Taylor v. Lavine

• Decision Date: 14 May 1974
• Docket Number: 73-2671.,Dockets 73-2731,701,No. 669,669
• Citation: 497 F.2d 1208
• Parties: Annie TAYLOR, Individually and on behalf of her minor, dependent child, Margaret Taylor, et al., Appellees, v. Abe LAVINE, Individually and in his capacity as Commissioner of the New York State Department of Social Services, and James M. Shuart, Individually, and in his capacity as Commissioner of the Nassau County Department of Social Services, Appellants. Rose HURLEY, Individually and on behalf of her minor children, Doreen Hurley, et al., Appellees, v. Barry VAN LARE, Individually and in his capacity as Acting Commissioner of the Department of Social Services of the State of New York, et al., Appellants.
• Court: U.S. Court of Appeals — Second Circuit

497 F.2d 1208 (1974)

Annie TAYLOR, Individually and on behalf of her minor, dependent child, Margaret Taylor, et al., Appellees, v. Abe LAVINE, Individually and in his capacity as Commissioner of the New York State Department of Social Services, and James M. Shuart, Individually, and in his capacity as Commissioner of the Nassau County Department of Social Services, Appellants.

Rose HURLEY, Individually and on behalf of her minor children, Doreen Hurley, et al., Appellees, v. Barry VAN LARE, Individually and in his capacity as Acting Commissioner of the Department of Social Services of the State of New York, et al., Appellants.

Nos. 669, 701, Dockets 73-2731, 73-2671.

United States Court of Appeals, Second Circuit.

Argued December 21, 1973.

Decided May 14, 1974.

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Martin A. Schwartz, The Legal Aid Society of Westchester County, White Plains, N. Y. (Leonard S. Clark, Nassau County Law Services Committee, Inc., Hempstead, N. Y., on the brief; Lawrence S. Kahn, The Legal Aid Society of Westchester County, White Plains, N. Y., of counsel), for appellees.

Judith A. Gordon, Asst. Atty. Gen. of the State of New York (Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief, Constance M. Margolin, Asst. Atty. Gen., of counsel), for appellants.

Before FRIENDLY, HAYS and OAKES, Circuit Judges.

HAYS, Circuit Judge:

This court is again called upon to pass on a challenge to New York's administration of its program for state Aid to Families with Dependent Children (AFDC).

The federal AFDC program found in sections 401 to 444 of the Social Security Act of 1935, as amended, 42 U.S.C. §§ 601-644 (1970), provides financial aid to states on a matching funds basis to assist the "needy child . . . who has been deprived of parental support or care by reason of the death, continued absence from the home, or physical or mental incapacity of a parent . . . ." 42 U.S.C. § 606(a) (1970). Each state wishing to qualify for sums appropriated by Congress must submit a plan for "aid and services to needy families with children," 42 U.S.C. § 601 (1970). The plan must contain each provision on the list set forth in section 402(a) of the Social Security Act and must be approved by the Secretary of Health, Education and Welfare. 42 U.S.C. § 602(b) (1970). Among the requirements found in section 402(a) are that the state plan furnish aid "with reasonable promptness to all eligible individuals," 42 U.S.C. § 602(a)(10) (1970), and that the state agency in determining need "take into consideration any other income and resources of any child or relative claiming aid to families with dependent children." 42 U.S.C. § 602(a)(7) (1970). New York has submitted such a plan and from time to time amended it. The plan and amendments have been approved by the Secretary.

Among the New York regulations under which AFDC funds are distributed are 18 N.Y.C.R.R. § 352.30(d), which reduces the maximum shelter allowance available to a recipient family pro rata to the extent that there are noneligible lodgers living in the household, and 18 N.Y.C.R.R. § 352.31(a)(3)(iv), which treats a man living with a female recipient but not married to her as a "lodger." Plaintiffs Hurley, Taylor and Otey challenged these regulations in separate actions in two federal district courts as creating a conclusive presumption offensive to due process, as denying them the equal protection of the laws, and as invading their rights to privacy and free association. They also claimed that the regulations are in effect "substitute parent" regulations forbidden for state plans by section 406(a) of the Social Security Act and 45 C.F.R. § 233.90(a) (1973). The single district judge upheld the statutory claims and thus found it unnecessary to consider whether a court of three judges should be convened under 28 U.S.C. § 2281.

The New York regulations in question provide as follows:

"When a female applicant or recipient is living with a man to whom she is not married . . . his available income and resources shall be applied in accordance with the following:

. . . .

"(iv) When the man is unwilling to assume responsibility for the woman or her children, and there are no children of which he is the acknowledged or adjudicated father, he shall be treated as a lodger in accordance with section 352.30(d)."¹ 18 N.Y.C.R.R. § 352.31(a)(3).

"A non-legally responsible relative or unrelated person in the household, who is not applying for nor receiving public assistance shall not be included in the budget and shall be deemed to be a lodger or boarding lodger. . . . In the event a lodger does not contribute at least $15 per month, the family\'s shelter allowance including fuel for heating, shall be a pro rata share of the regular shelter allowance." 18 N.Y.C.R.R. § 352.30(d).

45 C.F.R. § 233.90(a) (1973) provides as follows:

"A State plan under title IV-A of the Social Security Act relating to the AFDC program must provide that the determination whether a child has been deprived of parental support or care by reason of the death, continued absence from the home, or physical or mental incapacity of a parent, or (if the State plan includes such cases) the unemployment of his father, will be made only in relation to the child\'s natural or adoptive parent, or in relation to the child\'s stepparent who is ceremonially married to the child\'s natural or adoptive parent and is legally obligated to support the child under State law of general applicability which requires stepparents to support stepchildren to the same extend sic that natural or adoptive parents are required to support their children. Under this requirement, the inclusion in the family, or the presence in the home, of a `substitute parent\' or `man-in-the-house\' or any individual other than one described in this paragraph is not an acceptable basis for a finding of ineligibility or for assuming the availability of income by the State. In establishing financial eligibility and the amount of the assistance payment, only such net income as is actually available for current use on a regular basis will be considered, and the income only of the parent described in the first sentence of this paragraph will be considered available for children in the household in the absence of proof of actual contributions."

The district court in each of the two cases found the New York regulations offensive to the Social Security Act and 45 C.F.R. § 233.90(a), and accordingly granted declaratory and injunctive relief. We reverse and remand for the convening of a three-judge court to consider the constitutional issues raised by the appellees.

I.

The facts in both cases are uncontroverted.

A. Hurley v. Van Lare.

Appellee Rose Hurley lives with her three dependent children, aged ten, five and five years, in Mount Vernon, New York. She and her children have been living apart from her husband since 1967; she has had no contact with him since 1967 and does not know where he is. The Hurleys receive public assistance under the New York AFDC plan as it is administered by the Westchester County Department of Social Services.

During the four-month period from November 1970 to February 1971, an unrelated male friend of Mrs. Hurley stayed with her and her children at their Mount Vernon residence. The friend was under no legal obligation to support the Hurleys, and in fact he made no contribution to their support. His presence did not increase the amount of rent that Hurley was obliged to pay, $150.00 per month. During the same four-month period, the Westchester Department of Social Services deducted $35 per month from Hurley's recurring AFDC grant, presumably in accordance with 18 N.Y. C.R.R. § 352.30(d).

On November 12, 1970, Hurley requested a "Fair Hearing," a proceeding provided for in 18 N.Y.C.R.R. §§ 358.1358.27, to review the reduction of her AFDC grant. A hearing was held on March 22, 1971, and on September 20, 1971, appellant Van Lare, the Acting State Commissioner of the Department of Social Services, rendered a "Decision after Fair Hearing" in which he found the facts to be substantially as stated above. He upheld the determination of the Westchester County Department that Hurley's grant should be reduced, but diminished the amount of the reduction to $30.00.

Thereafter, on August 11, 1972, Hurley brought an action in the District Court for the Southern District of New York on behalf of herself and all others similarly affected by sections 352.31(a)(3)(iv) and 352.30(d) to secure declaratory relief, an injunction against enforcement of the regulations, and judgment for retroactive AFDC payments.

Defendants Van Lare and Lavine, appellants here, are respectively Acting Commissioner and Commissioner of the Department of Social Services of New York, and defendant Kurtis is Commissioner of Social Services for Westchester County.

Hurley based her demand for an injunction on the theory that she has not associated with her friend out of fear that her public assistance grant will be reduced, as it was in November 1970, by the enforcement of sections 352.31(a) (3)(iv) and 352.30(d). She contended that the regulations are offensive to the Due Process and Equal Protection Clauses of the Fourteenth Amendment, that they are in violation of her rights of privacy and free association, and that they are invalid under sections 402 and 406 of the Social Security Act, 42 U.S.C. §§ 602, 606 (1970), and 45 C.F.R. § 233.90(a).

The district court did not convene a three-judge court under 28 U.S.C. § 2284 (1970) to consider the merits of the constitutional claims. See 28 U.S.C. § 2281 (1970). But the district court determined that at least the Due Process claim is sufficiently substantial to vest the court with subject matter jurisdiction under 28 U.S.C. § 1343(3) (1970), and that under the doctrine of pendent subject matter jurisdiction it had the power to decide the statutory claim.

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