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May 15, 1969

Julia ROSADO, Lydia Hernandez, Majorie Miley, Sophia Abron, Ruby Gathers, Louise Lowman, Bula 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,
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

Weinstein, District Judge.

The opinion of the court was delivered by: WEINSTEIN


WEINSTEIN, District Judge.

 Plaintiffs bring this class action to challenge the validity of section 131-a of the New York Social Services Law, McKinney's Consol.Laws, c. 55, effective July 1st of this year (ch. 184, L.1969). They allege that it is void because it does not meet the standards laid down by section 402(a)(23) of the Social Security Act of 1935, as amended in 1968, for participation by a state in the federally-funded Aid to Families with Dependent Children program (AFDC). See 42 U.S.C. §§ 601, 602; 45 C.F.R. § 233.20(a)(2)(i), 34 Fed.Reg. 1394 (1969). Section 402(a)(23), they contend, requires a state, if it is to participate in AFDC, to take into account increases in the cost of living in computing new benefit levels. Their claim is that New York State, while it continues to participate, has reduced scheduled AFDC payments.

 Both plaintiffs and defendants have moved for summary judgment. In addition, plaintiffs have moved for a preliminary injunction to enjoin the defendants from instituting changes pursuant to section 131-a until this litigation can be decided on the merits.

 The test for granting summary judgment is whether there exists "any 'genuine issue as to any material fact.' F.R.Civ.P. 56(c); see, F.R.Civ.P. 56(e)." Waldron v. Cities Service Co., 361 F.2d 671, 672 (2d Cir. 1966), aff'd sub nom. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 88 S. Ct. 1575, 20 L. Ed. 2d 569 (1968). The test for granting a preliminary injunction is whether plaintiffs have made "a clear showing of probable success and probable irreparable injury." Clairol Incorporated v. Gillette Company, 389 F.2d 264, 265 (2d Cir. 1968). See F.R.Civ.P. 65.

 For the reasons stated below, it is clear that plaintiffs have a substantial claim with a high likelihood of prevailing on the merits and that they will probably suffer irreparable damage unless a preliminary injunction is granted. Accordingly, such an injunction will issue.

 There are still a number of unresolved questions of fact. The statistical and other data underlying this dispute have not yet been developed with clarity sufficient to warrant the granting of summary judgment. Pursuant to Rule 56(f) of the Federal Rules of Civil Procedure, this Court orders "a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had" or testimony and exhibits to be presented.

 Because of the importance of this matter we assume that defendants will wish to take an immediate interlocutory appeal pursuant to section 1292(a)(1) of title 28 of the United States Code from the order granting the preliminary injunction. In order to render as much assistance as possible to the Court of Appeals and to the parties we have set out below the posture of the case in more detail than is ordinarily warranted in disposing of preliminary applications. It should be emphasized that the conclusions are made only for the purpose of deciding the motions before us and are not determinative of the merits of the case.


 In King v. Smith, 392 U.S. 309, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1968), the Supreme Court left open the question "whether and under what circumstance suits challenging state AFDC provisions only on the ground that they are inconsistent with the federal statute may be brought in federal courts." 392 U.S. at 312, n. 3, 88 S. Ct. at 2131. Since plaintiffs equal protection claim is no longer before this Court (Rosado v. Wyman, 304 F. Supp. 1354 (E.D.N.Y.1969) (per curiam opinion of three-judge court)), we must confront the question of our jurisdiction to decide the federal statutory claim. We conclude that there are a number of independent bases of jurisdiction.

 A. Pendent Jurisdiction

 Once its jurisdiction has been properly invoked, a federal district court acquires pendent jurisdiction to decide all related claims arising out of the same transaction or dispute. See, e.g., United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966); Hurn v. Oursler, 289 U.S. 238, 53 S. Ct. 586, 77 L. Ed. 1148 (1933); Gulickson v. Forest, 290 F. Supp. 457, 464 (E.D.N.Y.1968). The district court has power to decide the pendent claim even if it does not reach the issue which provided the basis for the court's jurisdiction or even if it first decides the jurisdiction-founding issue against the plaintiffs. See, e.g., King v. Smith, 392 U.S. 309, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1968); United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966); Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 29 S. Ct. 451, 53 L. Ed. 753 (1909); Gulickson v. Forest, 290 F. Supp. 457, 464 (E.D.N.Y.1968).

 In the present case, it is clear that at the time the three-judge court was convened jurisdiction existed pursuant to section 1343(3) of title 28 and sections 1983 and 1988 of title 42 of the United States Code. These provisions grant original jurisdiction to the federal district courts, without respect to the amount in controversy, over cases where it is claimed that a right under the United States Constitution is being violated. The three-judge court, in its per curiam opinion, noted that it had been "properly convened" (Rosado v. Wyman, 304 F. Supp. 1354 (E.D.N.Y.1969)), thereby impliedly ruling that a substantial federal question had been raised. See, e.g., Swift & Co. v. Wickham, 382 U.S. 111, 115, 86 S. Ct. 258, 261, 15 L. Ed. 2d 194 (1965) ("no such [three-judge] court is called for when the alleged constitutional claim is insubstantial"); Kramer v. Union Free School Dist. No. 15, 379 F.2d 491 (2d Cir. 1967). There is no doubt that under the liberal test recently enunciated by the Supreme Court in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966), the cause of action based on the Social Security Act would be considered pendent to the equal protection claim.

 The question posed is whether this Court has been divested of pendent jurisdiction because the federal constitutional claim was rendered moot after the threejudge court convened and heard argument on motions by all parties for summary judgment. For the reasons stated below, we hold that under the circumstances of the instant case, this question must be answered in the negative.

 Federal courts, in the exercise of discretion, have tended to voluntarily abstain from deciding pendent questions where the claim which provided the basis for its jurisdiction has been disposed of prior to trial. See United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 1139, 16 L. Ed. 2d 218 (1966) ("Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well"); Wham-O-Mfg. Co. v. Paradise Mfg. Co., 327 F.2d 748, 752-754 (9th Cir. 1964); Strachman v. Palmer, 177 F.2d 427, 431 (1st Cir. 1949) (concurring opinion); Note, The Evolution and Scope of the Doctrine of Pendent Jurisdiction in the Federal Courts, 62 Colum.L.Rev. 1018, 1025 (1967); Cf. Clairol Incorporated v. Gillette Company, 389 F.2d 264, 267-268 (2d Cir. 1968) (jurisdiction over unfair competition claim despite concession of lack of valid trademark registration); Rogers v. Valentine, 37 F.R.D. 231 (S.D.N.Y.1964) (after summary judgment granted on federal claim, jurisdiction retained over pendent non-federal claim).

 The rationale for this doctrine of restraint in the exercise of pendent jurisdiction is that a federal court should seek to avoid "[needless] decisions of state law":

Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surerfooted reading of applicable law. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 1139, 16 L. Ed. 2d 218 (1966).

 See also Wham-O-Mfg. Co. v. Paradise Mfg. Co., 327 F.2d 748, 753 (9th Cir. 1964); Strachman v. Palmer, 177 F.2d 427, 431, 433 (1st Cir. 1949) (concurring opinion). Accordingly, applying what has been referred to as "the introduction of evidence test," some federal courts have held that "when a federal claim is dismissed on the pleadings, the court should not retain a related nonfederal claim absent an independent basis for federal jurisdiction." Note, The Evolution and Scope of the Doctrine of Pendent Jurisdiction in the Federal Courts, 62 Colum.L.Rev. 1018, 1025 (1962).

 Application of this rule would be entirely inappropriate, wasteful of judicial energy and extremely prejudicial to the litigants in a case such as the one before us. The pendent claim does not involve state law alone, but poses crucial and important questions of federal statutory law. It vitally affects a national program designed to protect the fundamental rights of children to the sustenance and stable family life which will enable them to develop into full members of our society capable of exercising their rights and responsibilities under the United States Constitution and it involves the expenditure of billions of dollars of federal monies. The courts in the federal system are in at least as good a position as state courts to adjudicate this question of federal law. Nor can this be described as a petty or unimportant controversy of the kind Congress sought to exclude from the federal courts.

 We do not mean to suggest that the New York State courts would be more likely to fall into error or to show hostility toward federal law than would a federal court. We are only deciding now whether it is appropriate for a federal court to divest itself of jurisdiction of a pending case.

 Factors to be taken into account in deciding this question include "judicial economy, convenience, and fairness to litigants." United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 1139, 16 L. Ed. 2d 218 (1966). These criteria provide justification for the doctrine of pendent jurisdiction generally; they compel retention of jurisdiction in the instant case.

 A speedy determination of this litigation is highly desirable. From the point of view of the plaintiffs, an unnecessary reduction of their benefits may reduce their income below subsistence level, causing grievous harm. From the state's vantage point, an unnecessary extension of any temporary restraining order preventing institution of the new reduced benefits would, according to the testimony of a Deputy Commissioner in the State Department of Social Services, result in a loss to the state of up to ten million dollars a month. Dismissal, under the abstention doctrine, would require plaintiffs to commence a new suit in the state courts. The resulting loss of time would make it impossible to decide the issues before administrative arrangements must be made to implement the new state statute by its effective date - July 1, 1969.

 Furthermore, the parties have already presented substantial testimony, affidavits and briefs to the Court. The expenditure of time by the litigants and the Court would be, to a large extent, wasted were all these materials to be offered anew in a state court.

 Having found that pendent jurisdiction exists, we need not reach the question whether administrative remedies must be exhausted in a suit challenging a state AFDC provision solely on statutory grounds. See King v. Smith, 392 U.S. 309, 312, n. 4, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1968); National Welfare Rights Organization v. Wyman, 304 F. Supp. 1346 (E.D.N.Y.1969) (HEW not necessary party); cf. Note, Federal Judicial Review of State Welfare Practices, 67 Colum.L.Rev. 84, 91-92 (1967) (inadequacy of federal administrative forum).

 B. Federal Question Jurisdiction

 Section 1331 of title 28 of the United States Code also supports jurisdiction. This provision grants the district courts jurisdiction over all civil actions arising under "the Constitution, laws, or treaties of the United States" provided that "the matter in controversy exceeds the sum or value of $10,000."

 There is no doubt that the first requirement is met since plaintiffs allege that the challenge state statute violates section 402(a)(23) of the Social Security Act. Defendants contend, however, that the controversy does not involve more than $10,000.

 In determining whether this prerequisite has been satisfied in a class action of this kind, the claims of the individual plaintiffs or individual members of the class may not be aggregated. Snyder v. Harris, 394 U.S. 332, 89 S. Ct. 1053, 22 L. Ed. 2d 319 (1969). Compare 1 Moore, Federal Practice P0.91[1] at p. 827 (2d ed. 1964) with Wright, Federal Courts 100 (1963). Nevertheless, for purposes of jurisdiction in this case, each family may be considered as a unit and the claims of each member of a single AFDC family can be combined because the federal statutory program involved is designed to protect the family as a unit.

 If we only look to the impending reductions in welfare payments that any family in the class may suffer, the monetary loss to each of the plaintiffs does not approach $10,000. Yearly welfare payments may not be multiplied by a number of years in the future to make up the $10,000 requirement because it is too speculative to assume that any particular plaintiff will remain on welfare for such a period or that the program will remain unchanged.

 While the direct damage to each member of the class does not suffice, the indirect damage to each plaintiff and her charges may be very high. The test for determining the amount in controversy relies heavily upon plaintiffs' good faith and the certification of lawyers pursuant to Rule 11 of the Federal Rules of Civil Procedure that there is "ground to support" the pleadings. It has been described by the Supreme Court as follows:

The rule governing dismissal for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S. Ct. 586, 590, 82 L. Ed. 845 (1938).

 See also Horton v. Liberty Mutual Ins. Co., 367 U.S. 348, 353, 81 S. Ct. 1570, 6 L. Ed. 2d 890 (1960); Wright, Federal Courts 94-95 (1963).

 There is before this Court uncontradicted evidence, by testimony and affidavits, that members of the class are at or below a bare subsistence level. Under such circumstances, a reduction in welfare benefits putting their income substantially below that threshold may threaten injuries to their children's physical and mental development far greater than the mere monetary loss in benefits. Cf. Brown v. Board of Education, 347 U.S. 483, 494, 74 S. Ct. 686, 98 L. Ed. 873 (1954) (psychological damage resulting from improper schooling). Deprivations during early years may irreversibly retard mental and physical development and have an adverse impact on personality.

 Without intimating that the position of these plaintiffs is at all comparable, the possibility of a serious injury resulting from a comparatively minor deprivation may be more clearly seen if we look at the situation of a Biafran child. A few cents a day is enough to prevent starvation or permanent maiming of such a child; several dollars a year might mean the difference between a healthy life and a stunted life or death. To such a child, the question whether $100 in foodstuffs should be granted or withheld over a period of a year involves the monetary value of a human life.

 We need not go outside the record in this case to consider general literature and Congressional hearings on the grave and permanent harm, particularly to the children involved, that might result from a reduction in welfare payments. Typical of the material before this Court are some of the affidavits quoted below.

 A Professor of Pediatrics and Attending Physician in a ghetto hospital with "a great many patients who are recipients" of public assistance swears that many of them "have marginal nutritional status;" that "a decrease in the amount of assistance which these individuals receive for the purchase of food would create a deficiency in their diets and could lead to clinical malnutrition;" that "malnutrition tends to retard the physical and mental growth" of children and "may greatly diminish the ability of the individual to learn;" that this deficiency "will remain with the individual for life;" that children born of "undernourished mothers" have a substantially increased tendency to premature birth with "greater incidence of infant mortality and an increased likelihood of mental and neurological damage;" and that elimination of special diets and other assistance by reductions such as those proposed by the statute in question will cause damage "to individual recipients * * * so great as to be incalculable."

 A Senior Social Worker at a Medical Center swears that "at existing welfare levels most welfare recipients live in a state of constant anxiety, depression, frustration, and physical suffering due to the inadequacy of their welfare grants" and as a result of the proposed reductions the "suffering which will result * * * will cause irreparable, and incalculable, harm."

 A Certified Social Worker with 28 years experience, employed by the Community Service Society of New York, Inc., swears that as a result of the reductions, "Serious unattended health problems will multiply and proliferate, children's ability to achieve in school will be even further depleted, diets will be at a starvation level as families try to stretch their grossly inadequate budgets to meet their most basic needs * * *;" and that "Family life, already strained, will be * * * severely jeopardized."

 The Chief of Budget Standard Service of the Community Council of Greater New York swears that "deprivation [from the new proposed standard] will result in incalculable hardship and misery to the already severely deprived families in our community."

 A Dean of a School of Social Work swears that the proposed reduction will cause "great harm to the physical, mental, emotional and moral health of these families."

 A Professor at a medical college and Director of a Neighborhood Health Center swears that "any diminution in income [of the families involved in this litigation] will worsen an already intolerable situation, resulting in irreparable damage."

 A Retired Medical Director of the United States Public Health Service serving as Deputy Director of Obstetrics and Gynecology in a ghetto hospital and Professor at a college of medicine swears that "the possible harm afflicted upon pregnant mothers and newborn children is incalculable."

 In view of the relatively trivial injuries which result in recovery of more than $10,000 in this Court, it cannot be said that under no view of the facts is the amount in controversey less than $10,000 as to any member of the class.

 C. Jurisdiction Under 28 U.S.C. § 1343(3)

 Plaintiffs also invoke section 1343(3) of title 28 of the United States Code as a basis for jurisdiction. This provision grants the district courts original jurisdiction of any civil action, irrespective of the amount in controversy, to "redress the deprivation, under color of any State law * * *, of any right, privilege or immunity secured by * * * any Act of Congress providing for equal rights of citizens." Plaintiffs assert that this section, when read with section 1983 of title 42, grants federal courts jurisdiction over controversies involving substantial individual rights protected by federal welfare statutes. Because jurisdiction to decide the statutory claim of invalidity is clearly founded both on section 1331 of title 28 and upon pendent jurisdiction arising from section 1343(3) of title 28, we need not and do not address ourselves to this position. Cf. King v. Smith, 392 U.S. 309, 312, n. 3, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1968). Compare Cover, Establishing Federal Jurisdiction in Actions Brought to Vindicate Statutory (Federal) Rights When No Violations of Constitutional Rights Are Alleged, Clearinghouse Review, February-March, 1969 at p. 5; Note, Federal Judicial Review of State Welfare Practices, 67 Colum.L.Rev. 84, 112-14 (1967) with Note, The Proper Scope of the Civil Rights Acts, 66 Harv.L.Rev. 1285, 1291-93 (1953).


 New York, together with every other state, participates in the AFDC program established by the Social Security Act of 1935. Section 401 of the Act provides that the federal government shall make "payments to States which have submitted, and had approved by" the federal government "State plans for aid and services" to "needy dependent children and the parents or relatives with whom they are living." These federal payments are made on a matching fund basis. Administration of the program is entirely in the hands of the states, although each state's plan must meet the several requirements of the Social Security Act and the rules and regulations promulgated by the United States Department of Health, Education and Welfare (HEW). 42 U.S.C. § 602. See King v. Smith, 392 U.S. 309, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1968).

 Each state participating in AFDC must formulate, in monetary amounts, standards of need and levels of benefits based upon these standards. 45 C.F.R. § 233.20(a)(2)(i), 34 Fed.Reg. 1394 (1969). Theoretically, a standard of need is equal to the total cost of all of the items deemed to be necessary for subsistence. Those whose incomes are below the applicable standard of need are eligible for welfare assistance.

 A state is free to determine the items, and their costs, to be included in a standard of need. In practice, it may not include all the necessary items or the prices used may not reflect true cost. That this is often the case is evidenced by affidavits and supporting memoranda submitted to the Court establishing that welfare budgets tend to be below the level which most studies indicate is necessary for normal daily functioning and healthy family life.

 Were a state paying 100% of its standards of need, the amount of the welfare grant to a recipient would be equal to the difference between his income and the applicable standard of need. But, many states' levels of benefits are not determined solely by their standards of need. Some impose a flat maximum on the amount of the benefit - i.e., no family can receive a welfare grant of more than a stated number of dollars, an amount which varies according to the size of the family, even if this sum does not fully cover the budgetary deficit indicated by its own computation. Other states apparently pay only a fixed percentage of need - e.g., if the standard of need were $100 per month, the state would pay 80% of need and a person without other income would thus receive only $80 per month.

 Since "each State is free to set its own standard of need and to determine the level of benefits" (King v. Smith, 392 U.S. 309, 318-319, 88 S. Ct. 2128, 2134, 20 L. Ed. 2d 1118 (1968)), the sums paid by different states to comparable families under the AFDC program vary considerably. Thus, 29 states pay 100% of what they define as standards of need, while Mississippi pays only 27% of its standards of need. The average monthly AFDC payment per recipient, as of June, 1968, ranged from a high of $71.75 in New York to a low of $8.50 in Mississippi.


 Under present law, New York's levels of benefits have purportedly been designed to fully make up budgetary deficits as defined by its standards of need. The New York Department of Social Services is authorized to establish grant levels "in accordance with standards of public health in the community with due regard for variations in cost from time to time and between localities." N.Y. Social Services Law § 131(3). Pursuant to section 131 of the New York Social Services Law, the Regulations of the Department of Social Services provide that "all items of basic maintenance and all items of special need required by [individual] case circumstances" shall comprise the recipient's "estimate of regularly recurring need" and are to be included in the welfare budget. 18 N.Y.C.R.R. § 353.1(d). The "recurring cash grant shall be the full budget deficit," - that is, the excess of "the estimate of regularly recurring need" over the recipient's "available resources." 18 N.Y.C.R.R. §§ 353.1(a), (d); 353.3(a). See also 18 N.Y.C.R.R. § 353.1(c) (a person shall be eligible for assistance if a "budget deficit exists or when the budget surplus is inadequate to meet one or more non-budgeted special needs").

 New York welfare allowances have consisted of two separate types of grants. First, the basic, recurring grant to cover food, clothing, household supplies, school expenses, and other items of basic subsistence, exclusive of rent and fuel for heating which are added to the allowance of the recipient on a separate basis. The amount of this grant varies with the size of the family and the age of the oldest child (18 N.Y.C.R.R. § 352.4(a), (b)) because older children, particularly growing teenagers, require more in the way of food and clothing.

 Payments are presently made according to three schedules promulgated by the State Commissioner of Welfare. One of them, set out below, covers the area of New York City and nearby counties where most persons receiving aid reside.

 (Schedule omitted)

 The other two schedules, covering upstate areas, are similar in form but somewhat lower in amounts.

 In August of each year, the Department of Social Services has adjusted these schedules, based on a cost-of-living survey conducted in May of the same year, to reflect changing price levels. Since prices have been rising for some time, the yearly adjustment has required increases in standards of need and levels of benefits. Schedules presently in effect are based on a May, 1968 cost-of-living survey. They were issued on August 23, 1968 and each local Department of Social Services was required to implement them within nine months of August 1, 1968.

 As supplements to the basic grant shown in Schedule SA-1, above, New York provides what it calls "special needs" grants. Special needs grants are designed to cover expenses for extraordinary or non-recurring items such as major items of clothing and furniture and household supplies (18 N.Y.C.R.R. §§ 352.4(c), 352.5(j)), medically-dictated special diets (18 N.Y.C.R.R. § 352.4(b)(7), (8), (9)), moving expenses (18 N.Y.C.R.R. § 352.5(m)), and expenses incident to education (18 N.Y.C.R.R. § 352.5(d)). See also 18 N.Y.C.R.R. §§ 352.4(c)(iv) (layette); 352.4(b)(6)(i) (restaurant allowance for persons unable to prepare meals at home); 18 N.Y.C.R.R. 352.5(b), (c) (expenses incident to employment and securing employment); 352.5(g) (child care services); 352.5(h) (laundry services); 352.5(i) (telephone service when such service is incident to the production of income, health, or safety); 352.5(p) (transportation expenses to secure medical care or other essential verified transportation needs). These grants are required because it is recognized that the basic schedules provide no surplus from which additional needs can be met.

 Pursuant to a "demonstration project" instituted on August 27, 1968 in New York City, many - but not all - of the special needs grants for City residents were replaced by a flat grant of $100 per year per person. A family of four, for example, would receive $400 per year. This flat grant was designed to eliminate the necessity of the welfare recipient applying for many small individual items as they were needed.

 Affidavits, studies and testimony before the Court agree that the present schedules, as supplemented by cyclical grants and special grants, are not in excess of present minimum requirements for life at the lowest acceptable level in New York. As the Commissioner of the Nassau County Department of Social Services put it, speaking of the presection 131-a situation, "the present standards of assistance provide for life on a level of sustenance, nothing more, and often less." Or, as the Deputy Commissioner in the State Department of Social Services testified, AFDC recipients "of necessity have learned to squeeze every penny."


 Section 131-a is intended to substantially alter the welfare system in New York State beginning in July, 1969. In place of the present administratively drawn schedules based on annually determined costs of living, the size of the family and the age of the oldest child, it substitutes a system of flat grants set by the legislature and varying solely with the size of the family. All special grants, including the $100 flat cyclical grant for New York City residents, are abolished (except for the special grant for the replacement of clothing and furniture destroyed by flood or fire). Two separate schedules of payments are created, one solely for New York City and a lower one for the rest of the state. The levels of payments established by the latter schedule may be increased administratively in any social services district within the state based on the cost-of-living, so long as it does not exceed the schedule for the City of New York. See Rosado v. Wyman, 304 F. Supp. 1354 (E.D.N.Y.1969). Set out below is the statutory schedule of maximum grants to residents in the City of New York: Number of Persons in Household One Two Three Four Five Six Seven $70 $116 $162 $208 $254 $297 $340

 For each additional eligible needy person in the household there shall be an additional allowance of fourty-three dollars monthly.

 To these sums is added the cost of rent and fuel. This schedule and the one for the rest of the state, the statute declares, "shall be deemed to make adequate provision for all items of need."

 The state's brief describes "the method of establishing the levels set forth in the schedules contained in the statute" as follows:

The mean age of the oldest child in each size family was ascertained. The mean age rather than the median was used as this produced a more generous result in most cases. The amount of allowance provided in 1968 for a family of each size in cases where the oldest child was of the mean age was then adopted as the allowance for that size family. Where the mean age contained a fraction, the older age was used, again working a benefit to the recipient. Thus, for a family of four, which received amounts ranging from $152.00 to $221.00 (depending upon the age of its oldest child), the mean age of such oldest child was found to be 10.09 and, therefore, $191.00 - the figure where the oldest child was ten or eleven, was used as a base amount. To this was added $17.00 - the amount necessary to bring the allowance up to $35.35, the subsistence level determined by the United States Government for New York City for a family of four, or a monthly allowance of $208.00. The allowance for the remainder of the state was determined at a differential of $25.00 for a family of four. As the computations of the Department show, these levels, based on the previous allowance including the cost of living increases of 1968, will result in slightly increased benefits to families with younger children and slightly decreased benefits to those with older children. Memorandum of Law in Support of Defendants' Motion for Summary Judgment, pp. 9-10.

 It is not yet clear how such a statistically even-handed technique resulted in even steps of either $43 or $46 as the size of the family increased.

 Special grants were seemingly not included in these computations. No attempt was made to average them out across the state and then to add that figure to that of the basic recurring grant. Each of the individual plaintiffs in this action will suffer substantial cuts ranging up to 20% in their welfare payments as a result of section 131-a. Set out below is a table listing the individual plaintiffs, the number of dependents of each plaintiff, the monthly grant exclusive of rent each is currently receiving, and the maximum under section 131-a that each may receive: Maximum Size of Family Current Under Plaintiff and Age of Oldest Child Grant 131-a Rosado 5 people, oldest child 14 $280 $254 Hernandez 3 people, oldest child 16 $218 $162 Miley 10 people, oldest child 15 $535 $469 Abrom 7 people, oldest child 13 $406 $340 Gathers 7 people, oldest child 19 $382 $340 Lowman 8 people, oldest child 14 $396 $383 King 9 people, oldest child 17 $482 $426 Folk 4 people, oldest child 16 $337 $208 Phillips 5 people, oldest child 14 $314.40 $224 Duffy 10 people, oldest child 20 $563.40 $389

 (Plaintiffs Phillips and Duffy are residents of Nassau County. If they resided in New York City, or if the Commissioner of Social Services increases their maximums as much as the statute permits, their respective ...

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