Waterman, Smith and Kaufman, Circuit Judges. Irving R. Kaufman, Circuit Judge (concurring).
J. JOSEPH SMITH, Circuit Judge:
This is an appeal from a judgment of the United States District Court for the District of Connecticut rendered October 17, 1968, 292 F. Supp. 268, M. Joseph Blumenfeld, Judge, dismissing plaintiff-appellant's action for declaratory and injunctive relief against the appellee Connecticut Welfare Department Commissioner. We find no error and affirm the judgment.
On May 24, 1968, the plaintiff-appellant was notified by the Social Security Administration that her daughter Georgianna was found eligible to receive Old Age, Survivors and Disability Insurance (OASDI) benefits under Title II of the Social Security Act. In June, 1968 appellant received a retroactive lump sum payment in the amount of $334.10 for the period September, 1967 through May, 1968. After appellant notified the Connecticut Welfare Commissioner of receipt of the payment, the Commissioner made demand for the total OASDI payment as reimbursement for assistance rendered Georgianna by Connecticut during the months covered by that payment. Appellant refused to turn over the OASDI payment, claiming that it was a restricted payment for Georgianna's present and future needs under federal law, and as such exempt from the Commission's reimbursement requirement.
Upon appellant's failure to turn over the OASDI payment, appellant was notified by the Commissioner that the total Connecticut Aid for Families with Dependent Children (AFDC) for herself and her two daughters would be terminated for that period of time which it would take the three of them to exhaust the $334.10 OASDI payment, a period of six weeks, commencing on May 29, 1968.
On June 6, 1969 plaintiff requested a fair hearing before the Welfare Commissioner, which was held on June 20, 1968. At the hearing, appellant argued her right to the OASDI payment without reimbursement, and additionally that the termination of her AFDC assistance without first according her a hearing deprived her of due process of law. After appellant was back on welfare (AFDC) the Welfare Commission rendered its decision on July 23, 1968, rejecting appellant's arguments and upholding the action of the Commissioner.
Appellant then brought this action in the District of Connecticut, in forma pauperis, asking for a declaratory judgment and a permanent injunction enjoining the Commissioner from modifying, suspending or terminating public welfare assistance prior to a fair hearing, and requesting a three-judge district court under 28 U.S.C. §§ 2281, 2284. Appellant also claimed that in treating the OASDI payment as income which diminished the state's AFDC payments, the Commissioner interfered with the operation of the federal statute, 42 U.S.C. § 407. Appellant's remaining claim was without federal coloration.
With regard to appellant's request for a three-judge district court, the District Court held that under 28 U.S.C. §§ 2281, 2284 appellant's due process claim could not stand unless the federal question presented was substantial. 292 F. Supp. at 270, citing Green v. Board of Elections, etc., 380 F.2d 445, 448 (2d Cir. 1967), cert. denied 389 U.S. 1048, 88 S. Ct. 768, 19 L. Ed. 2d 840 (1968). The District Court further held that although appellant's interest in receiving welfare assistance was protected by the due process clause, a hearing before suspension of payments was not required. The court noted that "at most what was at stake was who was entitled to possession of the OASDI check pending resolution of the question whether it was available for use as assistance for the family," and concluded that since an opportunity was given for a subsequent administrative hearing and judicial determination, the constitutional claim was insubstantial. Appellant does not challenge this holding on appeal.*fn1
With regard to appellant's claim that there was a conflict between the federal and state welfare statutes and regulations, the District Court held that there was not present the requisite amount in controversy under 28 U.S.C. § 1331(a),*fn2 and further that the Court in the present case does not have subject matter jurisdiction under 28 U.S.C. § 1343(3)*fn3 which does not require a jurisdictional amount, since plaintiff-appellant has not been deprived of a right secured by the Constitution, nor does the deprivation claimed arise from an Act of Congress providing for equal rights of citizens.
Appellant argues here that federal jurisdiction is provided by 28 U.S.C. § 1343(4) which provides for original jurisdiction:
To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote. [Emphasis added.]
This contention was not ruled upon by the District Court. We think it not well taken. The Social Security Act is not one "providing for the protection of civil rights."
Appellant also argues that 42 U.S.C. § 1983,*fn4 which establishes a cause of action for any deprivation of a right secured by the Constitution and laws, establishes the cause of action here, and provides for federal jurisdiction over such actions. Although this might have been thought to be the case when the Act was originally enacted in 1871, the subsequent restructuring of federal court jurisdiction demonstrates that this was not the interpretation then made. The Act, 17 Stat. 13, was enacted to secure the Negroes' newly granted civil rights, and to give the federal courts cognizance of suits for the recovery of damages for violations of the Act of 1870. The 1875 Judiciary Act revolutionized the concept of the federal judicial system by establishing blanket federal question jurisdiction subject to a $500 amount requirement (subsequently increased in several steps to the present $10,000 limitation). See H. M. Hart & H. Wechsler, The Federal Courts and the Federal System 729 (1953). After the 1875 Judiciary Act, "the history of federal question jurisdiction * * * revolves largely around the creation by Congress of myriad new federal rights and its provision for their enforcement in the national courts without regard to jurisdictional amount." Id. at 730. As Hart and Wechsler point out, since the jurisdictional amount limitation imposed by the Act of 1875, the Congress has provided specific exceptions when it chose to make such jurisdiction available without regard to amount. The Congress has not, however, provided in the welfare statutes in question here for their enforcement in federal court without regard to jurisdictional amount. Section 1983 provides for jurisdiction without regard to amount in controversy only for suits alleging deprivation of civil rights.
The Civil Rights Act of 1871, the predecessor to Section 1983, provided for jurisdiction without regard to amount in controversy. Subsequently, the 1875 Judiciary Act provided for general federal question jurisdiction, with a $500 minimum requirement. The Act of 1871, however, was not superseded by the 1875 Judiciary Act, and a suit alleging a deprivation of civil rights could still be brought without alleging an amount in controversy. See opinion of Mr. Justice Stone in ...