Cancel v. Wyman

• Decision Date: 16 April 1971
• Docket Number: No. 615,Docket 35487.,615
• Citation: 441 F.2d 553
• Parties: Delia CANCEL, on behalf of herself and infant children, Luis Cordero, Gloria Cordero, Brunilda Cordero, Chester John Cordero, Ana Delia Cordero, and Jesus Santana, Plaintiffs-Appellants, v. George K. WYMAN, individually and as Commissioner of the Department of Social Services, of the State of New York, and Jack R. Goldberg, individually and as Commissioner of the Department of Social Services of the City of New York, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

441 F.2d 553 (1971)

Delia CANCEL, on behalf of herself and infant children, Luis Cordero, Gloria Cordero, Brunilda Cordero, Chester John Cordero, Ana Delia Cordero, and Jesus Santana, Plaintiffs-Appellants, v. George K. WYMAN, individually and as Commissioner of the Department of Social Services, of the State of New York, and Jack R. Goldberg, individually and as Commissioner of the Department of Social Services of the City of New York, Defendants-Appellees.

No. 615, Docket 35487.

United States Court of Appeals, Second Circuit.

Argued March 22, 1971.

Decided April 16, 1971.

John C. Gray, Jr., New York City (John DeWitt Gregory, Jonathan A. Weiss, Marttie L. Thompson, John Falk, Lawrence J. Fox, George Rodenhausen, New York City, on the brief), for appellants.

A. Seth Greenwald, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), for appellee Wyman.

Mary P. Bass, New York City (J. Lee Rankin, Corporation Counsel, New York City, Stanley Buchsbaum, Jay A. Kranis, New York City, on the brief), for appellee Goldberg.

Before WATERMAN, KAUFMAN and HAYS, Circuit Judges.

HAYS, Circuit Judge:

This is an appeal from so much of an order of the United States District Court for the Southern District of New York, 321 F.Supp. 528, as denied the appellants' motion to convene a three-judge court under 28 U.S.C. §§ 2281, 2284 (1964), to determine the constitutionality of 18 N.Y.C.R.R. § 352.31(a) (2) (1970) (formerly 18 N.Y.C.R.R. § 353.3 (2) (1) (i)), a regulation promulgated by the Department of Social Services of the State of New York.

Plaintiff Delia Cancel and her six children are recipients of Aid to Families with Dependent Children whose monthly payments were reduced after her marriage to Pablo Cancel, a non-adopting stepfather. These reductions were effected in accordance with the cited regulation which requires that the income of an applicant and spouse be applied against needs in determining eligibility and levels of payment. If a non-adopting stepfather refuses to apply his income, his needs are estimated and his income is applied "first against his own needs and any surplus against the needs of his dependents." 18 N.Y.C.R.R. § 352.31(a) (2) (1970).

The complaint challenged the regulation as violative of constitutional rights of due process and equal protection, and the right to marry and to maintain a family. The regulation was also challenged as inconsistent with the provisions of a regulation of the Department of Health, Education and Welfare, 45 C.F.R. § 203.1 (1970).

The district court, holding that the complaint presented no substantial constitutional issue, denied the motion to convene a three-judge court as well as a motion for a temporary restraining order. However, the court denied the motions of appellees to dismiss the complaint and retained jurisdiction of the issue of whether the regulation was inconsistent with the federal provision. The appeal is only from that part of the order denying the motion to convene a three-judge court. Since such an order is not appealable, we dismiss the appeal without considering the merits.

The denial of the motion to convene a three-judge court in this case is not a "final decision" under 28 U.S.C. § 1291 (1964), since the district judge has retained jurisdiction of the statutory issue. Nor is the order within any of the categories in 28 U.S.C. § 1292 (1964) providing for appeals from interlocutory orders. The only remedy available to appellants is to seek mandamus, whether in the Court of Appeals, 9 J. Moore, Federal Practice ¶ 110.033, at 74 (2d ed. 1970), or the Supreme Court, Lyons v. Davoren, 402 F.2d 890, 892 (1st Cir. 1968), cert. denied, 393 U.S. 1081, 89 S.Ct. 861, 21 L.Ed.2d 774 (1969). Indeed appellants, recognizing this disability, earlier sought a writ of mandamus directing the district court to take the necessary steps to convene a three-judge court. This court denied the petition for mandamus on September 25, 1970.

Appellants seek to avoid the effect of these principles by referring to our decision in McMillan v. Board of Education, 430 F.2d 1145 (2d Cir. 1970). In McMillan, the trial judge denied motions to convene a three-judge court and dismissed the action against the state defendants. However, he retained jurisdiction over the action to the extent that it involved city defendants. We reviewed the determination on the three-judge court issue, saying in our opinion: "`If a court of appeals does not exactly have jurisdiction of an appeal such as this, it has something sufficiently similar to enable it to reverse for the...