Francis v. Davidson

Decision Date28 January 1972
Docket NumberCiv. No. 71-853-K.
Citation340 F. Supp. 351
PartiesRobert FRANCIS, individually and on behalf of his minor children, Robert J. Francis, et al. v. Rita C. DAVIDSON, Secretary, Department of Employment and Social Services, and Raleigh C. Hobson, Director, Social Services Administration. Department of Health, Education & Welfare, the U. S. Chamber of Commerce, the Maryland State Chamber of Commerce, and the Chamber of Commerce of Metropolitan Baltimore, Amici Curiae.
CourtU.S. District Court — District of Maryland

COPYRIGHT MATERIAL OMITTED

C. Christopher Brown, Curtis L. Decker, and H. Maxwell Hersch, Baltimore, Md., for plaintiffs.

Francis B. Burch, Atty. Gen. of Md., and Richard G. McCauley, Joe Rabin and Judson F. Garrett, Jr., Asst. Attys. Gen., Baltimore, Md., for defendants.

George Beall, U. S. Atty., and Jean G. Rogers, Asst. U. S. Atty., Baltimore, Md., for Dept. of Health, Education & Welfare.

William A. Grimes, Baltimore, Md., Lawrence M. Cohen, Gerard C. Smetana, Chicago, Ill., and Alan Raywid, Washington, D. C., for The U. S. Chamber of Commerce.

J. Cookman Boyd, Jr. and Rob Ross Hendrickson, Baltimore, Md., for Maryland State Chamber of Commerce and the Chamber of Commerce of Metropolitan Baltimore.

Before WINTER, Circuit Judge, and KAUFMAN and YOUNG, District Judges.

FRANK A. KAUFMAN, District Judge.

This case involves constitutional and other issues arising in connection with the administration of the AFDC-E program.1 Plaintiffs are fathers, who, on behalf of themselves and others similarly situated, allege that benefits under that program have been denied to their respective children by the Department of Employment and Social Services of the State of Maryland under Rule 200.X.A. (2) of that Department,2 in violation of (a) 42 U.S.C. § 6073 and 45 C.F.R. § 233.100(a),4 and (b) the Fourteenth Amendment of the Federal Constitution. Defendants, named in their individual and representative capacities, are, respectively, the Secretary of the Maryland Department of Employment and Social Services and the Director of the Maryland Social Services Administration, a division of that Department.5 HEW has submitted its views with regard to the issues in this case, pursuant to the request of this Court addressed to that agency in accordance with the strong policy suggestion stated by the Supreme Court of the United States in Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970).6 The United States Chamber of Commerce and the Chamber of Commerce of Metropolitan Baltimore were permitted to file amicus briefs and to take part in oral argument.7

Robert Francis, one of the two original plaintiffs in this case, became out of work on July 1, 1971 when the union, of which he was a member, called a strike at the plant at which he was working. The other original plaintiff, Franklin Wilkens, was discharged from his employment on June 22, 1971 because of gross misconduct. Wilkens subsequently obtained new employment and withdrew his complaint herein. At the time of Wilkens' withdrawal, Edward Wright was granted leave to become a plaintiff herein.8 Wright's employer discharged him on May 12, 1971 for alleged gross misconduct (excessive absenteeism). Both Francis and Wright (as well as Wilkens during the period he was out of work) applied for and were denied AFDC-E benefits by the Department of Social Services of the City of Baltimore. Wright is still out of work. Francis went back to work on September 10, 1971 when the strike which had been called by his union ended.

In the 1961 legislation originating the AFDC-E program, the term "dependent child" was defined in 42 U.S.C. § 607(a), Pub.L.No. 87-31, § 407, 75 Stat. 75 (1961), to include "a needy child" under the age of eighteen "who has been deprived of parental support or care by reason of the unemployment (as defined by the State)" of a parent, and who is living with any of his relatives "in a place of residence maintained by one or more of such relatives as his (or their) own home." (Emphasis added). In 1968, Congress enacted extensive amendments and, inter alia, replaced the word "parent" with the word "father," replaced the above italicized parenthetical words with the words "as determined in accordance with standards prescribed by the Secretary," and added 42 U.S.C. § 607(b), providing as follows:

The provisions of subsection (a) of this section shall be applicable to a State if the State's plan approved under section 602 of this title —9
(1) requires the payment of aid to families with dependent children with respect to a dependent child as defined in subsection (a) of this section when —
(A) such child's father has not been employed (as determined in accordance with standards prescribed by the Secretary) for at least 30 days prior to the receipt of such aid. Emphasis added.10

After the 1968 statutory amendments by the Congress, the Secretary of HEW promulgated, as 45 C.F.R. § 233.100(a), a regulation, providing, inter alia, that "if a State wishes to provide AFDC for children of unemployed fathers, the State plan * * * must, except as specified in paragraph (b) of this section11 * * * include a definition of an unemployed father * * * and shall include any father who is employed less than 30 hours a week, * * *"12

Section 6 of Maryland's Unemployment Insurance Law, Md.Ann.Code art. 95A, § 6 (1969 Repl. Vol.), sets forth certain disqualifications for benefits and provides, inter alia, that an individual shall be disqualified for benefits when he is discharged for "gross misconduct" (section 6(b)), and when the Executive Director finds that "his unemployment is due to a stoppage of work, other than a lockout, which exists because of a labor dispute * * * emphasis added."13

Rule 200.X.A. of the Social Services Administration, Department of Employment and Social Services, of the State of Maryland, denies AFDC-E aid if the father is "disqualified for unemployment insurance."14

Plaintiffs, on behalf of themselves and others similarly situated, seek injunctive and declaratory relief as well as damages in the form of the payment of AFDC-E benefits withheld by the State of Maryland pursuant to Rule 200.X.A.15 Because injunctive relief is sought, inter alia, restraining state officials "from the enforcement, operation and execution of a statewide regulation on the ground of its unconstitutionality," King v. Smith, 392 U.S. 309 n. 3, 88 S.Ct. 2128, 2130, n. 3, 20 L.Ed.2d 1118 (1969), and because those allegations of unconstitutionality are not so frivolous or so obviously lacking in merit as not to require the convening of a three-judge court, see Md. Citizens for Representative General Assembly v. Governor of Maryland, 429 F.2d 606, 611 (4th Cir. 1970), this three-judge court was convened pursuant to 28 U.S.C. § 2281.

I.

Plaintiffs assert jurisdiction in this case pursuant to 28 U.S.C. § 1343(3)16 and (4),17 which are jurisdictional counterparts of 42 U.S.C. § 1983,18 the violation of which is alleged by plaintiffs. In a concurring opinion in Hague v. C. I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939), Mr. Justice Stone wrote (at 531, 59 S.Ct. at 971) that section 1343(3) applied "whenever the right or immunity is one of personal liberty, not dependent for its existence upon the infringement of property rights." In Weddle v. Director, Patuxent Institution, 436 F.2d 342, 343 (4th Cir. 1970), Judge Winter, noting his acceptance of Judge Friendly's analysis in Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1960), held that "where, as here, the infringement is one solely of property rights, § 1331 is the applicable jurisdictional statute, and jurisdiction may be sustained only upon satisfaction of the amount in controversy requirement footnote omitted."18a See also Garren v. City of Winston-Salem, North Carolina, 439 F.2d 140 (4th Cir. 1970).

In King v. Smith, supra, the Supreme Court declared invalid as inconsistent with certain provisions of the Social Security Act, Alabama's "substitute father" regulation, pursuant to which Alabama denied AFDC aid to the children of a mother who "cohabits" in or outside her home with any single or married able-bodied man. In King, after noting the constitutional equal protection attack which had been held meritorious by the three-judge district court below, a view which Mr. Justice Douglas, concurring specially (392 U.S. at 334-336, 88 S.Ct. 2128), would have adopted in place of what he characterized (at 334, 88 S.Ct. 2128) as "the statutory route" followed by the majority of the Court, Mr. Chief Justice Warren, for the majority, wrote (at 313 n. 3, 88 S.Ct. at 2131):

We intimate no views as to whether and under what circumstances suits challenging state AFDC provisions only on the ground that they are inconsistent with the federal statute may be brought in federal courts.

In Eisen v. Eastman, supra, 421 F.2d at 564, Judge Friendly suggested that "it is quite arguable that King came within Justice Stone's formulation on the basis that Alabama's `substitute father' regulation not merely caused economic loss to Mrs. Smith's children, but also infringed their `liberty' to grow up with financial aid for their subsistence and her `liberty' to have Mr. Williams visit her on weekends."

In Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), in which a New York statute was held to have defined a standard of need for AFDC payments in violation of the federal statutory standard, Mr. Justice Harlan (at 405 n. 7, 90 S.Ct. at 1214) did not reach the issue posed by Mr. Justice Stone's formula in Hague, stating:

Since we conclude that the District Court properly exercised its pendent jurisdiction, we have no occasion to consider whether, as urged by petitioners, this statutory claim satisfies the $10,000 amount-in-controversy requirement of the general federal jurisdiction provision, 28 U.S.C. § 1331, or whether it could be maintained under 28 U.S.C. § 1343(3), which contains no amount-in-controversy
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