Gardner v. State of Alabama, Dept. of Pensions & Security
| Decision Date | 15 January 1968 |
| Docket Number | No. 24468,24561.,24468 |
| Parties | John W. GARDNER, Secretary of the United States Department of Health, Education and Welfare, Appellant, v. The STATE OF ALABAMA, for and in Behalf of and as Trustee For the DEPARTMENT OF PENSIONS AND SECURITY of the State of Alabama, Appellee. The STATE OF ALABAMA, for and in Behalf of and as Trustee For the DEPARTMENT OF PENSIONS AND SECURITY of the State of Alabama, Petitioner, v. John W. GARDNER, Secretary of Health, Education and Welfare, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
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Macon L. Weaver, U. S. Atty., Birmingham, Ala., John Doar, Asst. Atty. Gen., D. Robert Owen, Owen M. Fiss, Alan G. Marer, Alvin Hirshen, Morton H. Sklar, David B. Marblestone, Attys., Dept. of Justice, Washington, D. C., for John W. Gardner.
Reid B. Barnes, Sp. Asst. Atty. Gen., William G. Somerville, Birmingham, Ala., Gordon Madison, Asst. Atty. Gen., McDonald Gallion, Atty. Gen., Montgomery, Ala., for State of Alabama.
Before GEWIN and AINSWORTH, Circuit Judges, and WEST, District Judge.
Certiorari Denied January 15, 1968. See 88 S.Ct. 773.
The State of Alabama brought suit in the United States District Court for the Northern District of Alabama challenging the validity of an order issued by the Secretary of Health, Education and Welfare to terminate payment of approximately $100,000,000 in federal funds to the Alabama Department of Pensions and Security. The district court entered a preliminary injunction restraining the Secretary from enforcing the above order and the Secretary filed this appeal. The District Court expressly refrained from passing on the merits of the case. Alabama then petitioned this court for direct review of the Secretary's order, and its motion to consolidate the petition for review and the appeal was granted.
At the outset it seems appropriate to take note of the importance of this case. It is important because the real parties in interest are not parties to the controversy which gave rise to this litigation. The real parties in interest are the blind, the maimed and crippled, helpless old people, and innocent babies and children who are too immature even to realize that their fate is involved in these proceedings. We do not pause to fix the blame. Where the fault lies is not significant in view of the chief issues we must decide. There are many citizens in Alabama whose very existence and life's blood are dependent upon a proper resolution of the issues tendered to this Court. Undue delay, bickering and needless disputing will surely result in hunger, neglect and bitter hardship for those who are most interested. With these thoughts in mind, after giving the parties ample time to present their briefs1 and arguments we proceed with restrained haste and appropriate deliberation to render our decision.
Our conclusions and decision in specific terms appear hereafter, but speaking generally we hold: (a) the district court was without jurisdiction to hear this case; (b) the judgment and order of the district court granting a preliminary injunction is vacated and set aside; (c) the regulations of the Department of Health, Education and Welfare (HEW) are valid; (d) by executing compliance forms or their equivalent authorized and required by HEW the State of Alabama does not become a guarantor that third parties with whom it deals will discontinue discrimination on account of race, color or national origin, nor does the execution of such forms or their equivalent result in a contract upon which the Federal Government could institute legal proceedings for the recovery of funds paid to the state; and (e) the order of the Secretary will be enforced in accordance with this opinion subject to the stay of such enforcement as herein ordered and directed.
Title VI, Section 601 of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, provides that "no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." Section 602, 42 U. S.C. § 2000d-1, directs "each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity, * * * to effectuate the provisions of section 601 * * * by issuing rules, regulations, or orders of general applicability * * *."
Pursuant to the above congressional authorization and directive, the United States Department of Health, Education and Welfare (HEW) promulgated a regulation, 45 C.F.R. Part 80, §§ 80.1-80.13, on November 27, 1964, which became effective after the President's approval on December 3, 1964. In language paralleling section 601, quoted above, § 80.1 of the regulation forbids discrimination in any program or activity receiving Federal financial assistance from the Department of Health, Education and Welfare. The regulation, at § 80.3(a) (b), further forbids any recipient of federal funds to engage in certain enumerated discriminatory practices either directly or indirectly. In addition, § 80.3(b) (2) of the regulation provides that recipients, in determining the kinds of services or benefits they will provide under any program of federal financial assistance, may not directly or indirectly utilize criteria or methods of administration which are discriminatory.
The regulation also requires, at § 80.4 (b), the following statement of compliance:
"Every application by a State or a State agency to carry out a program involving continuing Federal financial assistance * * * shall as a condition to its approval and the extension of any Federal financial assistance pursuant to the application (1) contain or be accompanied by a statement that the program is * * * conducted in compliance with all requirements imposed by or pursuant to this part, or a statement of the extent to which it is not, at the time the statement is made, so conducted, and (2) provide or be accompanied by provision for such methods of administration for the program as are found by the responsible Department official to give reasonable assurance that the applicant and all recipients of Federal financial assistance under such program will comply with all requirements imposed by or pursuant to this part, including methods of administration which give reasonable assurance that any noncompliance indicated in the statement under subparagraph (1) of this paragraph will be corrected." 45 C.F.R. Part 80, § 80.4(b) (1964).
Essentially this provision requires the State agency to issue a statement that it will administer its programs nondiscriminatorily and if discrimination is being practiced, it is to be outlined in the statement along with appropriate methods for its correction. If the State agency refuses to submit the assurance described above, the regulation at § 80.8(b) authorizes the termination of Federal financial assistance in accordance with prescribed procedures.
The Alabama State Department of Pensions and Security is the State agency responsible for administering and supervising the administration of four Public Assistance programs and in addition, one program for Child Welfare Services. The State plans covering these programs have been approved for the receipt of Federal financial assistance under the following titles of the Social Security Act, as amended, 42 U.S.C. §§ 301-306, 601-609, 721-728, 1201-1206, 1351-1355:
Accordingly, the Alabama Department has received and continues to receive such assistance in furtherance of such programs.
After adoption of the HEW regulation, copies were sent to each state welfare agency along with information concerning relevant portions of the regulation. In addition, HEW sent to all state agencies administering approved public assistance plans a handbook which outlined the state agency's responsibilities, explained the assurance requirement, and contained a suggested sample assurance form. By August 1965, every state except Alabama had filed an assurance accepted by HEW as adequate under § 80.4 (b).
Efforts to negotiate with the Alabama Department so as to bring that agency into voluntary compliance with the regulation were extensive. Needless to say they were unproductive. On August 17, 1965, the Commissioner of Welfare formally advised the Alabama Department of its noncompliance and, acting under section 602 of the Civil Rights Act and §§ 80.8(c) and 80.9 of the regulation, the Commissioner offered the Alabama Department an opportunity for an administrative hearing.
Three days later the Alabama Department sent to the Commissioner by letter a statement of "compliance with Title VI of the Federal Civil Rights Act of 1964." While the letter stated that there were no discriminatory practices in the use of physical facilities of the Alabama Department or the offices of County Departments which are located in buildings under the control of the State, it indicated that discrimination existed in the physical arrangement of county offices which are furnished office space by local governing bodies. Also the letter pointed out that segregation existed in some institutions, agencies and organizations such as hospitals, nursing homes, children's institutions, and training schools, who by contract or other arrangement with the Alabama Department dispense aid, care, services and other benefits to recipients of the various programs. The Commissioner found that the letter could not be accepted as an adequate statement of...
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