Doe v. Lukhard

• Citation: 493 F.2d 54
• Decision Date: 26 February 1974
• Docket Number: No. 73-2179.,73-2179.
• Parties: Jane DOE, on her own behalf, and on behalf of her unborn child and on behalf of all others similarly situated, Appellee, v. William L. LUKHARD, Director of the Department of Welfare and Institutions, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

493 F.2d 54 (1974)

Jane DOE, on her own behalf, and on behalf of her unborn child and on behalf of all others similarly situated, Appellee, v. William L. LUKHARD, Director of the Department of Welfare and Institutions, Appellant.

No. 73-2179.

United States Court of Appeals, Fourth Circuit.

Argued December 5, 1973.

Decided February 26, 1974.

Stuart H. Dunn, Asst. Atty. Gen., of Virginia (Andrew P. Miller, Atty. Gen., of Virginia, Karen C. Kincannon, Asst. Atty. Gen., of Virginia, on brief), for appellant.

John M. Levy, Richmond, Va. (Louis A. Sherman, Neighborhood Legal Aid Society, Inc., Richmond, Va., on brief), for appellee.

Nicholas A. Spinella, Richmond, Va. (Joseph V. Gartlan, Jr., Washington, D. C., Spinella, Spinella & Owings, Richmond, Va., on brief), for amicus curiae Most Reverend Walter F. Sullivan, Apostolic Administrator of the Catholic Diocese of Richmond, Virginia.

Before WINTER, CRAVEN and BUTZNER, Circuit Judges.

WINTER, Circuit Judge:

In a class action, plaintiff, an unwed, expectant mother, instituted suit, on behalf of herself and her unborn child and on behalf of all other expectant mothers and their unborn children, against Virginia state and local welfare administrators. The basic objective of the suit was to obtain for unborn children the benefits under the Aid to Families with Dependent Children (AFDC) program, established under the Social Security Act, 42 U.S.C. § 601 et seq., to which they would be entitled had they been born. Benefits to unborn children are authorized, but not required, by federal regulation, 45 C.F.R. § 233.90(c)(2)(ii). The regulation gives states participating in the aid program the option to extend benefits for unborn children, and Virginia has declined the option. Bulletin No. 281, June 13, 1956, Virginia State Board of Welfare and Institutions.¹

It was alleged that the suit was brought under 42 U.S.C. § 1983, with jurisdiction vested in the district court under 28 U.S.C. § 1343(3) and (4). Specifically, plaintiff claimed that (a) she and the members of the class she represented were denied equal protection of the laws because the Virginia policy denied AFDC to unborn children and their mothers but granted it to all other children and their mothers, and (b) the Virginia policy was contrary to the Social Security Act, and regulations thereunder, and was therefore invalid under the supremacy clause of the Constitution of the United States.

The district court, sitting as a single-judge court, held that it had jurisdiction of the action and that, as a matter of statutory interpretation, plaintiff was entitled to relief, because the Virginia "policy" was in conflict with the Act, as interpreted by the Secretary of HEW and, under the supremacy clause, the Act prevailed. We agree that the district court had jurisdiction. We think that the district court had jurisdiction to proceed as a single-judge court to decide the case on a non-constitutional ground, and we agree with the district court's disposition of the case on the merits. We therefore affirm.

I.

The appeal presents two questions of jurisdiction: did the district court have jurisdiction of the subject matter, and did the district court, sitting as a single-judge court, have jurisdiction to decide the case on the merits, on nonconstitutional grounds, without there being convened a three-judge court as provided in 28 U.S.C. § 2281 et seq?²

The district court placed its holding that it had subject matter jurisdiction upon the dual grounds that (a) plaintiff had alleged a colorable claim of denial of equal protection within the scope of 42 U.S.C. § 1983, the court had jurisdiction to decide the claim under 28 U.S.C. § 1343(3), and the court therefore had jurisdiction to pass upon the statutory claim under the doctrine of pendent jurisdiction and (b) plaintiff's statutory claim alleged that Virginia's policy deprived her, under color of state law, of a right secured by a federal law—the Social Security Act—in violation of § 1983, and that such a claim was within the jurisdictional grant of 28 U.S.C. § 1343(3). Woolfolk v. Brown, 456 F.2d 652 (4 Cir. 1972) was cited as support for the conclusion that rights and benefits created by the Social Security Act were within the ambit of protection afforded by 42 U.S.C. § 1983.

We agree that plaintiff alleged a colorable claim of denial of equal protection, even though it may be doubted that ultimately this theory would prove to be meritorious. See Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Roe v. Wade, 410 U. S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).³ With the colorable claim under 42 U.S.C. § 1983 present, the district court unquestionably had subject matter jurisdiction to decide the claim of statutory preemption under its pendent jurisdiction.

We do not decide whether the incompatibility of a state law with the Social Security Act is a violation of 42 U.S.C. § 1983, or, even if it is, whether the district court had subject matter jurisdiction over a claim of such a violation under 28 U.S.C. § 1343(3) or (4). Those are questions which presumably will be answered when the Supreme Court decides Hagans v. Wyman, 471 F.2d 347 (2 Cir. 1973), a case for which certiorari was granted in Hagans v. Lavine, 412 U.S. 938, 93 S.Ct. 2784, 37 L.Ed.2d 396 (1973). The district court's holding that a violation of the Act would constitute a violation of 42 U.S.C. § 1983 raises the troublesome question of whether a grant-in-aid program, in which a state is not obliged to participate, "secures" a right, privilege or immunity within the meaning of § 1983. See Note, Federal Jurisdiction Over Challenges to State Welfare Programs, 72 Col.L.R. 1404, 1420-21 (1972). The district court's further holding that it had jurisdiction of any violation of § 1983 under 28 U.S.C. § 1343(3) or (4), raises another equally troublesome question of whether the reach of § 1983 protection and § 1343(3) and (4) jurisdiction are coterminous since § 1983 purportedly creates liability for the deprivation of rights secured by federal "laws," but § 1343(3) grants jurisdiction to redress only rights secured by "any Act of Congress providing for equal rights of citizens ..." and § 1343(4) grants jurisdiction to redress rights "under any Act of Congress providing for the protection of civil rights, including the right to vote." (emphasis added). See Lynch v. Household Finance Corp., 405 U.S. 538, 543-44 n.7, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972). However, despite the district court's contrary conclusion, we do not think that either question was decided sub silentio by us in Woolfolk v. Brown, supra.

The principal jurisdictional question, as we see it, is whether the district court, sitting as a single-judge court, was authorized to decide the case, on non-constitutional grounds, without there first being convened a three-judge court.⁴ The statute, 28 U.S.C. §§ 2281 and 2284, directs that, in an action to restrain enforcement of a state statute on the ground of unconstitutionality, "the district judge to whom the application . . . is presented . . . shall immediately notify the chief judge of the circuit," who shall designate a three-judge court "to hear and determine the action . . ." (emphasis added). § 2284(1). Florida Lime & Avocado Growers v. Jacobsen, 362 U.S. 73, 80 S.Ct. 568, 4 L.Ed.2d 568 (1960) holds that a three-judge court is required when an injunction may be granted on grounds of federal unconstitutionality even though there is also a statutory non-constitutional ground for relief, and that the three-judge court has jurisdiction over all grounds of attack on the state statute. Florida Growers, 362 U.S. at 76-77, 84, 80 S.Ct. 568. Compare Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965). It may therefore be properly argued that, in such a case, not only is a three-judge court required to be convened, but also that the three-judge court must decide all issues presented in the litigation.

However, once convened in a proper case, a three-judge court has an obligation to decide a case on non-constitutional grounds where they are dispositive of the litigation and to avoid the constitutional issue which provided the justification for convening the special court. King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968); Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970); Wyman v. Rothstein, 398 U.S. 275, 90 S.Ct. 1582, 26 L.Ed.2d 218 (1970). See also Carleson v. Remillard, 406 U.S. 598, 92 S.Ct. 1932, 32 L.Ed.2d 352 (1972), and Townsend v. Swank, 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971). But where the constitutional claim which served as the basis for convening the three-judge court has become moot or is decided in favor of the constitutional validity of the statute, the three-judge court may properly remand the non-constitutional questions to a single judge for final determination. Rosado v. Wyman, 397 U. S. at 403, 90 S.Ct. 1207.

Admittedly, the Supreme Court has never passed on the validity of the procedure followed in the instant case— the converse of that approved in Rosado. Here, the single judge decided and finally disposed of the case on non-constitutional grounds, pausing only to determine that the constitutional claim had sufficient substance to give the district court subject matter jurisdiction over the pendent statutory claim. Finding the constitutional claim at least colorable, he did not ask that a three-judge court be convened, and thus there was no three-judge court in existence to authorize him to decide the non-constitutional question as a single judge.⁵

We do not think that the procedure followed by the district judge provides any basis on which to disturb plaintiff's judgment. Especially is this so because, as we discuss later, we think that he correctly decided the case on its merits.

As pointed out in Rosado, the fact that a complaint alleges a claim of unconstitutionality,...