Stone v. Philbrook

Decision Date03 December 1975
Docket NumberNo. 51,D,51
Citation528 F.2d 1084
PartiesJoseph STONE, Intervening Plaintiff-Appellee, v. Paul PHILBROOK, Individually and as Commissioner of the Vermont Department of Social Welfare, Defendant-Appellant. ocket 75--7066.
CourtU.S. Court of Appeals — Second Circuit

Dean B. Pineles, Asst. Atty. Gen., State of Vermont, Montpelier, Vt., for defendant-appellant.

Stephen W. Kimbell, Burlington, Vt., for plaintiff-appellee.

Before FRIENDLY, MANSFIFLD and TIMBERS, Circuit Judges.

FRIENDLY, Circuit Judge:

This is an appeal by the Commissioner of the Vermont Department of Social Welfare from an order of the District Court for Vermont granting intervening plaintiff's motion for class action designation and also for summary judgment to the extent of declaring that Vermont was bound to give a trial-type hearing and to continue payments pending the outcome of the hearing before denying a reapplication of those who had received General Assistance payments three times during a preceding thirty-day period. The appeal raises intriguing questions concerning the scope of Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), and the application of that perennial nightmare, the three-judge court requirement, 28 U.S.C. § 2281; it also raises questions of state law, only glancingly noted by the parties, concerning the validity of certain regulations of the Vermont Department of Social Welfare.

I.

The case concerns Vermont's General Assistance Program, which constitutes Chapter 38 of the State's Welfare Law, Title 33 of the Vermont General Statutes. Chapter 26, § 2505(c)(2) confers general authority on the Commissioner of the Department of Social Welfare pursuant to which he issued Regulations; § 2142.4 of those Regulations states:

General Assistance.

General Assistance, a program to meet emergency needs, has no provision for ongoing assistance. Subsequent requests will be treated as new applications.

Consistently with this, and based on the authority granted by § 3004(b), (c) and (d), Regulation §§ 2600--09 require inter alia, that an applicant should 'have an emergency need' and 'have complied with the employment requirements if applicable'; § 2607.1 requires that, except for persons exempted by § 2607.2 or meeting two or more qualifications set out in § 2607.1, applicants must 'submit evidence of at least 20 hours of active effort to seek full and/or part time employment during the seven days immediately preceding the date of application.' 1 This had the effect of requiring all non-exempt persons to apply weekly. 2

The complaint in this action under the Civil Rights Act, 42 U.S.C. § 1983, and its jurisdictional implementation, 28 U.S.C. § 1343(3), was filed by Robert St. Amour. Joseph Stone was permitted to intervene as a plaintiff. Later the case was dismissed with respect to St. Amour and Stone continued as plaintiff.

Stone's complaint, filed November 7, 1973, alleged that he had been unemployed since December, 1972; that he had received weekly payments for food, personal needs and room rent as General Assistance from the Vermont Department of Social Welfare for nine consecutive months, except for a five-week period of hospitalization in April and May, 1973; that such payments were his sole means of support; and that these payments were interrupted on November 5, 1973, when the District Director in the Middlebury office determined that during the preceding week Stone had not complied with the employment effort requirements of the Regulations, Welfare Assistance Manual, § 2607, supra. The essential items in the prayer for relief were that the court

Enter a declaratory judgment declaring that the defendant's practice of terminating General Assistance grants without affording the recipients thereof adequate notice and a hearing at which they may contest the factual and judgmental bases of the action denied plaintiff-intervenor due process of law under the Fourteenth Amendment to the United States Constitution.

and

Issue a temporary restraining order, preliminary and permanent injunction restraining defendants from terminating, interrupting, or suspending the General Assistance maintenance grants of plaintiff-intervenor unless he is first given proper notice and an opportunity for a hearing at which he may contest the factual and judgmental basis of the termination or suspension action.

Later Stone moved to bring the suit as a class action on behalf of those who receive General Assistance three or more times per month and those 'who rely regularly on General Assistance benefits to meet any of their regularly recurring basic needs as covered by the General Assistance program,' and he asked for summary judgment. The defendant was already under a temporary restraining order with respect to Stone.

The Commissioner submitted a number of affidavits in opposition. His own affidavit stated that the legislature intended General Assistance as a program 'to meet only the emergency needs of those individuals who have no other sources of income and resources;' that 'where at all possible, assistance is granted to cover a period of only one week'; that 'applicants must reapply for each week they wish to receive assistance'; and that on each renewal applicants must show conformance with eligibility requirements, including having spent 20 hours looking for work. The affidavit of Stone's case worker in the Middlebury office explained that Stone had been fully apprised of the need for meeting the 20-hour requirement each week; that when Stone reapplied on November 5, it appeared that he had looked for work only for four hours and sought to excuse this on the grounds of bad weather and lack of transportation; that the caseworker had advised Stone of his right to request a fair hearing under § 1250 et seq., of the Regulations; 3 that Stone had made such a request; and that he was granted assistance when he applied the next week. An affidavit of William E. Griffin, the Vermont Human Services Board Hearing Officer, stated that in 1974 the average time between receipt of a fair hearing request under the General Assistance Program and decision by the Human Services Board was 38 days, with the minimum time recorded 6 days and the maximum 66.

The district court rendered an opinion dealing with the issues here outlined, and also with certain others no longer pressed by the State. It granted plaintiff's motion for class action determination to the extent of authorizing him to represent the class of persons receiving General Assistance three or more times per month. It found there was no significant dispute as to any material fact. Proceeding to discuss the law, it held that although, under Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), mere subjective expectancy of continued receipt of General Assistance benefits was 'insufficient for due process safeguards to attach,' Sindermann required a different result when the applicant's expectation had been reinforced by continued success, here the grant of weekly General Assistance three times within thirty days. Any member of that class was therefore entitled to the type of hearing mandated by Goldberg v. Kelly, supra, before general assistance payments could be terminated. The court entered an order as follows:

That defendant's motion to dismiss is denied and that the plaintiff's motion for class action certification is granted with respect to those receiving General Assistance three or more times per month. The plaintiff's motion for summary judgment is granted as the Court finds and declares the State's policy of denying evidentiary hearings to regular recipients of General Assistance, as defined on this opinion, to be unconstitutional.

At this point the defendant became conscious of the three-judge court statute, 28 U.S.C. § 2281, and moved the district judge to vacate his order for lack of jurisdiction. The judge denied the motion without explanation. This appeal followed. Meanwhile, in the absence of a stay, Vermont has been giving Goldberg-type hearings to persons within the class whose applications for continued assistance have been denied, with payments continuing pending the out-come of the hearing.

II.

It is plain enough that if either party had requested the convening of a three-judge court, the request should have been granted. The complaint on its face sought an injunction against the enforcement of a regulation of statewide applicability on the ground of its unconstitutionality and not merely as an unwarranted deviation by an administrator from a constitutional statute and regulation, see Ex parte Bransford, 310 U.S. 354, 361, 60 S.Ct. 947, 84 L.Ed. 1249 (1940); Galvan v. Levine, 490 F.2d 1255, 1258--59 (2 Cir. 1973), cert. denied, 417 U.S. 936, 94 S.Ct. 2652, 41 L.Ed.2d 240 (1974), and the challenge was not insubstantial under the test laid down in Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973), see also Agur v. Wilson, 498 F.2d 961, 965 (2 Cir. 1974). The State's appeal from the refusal of the district judge to vacate his judgment after the State had belatedly sought the convening of a three-judge court takes us back to familiar, indeed much too familiar, ground.

We start with the point that what the district court entered was a declaratory judgment, not an injunction. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 152--155, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), held that in the circumstances there presented the three-judge court requirement did not apply to actions for declaratory relief. In that case, however, the Court was able to satisfy itself, as we were in Seergy v. Kings County Republican Committee,459 F.2d 308, 312--13 (2 Cir. 1972), that, despite a prayer for an injunction in an amended complaint, pre-trial proceedings had made it plain that 'no request for injunctive relief nor even any...

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