Ingerson v. Sharp, Civ. A. No. 76-3255-S.

• Decision Date: 09 December 1976
• Docket Number: Civ. A. No. 76-3255-S.
• Parties: Rita INGERSON et al., Plaintiffs, v. Alexander E. SHARP II, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

423 F. Supp. 139

Rita INGERSON et al., Plaintiffs, v. Alexander E. SHARP II, et al., Defendants.

Civ. A. No. 76-3255-S.

United States District Court, D. Massachusetts.

December 9, 1976.

R. Peter Anderson, Charles R. Capace, of Massachusetts Law Reform Institute, Boston, Mass., Alfred D. Ellis, Cambridge and Somerville Legal Services, Cambridge, Mass., Daniel S. Manning, Greater Boston Legal Services, Dorchester, Mass., Hollis Young, Greater Boston Legal Services, Boston, Mass., for plaintiffs.

Garrick F. Cole, Catherine A. White, Asst. Attys. Gen., Boston, Mass., for defendants.

MEMORANDUM AND ORDER

SKINNER, District Judge.

This is a class action challenging two independent restrictions on the availability of relief under Massachusetts' Emergency Assistance Program. Plaintiffs complain that each restriction impermissibly conflicts with section 406(e) of the Social Security Act, 42 U.S.C. § 606(e), and thus is invalid under the supremacy clause and that each restriction offends the equal protection clause of the fourteenth amendment. Plaintiffs seek permanent injunctive and declaratory relief. A hearing on the merits was held on September 21, 1976.

Congress enacted section 606(e) as part of its cooperative effort with the states to alleviate the condition of needy children. Participation by a state is voluntary, but the federal government reimburses fifty percent of a state's expenditures only if the state plan meets federal requirements. 42 U.S.C. § 603(a)(5). In general, section 606(e)

authorizes emergency assistance to a needy child under 21, living with relatives specified in 42 U.S.C. § 606(a), who is without available resources, if the assistance is necessary to avoid destitution or to provide living arrangements in a home, and if the need did not arise because such child or relatives refused without good cause to accept training or employment.

Mandley v. Trainor, 523 F.2d 415, 418 (7th Cir. 1975).

An applicant may receive Emergency Assistance during only one thirty-day period within each twelve months. 42 U.S.C. § 606(e).

Massachusetts has participated in the Emergency Assistance Program since 1968, and the Commonwealth's plan, together with the restrictions challenged by plaintiffs, has been approved by HEW. The plan provides for payments to avert a variety of emergencies, including those caused by shelter arrearages and fuel and utility arrearages. The plan limits payments for all shelter, fuel and utility arrearages "to that amount which was incurred within 4 months prior to the date of application for payment under the EA Program." The plan further excludes from coverage rent and utility arrearages incurred in any month in which the applicant was a recipient of public assistance, for example, Aid to Families with Dependent Children (AFDC) and General Relief (GR). Mortgage, real estate tax and fuel arrearages, however, are covered even if incurred while the applicant was a recipient of public assistance. M.G.L. c. 118 § 2; Massachusetts Public Assistance Policy Manual, ch. IV, § A, pt. 4(C) & (D).¹

The parties have stipulated to the introduction of the uncontroverted affidavits of the sixteen named plaintiffs in lieu of their oral testimony. These affidavits demonstrate the application of the Commonwealth's dual restrictions on Emergency Assistance.

After the termination of the "Initial Needs" and "Hardship" program, which was the subject of the opinion in Bourgeois v. Stevens, 532 F.2d 799 (1st Cir. 1976), Emergency Assistance was the only extraordinary relief beyond the standard subsistence payments available for families receiving AFDC. In fact, the availability of Emergency Assistance was a justification for the termination of the "Hardship" program cited by the then Commissioner of Public Welfare at the trial of the Bourgeois case before me. There is no other public resource available to such a family who is in jeopardy of losing heat and shelter by reason of arrearages for utilities, fuel and rent. It was conceded at argument that AFDC payments are not based on actual need but are derived from an averaging formula.

The dilemma caused by the four-month rule is illustrated by the case of Richard Jestings. Mr. Jestings incurred rent arrearages for the three months December 1975 through February 1976. He fell behind on his gas payments for the same period as well. His application for AFDC benefits was not approved until February 16, 1976. Plaintiff Jestings resumed full payment of rent in March but did not have the resources to pay his landlord the three months' back rent. Jestings was not served with an eviction complaint until August 2, 1976. His application for Emergency Assistance in order to avert eviction was denied on August 12 because the rent arrearages were incurred over four months before the application. The Commonwealth legitimately defines the eviction emergency situation as arising when ejectment proceedings have been commenced by the landlord and the family has been served with notice. Jestings could not have applied for Emergency Assistance until August 2, well beyond the four-month period.

The plaintiff class was duly certified pursuant to Fed.R.Civ.P. 23(a), (b)(1) & (2) by order entered on September 23, 1976. The class is defined as including children and their families who satisfy all federal and state prerequisites for Emergency Assistance but who, nevertheless, have been or will be denied Emergency Assistance solely on the basis of their status as recipients of public assistance or solely because their arrearages were incurred more than four months prior to their application for Emergency Assistance, or both.

Plaintiffs base their claim on 42 U.S.C. § 1983 and assert jurisdiction under 28 U.S.C. §§ 1331 and 1343.

Section 1343(3) confers jurisdiction over the equal protection claim, which, in my opinion, is of sufficient substance to permit the exercise of pendent jurisdiction over the federal statutory claim. Applicants with identical emergencies are receiving sufficiently different treatment to raise a substantial equal protection claim. See, e. g., United States Dept. of Agriculture v. Moreno, 413 U.S. 528, 535-38, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973); Burrell v. Norton, 381 F.Supp. 339, 342 (D.Conn.1974). Randall v. Goldmark, 495 F.2d 356 (1st Cir.) (per curiam), cert. denied, 419 U.S. 879, 95 S.Ct. 144, 42 L.Ed.2d 119 (1974), is readily distinguishable. If the constitutional claim is substantial, a district court may, pursuant to section 1343(3), hear the statutory claim as pendent to the constitutional claim. See, e. g., Hagans v. Lavine, 415 U.S. 528, 536, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974); New York Dept. of Social Services v. Dublino, 413 U.S. 405, 412 n. 11, 93 S.Ct. 2507, 37 L.Ed.2d 688 (1973); Rosado v. Wyman, 397 U.S. 397, 402-05, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970); Williams v. Wohlgemuth, 540 F.2d 163, 166 (3d Cir. 1976); Mandley v. Trainor, 523 F.2d 415, 419 n. 2 (7th Cir. 1975).

It appears to me to be extremely doubtful, however, that the claims of the plaintiffs should be aggregated to satisfy the requisite jurisdictional amount under 28 U.S.C. § 1331. Cf. Berman v. Narragansett Racing Association, 414 F.2d 311, 314-16 (1st Cir. 1969), cert. denied, 396 U.S. 1037, 90 S.Ct. 682, 24 L.Ed.2d 681 (1970).²

"If a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter." Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring), citing Siler v. Louisville & Nashville R.R., 213 U.S. 175, 191, 29 S.Ct. 451, 53 L.Ed. 753 (1909).

Under the AFDC program, federal eligibility standards are mandatory; participating states have no discretion to limit eligibility further. Philbrook v. Glodgett, 421 U.S. 707, 719, 95 S.Ct. 1893, 44 L.Ed.2d 525 (1975); Van Lare v. Hurley, 421 U.S. 338, 340, 95 S.Ct. 1741, 44 L.Ed.2d 208 (1975); Carleson v. Remillard, 406 U.S. 598, 600-01, 92 S.Ct. 1932, 32 L.Ed.2d 352 (1972); Townsend v. Swank, 404 U.S. 282, 286, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971); King v. Smith, 392 U.S. 309, 333 & n.34, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968). The same principle applies to the Emergency Assistance Program, subject to express congressional reservations of state discretion in specific areas.

Section 606(e) is part of the same statutory scheme as Sections 606(a) and 602. The same Congressional concern with deprivation of children that brought forth the AFDC program was at the root of the emergency assistance program as well. Since the legislative history of the latter program demonstrates continuing Congressional concern with the nation's poor children and contains no indication that its eligibility provisions are to be more in state control than its closely related sister program, we must follow the number of Supreme Court cases that have held that the eligibility provisions of the federal program cannot be narrowed by the states.

Mandley v. Trainor, 523 F.2d 415, 422 (7th Cir. 1975); accord, Williams v. Wohlgemuth, 540 F.2d 163, 169-70 (3d Cir. 1976).

Defendants contend, however, that the recipient status restrictions and the four-month rule do not narrow eligibility; rather, they limit the benefits available to eligible applicants for Emergency Assistance.

Under the AFDC program, states have broad discretion to determine the level of benefits available. Jefferson v. Hackney, 406 U.S. 535, 541, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972); Rosado v. Wyman, 397 U.S. 397, 408, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970); King v. Smith, 392 U.S. 309, 318-19, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968). The same principle undoubtedly applies to Emergency Assistance. Under the AFDC program, however, a state "may not obscure the actual standard of need" by its method of reducing benefits. Rosado v. Wyman, 397 U.S. at 413, 90 S.Ct. at 1218. Similarly, a state should not be permitted...