Rosado v. Wyman, No. 711

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtLUMBARD, , and HAYS and FEINBERG, Circuit
Citation414 F.2d 170
PartiesJulia ROSADO, Lydia Hernandez, Majorie Miley, Sophia Abrom, Ruby Gathers, Louise Lowman, Eula Mae King, Cathryn Folk, Annie Lou Phillips, and Majorie Duffy, individually, on behalf of their minor children, and on behalf of all other persons similarly situated, Plaintiffs-Appellees, v. George K. WYMAN, individually and in his capacity as Commissioner of Social Services for the State of New York, and the Department of Social Services for the State of New York, Defendants-Appellants.
Decision Date16 July 1969
Docket NumberNo. 711,729,Dockets 33626,33747.,33741,726

414 F.2d 170 (1969)

Julia ROSADO, Lydia Hernandez, Majorie Miley, Sophia Abrom, Ruby Gathers, Louise Lowman, Eula Mae King, Cathryn Folk, Annie Lou Phillips, and Majorie Duffy, individually, on behalf of their minor children, and on behalf of all other persons similarly situated, Plaintiffs-Appellees,
v.
George K. WYMAN, individually and in his capacity as Commissioner of Social Services for the State of New York, and the Department of Social Services for the State of New York, Defendants-Appellants.

Nos. 711, 726, 729, Dockets 33626, 33741, 33747.

United States Court of Appeals Second Circuit.

Argued June 4, 1969.

Decided July 16, 1969.

Certiorari Granted October 13, 1969.


414 F.2d 171
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414 F.2d 172
Philip Weinberg, Principal Atty. New York City (Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., Amy Juviler, Asst. Atty. Gen., of counsel), for appellants

Lee A. Albert, New York City (Henry A. Freedman, Sylvia Ann Law, Nancy Duff Levy, Lucy Katz, New York City, Center on Social Welfare Policy and Law; Martin Garbus, New York City, Roger Baldwin Foundation of the American Civil Liberties Union; Carl Rachlin, James Spitzer, David Draschler, New

414 F.2d 173
York City, Scholarship, Education and Defense Fund, Inc.; Burt Neuborne, New York City, New York Civil Liberties Union, of counsel), for appellees

Philip Sokol, New York City, for Federation of Jewish Philanthropies; Dorothy Coyle, New York City, for Catholic Charities for the Archdiocese of New York; Mildred A. Shanley, Brooklyn, for Catholic Charities, Diocese of Brooklyn; Louis Agin, New York City, for Federation of Protestant Welfare Agencies, amici curiae.

Before LUMBARD, Chief Judge, and HAYS and FEINBERG, Circuit Judges.

Certiorari Granted October 13, 1969. See 90 S.Ct. 106.

HAYS, Circuit Judge:

Defendants-appellants, the New York Commissioner of Social Services and the New York Department of Social Services appeal from an order and a judgment of the United States District Court for the Eastern District of New York granting a preliminary injunction, 304 F.Supp. 1354 (1969), and a permanent injunction, ___ F.Supp. ___ (1969), against enforcement of Section 131-a of the New York Social Services Law, McKinney's Consol. Laws, c. 55.1

An appeal by plaintiffs-appellees from a related decision of a three-judge court has been consolidated with the appeals referred to in the preceding paragraph.

I.

Plaintiffs-appellees in this class action are welfare recipients residing in New York City and in Nassau County. They receive payments pursuant to the Aid to Families with Dependent Children program (AFDC) of the Social Security Act, 42 U.S.C. §§ 601-610 (1964, Supp. IV 1965-68). Under this program, in which all states participate, the federal government provides funds to the states on the condition that the plans for use of the funds meet various federal requirements. 42 U.S.C. § 602(a) and (b) (1964, Supp. IV 1965-68). The states

414 F.2d 174
and their subdivisions also provide funds and each state administers its own program

Appellees raised two principal claims in their complaint. The first was that Section 131-a violated Section 602(a) (23) of the Social Security Act2 as amended in 1967 by reducing the amount of the AFDC benefits paid to them. The second claim, made by those appellees who are residents of Nassau County, was that Section 131-a violated the equal protection clause of the Fourteenth Amendment by providing for lower payments to AFDC recipients in Nassau County than to those in New York City, although the cost of living is substantially the same in both areas.

A three-judge district court was constituted under 28 U.S.C. § 2281 (1964) to hear the constitutional claim.

While the action was pending before the three-judge court, Section 131-a was amended to permit the Commissioner of Social Services to increase scheduled payments for areas outside New York City up to a maximum no higher than the levels for New York City, upon his determination that the total cost of the items included in the schedule for such an area exceeds the amount provided in the schedule.3 The three-judge court ruled that this amendment mooted the equal protection claim of the Nassau County recipients, by making it possible for their payments to be increased to the level provided for New York City recipients if the cost of living in Nassau County made such an increase appropriate. It concluded that "any attack on the newly adopted subdivision would not be ripe for adjudication by this Court until there has been an opportunity for action by state officials and until the matter comes before this Court in an appropriate proceeding." The three-judge court also held that the mooting of the constitutional claim made "academic" the question of whether it might have decided the statutory claim in the exercise of its pendent jurisdiction. It then ordered itself dissolved and remanded the case to Judge Weinstein "for such further proceedings as are appropriate." 304 F.Supp. 1354, 1356 (1969). The same day Judge Weinstein issued an order temporarily restraining action under Section 131-a. Four days later he issued a preliminary injunction and denied appellants' motion to stay the injunction. On May 21 this court granted appellants' motion for a preference for their appeal from the order granting the preliminary injunction and denied appellants' motion for a stay without prejudice to renewal at the argument of the appeal. The appeal was argued on June 4, at which time the motion was renewed, and on June 11 this court stayed the injunction pending the disposition of the appeal. On June 16 this court denied appellees' motion to vacate the stay and denied appellants' motion to stay proceedings in the district court until the decision on the appeal from the preliminary injunction. The next day appellees appealed to the United States Supreme Court from the order of dissolution of the three-judge court. The appeal was accompanied by a petition for certiorari before judgment to this court and a motion to expedite Supreme Court consideration of the case. On June 18, while the appeal was still pending in the Supreme Court, the district court granted summary judgment for appellees and issued a permanent injunction. The same day appellants filed a notice of appeal to this court from the issuance of the permanent injunction. On June 19 this court granted appellants' motion to stay the permanent injunction and it also granted appellants' motion to consolidate the appeal from the permanent injunction with the appeal from the temporary injunction. On June 24 the Supreme Court dismissed for want of jurisdiction

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the appeal from the dissolution of the three-judge court on the ground that the order was properly appealable to this court. The Supreme Court also refused to grant certiorari before judgment and denied appellees' motions to expedite review and to vacate the stays ordered by this court. 395 U.S. 826, 89 S.Ct. 2134, 23 L.Ed.2d 739. Appellees thereupon appealed to this court from the order dissolving the three-judge court, and that appeal was consolidated with the appeals from the injunctions

II.

We turn first to the issue raised by the appeal from the order of the three-judge court.

Appellees urge that the three-judge court erred in dissolving itself and that we should order it to resume its deliberations.

The court ordered itself dissolved because of the adoption of an amendment to Section 131-a permitting increased payments to AFDC recipients in Nassau County upon a determination by the Commissioner of Social Services that the increases are required in order to reflect actual cost of living. The three-judge court was of the opinion that the issue raised by the Nassau County plaintiffs was mooted by the amendment to Section 131-a and that the issue presented by the amendment itself was not yet ripe for adjudication.

We are persuaded that the court acted correctly. We are confirmed in this view by the fact that, since the dissolution of the three-judge court, the schedule of payments for Nassau County has in fact been increased by reason of the provisions of the amendment to Section 131-a. If corroboration of the opinion of the three-judge court be needed it is provided by this development. Obviously a determination by the court based upon the situation as it existed at the earlier date would have been premature and its decision would have been rendered moot by the provision of the new schedules for Nassau County. The court was right in refusing to act on facts that were fluid and subject to early change. We affirm its order dissolving itself.

III.

Appellants contend that the single district judge erred in exercising jurisdiction to issue a preliminary and a permanent injunction on the basis of the statutory claim after the constitutional claim had become moot and the three-judge court had dissolved itself.

Pendent Jurisdiction

The three-judge court specifically refused to decide whether it could have exercised pendent jurisdiction to rule on the statutory claim after it had determined that the constitutional claim was moot. 304 F.Supp. at 1356 (1969). In remanding the case to the single district judge for "appropriate" action the court did not decide whether he could exercise such jurisdiction.

The single district judge ruled that it was proper for him to assert pendent jurisdiction over the statutory claim. 304 F.Supp. 1356 (1969). We find this conclusion to have been in error.

The assertion of a constitutional claim required the convening of a three-judge district court. 28 U.S.C. § 2281 (1964). That court is the only court which ever had jurisdiction over the constitutional claim. Since the single judge at no time had jurisdiction over the constitutional claim there was never a claim before him to which the statutory claim could have been pendent. If the three-judge...

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63 practice notes
  • Lopez v. White Plains Housing Authority, No. 72 Civ. 223.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 4, 1972
    ...of the district courts over state agencies in actions pursuant to § 1983. The Second Circuit Court of Appeals in Rosado v. Wyman, 414 F.2d 170 (2d Cir. 1969), held that the Department of Social Services of the State of New York was not a "person" within the meaning of § 1983. Were it not fo......
  • Blue v. Craig, No. 73-2183
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • October 18, 1974
    ...(not) the appropriate forum' for the resolution of such claims of deprivation, the Second Circuit denied jurisdiction in Rosado v. Wyman (414 F.2d 170, 181, rev., 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442). Though expressing Page 840 amazement and bafflement at 'the puzzle arising from th......
  • McClellan v. Shapiro, Civ. No. 13267.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • April 16, 1970
    ...606(a) is not an "Act of Congress providing for equal rights of citizens" within the intendment of Section 1343(3). See Rosado v. Wyman, 414 F.2d 170, 178 (2d Cir.), rev'd on other grounds, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970); New York v. Galamison, 342 F.2d 255, 268 (2d Cir.......
  • Andrews v. Maher, No. 20
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • October 24, 1975
    ...1971), cert. denied, 405 U.S. 944, 92 S.Ct. 962, 30 L.Ed.2d 815 (1972); McCall v. Shapiro, 416 F.2d 246 (2d Cir. 1969); Rosado v. Wyman, 414 F.2d 170, 177, 181 (2d Cir. 1969), rev'd on other grounds, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970). Accord, Randall v. Goldmark, 495 F.2d 3......
  • Request a trial to view additional results
63 cases
  • Lopez v. White Plains Housing Authority, No. 72 Civ. 223.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 4, 1972
    ...of the district courts over state agencies in actions pursuant to § 1983. The Second Circuit Court of Appeals in Rosado v. Wyman, 414 F.2d 170 (2d Cir. 1969), held that the Department of Social Services of the State of New York was not a "person" within the meaning of § 1983. Were it not fo......
  • Blue v. Craig, No. 73-2183
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • October 18, 1974
    ...(not) the appropriate forum' for the resolution of such claims of deprivation, the Second Circuit denied jurisdiction in Rosado v. Wyman (414 F.2d 170, 181, rev., 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442). Though expressing Page 840 amazement and bafflement at 'the puzzle arising from th......
  • McClellan v. Shapiro, Civ. No. 13267.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • April 16, 1970
    ...606(a) is not an "Act of Congress providing for equal rights of citizens" within the intendment of Section 1343(3). See Rosado v. Wyman, 414 F.2d 170, 178 (2d Cir.), rev'd on other grounds, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970); New York v. Galamison, 342 F.2d 255, 268 (2d Cir.......
  • Andrews v. Maher, No. 20
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • October 24, 1975
    ...1971), cert. denied, 405 U.S. 944, 92 S.Ct. 962, 30 L.Ed.2d 815 (1972); McCall v. Shapiro, 416 F.2d 246 (2d Cir. 1969); Rosado v. Wyman, 414 F.2d 170, 177, 181 (2d Cir. 1969), rev'd on other grounds, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970). Accord, Randall v. Goldmark, 495 F.2d 3......
  • Request a trial to view additional results

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