Macias v. Finch

• Decision Date: 05 January 1970
• Docket Number: No. 50956.,50956.
• Citation: 324 F. Supp. 1252
• Court: U.S. District Court — Northern District of California
• Parties: Juan C. MACIAS et al., Plaintiffs, v. Robert H. FINCH et al., Defendants.

324 F. Supp. 1252

Juan C. MACIAS et al., Plaintiffs, v. Robert H. FINCH et al., Defendants.

No. 50956.

United States District Court, N. D. California.

January 5, 1970.

Don B. Kates, Jr., Peter D. Coppelman, Gilroy, Cal., Robert L. Gnaizda, Martin R. Glick, Daniel Hays Lowenstein, Lucy McCabe, Steven J. Antler, Peter E. Sitkin, San Francisco, Cal., for plaintiffs.

Thomas C. Lynch, Atty. Gen., Elizabeth Palmer, Gerald F. Canveras, Deputy Attys. Gen., San Francisco, Cal., for defendant John C. Montgomery.

Cecil F. Poole, U. S. Atty., William B. Spohn, Asst. U. S. Atty., San Francisco, Cal., for defendant Robert H. Finch, Secretary, Dept. of Health, Education & Welfare.

John R. Kennedy, County Counsel, Nordin F. Blocker, Deputy County Counsel, San Jose, Cal., for defendant Frederick B. Gillette.

Before DUNIWAY, Circuit Judge, and SWEIGERT and PECKHAM, District Judges.

DUNIWAY, Circuit Judge:

The defendants in this action have filed a motion to dismiss it. The federal defendant, Robert H. Finch, Secretary of the United States Department of Health, Education, and Welfare, raises both jurisdictional and substantive contentions. The other defendants—John C. Montgomery, Director of the California Department of Social Welfare, and Frederick B. Gillette, Director of the Santa Clara County Public Welfare Department—contend that the complaint fails to state a claim upon which relief can be granted. (Rule 12, F.R.Civ.P.) We discuss the various procedural and substantive contentions separately.

1. Need for a Three-Judge Court.

We first consider whether a three-judge court is necessary in this case. The plaintiffs¹ attack the constitutionality of two congressional statutes (42 U.S.C. §§ 606(a) and 607) and of a state statute, § 11250(b) of the California Welfare & Institutions Code. They now contend, however, that no statute—either federal or state—need be declared unconstitutional.

Instead, the plaintiffs assert that the action can be read as challenging federal regulations defining the requirements for state plans authorizing aid to dependent children of unemployed fathers. 45 C.F.R. § 233.100, 34 Fed.Reg. 1146 (1969). The regulation, promulgated on January 23, 1969, states that the state plan must include a definition of an unemployed father

(i) which shall include any father who is employed less than 30 hours a week, or less than three fourths of the number of hours considered by the industry to be full time for the job, whichever is less, and

(ii) which may include any father who is employed less than 35 hours a week, or less than the number of hours considered by the industry to be full time for the job * * * 45 C.F.R. § 233.100(a) (1) (i) and (ii).

The plaintiffs claim that this is the only instance in the welfare system where a needy family is denied assistance solely because of an arbitrary number of hours worked, rather than because of need or income. Assuming their challenge to the regulation is upheld, and further assuming that validity of the federal and state statutes need not be considered, then a three-judge court would not be required. (28 U.S.C. § 2282; C. Wright, Federal Courts 163 (1963 ed.).)

However, because this court finds that the regulation is properly within the scope of the Social Security Act (see infra), it must reach the constitutional attacks on the statute, which do require a three-judge court. Furthermore, even if this court were to strike down the federal regulation, it has serious doubts whether the attack on the California statute could be dismissed from this litigation. While Cal.Welf. & Inst.Code, § 11201(b) provides that California law shall remain consistent with federal regulations, it nevertheless defines an unemployed parent as one who "is employed only part time as determined in accordance with such standards as may be developed * * *." (Emphasis added.) Thus, the section specifically defines an unemployed parent in terms of time worked, a criterion which the plaintiffs claim is unconstitutional. Arguably, it can be said that if the federal regulation is struck down for defining unemployment solely in terms of hours worked, then the words "part time" in the California statute could no longer be defined solely in terms of time worked. This appears strained, however, since the very words "part time" demonstrate a concern with time, not other factors like need and income. Hence, if the court were to strike down the federal regulation because of an improper and arbitrary standard of hours worked, it appears that the California statute would likewise fall, necessitating a three-judge court.

Accordingly, we find that a three-judge court is required, and we proceed with a discussion of the defendants' procedural and substantive contentions.

2. Jurisdiction and Venue.

In his motion to dismiss, the federal defendant asserts that the court lacks personal jurisdiction over him and that venue with respect to him in the Northern District of California is improper. As to the first contention, the Secretary claims he was not served personally within the territorial limits of California, and that neither Fed.R.Civ. P. 4(d) (5) or 28 U.S.C. § 1391(e) provide for extraterritorial service of process by mail. Because this contention is so intertwined with the venue argument, the two contentions will be discussed together.

The venue argument is predicated solely on the literal language of the federal statute. The pertinent statutory parts are 28 U.S.C. § 1391(b) (which says venue is proper in a non-diversity suit only in the judicial district where all defendants reside or in which the claim arose) and 28 U.S.C. § 1391(e) (which provides that a suit can be brought where the cause of action arose if it is a civil action "in which each defendant is an officer or employee of the United States." (Emphasis added).)

The federal defendant asserts that this language, plus the legislative history show a congressional intent to extend the venue provisions only in actions exclusively against federal officials. The decisions are split on the interpretation to be given these federal venue provisions. Accord with the government position: Town of East Haven v. Eastern Airlines, 282 F.Supp. 507 (D.Conn.1968); Chase Savings & Loan Ass'n v. Federal Home Loan Bank Board, 269 F.Supp. 965 (E.D. Penn.1967); United Publishing and Printing Corp. v. Horan, et al., 268 F. Supp. 948 (D.Conn.1967); contra: Brotherhood, etc. Engineers v. Denver etc. R.R. Co., 290 F.Supp. 612 (D.Colo. 1968); Powelton Civic Home Owner's Association v. Department of Housing and Urban Development, 284 F.Supp. 809 (E.D.Penn.1968).

This court accepts the government's basic contention that 28 U.S.C. § 1391 (e) does not contemplate that a federal official in Washington should be dragged into every local controversy involving both private and governmental parties. Nonetheless, when Congress added subsection (e) to section 1391 in 1962, it did express an intent to broaden the allowable venue to an extent somewhat beyond the literal terms of the language which it used in its enactment. The House Judiciary Committee Report accompanying H.R.1960, the bill which ultimately was enacted as Pub.L. 87-748, 76 Stat. 744, amending section 1391, states:

"Section 2 now subsection (e) * * * is designed to permit an action which is essentially against the United States to be brought locally rather than requiring that it be brought in the District of Columbia simply because Washington is the official residence of the officer sued. * * *

Frequently the administrative determinations involved are made not in Washington but in the field. In either event these actions are in essence against the United States. * * *" (H.R.Rep.No.536, 87th Cong., 1st Sess. 2, 3 (1961).) (Emphasis added.)

Very similar statements are found in S.Rep.No.1992, 87th Cong., 2d Sess. (1962), U.S.Code Cong. & Admin.News 1962, p. 2784, regarding the same bill. Thus, when read in conjunction with the congressional commentary surrounding its enactment, section 1391(e) appears to envision that a federal defendant residing in Washington could be brought into an action outside Washington although non-federal parties were also joined as co-defendants where the action was "essentially against the United States."

This particular action is one which is "essentially against the United States" despite the presence of local, non-federal defendants. The funding of state AFDC programs comes in large part from the federal government, and further, the thrust of plaintiffs' complaint is against a federal regulation which the states must follow to obtain the federal assistance. Accordingly, this court finds against the federal defendant's contentions concerning lack of personal jurisdiction and improper venue.

3. Validity of the Federal and State Statutes and Regulations.

42 U.S.C. § 607 provides that a child who is needy can qualify as a "dependent child" if he is "deprived of parental support or care by reason of the unemployment (as determined in accordance with standards prescribed by the Secretary) of his father * * *." In 45 C.F.R. § 233.100, 34 Fed.Reg. 1146 (1969), the Secretary has defined an unemployed father as one who is employed "less than 30 hours a week, or less than three fourths the number of hours considered by the industry to be full time for the job, whichever is less." 45 C.F.R. § 233.100(a) (1) (i). Subsection (ii) states that the definition may include any father who is employed less than 35 hours a week.

Cal.Welf. & Inst.Code, § 11201 provides:

"For purposes of this chapter, `unemployed parent' means a natural parent, adoptive parent, or step-parent with whom the child is living, and who:

(a) Is not working but is available for and seeking employment * * * or

(b) Is employed only part time as determined in accordance with such standards as may be developed by the department in its rules and regulations, which standards shall be consistent with federal law and

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