Woolfolk v. Brown

• Decision Date: 23 April 1973
• Docket Number: Civ. A. No. 225-70.
• Citation: 358 F. Supp. 524
• Parties: Vivian WOOLFOLK et al. v. Otis L. BROWN et al.
• Court: U.S. District Court — Eastern District of Virginia

358 F. Supp. 524

Vivian WOOLFOLK et al. v. Otis L. BROWN et al.

Civ. A. No. 225-70.

United States District Court, E. D. Virginia, Richmond Division.

April 23, 1973.

John M. Levy, Neighborhood Legal Aid Society, Richmond, Va., for plaintiffs.

Theodore Markow, Richmond, Va., Vann Lefcoe, Asst. Atty. Gen., Commonwealth of Virginia, Richmond, Va., for defendants.

MEMORANDUM

MERHIGE, District Judge.

This matter is now before the Court pursuant to a motion for contempt made by plaintiffs and a cross motion for summary judgment by defendants. Jurisdiction is attained pursuant to 42 U. S.C. § 1983, 28 U.S.C. § 1343(3).¹

Plaintiffs, who appear both individually and as members of a class they represent, at the time of suit were recipients of Aid to Families with Dependent Children (AFDC) benefits, a federal program established by the Social Security Act, 49 Stat. 620, as amended, 42 U.S.C. §§ 301-1394 (1935). Grants thereunder, the major part of which are provided by the Federal government, are distributed for the purposes of "encouraging the care of dependent children in their own homes . . . to help maintain and strengthen family life" and "furnishing financial assistance and rehabilitation and other services . . . to needy dependent children and the parents and relatives with whom they are living." 42 U.S.C. § 601. Under AFDC a family unit receives aid if the dependent child is needy according to standards of need established by the cooperating state and if the child is deprived of parental support for various specified reasons. 42 U.S.C. § 606.

In an effort to curb the number of AFDC recipient families, Congress in 1967 amended the Social Security Act to provide for the Work Incentive Program (WIN), by which it was sought to encourage poverty level AFDC recipients to achieve economic independence through gainful employment. 42 U.S.C. § 602. Pursuant to WIN, "appropriate" persons receiving AFDC aid are referred to the Secretary of Labor for participation in a compulsory program providing either employment in the regular economy, training therefor or employment in publicly financed special work projects. An "appropriate" person refusing to participate in WIN after referral is subject to termination of individual benefits.

Because the WIN program has coercive elements, extensive statutory safeguards have been provided. The welfare agency's decision that a recipient is appropriate for referral to the program is subject to examination in a fair hearing. 42 U.S.C. § 602(a)(4), 45 C.F.R. § 220.35(a)(15), Department of Health, Education and Welfare, Social and Rehabilitation Service, Guidelines for the Work Incentive Program § 42.

A second hearing may occur after referral; the issue here is whether the individual refused without good cause to participate in a WIN program or to accept a bona fide employment offer. This hearing is conducted by the representative of the Secretary of Labor 42 U.S.C. § 633(g), 45 C.F.R. § 220.35(a)(16). U.S. Department of Labor, Manpower Administration, Work Incentive Program Handbook, § 412(H)-(K).

The statute provides specifically the sanctions which apply to those who are determined by the Secretary of Labor pursuant to § 633(g) to have refused without good cause to participate in a work incentive program or to accept an employment offer. Sanctions apply only to those who are involuntarily referred. § 602(a)(19)(F), 45 C.F.R. § 220.35(a)(6)(ii). If good cause for refusal is lacking, the AFDC grant of the individual child or recipient terminates. 42 U.S.C. § 602(a)(19)(F)(i)(iv). The cut in aid does not take place, however, for a period of 60 days, if during that time the individual accepts counseling designed to encourage him to resume participation, 42 U.S.C. § 602(a)(19) (F), 45 C.F.R. § 220.35(a)(8).

The legislation leaves substantial latitude to the states in determining who is "appropriate" for referral to the work incentive program. By regulation, those subject to mandatory referral include unemployed fathers (when included in the state's plan) and dependent children over age 16 and not employed attending school. 45 C.F.R. § 220.35(a)(1)(iv), H.E.W. Guidelines § 41.1. Others may be included within the mandatory category. The Virginia WIN regulations at the time of suit listed as "appropriate" dependent youths, as required, and "mothers and other caretaker relatives who are not currently participating in a work or training program," Virginia Department of Welfare and Institutions, Manual of Procedure, Work Incentive Program, § 201A.

Referral is to be prompt, Id., § 204, as the statute and regulations require, 42 U.S.C. § 602(a)(19)(A), 45 C.F.R. § 220.34(a)(1)(iii), and is not postponed by reason of the lack of an existing WIN program to which the appropriate person can be assigned. 45 C.F.R. § 220.35(a)(1)(iii). These provisions apply to voluntary as well as compulsory referrals.

Virginia's criteria of appropriateness for compulsory referral exclude from participation in the WIN program "a person living in such an isolated area, without transportation, that it would be infeasible for him to participate in the WIN program," DWI WIN Manual, § 203.1B. It should be noted that regulations concerning appropriateness relate only to compulsory referrals. Volunteers are to be referred despite a determination of inappropriateness unless the local welfare department finds that enrollment in WIN would adversely affect child development and family cohesiveness, DWI WIN Manual, § 203.2. This is in accordance with federal law, 42 U. S.C. § 602(a)(19)(A)(iii).

In May of 1967, just prior to the enactment of WIN, the State of Virginia adopted §§ 211.4 E and F of the Virginia Manual of Policy and Procedure for Local Welfare Departments, hereinafter referred to as the Virginia Work Rule. Like the WIN program which came after, the Work Rule was designed to reduce the State's welfare rolls by encouraging recipients to work.

The original regulation in question read as follows:

E. Evaluation of Employment Opportunities—An applicant for or recipient of assistance is expected to make use of or develop resources available to him in relation to his capacity to do so. If it appears that he has a potential for employment, the extent of services needed from the worker will vary according to the individual's characteristics, training and working experience, as well as his environmental circumstances. The worker needs to be sensitive to the factors affecting the individual's ability to assume a worker role and to be aware of the point at which he may be expected to avail himself of work opportunities. A work opportunity is considered available to an individual, provided he is deemed able to assume a worker role, if the following conditions are met:

1. Availability of a Specific Job —The availability to the particular individual of a specific job within his competence must be established. The name and address of the prospective employer, the type of work, amount of wages and working hours must be recorded.

2. Physical and Mental Capacity —The individual must be able, physically and mentally, to perform the duties of the job available to him. If there is doubt as to his physical or mental capacity to do the work, an evaluation of his condition is to be secured by the agency from the appropriate source, such as a physician or psychologist.

3. Suitability of the Job—The job must not result in undue hardship, unreasonable changes in living arrangements, neglect of other responsibilities to members of the family, exposure to hazardous conditions, or adverse effect on school progress.

F. Refusal to Accept a Job—Refusal by an otherwise eligible individual sixteen years of age and over to accept a work opportunity available to him under the conditions specified above renders him ineligible for assistance. If such an individual is a husband or parent living in the home, the wife or children are ineligible also.

Since denial or termination of assistance can result in grave hardship, such action should be taken only after careful exploration and an explanation to the individual of the consequences of his decision. For requirements with respect to provisions of child care services, see Bul. 493, 10-15-69.

Income from employment shall be verified, if possible, by written evidence, such as income tax withholding forms or pay envelopes. If wages fluctuate, pay envelopes for a period of several months will be necessary. If written evidence is not available, contact with the employer, with the client's consent, may be necessary. If the employment is of a seasonable or intermittent nature, it may be possible only to verify by the agency's knowledge of prevailing rates in the community. In this event, the record should reflect this information.

The initial contention of plaintiffs, sustained by the Court in its order and memorandum of April 22, 1971, 325 F. Supp. 1162 (E.D.Va.1971) was that the Work Rule was inconsistent with and interfered with the Congressional design of the WIN program.

Upon the evidence before it, the Court found numerous conflicts between WIN and the work rule, to-wit:

1. The Work Rule was applied to those AFDC recipients found "inappropriate" under state standards for the WIN program. Thus AFDC recipients who were, under Congressional standards, exempt from WIN were exposed to further coercion under the Work Rule. The Court's conclusion with respect thereto was as follows:

In any event, the defendants concede, as stated, that § 211.4E and F have no impact on WIN enrollees. This position is correct legally, for Congress certainly cannot have intended that those in WIN programs be subject to precipitous termination of their training activities or preparation for employment whenever the welfare agency located "suitable" employment. Such a frustration of the federal program would occur if the WIN and work rule provisions applied at the same time to the same people. The rights to testing,

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