Carver v. Hooker

• Decision Date: 30 November 1973
• Docket Number: Civ. A. No. 73-87.
• Citation: 369 F. Supp. 204
• Parties: Arlene L. CARVER and Gloria Fowler, Individually and on behalf of their unborn children, and on behalf of all others similarly situated, v. Thomas L. HOOKER, Individually and as Director of the New Hampshire Division of Welfare.
• Court: U.S. District Court — District of New Hampshire

369 F. Supp. 204

Arlene L. CARVER and Gloria Fowler, Individually and on behalf of their unborn children, and on behalf of all others similarly situated, v. Thomas L. HOOKER, Individually and as Director of the New Hampshire Division of Welfare.

Civ. A. No. 73-87.

United States District Court, D. New Hampshire.

November 30, 1973.

John W. Cotton, N. H. Legal Assistance, Keene, N. H., for plaintiff.

John T. Pappas, Concord, N. H., for defendant.

OPINION

BOWNES, District Judge.

This is another in the line of recent cases alleging that certain state welfare practices are in conflict with federal law and the United States Constitution. See King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968); Townsend v. Swank, 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971); Carleson v. Remillard, 406 U.S. 598, 92 S.Ct. 1932, 32 L.Ed.2d 352 (1972); and see, e. g., Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L. Ed.2d 442 (1970); Dandridge v. Williams, 397 U.S. 441, 90 S.Ct. 1153, 25 L. Ed.2d 491 (1970); Lewis v. Martin, 397 U.S. 552, 90 S.Ct. 1282, 25 L.Ed.2d 561 (1970); and Wyman v. James, 400 U.S. 309, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971). In this instance, pregnant women,¹ who are otherwise childless,² challenge the practice of the New Hampshire Department of Welfare (hereinafter defendant) in denying them benefits under the Aid for Families with Dependent Children (hereinafter AFDC) program of the Social Security Act, 42 U.S.C. § 601 et seq., as amended. Jurisdiction is based on 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3), 28 U.S.C. §§ 2201 and 2202, and 28 U.S.C. §§ 2281 and 2282.³

On April 24, 1973, plaintiffs filed a complaint claiming that the defendant's practice of denying them benefits was "in conflict with provisions contained in the Fourth and Fourteenth Amendments of the Constitution of the United States as well as the Social Security Act and regulations promulgated pursuant to it." The complaint prayed, inter alia, that this court convene a three-judge court, and/or determine the statutory issue for itself, and issue a temporary restraining order. The requested relief is a declaratory judgment declaring defendant's practice illegal, preliminary and permanent injunctions restraining defendant from further denying plaintiffs' AFDC benefits and damages equal to the retroactive benefits withheld as of the date of plaintiffs' applications for AFDC. On June 18, 1973, this court denied plaintiffs' motion for a temporary restraining order on the grounds that there was no proof of irreparable injury. At that time it appeared that both plaintiffs were receiving adequate support through the State's general assistance program.⁴

Inasmuch as plaintiffs are attempting "to interdict a statewide statutory scheme," a three-judge court was convened pursuant to 28 U.S.C. § 2281. Americans United v. Paire, 475 F.2d 462, 465 (1st Cir. 1973); see King v. Smith, supra, Townsend v. Swank, supra, and Carleson v. Remillard, supra. However, on September 19, 1973, the three-judge court returned the case to this court to consider

petitioners' statutory claim that the distinction made between born and unborn children is in conflict with the Federal Social Security Act, and any related nonconstitutional questions . . . .⁵

I. PROPRIETY OF DECIDING THE STATUTORY ISSUE

Of late, a fair body of law has grown up legitimizing the practice of a prefatory decision by a single judge on Supremacy Clause issues in cases involving challenges of state welfare practices based on both federal statutes and the Constitution where determination of that issue could be dispositive of the entire case. The availability of this procedure was recognized in King v. Smith, but the Court specifically left open the question of its propriety.⁶ In Rosado v. Wyman, supra, a three-judge court was convened to hear petitioner's claim that state welfare laws were in conflict with the Social Security Act and the Equal Protection Clause of the Fourteenth Amendment.⁷ Before a decision was reached, the equal protection issue was mooted, and the three-judge court dissolved itself and remanded the case to Judge Weinstein⁸ "for such further proceedings as are appropriate." Rosado v. Wyman, 397 U.S. at 400, 90 S.Ct. 1207, at 1211, 25 L.Ed.2d 442. On the basis of the federal statutory claim, Judge Weinstein issued a preliminary injunction against the Welfare Department. An interlocutory appeal was taken, and on review of the Second Circuit's reversal, the Supreme Court was presented initially with the question of whether a single judge had subject matter jurisdiction to decide the statutory issue. In deciding that a single judge did have jurisdiction under the Rosado circumstances, the Court noted:

Even had the constitutional claim not been declared moot, the most appropriate course may well have been to remand to the single district judge for findings and the determination of the statutory claim rather than encumber the district court, at a time when district court calendars are overburdened, by consuming the time of three federal judges in a matter that was not required to be determined by a three-judge court. See Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965). 397 U.S. at 403, 90 S.Ct. at 1213, 25 L.Ed.2d 442.

This language is particularly appropriate here. If a single judge can determine Supremacy Clause issues on remand from a dissolved three-judge court, certainly he can determine those issues where the three-judge court has retained jurisdiction. And this has been made clear by the Court's per curiam decision in Wyman v. Rothstein, 398 U.S. 275, 90 S.Ct. 1582, 26 L.Ed.2d 218 (1970). In Wyman v. Rothstein, a three-judge court had decided the challenge to a state welfare statute on constitutional grounds, finding it "unnecessary to consider appellees' statutory claims." 398 U.S. at 276, 90 S.Ct. at 1582. The judgment was vacated and the case remanded in light of Rosado which the Court said established that:

a federal court called upon to pass upon the constitutional validity of a State's welfare program should, before reaching the constitutional issues, consider first any pendent statutory claims that are presented. 398 U.S. at 276, 90 S.Ct. at 1583.

Moreover, a number of lower courts have recently followed this sensible timesaving practice.⁹

II. THE FACTUAL SETTING

The facts have been stipulated. Plaintiffs are pregnant women¹⁰ who do not have other children living at home with them.¹¹ Plaintiffs will qualify for AFDC benefits under defendant's practice as soon as their children are born; they would qualify now, except that the defendant denies AFDC benefits unless there is a postpartum child living at home with the mother. In other words, plaintiffs qualify for AFDC benefits in all respects, except with regard to the prerequisites being challenged here.

The only evidence adduced at the hearing concerned the importance of prenatal care. Dr. Howard N. Jacobson, an expert in the field of maternal and infant nutrition, testified, and I find, that prenatal nutrition, and to a lesser extent, prenatal medical care, is a major determinant of infant birth-weight, which is in turn directly related to later susceptibility to disease, neurological problems and long-term learning capacity.¹² Dr. Jacobson further testified that, absent AFDC benefits, it was "highly unlikely" that a mother could be assured of an adequate nutritional intake based on the State food allowances available to pregnant women.¹³ I accept this testimony.

III. THE LEGAL SETTING

Aid to Families with Dependent Children is one of the categorical public assistance programs established by the Social Security Act of 1935 and continued to the present by various amendments to that Act. The topography of the AFDC program has been mapped out in many recent decisions¹⁴ and need not be retraced in detail here. Basically, the AFDC program is a State-administered matching funds scheme which provides aid to needy families with dependent children. Although states need not participate in the AFDC program,¹⁵ 42 U. S.C. § 601, New Hampshire has chosen to do so. See NH RSA 167.

The basis for the complaint here is that, under defendant's interpretation of NH RSA 167:6(V) and section 2033 of the Manual of Policies, Public Assistance of the New Hampshire Division of Welfare, pregnant women who are otherwise childless are not entitled to AFDC benefits until the child is born. Defendant argues that it uniformly denies aid to unborn children¹⁶ and that such a policy is authorized by and consistent with HEW regulations. In this manner defendant attempts to bring this action squarely into line with a number of recent cases which have considered the question of whether or not an unborn child is included in the statutory definition of "dependent child." 42 U.S.C. § 606(a). These cases,¹⁷ although analogous to the present controversy, differ in at least one significant aspect. In all of the cases, as far as I can tell,¹⁸ the States completely denied AFDC to all unborn children. This practice allowed the state-defendants to argue that the entire unborn children program was optional under the appropriate HEW regulations¹⁹ and that, since they did not recognize unborn children as children, they had chosen not to participate in the program. Those courts that found pregnant women entitled to AFDC benefits²⁰ had to circumvent the usual deference paid to longstanding administrative interpretation²¹ via the Townsend language to the effect that:

. . . the principle that accords substantial weight to interpretation of a statute by the department entrusted with its administration is inapplicable insofar as those regulations are inconsistent with the requirement of § 402(a)(10) that aid be furnished "to all eligible individuals." (Emphasis supplied.) 404 U.S. 286, 92 S.Ct. 502, 30 L.Ed.2d 448.

However, the present case is...