Fed.R.Civ.P., consolidated the hearing on the preliminary injunction with the trial on the merits.

Present New York Schedules

Since the decision by the three-judge court, New York has twice revised § 131-a and the Commissioner has issued new regulations. The first change in § 131-a took effect April 1, 1970 and provided for a 10% cost of living increase to welfare recipients. Chapter 120 of the Laws of 1970. However, the Act continued to provide higher levels of grants to recipients in New York City than to recipients in the surrounding SA-1 counties. In addition, the Act set forth legislative findings as to why New York City residents received higher grants than the residents of surrounding counties.

Shortly after this amendment the legislature responded to the decision of the Supreme Court in Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), and repealed § 131-a in toto, replacing it with a new § 131-a in Chapter 517 of the Laws of 1970. The present § 131-a provides for levels of grants as follows (in dollars):

                          NUMBER OF PERSONS IN HOUSEHOLD
                                                                      Each
                                1      2     3     4     5     6     Additional
                New York City   84    134   179   231   284   329     45
                Outside
                New York City   66    111   156   201   246   282     36
                

As can readily be seen, the new law continues the disparity in grants between New York City and the rest of the state. It is this disparity that plaintiffs contend violates the Social Security Act and the HEW regulations. Section 131-a also provides: 1) that defendant Wyman can raise or lower allowances if the total cost of the items included in the grant differs from the statutory levels, and 2) that the defendants must adjust any schedule of grants and allowances "if federal requirements make it necessary."

Defendant Wyman promulgated regulations implementing § 131-a with a defined standard of need and three schedules of allowance. Bulletin 134, Administrative Letter 70 PWD-36; 18 N.Y.C. R.R. § 352.1, and § 352.2. Contrary to the schedules set forth in the statute, the regulations treated New York City and the surrounding counties (the old SA-1 counties) as one unit to receive the allowance levels provided by the statute to New York City. Defendants admit that this was done only because of the court order in the original Rothstein case. Bulletin 134, Administrative Letter 70 PWD-36. In expressly using this court's order as a basis for equal allowances, the defendant has clearly made known his intention to provide lower grants for plaintiffs in surrounding counties than to residents of New York City should the court's directive not be reinstated.⁴ Therefore, no mootness issue is presented. The only guide to the extent of defendant's contemplated administrative schedule of lower grants is found in his initial schedule (promulgated prior to the original Rothstein case) of grants 7-16% below the New York City schedule.

Issues Presented

The disparity in the level of the schedules prescribed by the legislature for New York City and for its surrounding counties presents the court with two issues: 1) whether, there is any evidence that the difference in the levels can be justified on the basis of a difference in the cost of the items forming those levels, and 2) whether, assuming there is no justification for the disparity, does that lack of justification render the disparities in schedules violative of the Social Security Act and regulations.

The Disparity in Levels of Benefits

Resolution of the first issue would normally be difficult, time consuming, and result in a lengthy opinion. But in the posture of this case most of the findings necessary to the decision of this issue have already been stated by the three-judge court. Rothstein v. Wyman, supra. That court found that there was no evidence justifying any disparity in the level of schedules between New York City and the surrounding counties. The court stated that

"there is not a scintilla of evidence that the difference between the level of the schedules prescribed by the Legislature for New York City and for its surrounding counties, respectively, could be justified on the basis of a difference in the cost of the essential items forming the basis of those levels." Rothstein v. Wyman, supra, 303 F.Supp. at 347.

Rather, the court found that the cost of the essential items forming the schedules was the same for New York City as for the surrounding counties. Rothstein v. Wyman, supra, at 347.

The court also dealt with a number of the rationales defendants put forth to justify the disparate schedules. The court found not "an iota of evidence to support an assumption that welfare recipients encounter . . . a `higher social cost of living'" in New York City than in the surrounding counties. Rothstein v. Wyman, supra at 349.

The only new facts presented to the court since the decision of the three-judge court support that court's findings. These facts include:

1) The United States Department of Labor's Bureau of Labor Statistics still continues—as recently as April 1, 1970— to prepare and present cost of living material for the New York metropolitan area without drawing any distinction between New York City and the surrounding counties. See Rothstein v. Wyman, supra at 344 n. 4.

2) In November, 1969 defendant Wyman recommended to the Governor and the legislature that "one statewide standard of assistance for all basic items of need, exclusive of shelter costs" be enacted. The Commissioner stated that:

"The effect of variation in other (than shelter) items of basic need in different regions results in approximately the same total cost of living in households comprised of the same number of persons in all such regions." 103d Annual Report of the New York State Board of Social Welfare (1970).

The bill implementing this recommendation was not enacted.

3) On June 1, 1970 defendant Wyman stated under oath (in a related case, Rosado v. Wyman, supra) that he has no data to support differential allowances in New York City and the surrounding counties. See Plaintiffs' Exhibit E.

4) Finally, in complying with the three-judge court's order which restrained the promulgation of grants "other than according to objective, nondiscriminatory standards . . ." defendant Wyman ordered that the New York City schedule be used for the seven suburban counties.

Thus, it is clear that the present disparate schedules are discriminatory and not based on objective standards.

If it is true, as plaintiffs contend, that the Social Security Act...