Coalition for Basic Human Needs v. King, 81-1472

• Decision Date: 13 July 1981
• Docket Number: No. 81-1472,81-1472
• Citation: 654 F.2d 838
• Parties: COALITION FOR BASIC HUMAN NEEDS, et al., Plaintiffs, Appellants, v. Edward J. KING, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 838

654 F.2d 838

COALITION FOR BASIC HUMAN NEEDS, et al., Plaintiffs, Appellants, v. Edward J. KING, et al., Defendants, Appellees.

No. 81-1472.

United States Court of Appeals First Circuit.

Argued July 10, 1981.

Decided July 13, 1981.

Mary C. Gallagher, Boston, Mass., with whom Lucy Williams, Boston, Mass., was on motion for injunction pending appeal.

Carl Valvo, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen. and Paul W. Johnson, Asst. Atty. Gen., Boston, Mass., were on memorandum in opposition thereto.

Before COFFIN, Chief Judge, and BOWNES, Circuit Judge.

PER CURIAM.

This request for an injunction pending appeal presents what appears to us to be an unprecedented factual situation, and raises issues relating to appealability, the strength of plaintiffs' claims on the merits, and the appropriateness of any federal remedial action.

The four individual plaintiffs claim to be representative of some 145,000 recipients of welfare assistance. Three, like some 123,000 others, receive semi-monthly checks under the federal-state program, Aid to Families with Dependent Children ("AFDC") and one, like 21,600 others, receives semi-monthly checks under a Massachusetts program of General Relief ("GR"). As of July 1, 1981, the advent of a new fiscal year for the Commonwealth of Massachusetts, the legislature had not yet completed the budgeting process, being particularly burdened with the problem of determining how much state assistance to give communities hard-pressed to finance services in the light of new limits on local property taxes.

Plaintiffs sought injunctive relief in federal district court from defendant Governor, Treasurer, Comptroller, and Commissioner of Public Welfare, the top state officials involved in authorizing the expenditure of state funds, filing their complaint and motion for a temporary restraining order on July 1, 1981. Hearing was held the next day, consisting of argument and the receipt of several affidavits from plaintiffs and one from defendants. The motion for temporary restraining order was denied the same day, and plaintiffs appealed, requesting injunctive relief pending appeal. On July 10, we heard oral argument on this request.

Under the state's system of disbursing relief checks, one-tenth of the eligible recipients receive their semi-monthly checks on successive days in the first two weeks of the month. By the time we heard argument, seven-tenths of the AFDC and GR recipients had failed to receive their check for the first half of July. By July 14, all of the recipients will have failed to receive their first semi-monthly check, and July 16 will be the first date scheduled for issuance of the second installment covering the remainder of July. Plaintiffs' affidavits aver that, as of June 30, they possessed total cash on hand ranging from nothing to $.75, $1.52, and $5.00, and that several had young children to care for. The Commonwealth, while not apparently disputing these allegations, claims that extreme hardship is mitigated by an emergency program to provide food vouchers and emergency medical care to recipients who apply for such at welfare offices.

The first question we must consider is whether the order under consideration is appealable. ¹ As we have recognized on numerous occasions, two exceptions to the general rule that orders denying temporary restraining orders are not appealable have been established. See Levesque v. State of Maine, 587 F.2d 78, 79 (1st Cir. 1978). Under the exception here relevant, an order is appealable if it "in reality operates as a preliminary injunction", a standard that may be satisfied by either of two distinct findings; "that a full adversary hearing has been provided or that, in the absence of review, further interlocutory relief is unavailable". Id. at 79; accord, Massachusetts Air Pollution and Noise Abatement Committee v. Brinegar, 499 F.2d 125, 126 (1st Cir. 1974) (action on a TRO will be treated as an appealable action on a PI "where there has been a full adversary presentation of evidence or where the circumstances are such that if review is refused there is no further possibility of interlocutory relief"); Rainha v. Cassidy, 454 F.2d 207, 207 n.1 (1st Cir. 1972) (recognizing jurisdiction to hear appeal of denial of TRO where such order "effectively denies relief").

Here the answer to both inquiries is not free from doubt. That there has not been a full presentation of evidence is clear, but we have difficulty, as apparently did the district court, in seeing what evidentiary issues would profit by further development. On the constitutional claim that defendants violated plaintiffs' due process rights by failing to notify AFDC and GR recipients that their benefits would be withheld indefinitely beginning July 1, the Commonwealth indicated that had evidence been taken, it might have been able to establish that some kind of notice had been attempted and some achieved via some news media. The district court, however, made it quite clear that its ruling was based on its view that a failure to give notice did not rise to a constitutional level; evidence that some kind of notice was given was obviously not relevant to its decision.

The good faith of defendants was also identified as an area for the taking of evidence; but in this kind of action seeking injunctive relief, we fail to see how, if plaintiffs proved irreparable harm and a strong claim for relief on constitutional or statutory grounds, the presence of utmost good faith on the part of the defendants could be a ground for denying relief.

Another area of factual inquiry pointed to by defendants was the extent of impact of hardship. One example cited to us was what might be the attitude of the Housing Court to enforcing eviction sparked by the de facto moratorium on welfare checks. This, plus the extent to which other mitigating measures pursued by the Commonwealth might be cushioning the shock of withdrawal of welfare checks, might be germane were we dealing with a cut-off of a few days. But, at least as of the date of this decision, when almost all welfare recipients have lost two weeks of planned assistance and each day in the imminent future will see a large group lose two more weeks, and where it is undisputed that no provisions have been made for such basic needs as transportation or utilities, we cannot believe that the irreparability of harm is any longer, if it ever was, a factual issue.

At oral argument, counsel for the Commonwealth advanced as another factual issue whether AFDC payments were made with "reasonable promptness", as required by 42 U.S.C. § 602(a)(10). As discussed below, however, we resolve this question on a legal basis that does not depend on further factfinding.

We are thus left with the fact that while there was virtually no presentation of evidence at the district court hearing, there are, certainly as of the time when our review took place, no factual issues that rationally demand development. Thus, we view the absence of a full evidentiary hearing as presenting, under these circumstances, no barrier to the exercise of our jurisdiction.

We share a similar ambivalence when we test this appeal under the standard that there is no possibility of further interlocutory relief. This is admittedly not so graphic a case of single opportunity as was presented by the solitary landing of the supersonic transport in Massachusetts Air Pollution, supra, and perhaps in the first few days of check withholding, one could say that a speedily convened hearing on a preliminary injunction would be a viable further opportunity for the granting of interlocutory relief. But two weeks have elapsed during which individuals and families at the very bottom of the economic ladder, without reserves in any amount, have been left without funds. Each new day will not result merely in another day without funds but rather a third and a fourth week without funds for almost 15,000 individuals and families one tenth of the Commonwealth's entire caseload. While we are troubled by any decision that might appear to enlarge the rare second category of grounds for taking appellate jurisdiction in TRO appeals, we have no difficulty, after full deliberation, in considering these plaintiffs at a stage in their deprivation where even an expeditiously held hearing on a preliminary injunction could not grant effective interlocutory relief for substantial numbers of recipients. We also observe without attributing decisive weight to the fact, that the ten-day period allowed for efficacy of a TRO under Fed.R.Civ.P. 65(b) has now been exceeded.

We therefore hold that, in these highly unusual circumstances, we have appellate jurisdiction.

In addressing the merits we hold, as we have foreshadowed above, that irreparability of harm is now excruciatingly obvious. Our remaining inquiry for others, such as the balance of burden, do not loom large in this kind of case is whether plaintiffs have shown a probability of prevailing on one or more of their claims.

Not without some difficulty, we share the view of the district court that failure to give advance notice of the cutoff is not, under present doctrine, likely to be viewed as a constitutional violation. We can sympathize with the argument that entitlement, until it is properly revoked, to AFDC and GR checks is a property interest entitling recipients to some prior process; that while advance notice of a cutoff due to legislative impasse may not play any role in contesting the propriety of decision-making, it has significant value in alerting those just scraping by that they must take unusual precautions to juggle their few resources, buy fewer non-food items, stretch out payments to creditors, borrow, etc.; and that the burden on the Commonwealth to give such a notice is a modest one. Our problem is that not only is case authority for constitutionally required notice based on a preparedness-for-disaster...