National Welfare Rights Organization v. Finch, 23787

Citation429 F.2d 725
Decision Date09 June 1970
Docket NumberNo. 23787,23890.,23787
PartiesThe NATIONAL WELFARE RIGHTS ORGANIZATION et al., Appellants, v. The Honorable Robert FINCH, Secretary, United States Department of Health, Education and Welfare, et al. NATIONAL WELFARE RIGHTS ORGANIZATION et al., Appellants, v. The Honorable Robert FINCH, Secretary, United States Department of Health, Education and Welfare.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Mr. John W. Douglas, Washington, D. C., for appellants. Messrs. Roger L. Rice and Stephen Wexler and Mrs. Florence Roisman, Washington, D. C., were on the brief for appellants.

Mr. Raymond D. Battocchi, Attorney, Department of Justice, with whom Messrs. Thomas A. Flannery, U. S. Atty., and Alan S. Rosenthal, Attorney, Department of Justice, were on the brief, for appellees. Mr. Nathan Dodell, Asst. U. S. Atty., also entered an appearance for appellees.

Mr. Norman K. Janes, Willimantic, Conn., William H. Clendenen, Jr., New Haven, Conn., filed a brief on behalf of Quinnipiac Welfare Rights Mothers, Farnum Courts Welfare Rights Mothers, Willimantic Welfare Rights Mothers, and Togetherness Is Everyone, as amici curiae.

Before BAZELON, Chief Judge, and WRIGHT and McGOWAN, Circuit Judges.

J. SKELLY WRIGHT, Circuit Judge:

In November 1969 the Department of Health, Education and Welfare announced that in December 1969 and January 1970 hearings would be held to determine whether the welfare laws of the states of Nevada and Connecticut respectively were in conformity with certain federal standards in the Social Security Act so that those states might continue to receive payments of federal aid for their state welfare assistance programs. Plaintiff-appellants, a national voluntary association of welfare recipients, state affiliate organizations in Nevada and Connecticut, and welfare recipients individually and in behalf of all welfare recipients and needy children1 requested that they be permitted to participate as parties in the hearings.2 When the request was refused, appellants sought injunctive relief in the District Court incident to their main action in the nature of a mandamus. Although this is an appeal from a denial of a preliminary injunction, we here decide the merits of the controversy in view of the expression of the parties that such a determination is desirable and since the issues are ripe for adjudication on this record.3


The Social Security Act of 1935 established several grant-in-aid programs4 whereby any state at its option might apply for federal funds to allocate to its welfare assistance programs for certain statutorily specified categories of needy individuals and families.5 At present in order to participate in these programs, the state must submit the plans for its program in any of the categories to the Secretary of Health, Education and Welfare. The Secretary's duty is to measure the plan against standards which Congress has designated for each program. If the state plan meets the designated requirements, the Secretary "shall approve" it.6

Existing approved plans continue to bear the Secretary's scrutiny. He may discontinue payments if he finds that the plans, as written or as applied, no longer conform to federal standards. An administrative review procedure for testing continued conformity of an approved plan is provided. Before funds may be cut off the Secretary must "give reasonable notice and opportunity for hearing" to the state agency administering the plan. The Secretary has implemented this requirement in the Act by a regulation7 favoring informal negotiations between state officials and HEW representatives as an initial step toward conformity, with subsequent resort to formal hearings if resolution is not reached by informal means. Any state which objects to a determination of the Secretary arising out of negotiations or a hearing may seek review of that determination in the United States Court of Appeals for the circuit in which the state is located.8

Both Nevada and Connecticut have federally approved state plans funded under the Aid to Families with Dependent Children (AFDC) Program,9 which provides welfare assistance to children who are deprived of adequate parental support.10 The requirements section of the AFDC, 402, 42 U.S.C. § 602,11 was amplified in 1968 when Congress adopted several amendments to the Social Security Act12 with the result that states with AFDC plans were required to submit modified plans. When, even after informal negotiations,13 no amended plans were forthcoming from the states of Nevada and Connecticut, among others, the Administrator of the Social and Rehabilitation Service of HEW, who has been delegated responsibility for the administration of the AFDC program,14 initiated action. Nevada and Connecticut officials were notified by letters from the Administrator on November 14, 1969, that a hearing to determine the matter of continued conformity had been set for each state.15 In the letter of notification to Nevada welfare officials, the Administrator "anticipated" that the issues to be explored in the hearing would pertain to the state's cooperative plan with the United States Department of Labor's Work Incentive plan, the state's provision for the disregard of amounts of earned income when considering the need factor of a family, and its provisions for certain child care services.16 Connecticut's AFDC plan, according to the notification, may not properly implement federal disregard of income regulations, may lack a simplified plan for determining eligibility, may improperly exclude children eligible under federal standards, and may be deficient in its service programs for AFDC families and children.17

It was shortly after these notifications that public announcement of the impending hearings was made and that the Nevada appellants in correspondence with the Administrator requested that they be granted "status as a party"18 at the Nevada hearing. The request further expressed an interest in expanding the issues set down for hearing.19 A postponement of the hearing followed and appellants were sent a letter informing them of the postponement and of Nevada's willingness to negotiate in an effort to resolve the issues without hearing. Upon learning of the postponement, appellants responded that "we urgently request that no order of any kind of any settlement agreement be made unless NWRO and the persons it represents be permitted to be heard." The Administrator replied that negotiations concerning state compliance are to be settled between the state and HEW and that the inclusion of third parties is inappropriate, but that appellants could submit information or arguments in connection with the negotiations. These events precipitated the present litigation as to the state of Nevada.

The events preceding the proposed Connecticut hearing were similar. There was a public announcement, a change in the dates, a request by Connecticut welfare groups and individuals to intervene and a rejection of that request by the Department. However, no effort appears to have been made to rely on negotiations, for the preparations for a hearing on January 20, 1970 proceeded and had actually commenced when this court, after denial of injunctive relief in the District Court, entered an order applying to the Connecticut hearing the order entered on January 2 which enjoined the Nevada hearing pendente lite.20


Appellees read the Social Security Act to provide that the Department of Health, Education and Welfare and the state shall be the exclusive participants in the prehearing negotiations and the formal conformity hearings.21 Appellees contend that congressional silence on participation by any other interest groups or individuals is clear evidence of Congress' determination not to confer any role in the administration of state conformity on other groups or individuals. Thus Congress has entrusted exclusive responsibility for surveillance of state plans to the Secretary. In this submission, they rely on the statutory scheme which speaks only of the functions of the Secretary and the rights of the state to a hearing and judicial review.

An extension of this argument is that the decisions relied upon by appellants, e. g., Office of Communication of United Church of Christ v. F.C.C., 123 U.S.App. D.C. 328, 359 F.2d 994 (1966), involved applications for intervention before agencies governed by specific statutes conferring standing on collateral "parties in interest" and Congress has passed no such explicit statute here. Certainly past intervention controversies have for the most part involved regulatory statutes which did embody definite provisions governing intervention22 or which did include judicial review sections from which a right of intervention could be deduced.23 Nevertheless, specific statutory provisions explicitly controlling intervention are exceptional24 when viewed in the context of all legislative enactments pertaining to administrative proceedings. Additionally, there is some suggestion that such explicit provisions, commonly referred to in terms of allowing suits by "private attorneys general," may represent special recognition by Congress of a need to have interested parties involved in agency proceedings to protect the public interest.25

That congressional silence on specific grants of standing does not require the inference which appellees would draw is suggested by the emerging principles in the area of standing to seek judicial review of administrative action. Although by no means concomitant, "the problem of right to intervene in administrative proceedings is closely related to and in some measure governed by the elaborate body of law concerning standing to challenge and to enforce administrative action."26 Cases concerning the question of standing before one or the other tribunal have been used interchangeably in resolving questions of standing to intervene.27...

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    ...a trial-type hearing at the agency level; they rely extensively on Judge J. Skelly Wright's opinion in National Welfare Rights Organization ("NWRO") v. Finch, 429 F.2d 725 (C.A.D.C.1970), to buttress their theory. In that case, the Secretary of HEW had convened hearings to determine whether......
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