Galvan v. Levine

• Decision Date: 03 December 1973
• Docket Number: Docket 73-1294.,No. 91,91
• Citation: 490 F.2d 1255
• Parties: Vicente GALVAN and Marcelino Torres, Plaintiffs-Appellants, v. Louis L. LEVINE, Industrial Commissioner of the State of New York, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

490 F.2d 1255 (1973)

Vicente GALVAN and Marcelino Torres, Plaintiffs-Appellants, v. Louis L. LEVINE, Industrial Commissioner of the State of New York, Defendant-Appellee.

No. 91, Docket 73-1294.

United States Court of Appeals, Second Circuit.

Argued November 5, 1973.

Decided December 3, 1973.

Robert P. Roberts, New York City (National Employment Law Project; Marttie L. Thompson, Community Action for Legal Services, Inc., New York City and Oscar G. Chase, of counsel), for plaintiffs-appellants.

Amy Juviler, New York City (Louis J. Lefkowitz, Atty. Gen. of N. Y., Samuel A. Hirshowitz, First Asst. Atty. Gen., and Brenda Soloff, Asst. Atty. Gen., of counsel), for defendant-appellee.

Before WATERMAN, FRIENDLY and TIMBERS, Circuit Judges.

FRIENDLY, Circuit Judge:

This action, under the Civil Rights Act, 42 U.S.C. § 1983, and its jurisdictional implementation, 28 U.S.C. § 1343(3), was initiated over three years ago in the District Court for the Southern District of New York by two Puerto Ricans who for many years had been employed in largely seasonal jobs in New York and who, on at least some occasions, had returned to Puerto Rico when without work here. They brought suit on behalf of themselves and all other persons similarly situated against the Industrial Commissioner of the State of New York, who had denied them and other Puerto Ricans who had returned from New York to Puerto Rico unemployment compensation benefits to which they claimed to be entitled. Although plaintiffs have been generally successful, they attack the court's denial of their motion for class action designation. In order to afford needed perspective with regard to plaintiffs' claim and our power to entertain it, a rather extensive history of the litigation is required.

I.

The complaint challeged the constitutionality of New York Labor Law § 591, subd. 2, McKinney's Consol.Laws, c. 50, denying unemployment benefits to a person "not ready, willing and able to work in his usual employment or in any other for which he is reasonably fitted by training and experience," as this had been applied by the Industrial Commissioner. The Commissioner had adopted a policy of denying benefits to a claimant who had left the labor market area in which he was last employed and had moved his residence to another labor market area where there were no reasonable opportunities of obtaining work for which he was qualified by training and experience or which the community had to offer. Later the Commissioner had made this more specific by ruling that, save for persons with occupational skills for which there was a particular demand at their destination, removal to an area of "persistent high unemployment" would establish ineligibility as a matter of law. The complaint alleged that this policy had resulted in denial of unemployment compensation benefits to the named plaintiffs and also that the policy "was developed for the purpose of denying benefits to Puerto-Rican Americans who return to Puerto Rico and, in practice, has been exclusively applied to that group of claimants."

Judge Tyler requested the convening of a three-judge court pursuant to 28 U.S.C. § 2281 and such a court, consisting of Circuit Judge Feinberg, District Judge Pollack and himself, was constituted. Plaintiffs moved, pursuant to F. R.Civ.P. 23(c), "for an order determining that this action is properly maintained as a class action under Rule 23(a) and (b)(2) on behalf of all persons of Puerto Rican origin who have been or may be denied unemployment insurance benefits on the basis of the defendant's policy and practice alleged in the Complaint." On April 12, 1971, the court issued its unanimous opinion, written by Judge Tyler, 324 F.Supp. 1016, dealing with this motion and with defendant's motion to dismiss the complaint. The evidence showed that in 1967 the Commissioner purportedly had quantified his definition of areas of high persistent unemployment to include those where the ratio was 12% or more, rather than the 6% regarded as a norm in the Department of Labor's Area Trends in Employment and Unemployment. The court found no basic constitutional infirmity in the Commissioner's policy but was concerned with plaintiffs' argument, incapable of resolution on the existing record, that, with two isolated exceptions, New York had applied the 12% rule only to persons who had moved to Puerto Rico. Accordingly, it granted the Commissioner's motion to dismiss the complaint "in all respects save for plaintiffs' claim of discriminatory application of New York's policy. . . .", 324 F.Supp. at 1021, disposition of which claim was reserved for a hearing. With respect to the motion for class action designation, the court said:

There but remains plaintiffs\' motion to declare this a class action. Presently, there seems little to commend this as an appropriate cause for class action treatment. Nevertheless, since the facts on this and other subjects still remain undeveloped, and because no parties will be prejudiced thereby, the class action application is denied without prejudice to renewal after completion of the aforementioned hearing.

Id.

After amendment of the complaint to include a claim under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., and additional discovery, both sides moved for summary judgment and ultimately stipulated that the court might decide the case on their cross motions. Nothing was said about the motion for class-action designation. On July 5, 1972, the court again speaking through Judge Tyler rendered a second unanimous opinion, 345 F.Supp. 67. It considered on its own motion whether the narrowed issues remaining for decision were grounded on the unconstitutionality of a state statute or "of an order made by an administrative board or commission acting under State statutes," see Oklahoma Natural Gas Co. v. Russell, 261 U.S. 290, 292, 43 S.Ct. 353, 354, 67 L.Ed. 659 (1923), as it had assumed, we think correctly, the Commissioner's "high persistent unemployment" policy as further quantified by the 12% rule to be, see Lathrop v. Donohue, 367 U.S. 820, 824-827, 81 S.Ct. 1826, 6 L.Ed.2d 1191 (1961); Law Students Civil Rights Research Council, Inc. v. Wadmond, 299 F.Supp. 117, 127-128 (S.D.N.Y.1969), aff'd, 401 U.S. 154, 91 S.Ct. 720, 27 L. Ed.2d 749 (1971). Despite the previous granting of defendant's motion to dismiss "in all respects save for plaintiffs' claim of discriminatory application," plaintiffs continued in effect to try to attack the 12% rule partly on its face by urging contentions (1) that the rule intentionally "was promulgated to apply, and does apply, only to Puerto Rico, and not to other areas of twelve percent unemployment," and (2) that the rule "has a dramatic discriminatory impact upon Puerto Rican claimants." 345 F.Supp. at 69. Judge Tyler acknowledged that insofar as these issues remained in the case, the previous assumption that a three-judge court was required continued valid. Id. at 70. While he did not state expressly that these two issues had been eliminated from the controversy by the earlier partial granting of the motion to dismiss, cf. id. at 74 n. 6, it is clear from his opinion taken as a whole that the court viewed plaintiffs' constitutional claims at this juncture as standing or falling with their claim of discriminatory application. Therefore, the continued necessity for a three-judge court effectively stood or fell with its need for purposes of considering this particular claim.

The court thought the issue of discriminatory application was not within the three-judge statute on the basis of Phillips v. United States, 312 U.S. 246, 61 S.Ct. 480, 85 L.Ed. 800 (1941), to which it could have added Ex parte Bransford, 310 U.S. 354, 361, 60 S.Ct. 947, 84 L.Ed. 1249 (1940), both holding that a three-judge court is not mandated "where the challenge was not to the statute authorizing the officer to act, but to his particular exercise of his statutory powers." ALI, Study of the Division of Jurisdiction between State and Federal Courts, at 321 (1969). We believe the court was right. While "the distinction is treacherously subtle, and difficulty to rationalize," id.,¹ perhaps indeed impossible to apply in any principled way, courts must do the best they can with it in what we devoutly hope to be the short period during which Congress permits § 2281 to continue to plague all three levels of the federal judicial system.² Here the discriminatory application of the 12% rule was at several removes both from the statute and from the Commissioner's general policy of denying benefits to persons who had moved to a labor market where there was no reasonable opportunity for employment. No legislative or administrative policy could be frustrated by a court's preventing the application of a reasonable rule in an invidious manner, very likely not even known to the Commissioner himself. This is no less true because the Commissioner may have been aware of the impact the 12% rule proper would have on Puerto Ricans even if impartially applied. See 345 F. Supp. at 73-74. Even more clearly the request for an injunction on the ground that New York was acting in violation of Title VI of the Civil Rights Act of 1964 did not require determination by a court of three judges. Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965). Again acting wisely, however, the three judges decided to continue to sit together rather than incur the risk that a possibly erroneous dissolution of the three-judge court or separation of the remaining issue for determination by a single judge might invalidate the decision. See Swift & Co. v. Wickham, 230 F.Supp. 398, 410 (S.D. N.Y.1964), appeal dismissed for want of appellate jurisdiction, supra, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194, aff'd, 364 F.2d 241 (2 Cir. 1966), cert. denied, 385 U.S. 1036 (1967); Law Students Civil Rights Research Council, Inc. v. Wadmond, supra, 299 F.Supp. at 129.

Reaching the...