Doe v. Lukhard

• Decision Date: 30 August 1973
• Docket Number: Civ. A. No. 162-73-R.
• Citation: 363 F. Supp. 823
• Parties: Jane DOE v. William L. LUKHARD et al.
• Court: U.S. District Court — Eastern District of Virginia

363 F. Supp. 823

Jane DOE v. William L. LUKHARD et al.

Civ. A. No. 162-73-R.

United States District Court, E. D. Virginia, Richmond Division.

August 30, 1973.

John M. Levy, Richmond, Va., for plaintiff.

Stuart Dunn, Karen C. Kincannon, Asst. Attys. Gen. of Va., John R. Haymes, Asst. City Atty., Richmond, Va., for defendants.

MEMORANDUM

MERHIGE, District Judge.

Jane Doe is a young, unmarried woman, who at the time this suit was commenced was in her sixth month of pregnancy. She brings this action on behalf of herself and her unborn child and on behalf of all women whose pregnancies have been medically determined, and their unborn children, against the defendant state and local welfare administrators seeking injunctive and declaratory relief. Jurisdiction is alleged by virtue of 42 U.S.C. Sec. 1983, 28 U.S.C. Sec. 1343(3) and (4), 28 U.S.C. Sec. 2201 and 2202. The parties are presently before the Court pursuant to defendants' motions to dismiss and for summary judgment and plaintiff's cross-motion for summary judgment. The parties have submitted respective memoranda and waived oral argument so that the matter is now ripe for disposition.

The facts are not in dispute. The Social Security Act, 42 U.S.C. Sec. 601 et seq., established the Aid to Families with Dependent Children (AFDC) program which provides inter alia for payments to a "`dependent child' . . . who has been deprived of parental support or care by reason . . . (of) continued absence from the home . . . of a parent." 42 U.S.C. Sec. 606(a). The major funding of AFDC is provided by the federal government and it is administered at a local level by a cooperating state. See Woolfolk v. Brown, 358 F. Supp. 524 (E.D.Va.1973). The Commonwealth of Virginia has elected to participate in AFDC, Va.Code Sec. 63.1-105.¹

Under federal regulations, funding is available for unborn children when pregnancy is medically established in a woman otherwise eligible for these benefits. Virginia does not, however, provide benefits. The precise issue raised in this matter, therefore, is whether the Virginia policy is violative of the Supremacy Clause of the Constitution or of the Equal Protection Clause of the Fourteenth Amendment by virtue of frustrating the federal AFDC program.

As a preliminary matter, the City defendants have challenged the Court's jurisdiction. The gravamen of that challenge is that the Court is without Sec. 1343 jurisdiction because plaintiff allegedly does not have a claim upon the merits. This assertion is erroneous: The question of jurisdiction exists wholly apart from the merits and must be, where appropriate, addressed separately, Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946).

While satisfied that jurisdiction exists, there is however a jurisdictional issue to which the Court feels obligated to address itself in some detail. Title 42 U.S.C. Sec. 1983 provides a cause of action to any person who under color of state law is deprived of a right, privilege or immunity secured by the Constitution or federal law. Title 28 U.S.C. Sec. 1343(3) provides the jurisdictional basis for asserting a Sec. 1983 claim, but the language in Sec. 1343 is limited to a claim arising under the Constitution or federal law "providing for equal rights of citizens . . ." There is a latent question, therefore, whether district court jurisdiction over Sec. 1983 claims is confined solely to those claims challenging a denial of equal rights by virtue of the limiting phrase in Sec. 1343.

The United States Supreme Court has held that, in effect, Sec. 1983 claims are not jurisdictionally limited to equal rights challenges when the source of the grievance is founded in a right guaranteed by the Constitution itself. Lynch v. Household Finance Corp., 405 U.S. 538, 543 n. 7, 92 S.Ct. 1113, 31 L. Ed.2d 424 (1972). Accordingly, "despite the different wording of the substantive and jurisdictional provisions, when the Sec. 1983 claim alleges constitutional violations, Sec. 1343(3) provides jurisdiction and both sections are construed identically." Lynch, supra. The question remains, however, whether identical construction is given when the Sec. 1983 claim is based upon rights or privileges secured by federal law rather than the constitution. See note, Federal Judicial Review of State Welfare Practices, 87 Col.L.Rev. 85, 111-115 (1967).

The issue has been addressed infrequently, by and large because other jurisdictional bases may be present which render the question academic.² Several courts have overcome the problem by reading Sec. 1343 or its predecessor broadly, see Bomar v. Keyes, 162 F.2d 136 (2d Cir. 1947). See also Hart and Wechsler, Federal Courts and the Federal System (1973) at 961.

Despite the not insubstantial question surrounding this issue, the Court, as heretofore stated, is satisfied that it does have jurisdiction over this matter. First, plaintiff asserted that the challenged AFDC policy denies her equal Protection of the laws. While the disposition of this case may not turn on constitutional grounds, the Court nevertheless concludes that this constitutional claim is sufficiently colorable to invoke jurisdiction under Sec. 1343 in accordance with the principles of Lynch, supra. The Court will further consider the federal statutory claim by virtue of its pendent jurisdiction. See Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933). Secondly, the United States Court of Appeals for this circuit accepted, without comment, jurisdiction pursuant to Sec. 1983 of another similar challenge to the state AFDC program on the basis of preemption in Woolfolk v. Brown, 456 F.2d 652 (4th Cir. 1972). This Court construes that unarticulated acceptance of Sec. 1983 (and Sec. 1343) jurisdiction as conclusive of the Court of Appeals approval of same as a proper jurisdictional basis for claims of preemption despite the limiting language of Sec. 1343. Finally, the Court interprets the afore-cited spirit and language of Lynch as indicative of the correctness of this result. See also Wilson et al. v. Weaver, Director, Illinois Dept. of Public Aid, et al., 358 F.Supp. 1147 (N.D.Ill.1973), Harris et al. v. Mississippi State Dept. of Public Welfare, et al. (N.D.Miss. August 15, 1973).

The Court sua sponte raises the further question of mootness. Although no class declaration has been entered herein, the Court concludes that plaintiff's claim will not be rendered moot by virtue of the birth of her child.³ See Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), holding that the short gestation period of pregnancy should not unjustly prevent prosecution of a claim otherwise capable of repetition. Additionally, Ms. Doe's claim for award of past benefits remains viable.

Turning to the merits, the Court notes first that state policy excludes AFDC benefits for unborn children. The state policy directive is contained in Bulletin #281 (6/13/56), Exhibit A to plaintiff's memorandum of March 29, 1973 and reads in pertinent part as follows:

REVISION OF POLICY ON UNBORN CHILDREN IN ADC

The State Board of Welfare and Institutions at its meeting on May 8, 1956 rescinded the current provision permitting the granting of ADC in behalf of an unborn child.

Effective immediately, no assistance grant may be initiated for an unborn child and such a child may not be added to the count of children eligible for the purpose of Federal reimbursement. This policy does not apply in the case of an unborn child now included in the count of eligible children. The child now thus included may continue to be counted as long as his status remains the same.

The question before the Court is whether this state policy frustrates the intent and design of Congress with respect to these benefits. The Social Security Act does not by its language specifically provide for the inclusion of unborn children and 42 U.S.C. Sec. 606(a) which defines "dependent child", is silent with respect to same. Legislative history contemporaneous with the passage of the Act is not helpful.

Nevertheless, administrative history of implementation of the Act by the Department of Health, Education and Welfare (HEW) and its predecessors reveals that since at least 1941 payments have been authorized for unborn children.⁴ See Wilson v. Weaver, supra, (N.D.Ill.1973). The present HEW interpretation is codified in the Code of Federal Regulations, which reads as follows:

45 CRF Sec. 233.90

(2) Federal financial participation is available in:

* * * * * *

(ii) Payments with respect to an unborn child when the fact of pregnancy has been determined by medical diagnosis;

The essence of this latest published interpretation is that payment of AFDC benefits to unborn children is optional to those states wishing to provide such coverage. See Memorandum of the United States as Amicus Curiae in Murrow v. Clifford, (4/13/73) Civil No. 114-73 (D.C.N.J.), attached as Exhibit II to defendant Ross's Memorandum dated 7/17/73.

The aforecited HEW interpretation is significant here by virtue of the well-settled rule that

(T)he construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong, especially when Congress has refused to alter the administrative construction. Red Lion Broadcasting v. F.C.C., 395 U.S. 367, 381 , 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969) (Footnotes omitted); See also Lewis v. Martin, 397 U.S. 552 , 90 S.Ct. 1282, 25 L.Ed.2d 561 (1970), Griggs v. Duke Power Co., 420 F.2d 1225, 1234 (4th Cir. 1970).

Within this context, plaintiff argues that the HEW interpretation of "dependent child" as including unborn children is entitled to substantial weight, but that HEW's allowance of state variations is incorrect and violative of the Social Security Act. In support of this contention plaintiff relies on a trilogy of Supreme Court cases.

The first of the trilogy is King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968). In King, the...