Glodgett v. Betit

• Decision Date: 28 December 1973
• Docket Number: Civ. A. File No. 6550.
• Parties: Jean GLODGETT et al., Intervenors, v. Joseph BETIT, Individually and as Commissioner of the Vermont Department of Social Welfare; Elliott Richardson, Individually and as Secretary of the Department of Health, Education and Welfare.
• Court: U.S. District Court — District of Vermont

368 F. Supp. 211

Jean GLODGETT et al., Intervenors, v. Joseph BETIT, Individually and as Commissioner of the Vermont Department of Social Welfare; Elliott Richardson, Individually and as Secretary of the Department of Health, Education and Welfare.

Civ. A. File No. 6550.

United States District Court, D. Vermont.

October 23, 1973.

Supplemental Opinion December 28, 1973.

Richard S. Kohn, Vermont Legal Aid, Inc., St. Johnsbury, Vt., for plaintiffs.

Carter LaPrade, Asst. U. S. Atty., Rutland, Vt., for defendant Richardson.

D. Eugene Wilson, Asst. Atty. Gen., Montpelier, Vt., for defendant Betit.

Before OAKES, Circuit Judge, and HOLDEN and COFFRIN, District Judges.

OPINION

HOLDEN, District Judge.

The Vermont Department of Social Welfare denies payment under its "Aid to Needy Families with Children" (ANFC) program to families in which the father receives unemployment compensation.¹ During any week in which the father receives unemployment benefits, his family is held ineligible for any ANFC payments, even if the unemployment payment is less than the ANFC payment which the family otherwise would have received. Vermont must operate its ANFC program in this manner in order for the ANFC-UF ("Aid to Needy Families with Children —Unemployed Father") segment of the program to receive federal financial assistance under the federal "Aid to Families with Dependent Children" (AFDC) program.²

The named plaintiffs, Glodgett, Percy and Derosia, are the parents and minor children of Vermont families who were denied ANFC assistance because of the receipt of unemployment compensation by the father in each of these families. On December 17, 1971, the Glodgett family's application for ANFC was accepted and they were allotted a monthly benefit of $239.00. On January 12, two days after Mr. Glodgett began receiving unemployment compensation from New Hampshire of $14.00 per week, he was notified by the state that his ANFC payments would be terminated as of February 16, 1972, by reason of his receiving unemployment compensation. The ANFC grant was reinstated soon after Mr. Glodgett ceased receiving unemployment benefits in March.

When Roger Percy's employment as a trucker was suspended, he began receiving unemployment benefits of $172.00 per month. Because of his receipt of unemployment compensation, his family was denied ANFC payments which would have totalled $410.00 per month, had the family not been disqualified.

On October 25, 1972, the Derosia family qualified for ANFC assistance in the amount of $394.00 per month. On November 6 Mrs. Derosia notified Social Welfare that the family was receiving unemployment compensation of $56.00 per month. For this reason the Derosias' ANFC grant was terminated as of December 1, 1972.

The plaintiffs seek injunctive and compensatory remedies on their own behalf and also on behalf of the class they claim to represent. More particularly, they seek the following relief: permission to maintain this action as a class action; a declaration that 42 U.S.C. § 607(b)(2)(C)(ii) and Vermont Welfare Regulation 2333.1 are unconstitutional because they respectively violate the Due Process Clause of the Fifth Amendment and the Equal Protection Clause of the Fourteenth Amendment. They seek an order enjoining the enforcement of the statute and regulation against the plaintiff class and compensatory ANFC benefits paid retroactively to the plaintiffs and class in the same amount that they would have been paid under 42 U.S.C. § 606,³ or as if the mother, instead of the father, had been receiving unemployment compensation.⁴ They further request an order directing the Secretary of HEW to approve the Vermont ANFC-UF program without requiring the inclusion of a provision disqualifying families with fathers receiving unemployment compensation; and such further relief as the court deems appropriate. At oral argument the plaintiffs advanced an additional statutory claim, contending that Vermont Welfare Regulation 2333.1 is enforced inconsistently with 42 U.S.C. § 607(b)(2)(C)(ii).

A three-judge court was convened, as required by 28 U.S.C. §§ 2281, 2282, since injunctive relief is sought against state and federal enactments on constitutional grounds. The defendant Betit at the time the action was commenced was Commissioner of Social Welfare for the State of Vermont. The defendant Richardson was then Secretary of the Department of Health, Education and Welfare. All parties have moved for summary judgment. Both defendants have moved to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted.

Class Action Status

The named plaintiffs contend they are representative of a class of Vermont families deprived of ANFC because the father receives unemployment compensation. In their complaint they request certification of this suit as a class action.

While the defendants do not contest the class action status of this suit, before the action may so proceed the court is called upon to determine whether the action is maintainable as a class suit. Fed.R.Civ.P. Rule 23(c) (1);⁵ Jackson v. Cutter Laboratories, 338 F.Supp. 882, 886 (E.D.Tenn.1970). An action is not maintainable as a class action merely because it is so designated in the pleadings. Cash v. Swifton Land Corporation, 434 F.2d 569, 571 (6th Cir. 1970); In re Swan-Finch Oil Corporation, 279 F.Supp. 386, 391 (S.D.N.Y. 1967). To the contrary, the plaintiffs in a purported class action bear the burden of establishing that their action meets the prerequisites of Rule 23. Rossin v. Southern Union Gas Company, 472 F.2d 707, 712 (10th Cir. 1973); Poindexter v. Teubert, 462 F.2d 1096, 1097 (4th Cir. 1972); Daye v. Commonwealth of Pennsylvania, 344 F.Supp. 1337, 1342 (E.D.Pa.1972); Clark v. Thompson, 206 F.Supp. 539, 542 (S.D. Miss.1962), aff'd 313 F.2d 637 (5th Cir. 1963), cert. denied, 375 U.S. 951, 84 S. Ct. 440, 11 L.Ed.2d 312 (1963); Free World Foreign Cars, Inc. v. Alfa Romeo, 55 F.R.D. 26, 29 (S.D.N.Y.1972); see Demarco v. Edens, 390 F.2d 836, 845 (2d Cir. 1968); Phillips v. Sherman, 197 F. Supp. 866, 869 (N.D.N.Y.1961). This burden imposes upon the plaintiffs in a purported class action the responsibility to move for formal certification of their class action by the court under Rule 23(c)(1). Herbst v. Able, 45 F.R.D. 451, 453 (S.D.N.Y.1968); Zeigler v. Gibralter Life Insurance Company, 43 F. R.D. 169, 170 (D.S.D.1967).

In this case, beyond their request for certification in their complaint, the plaintiffs have not sought a formal determination of class action status. Thus the vital issues concerning the adequacy of representation which underly any representative action remain unattended and unresolved. The question of adequacy of representation, see Hansberry v. Lee, 311 U.S. 32, 41-43, 61 S.Ct. 115, 85 L.Ed. 22 (1940); Herbst v. Able, supra at 453 of 45 F.R.D., has not been answered. Nor have important issues concerning notice: whether notice is required not only if the damages aspect of the action is to be maintained, see Eisen v. Carlisle & Jacquelin, 479 F.2d 1005, 1015 (2d Cir. 1973), but also if injunctive relief is sought on behalf of the class under Rule 23(b)(2), compare Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 564-565 (2d Cir. 1968); Schrader v. Selective Service System Local Board No. 76 of Wisconsin, 470 F.2d 73, 75 (7th Cir. 1972); Zachary v. Chase Manhattan Bank, 52 F.R.D. 532, 535 (S.D. N.Y.1971), with Yaffe v. Powers, 454 F.2d 1362, 1366 (1st Cir. 1971); Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1125 (5th Cir. 1969); Woodward v. Rogers, 344 F.Supp. 974, 980 n. 10 (D.D.C.1972); Vaughns v. Board of Education of Prince George's County, 355 F.Supp. 1034, 1035 (D.Md. 1972); Northern Natural Gas Co. v. Grounds, 292 F.Supp. 619, 636 (D.Kan. 1968); 3B Moore, Federal Practice, ¶ 23.72, pp. 1421-1422 (1969). And if prejudgment notice is required here, the mechanics involved, such as the form the notice should take, have not been dealt with by the parties. Compare Eisen v. Carlisle & Jacquelin, 479 F.2d 1005, 1015 (2d Cir. 1973), with e. g., Lopez v. Wyman, 329 F.Supp. 483, 486 (W.D.N. Y.1971); Snyder v. Board of Trustees of the University of Illinois, 286 F.Supp. 927 (N.D.Ill.1968).

Despite the fact that these issues have not been attended to, the plaintiffs have pressed their motion for summary judgment. Without a determination of these issues, a representative action which seeks to affect the rights of absent parties may not proceed. See Hansberry v. Lee, supra; Mullane v. Central Hanover Bank & Trust Company, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). In moving for summary judgment without having sought a formal certification of this action as a class action, the plaintiffs leave us no choice but to dismiss the class aspects of this suit, on the ground that the plaintiffs have failed to meet their burden to prove that the action meets the prerequisites of Rule 23.

Jurisdiction

Section 1343(3) of Title 28, United States Code, affords jurisdiction over plaintiffs' claims against both the state and the federal defendants Aguayo v. Richardson, 473 F.2d 1090, 1102 (2d Cir. 1973); cf. Macias v. Finch, 324 F.Supp. 1252 (N.D.Calif. 1970), (3-Judge Court), aff'd sub nom, Macias v. Richardson, 400 U.S. 913, 91 S.Ct. 180, 27 L.Ed.2d 153 (1970); Conner v. Finch, 314 D.Supp. 364 (N.D.Ill. 1970), (3-Judge Court), aff'd sub nom, Conner v. Richardson, 400 U.S. 1003, 91 S.Ct. 575, 27 L.Ed.2d 618 (1971); but see Stinson v. Finch, 317 F.Supp. 581 (D.Ga.1970), (3-Judge Court). Section 1343(3) provides original jurisdiction in the United States District Court of actions seeking redress for deprivations of constitutional rights occurring under color of state law or regulation.⁶

The plaintiffs have been denied ANFC-UF benefits, arguably in violation of their constitutional rights, under color of Vermont Welfare Regulation 2333.1. There is plainly subject matter jurisdiction over this suit...