472 F.2d 985 (7th Cir. 1973), 72-1380, Jordan v. Weaver

Docket Nº72-1380, 72-1381.
Citation472 F.2d 985
Party NameJohn JORDAN, by his next friend, Jeanette Bryant, Individually and on behalf of all other persons similarly situated, Plaintiffs-Appellants, Cross-Appellees, v. Edward T. WEAVER et al., Defendants-Appellees, Cross-Appellants.
Case DateJanuary 18, 1973
CourtUnited States Courts of Appeals, Court of Appeals for the Seventh Circuit

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472 F.2d 985 (7th Cir. 1973)

John JORDAN, by his next friend, Jeanette Bryant, Individually and on behalf of all other persons similarly situated, Plaintiffs-Appellants, Cross-Appellees,


Edward T. WEAVER et al., Defendants-Appellees, Cross-Appellants.

Nos. 72-1380, 72-1381.

United States Court of Appeals, Seventh Circuit.

January 18, 1973

Argued Oct. 20, 1972.

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[Copyrighted Material Omitted]

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William J. Scott, Atty. Gen., Warren K. Smoot, Donald S. Carnow, Asst. Attys. Gen., Chicago, Ill., for Weaver.

Sheldon H. Roodman, Marilyn K. Katz, Chicago, Ill., for Jordan.

Before HASTINGS, Senior Circuit Judge, CUMMINGS, Circuit Judge, and GORDON, District Judge. 1

CUMMINGS, Circuit Judge.

This class suit was brought to challenge actions of Illinois and Cook County officials in administering the federal-state program of Aid to the Aged, Blind and Disabled ("AABD") under 42 U.S.C. §§ 1381-1385. Count I of the amended complaint alleged that defendants, acting pursuant to Section 4004.1 of the Categorical Assistance Manual of the Illinois Department of Public Aid, 2 were not complying with federal regulations requiring that eligibility determinations on applications for assistance for the aged and blind under AABD be made within 30 days and for the disabled within 60 days (formerly 45 days) and requiring that those found eligible receive their assistance within the respective maximum time periods. 3 Plaintiffs

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further charged that defendants improperly authorized grants to commence only with the month in which an application was approved and not including prior eligibility months for which an applicant was entitled to aid under federal law. 4 Count II alleged that the Fourteenth Amendment, the applicable federal and Illinois statutes, and the federal regulations require that AABD applicants who meet the eligibility conditions on the date of application must receive assistance effective from that date.

The district court declared Section 4004 (and subsections thereunder) of the Illinois Categorical Assistance Manual invalid insofar as it was at variance with 45 C.F.R. § 206.10(3) and granted a permanent injunction requiring compliance with the federal time limits for processing and paying AABD applicants, except in certain exemplified unusual circumstances, and retroactively requiring defendants to release AABD benefits withheld from those whose applications, commencing on July 1, 1968, to April 16, 1971, 5 had not been processed within the federal time limits. A stay pending appeal was granted as to the latter requirement. The court also held that eligible AABD applicants are not entitled to assistance from the date of application and denied plaintiff's prayer for punitive damages against a former Director of the Illinois Department of Public Aid. Defendants appeal from the district court's decision on the grounds that plaintiff's suit for retroactive welfare benefits may not be maintained in federal court because barred by the Eleventh Amendment, that the judgment of inconsistency between the federal regulations and the provisions of the Illinois Categorical Assistance Manual can be given prospective effect only, and that the federal regulations in question are inconsistent with the Social Security Act. Plaintiffs appeal from that decision insofar as it held them not entitled to receive benefits from the date of

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their applications and insofar as it failed to award the requested punitive damages.

Eleventh Amendment Defense

Defendants' principal argument is that the Eleventh Amendment or the sovereign immunity doctrine bars an action against the Director of the Illinois Department of Public Aid for retroactive welfare AABD payments. Significantly, defendants do not rely on the Eleventh Amendment or sovereign immunity with respect to the expenditure of state funds resulting from other portions of the judgment below. We conclude the argument must fail.

First of all, in four different three-judge court decisions which rejected the identical Eleventh Amendment argument defendants advance here, appeals were taken to the Supreme Court specifically raising the point. The Supreme Court affirmed each case. Sterrett v. Mothers & Childrens Rights Organization, 409 U.S. 809, 93 S.Ct. 68, 34 L.Ed.2d 70 (1972), affirming unreported order and judgment, N.D.Ind. April 14, 1972, on remand from Carpenter v. Sterrett, 405 U.S. 971, 92 S.Ct. 1199, 31 L.Ed.2d 246; State Dep't of Health and Rehabilitative Services v. Zarate, 407 U.S. 918, 92 S.Ct. 2462, 32 L.Ed.2d 803; affirming unreported decision, S.D.Fla. Sept. 29, 1971, January 20, 1972; Wyman v. Bowens, 397 U.S. 49, 90 S.Ct. 813, 25 L.Ed.2d 38, affirming Gaddis v. Wyman, 304 F.Supp. 717, order at CCH Pov.L. Rptr. Transfer Binder ¶ 10,506 (S.D.N. Y.1969); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600, affirming 270 F.Supp. 331 (D.Conn. 1967). 6 Although two of the affirmances were summary, and the other two at least the equivalent, (in Shapiro the Supreme Court affirmed without commenting on the issue, and Wyman was a per curiam affirmance on the authority of Shapiro), a summary affirmance is a decision on the merits having precedential value. E. g., Cincinnati, New Orleans & Texas Pacific Ry. Co. v. United States, 400 U.S. 932, 935, 91 S.Ct. 235, 27 L.Ed.2d 240 (Justice White dissenting from the summary affirmance); Barton v. Sentner, 353 U.S. 963, 77 S.Ct. 1047, 1 L.Ed.2d 901 (Justices Burton and Clark dissenting from the summary affirmance). See Stern and Gressman, Supreme Court Practice 197 (4th ed. 1969). Therefore, we conclude that the aforementioned Supreme Court affirmances foreclose the sovereign immunity

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or Eleventh Amendment argument defendants press here.

Secondly, even if an independent analysis were open to us, we would hold the defendants' contentions to be without merit. We recognize the Second Circuit came to a contrary conclusion in Rothstein v. Wyman, 467 F.2d 226 (2d Cir. 1972), but are unpersuaded by its reasoning. 7

The Eleventh Amendment reads as follows:

"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."

Taken literally, this amendment does not bar suits by Illinois citizens against Illinois or its officials. However, in 1890 the Supreme Court decided that suits against a state by citizens of the same state could likewise not be maintained in federal courts. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842. Whether the holding amounted to a liberal extension of the amendment or a statement of the common law of sovereign immunity is unclear, although the decision was bottomed on the concept of sovereign immunity which found constitutional embodiment in the Eleventh Amendment. 8 For our purposes it is unnecessary to decide whether the asserted defense of immunity from suit is of constitutional stature, although we recognize that a waiver of this immunity may more readily be found if it is not. 9

It is conceded that under the doctrine of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, the Eleventh Amendment or sovereign immunity is no bar to a federal court's ordering state welfare officials to bring their conduct into conformity with federal law. 10 Defendants argue, however, and the Second Circuit held, that this doctrine falls short of allowing a federal court to order these officials "to use state funds to make reparation for the past." 467 F.2d at 237. It is said that "It is * * * a part of the lore of the Eleventh Amendment that, even though a state may not be named as a party defendant, any judgment declaring a liability which must be met from the public funds of the state does come within the reach of the Eleventh Amendment

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* * *." 467 F.2d at 236. But of course the injunctions conceded to be authorized by Ex parte Young, supra, certainly operate as liabilities upon the state treasury. Even before Ex parte Young it was recognized that relief which was appropriate notwithstanding the Eleventh Amendment would to varying degrees act directly on the property of the state. Osborn v. The Bank, 22 U.S. (9 Wheat.) 738, 853. Mandatory injunctions granted on the authority of Ex parte Young have certainly had an impact on the state treasury by requiring the expenditure of public funds. See, e.g., Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534; Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287; Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 84 S.Ct. 1226, 112 L.Ed.2d 256; Jackson v. Ogilvie, 426 F. 2d 1333 (7th Cir.), certiorari denied, 400 U.S. 833, 91 S.Ct. 66, 27 L.Ed.2d 64 (1970). Here the district court's permanent injunction requiring compliance with the federal time limits for processing and paying AABD applicants reaches into the state treasury and requires the expenditure of more monies than the state was spending under the practices found unlawful. In fact, that part of the judgment requires the expenditure of more monies than the seriously disputed part of the judgment requiring the payment of wrongfully withheld benefits! Whether a liability is declared which must be met from the state's public funds is not the touchstone of the Eleventh Amendment's applicability.

It is said in Rothstein that Ex parte Young allows only "prospective" relief and it is apparently assumed that the date of the district court's decision is the crucial one for determining prospectivity. 467 F.2d 236-237. (See note 11, infra.) In Ex parte Young the Minnesota legislature had set allegedly confiscatory railroad rates, and in an effort to make a test of the legality of the rates impracticable made issuance of any ticket above the rate a crime punishable by an enormous fine...

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