453 F.2d 1075 (2nd Cir. 1971), 383, Almenares v. Wyman

Docket Nº:383, 71-2038.
Citation:453 F.2d 1075
Party Name:Maria ALMENARES et al., Plaintiffs-Appellees, v. George K. WYMAN, Commissioner of Social Services for the State of New York, individually and in his official capacity, and Jule Sugarman, Commissioner of Social Services for the City of New York, individually, in his official capacity, and on behalf of all other local commissioners of social services
Case Date:December 10, 1971
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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453 F.2d 1075 (2nd Cir. 1971)

Maria ALMENARES et al., Plaintiffs-Appellees,

v.

George K. WYMAN, Commissioner of Social Services for the State of New York, individually and in his official capacity, and Jule Sugarman, Commissioner of Social Services for the City of New York, individually, in his official capacity, and on behalf of all other local commissioners of social services in the State of New York, individually and in their official capacities, Defendants-Appellants.

No. 383, 71-2038.

United States Court of Appeals, Second Circuit.

December 10, 1971

Argued Nov. 12, 1971.

Certiorari Denied Feb. 22, 1972.

See 92 S.Ct. 962.

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Henry A. Freedman, New York City (Steven J. Cole, Center on Social Welfare Policy and Law, Lorenzo Casanova and Gerald McIntyre, Bronx Legal Services Corp. B, New York City, of counsel), for plaintiffs-appellees.

Emilio P. Gautier, New York City, Louis B. York, Manhattan Legal Services Corp., John C. Gray, Jr. and Robert J. Jaffe, Brooklyn, N. Y., Brooklyn Legal Services Corp. B, of counsel), for intervenors.

Stephen P. Seligman, Asst. Atty. Gen. (Samuel A. Hirshowitz, First Asst. Atty. Gen., and Louis J. Lefkowitz, Atty. Gen., State of N. Y., of counsel), for defendant-appellant Wyman.

Yvette G. Harmon, New York City (J. Lee Rankin, Corp. Counsel, City of New York, of counsel), for defendant-appellant Sugarman.

Before FRIENDLY, Chief Judge, FEINBERG, Circuit Judge, and DAVIS, Associate Judge. [*]

FRIENDLY, Chief Judge:

I.

This case begins where Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), ends. The Court there held that local social service agencies must provide welfare recipients an opportunity for a hearing affording basic due process rights before terminating benefits. Plaintiffs here allege that the hearing procedures actually employed by defendants with respect to review of local agency action terminating, suspending or reducing their Aid to Families with Dependent Children (AFDC) benefits failed to meet the due process requirements enunciated in Goldberg, and further that the procedures are in conflict with those prescribed by the United States Department of Health, Education and Welfare (HEW) subsequent to Goldberg, 45 C.F.R. § 205.10, 36 Fed.Reg. 3034 (1971), implementing the "fair hearing" requirement of the Social Security Act, 42 U.S.C. §§ 602(a) (4), and 1202(a) (4), through its rule making power, 42 U.S.C. § 1302.

After the decision in Goldberg and for the purpose of complying with it, the New York State Department of Social Services modified its regulation governing hearing procedures by providing for a local agency hearing affording basic due process rights. 18 N.Y.C.R.R. § 351.26. 1 Plaintiffs do not challenge the constitutionality of this regulation. The New York City Department of Social Services (City) also modified its announced procedures. At the time of the events here in question, the City's hearing procedures were set forth in Procedure No. (P.No.) 71-21, replaced by P.No. 71-35 (effective September 30, 1971) 2 which provided that "in cases

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where it is proposed that assistance be reduced, suspended or discontinued," and prior to such action, the affected recipient must be afforded an opportunity for a local agency hearing which, at least on the face of the Procedure, would seem to comport with the constitutional requirements enunciated by the Goldberg majority for cases of discontinuance. 3 In the event of adverse action the affected recipient is entitled to a post-reduction, suspension or discontinuance State "fair hearing" which affords due process procedural safeguards. See Goldberg v. Kelly, supra, 397 U.S. at 259-60, 90 S.Ct. 1011, 25 L.Ed.2d 287; see also N.Y. Social Welfare Law § 353 (McKinney 1966); 18 N.Y.C.R.R. §§ 84.2-84.23.

Even prior to the decision in Goldberg v. Kelly, supra, HEW had been reconsidering its regulation dealing with state "fair hearings" under the various "categorical assistance" programs to which the Federal Government contributes. 4 On February 13, 1971, HEW published new regulations effective April 14, 1971, 45 C.F.R. § 205.10, 36 Fed.Reg. 3034 (1971). These directed that each State plan under the categorical assistance programs must contain provisions whereby, inter alia:

(1) Every claimant would be informed in writing at the time of his application for assistance and at the time of any action affecting his claim, of his right to a fair hearing and the method for obtaining one;

(2) An opportunity for a hearing before the State agency shall be granted to any individual requesting a hearing because his claim has been denied or not acted upon with reasonable promptness or "because he is aggrieved by any other agency action affecting receipt, suspension, reduction, or termination of such assistance or by agency policy as it affects his situation";

(3) Notice of proposed action must be given fifteen days in advance;

(4) Assistance must be continued "until the fair hearing decision is rendered and through a period consistent with the State's established policies for issuance of payments unless a determination is

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made by the State agency, in accordance with criteria issued by the Social and Rehabilitation Service, that the issue is one of State agency policy and not one of fact or judgment relating to the individual case, including a question whether the State agency rules or policies were correctly applied to the facts of the particular case."

Concededly the City and State of New York, have not complied with so much of the regulation as forbids discontinuance, suspension or reduction of benefits until after an adverse decision at the State fair hearing; they take such action once the City has acted, with the claimant entitled to review by the State agency but with his benefits affected in the meanwhile. 5

The plaintiffs in this action are three women recipients of AFDC benefits. Maria Almenares received a letter from the City dated July 12, 1971, advising that on July 16, her semi-monthly grant of $120.50 would be reduced to $6.35 because of non-payment of rent, which she alleged she was withholding pursuant to N.Y. Real Property Action and Procedure Law, McKinney's Consol.Laws c. 81, § 755, and receipt of support money from her husband, the extent of which she denied; allegedly no opportunity for a hearing, State or local, was offered. Cresencia Garcia received notice dated April 14, 1971, that her grant would be reduced as of May 16-in fact, she alleges that, without further notice, the reduction became effective on May 1-from $117 semi-monthly to $93.60 because of alleged endorsement of checks which she claimed she had not received. Local agency review was not had until July 9, after assistance had already been reduced; the decision was adverse but Mrs. Garcia claimed the hearing did not afford due process because the hearing examiner was not impartial and because she was denied the right to confront the evidence against her. Janet Rodriguez received notice early in July, 1971, that her semi-monthly grant of $117.30 would be suspended (later modified to a reduction to $27.45) because she had been working, a fact which she denied. No pre-termination or pre-reduction hearing, State or local, was afforded since, as the City now asserts, discontinuance or reduction was "mandated by law," see note 3, supra. Before decision of the motion for a preliminary injunction, eight other recipients of AFDC benefits were allowed to intervene. Allegedly four had suffered or were threatened with termination and four with substantial reductions of their grants. Six had been advised of their right to a City hearing and four had received this; the others claimed they had not been so advised. All those who had received hearings alleged that these did not comply with due process. Five of the eight allegedly had assistance reduced or terminated prior to any hearing.

The complaint was brought against George K. Wyman, Commissioner of Social Services of the State of New York, and Jule Sugarman, Commissioner of Social Services for the City. 6 Plaintiffs sought to represent all recipients of public assistance benefits under the federally aided AFDC and Aid to the Aged, Blind and Disabled (AABD) programs. 7

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They contended that the actions of the City with respect to their AFDC benefits were in violation of due process, as explicated in Goldberg v. Kelly, supra, and also that termination or reduction of their benefits prior to decision in a State fair hearing violated the HEW regulations. On a motion for a preliminary injunction, the district court held, in an opinion filed November 3, 1971, that the complaint stated colorable constitutional claims over which it had jurisdiction pursuant to 28 U.S.C. § 1343(3); that consequently it had "pendent" jurisdiction over the claim of violation of the HEW regulation, without need to consider jurisdictional amount; that the claim relating to violation of the HEW regulations might properly be prosecuted as a class action under F.R.Civ.P. 23(b) (2) for injunctive and declaratory relief against the two named defendants but not against other local administrators, see note 6, supra; and that the HEW regulations were valid. It entered an order which restrained defendants from terminating, suspending or reducing AFDC or AABD benefits "until an opportunity is afforded for a fair hearing comporting with the requirements of 45 C.F.R. § 205.10, 36 Fed.Reg. 3034 (1971) insofar as it applies to the issues raised by the plaintiffs in this case, or until this Court determines that defendant Wyman or his successor in office has promulgated regulations implementing the federal regulation, insofar as it applies to the issues in this case, and that defendant Wyman or his successor has developed a...

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