Like v. Carter

• Decision Date: 16 September 1971
• Docket Number: No. 20717.,20717.
• Parties: Harry LIKE et al., Appellants, v. Proctor N. CARTER et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

448 F.2d 798 (1971)

Harry LIKE et al., Appellants, v. Proctor N. CARTER et al., Appellees.

No. 20717.

United States Court of Appeals, Eighth Circuit.

September 16, 1971.

COPYRIGHT MATERIAL OMITTED

Harold L. Sarner, St. Louis, Mo., for appellants.

Edward D. Summers, Jefferson City, Mo., for appellees Carter and others.

John C. Craft, Asst. Atty. Gen., Jefferson City, Mo., for Treasurer and Comptroller.

Before VAN OOSTERHOUT, HEANEY and ROSS, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

This is a timely appeal by plaintiffs from final judgment dismissing their complaint. The facts, the pertinent state and federal statutes and regulations, the issues and the basis of decision are set out in Chief Judge Meredith's opinion reported at D.C., 318 F. Supp. 910.

The action is brought by Harry Like and Doris Mae Armsby, public assistance applicants, individually and on behalf of all similarly situated public assistance applicants. Defendants, who are sued individually and in their official capacities, are Austin Hill, Director of the Department of Public Health and Welfare of the State of Missouri; Proctor N. Carter, Director of the Division of Welfare of the Department of Public Health and Welfare; J. P. Lynes, Welfare Director of St. Louis City; William Robinson, Treasurer of the State of Missouri; and John C. Vaughn, Comptroller and Director of the Budget of the State of Missouri.

The State of Missouri participates in the following programs under the United States Social Security Act, 42 U.S.C. § 301 et seq.: (1) Old Age Assistance (OAA), 42 U.S.C. §§ 301-306; (2) Aid to Families with Dependent Children (AFDC), 42 U.S.C. §§ 601-610; (3) Aid to the Blind (AB), 42 U.S.C. §§ 1201-1206; (4) Aid to the Permanently and Totally Disabled (APTD), 42 U.S.C. §§ 1351-1355; (5) Aid to the Aged, Blind or Disabled (AABD), 42 U.S.C. §§ 1381-1385.

Plaintiffs' cause of action is based upon rights asserted under the provisions of the Social Security Act and regulations promulgated thereunder. Plaintiffs contend that they are entitled to have their applications for public assistance acted upon by state officials within thirty days of the filing thereof, that the state has failed to process the applications of the individual plaintiffs and members of their class within such time, and that plaintiffs have thus been denied due process and equal protection guaranteed by the Fourteenth Amendment of the Constitution of the United States, and have been denied civil rights afforded them by 42 U.S.C.A. § 1983.

Jurisdiction is based upon 28 U.S.C.A. § 1343(3, 4), and declaratory relief is sought pursuant to 28 U.S.C.A. §§ 2201, 2202.

Additionally plaintiffs contend that they and members of their class are entitled to have benefits retroactively computed and allowed from the thirty-first day after the filing of their applications.

The parties by stipulation agreed:

1. Doris Mae Armsby applied for ADC on October 6, 1969, was determined eligible on January 15, 1970, and received her first check pursuant to said ADC application on January 30, 1970. Plaintiff Harry Like applied for OAA on November 5, 1969, and was determined ineligible for OAA on February 10, 1970.

2. The average processing time for applications cleared in February 1970 ranged from a low of 56.5 to a high of 93.4 days in the categories of OAA, AFDC, PTD and AB.

3. Processing time for applications cleared in January 1970 ranged up to 182 days in the AFDC category with 90.1% of the determinations taking longer than 30 days, and up to 162 days in the OAA category, with 95.1% of the determinations taking longer than 30 days.

4. Processing time for the first assistance payments was normally 12 days after certification of the determination of eligibility was made by the local office.

Forty-two U.S.C.A. § 602(a) (10) specifies as a condition for approval of a state plan for AFDC that such plan must afford opportunity for filing application and "that aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals." Similar requirements that applicants be processed with reasonable promptness apply to OAA, 42 U.S.C.A. § 302(a) (8), and AABD, 42 U.S.C.A. § 1382(a) (8). Handbook of Public Assistance Administration, promulgated by HEW, in Part IV, § 2200(b) (3), provides:

"A state plan for OAA, AFDC, AB, APTd must provide that: * * * (b) (3) prompt action will be taken on each application, within reasonable State-established time standards (which, effective July 1, 1968, will not exceed 30 days in AFDC, OAA, and AB * * *."

The controlling Missouri statutes and regulations are set forth by the trial court in its opinion at p. 913 of 318 F. Supp. Section 208.070 V.A.M.S. includes a provision that investigation of applications for welfare benefits shall be promptly made. Missouri Division of Welfare Regulation No. 4.1 in pertinent part reads:

"For OAA, ADC, and AB assistance applications (unless there are unusual or extreme circumstances), prompt disposition means that there shall not be more than 30 days between date of application and (a) the date of approval, if eligible; or (b) date of rejection, if ineligible. (Revised July, 1968)."

The trial court found it had jurisdiction under 28 U.S.C.A. § 1343(3), (4). Defendants in the trial court and here attack the trial court's jurisdiction. We are required at the threshold to satisfy ourselves as to the trial court's jurisdiction and our jurisdiction.

The jurisdictional issue in this type of case has caused courts considerable difficulty. The Second Circuit has carefully considered this problem in Johnson v. Harder, 438 F.2d 7, wherein it cites and discusses its prior decisions and Supreme Court decisions bearing upon jurisdiction. The court concludes that where colorable constitutional (equal protection and due process) claims have been raised, jurisdiction will lie. Support for sustaining jurisdiction is found in Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442; King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118; Campagnuolo v. Harder, 2 Cir., 440 F.2d 1225; Rodriquez v. Swank, N.D.Ill., 318 F.Supp. 289 (a three-judge case summarily affirmed by the Supreme Court July 1, 1971, 39 LW 3533); Worrell v. Sterrett, N.D. Ind., CCH Pov.L.R. ¶ 10,575.

Additionally defendants assert that the court lacks jurisdiction by reason of plaintiffs' failure to exhaust available state administrative remedies. Section 208.080 V.A.M.S. gives a welfare applicant the right to appeal to the Director of Public Health and Welfare if his application is not acted upon within a reasonable time. The record discloses that a number of eligible applicants did take such appeal and failed to obtain effective relief. The Director determined the applicants were too numerous and the case workers were too few to permit prompt handling of the applications, and hence that the delay was beyond the control of the Division of Welfare. Under the circumstances of this case, it is clear that exhaustion of state remedies is not a prerequisite to a federal suit to enforce federally guaranteed constitutional rights. Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L. Ed.2d 647; McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L. Ed.2d 622; Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492; Rodriquez v. Swank, supra.

Finally on the jurisdiction issue, defendants assert the action is barred by the Eleventh Amendment. Defendants are sued as individuals as well as in their official capacities. It is well established that jurisdiction exists to grant declaratory and injunctive relief against individuals who, acting under color of state law, deprive an individual of a federally guaranteed constitutional right. Ex parte Young, 209 U. S. 123, 28 S.Ct. 441, 52 L.Ed. 714; Board of Trustees of Arkansas A and M College v. Davis, 8 Cir., 396 F.2d 730.

Relief has been afforded in welfare cases for state violation of federally guaranteed constitutional rights of welfare recipients. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287; King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118.

No party has contended that a statutory three-judge court is required to adjudicate the issues presented by this case. Johnson v. Harder, supra, a case involving a comparable situation, holds:

"Neither, of course, are three judges required as to appellant\'s claim that the state regulation conflicts with federal provisions which, by virtue of the Supremacy Clause, are controlling. Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965)." 438 F.2d 7, 13.

We agree.

We hold the court properly determined that its jurisdiction is established. We of course have jurisdiction to review the final judgment of the District Court.

Judge Meredith held plaintiffs were not entitled to prosecute this action as a class action and that the individual plaintiffs were entitled to no relief. The complaint was dismissed.

As a basis for reversal, plaintiffs urge:

I. The court erred in not permitting plaintiffs to maintain this action as a class action.

II. The court erred in determining that federal laws and regulations did not require the state to process and act upon the applications of plaintiffs and members of their class for OAA, AFDC, AB and AABD relief.

III. The court erred in failing to give plaintiffs appropriate relief.

We shall consider such contentions in the order stated.

I.

The trial court held the action could not be maintained as a class action under Rule 23, Fed.R.Civ.P., because facts pertaining to the delay in processing applications vary from case to case. Factual differences are not fatal if common questions of law exist. Rule 23(a) (2) requires that there be common questions of law or fact. The class includes eligible St. Louis welfare recipients whose applications have not been acted upon within thirty days after filing. Common questions of law such as the...