Theriault v. Brennan, s. 80-1349

• Decision Date: 12 February 1981
• Docket Number: Nos. 80-1349,80-1450,s. 80-1349
• Citation: 641 F.2d 28
• Parties: Marie THERIAULT et al., Plaintiffs-Appellants, v. The Honorable Joseph E. BRENNAN et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 28

641 F.2d 28

Marie THERIAULT et al., Plaintiffs-Appellants, v. The Honorable Joseph E. BRENNAN et al., Defendants-Appellees.

Nos. 80-1349, 80-1450.

United States Court of Appeals, First Circuit.

Argued Oct. 8, 1980.

Decided Feb. 12, 1981.

Lucinda White, Portland, Me., with whom Susan Calkins, Portland, Me., and John Whitehouse Cobb, Bangor, Me., were on brief, for plaintiffs-appellants.

William C. Nugent, Asst. Atty. Gen., Augusta, Me., with whom Richard S. Cohen, Atty. Gen. and Rufus E. Brown, Asst. Atty. Gen., Augusta, Me., were on brief, for defendants-appellees.

Before ALDRICH, CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

Plaintiffs-appellants, a class of low-income residents of the State of Maine, appeal a decision of the district court 488 F.Supp. 286 holding that state officials, including defendant governor, did not violate the maintenance of effort requirement of the federal Energy Crisis Assistance Program (ECAP) by not funding special state legislation enacted to supplement the federal low income-heating program.

The issue on cross-appeal is standing. ¹

The State of Maine has participated each winter since 1976 in the ECAP, operated by the federal Community Services Administration (CSA) pursuant to the Economic Opportunity Act of 1964, 42 U.S.C. §§ 2701 et seq. CSA granted the Maine Division of Community Services (DCS) approximately three million dollars in each of the first three winters (1976-1978) to administer ECAP at the state level. The state found the program inadequate both because federal funding did not reflect the increasing costs of heating and because DCS did not receive the grants until the winter was over. For these reasons and with the belief that Maine would not receive substantially more funding than it had in the past, defendant governor called the legislature into special session in October 1979, urging the enactment of legislation which would supplement the federal government's pending bills. Defendants and their representatives stated in appearances before the appropriation committee of the legislature they would use federal funds first and not fully fund the proposed legislation if sufficient federal funds, not then expected, became available. Section 2 of the Maine Emergency Home Heating Act of 1979 (the State Act), enacted on October 11, included the following statement of legislative purpose:

(T)here is reason to believe that federal programs designed to cope with this problem will not be in effect, not be adequately funded or both, in a timely and appropriate manner to meet the needs of Maine's low-income households for this coming winter.

Accordingly, the immediate purpose of this legislation is to supplement federal programs aimed at lessening the impact of high energy costs ... on low-income households.

1979 Me.Legis.Serv. ch. 574 § 2.

The State Act created several energy programs. Germane to this appeal is Section 8, which was to provide emergency energy assistance to households receiving benefits under the Aid to Families with Dependent Children program and to other specified households. Section 8 consisted of an eligibility restriction which made it exclusive of both ECAP and Section 6 of the State Act. ² Thus, a family certified for aid under ECAP or Section 6 was ineligible for assistance under Section 8, while a household certified as eligible for aid under Section 8 or ECAP was ineligible for support under Section 6. Further, the State Act stated that "(t)his one-time program does not entitle any household to a certain amount or form of assistance." 1979 Me.Legis.Serv. ch. 574 § 5.3. It gave the governor discretion to set the maximum level of assistance.

The State Act authorized a $1.5 million appropriation to be matched by available federal funds from the Department of Health, Education and Welfare (DHEW). The state's application to DHEW for matching funds declared:

If the 1979-1980 federal Community Services Administration Emergency Crisis Assistance Program provides in time, sufficient funding to eliminate the need for this program, the state's program will be dropped.

DHEW approved the state's application on December 3, 1979, but attached as one of its conditions that "(n)o duplication of payment will be allowed between this project and any other federal energy assistance program."

During this period, Congress was at work on ECAP legislation for the winter of 1979-80. Six days before the State Act became effective, Congress passed a continuing resolution funding ECAP at the same level as in the previous year. Appropriations Act Fiscal year 1980 Continuance, Pub.L.No. 96-86, 93 Stat. 656 (1979). A supplemental appropriations measure, Appropriations Act Department of the Interior and Related Agencies, Pub.L.No. 96-126, Tit. II, 93 Stat. 978 (1979), which President Carter signed into law on November 23, 1979, had the effect of more than doubling the amount of federal energy assistance funds available to Maine, from about $8 million to approximately $16 million. Moreover, the dates when Maine was to receive the funds (formerly scheduled for the late spring of 1980) were advanced to December 1979 and January 1980.

Earlier, on September 4th, CSA set forth regulations for ECAP, effective, as amended on October 11th. 44 Fed.Reg. 58,877 (to be codified in 45 C.F.R. § 1061.70). Among those regulations was one construing the "maintenance of effort" provision in the statute authorizing creation of ECAP. ³ Through this regulation, the federal government, which supplies the aid, requires the state to use the new federal funds as a supplement to, and not as a substitute for, those monies the state is already providing itself for the program.

As a result of the significant increase in federal funding and the advanced timetable for the allocation of funds, defendants concluded that the implementation of Section 8 of the State Act would be unnecessary as well as violative of the State Act's declared purpose of supplementing an anticipated inadequate federal program. On December 17, 1979, the Commissioner of Maine's Department of Human Services (DHS) withdrew the application to DHEW for matching funds for Section 8 because he determined that they were no longer needed. The Maine Legislature "deappropriated" Section 8 funds on April 1, 1980. Me.Pub.L. 1980 ch. 711, Part B.

On February 6, 1980, a complaint was filed on behalf of a class of low-income residents challenging practices and procedures of the defendants in the operation of the state and federal fuel assistance programs in Maine for the 1979-80 heating season. Plaintiffs claimed that defendants violated the maintenance of effort requirement and challenged the defendants' failure both to provide emergency fuel assistance and to give written notices of denial of emergency assistance. After abbreviated discovery, the district court conducted a thorough hearing on the motion for a preliminary injunction, consolidated with a trial on the merits pursuant to Fed.R.Civ.P. 65(a)(2). In a comprehensive memorandum of opinion and order, the district court found for defendants. This appeal followed.

Appellants contend that elimination of the Section 8 fuel program as a result of the passage of the federal legislation contravened the maintenance of effort requirement of the federal program. The cross-appeal issue is whether plaintiffs had standing to pursue their claims.

We must first consider plaintiffs' contention that defendants' Notice of Cross-Appeal was not timely filed and that the district court's granting of defendants' motion to enlarge the time to file a cross-appeal was based on an erroneous standard. For their part, state officials argue that the failure of the plaintiffs to file a second notice of appeal from the order granting said motion now bars them from raising the issue.

As to the argument that the Notice of Cross-Appeal was not timely filed and that the issue of plaintiffs' standing is not properly before this court, we simply note that federal courts may examine standing issues, even if not raised by the parties. See, e. g., Orr v. Orr, 440 U.S. 268, 271, 99 S.Ct. 1102, 1107, 59 L.Ed.2d 306 (1979); Juidice v. Vail, 430 U.S. 327, 331, 97 S.Ct. 1211, 1215, 51 L.Ed.2d 376 (1977). ⁴ We find that the plaintiffs met the three-pronged test of N.A.A.C.P., Boston Chapter v. Harris, 607 F.2d 514, 518-19 (1st Cir. 1979). The "distinct and palpable injury" prong, see Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975), was met by plaintiffs' alleged deprivation of a pecuniary interest granted by federal statute and regulation. The second prong requires a " 'fairly traceable' causal connection between the claimed injury and the challenged conduct." Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72, 98 S.Ct. 2620, 2629, 57 L.Ed.2d 595 (1979). We agree with the district court that a causal connection between the injury and the conduct was established by the claim that defendants' refusal to implement the State Act contravenes federal requirements and that their level of assistance was lower than it...