Holley v. Lavine, No. 424

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: Before ANDERSON, FEINBERG and MULLIGAN; PER CURIAM; Gayle McQuoid Holley, individually and on behalf of her six children, appeals from a judgment of the United States District Court for the Western District of New York, Harold P. Burke
• Citation: 529 F.2d 1294
• Parties: Gayle McQuoid HOLLEY, Individually and on behalf of James McQuoid, et al., Plaintiff-Appellant, v. Abe LAVINE, as Commissioner of the New York State Department of Social Services, and James Reed, as Commissioner of the Monroe County Department of Social Services, Defendants-Appellees. ocket 75--7468.
• Docket Number: No. 424,D
• Decision Date: 03 February 1976

Page 1294

529 F.2d 1294 Gayle McQuoid HOLLEY, Individually and on behalf of James
McQuoid, et al., Plaintiff-Appellant,
v.
Abe LAVINE, as Commissioner of the New York State Department
of Social Services, and James Reed, as
Commissioner of the Monroe County
Department of Social Services,
Defendants-Appellees. No. 424, Docket 75--7468. United States Court of Appeals,
Second Circuit. Argued Jan. 9, 1976.
Decided Feb. 3, 1976.

K. Wade Eaton, Greater Up-State Law Project, Rochester, N.Y., for plaintiff-appellant.

Alan W. Rubenstein, Principal Atty. (Louis J. Lefkowitz, Atty. Gen. of N.Y., Jean M. Coon, Asst. Sol. Gen., Albany, N.Y., Charles G. Finch, Chief Counsel, Charles G. Porreca, Monroe County Dept. of Social Services, Rochester, N.Y., on the briefs), for defendants-appellees.

Before ANDERSON, FEINBERG and MULLIGAN, Circuit Judges.

PER CURIAM:

Gayle McQuoid Holley, individually and on behalf of her six children, appeals from a judgment of the United States District Court for the Western District of New York, Harold P. Burke, J., dismissing

Page 1295

her complaint against defendants Abe Lavine, Commissioner of the New York State Department of Social Services, and James Reed, Commissioner of the Monroe County Department of Social Services. Appellant is a Canadian citizen and an 'illegal alien' but her six children are all American citizens, having been born here. Her complaint seeks an order requiring defendants to restore welfare benefits under the Aid to Families with Dependent Children (AFDC) program and invalidating section 131--k of the New York Social Services Law, insofar as it deprives certain illegal aliens of AFDC benefits. ¹ Judge Burke dismissed the complaint for lack of jurisdiction and failure to state a claim on which relief could be granted.

Appellant argues that the district court had subject matter jurisdiction under both 28 U.S.C. § 1331 and 28 U.S.C. § 1343(3), the jurisdictional counterpart of the Civil Rights Act of 1871, 42 U.S.C. § 1983. As to the former, the district court held that the amount in controversy did not exceed $10,000, a conclusion with which we agree. Rosado v. Wyman,414 F.2d 170, 176, 181 (2d Cir. 1969), rev'd on other grounds, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970). ² Judge Burke also held, however, that 'Neither the state commissioner nor the county commissioner,' sued in their official capacities, 'are within the scope of Section 1983' and that, in any event, 'The complaint asserts no substantial claim of unconstitutionality.' The former holding is incorrect under McMillan v. Board of Education, 430 F.2d 1145, 1148--49 (2d Cir. 1970), and Erdmann v. Stevens, 458 F.2d 1205, 1208 (2d Cir.), cert. denied, 409 U.S. 889, 93 S.Ct. 126, 34 L.Ed.2d 147 (1972).

Whether plaintiff has alleged a constitutional claim under section 1983 that is substantial enough to confer jurisdiction is a closer question. Although here illegally, plaintiff for many years has been allowed by the Immigration and Naturalization Service to remain for humanitarian reasons, to prevent the separation of mother and children. Her constitutional claim is that denial of welfare benefits unfairly discriminates against at least those presumably few...