The opinion of the court was delivered by: BONSAL
Plaintiffs are two individuals who receive payments pursuant to the Aid to Families with Dependent Children (AFDC) of the Social Security Act, 42 U.S.C. §§ 601-610 (1964, Supp.IV 1965-68), and two voluntary, non-profit organizations composed mainly of AFDC recipients, the majority of whom as the individual plaintiffs, are Negro or Puerto Rican.
Plaintiffs seek a declaratory judgment and a preliminary injunction against the Department of Social Services of the State of New York (the Department), George K. Wyman, Commissioner of the Department, and Nelson A. Rockefeller, Governor of the State of New York.
Plaintiffs allege that the defendants have discriminated against Negroes and Puerto Ricans by not hiring Negroes and Puerto Ricans as "fair hearing" referees or to serve on Commissioner Wyman's staff (which they contend violates 42 U.S.C. §§ 1981, 1983, and 2000d), and that plaintiffs have been and will be prejudiced in the "fair hearings" which are held because of this discrimination.
At argument on plaintiff's application for a preliminary injunction, defendants moved orally to dismiss the action for failure to state a claim and for lack of jurisdiction.
Plaintiffs allege that they are prejudiced by the alleged discriminatory hiring practices of defendants because of the nature of the "fair hearing" process and the role of the "fair hearing" referees and of the Commissioner (and impliedly, the Commissioner's staff).
Under 42 U.S.C. § 602(a)(4),
"A State plan for aid and services to needy families with children must * * * provide for granting an opportunity for a fair hearing before the State agency to any individual whose claim for aid to families with dependent children is denied or is not acted upon with reasonable promptness."
Under section 139-a of the New York Social Services Law, McKinney's Consol. Laws, c. 55, if an application for aid is denied or postponed,
"the applicant may appeal to the department, which upon receipt of the appeal shall review the case, shall give the applicant making the appeal an opportunity for a fair hearing thereon and within thirty days render its decision."
The Regulations under the New York Social Services Law provide,
"[A] referee designated by the commissioner shall conduct the hearing. Such referee is hereby empowered to subpoena witnesses, administer oaths, take testimony and compel the production of such books, papers, ...