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December 7, 1970

Edna ROTHSTEIN et al., Plaintiffs,
George K. WYMAN, as Commissioner of the Department of Social Services of the State of New York, and the Department of Social Services of the State of New York, Defendants

Motley, District Judge.

The opinion of the court was delivered by: MOTLEY

MOTLEY, District Judge.

Plaintiffs are AABD *fn1" and AFDC *fn2" welfare recipients residing in Nassau and Westchester Counties, New York. Over a year ago they brought this proceeding to challenge § 131-a of the New York Social Services Law, McKinney's Consol. Laws, c. 55 and the regulations promulgated thereunder which provide a lower monthly public assistance grant to welfare recipients in counties immediately adjacent to New York City than is provided to recipients residing inside City boundaries. *fn3" Plaintiffs attack the differential in public assistance grants as being violative of 1) the Social Security Act and federal regulations, 42 U.S.C. § 602(a)(1) and § 1382(a)(1); 45 C.F.R. § 233.20; Federal Handbook of Public Assistance, Part II, § 4000 et seq., and (2) the Equal Protection Clause of the Fourteenth Amendment.

 The facts and prior stages of this litigation have been sufficiently described. See Rothstein v. Wyman, 303 F. Supp. 339 (S.D.N.Y. 1969), vacated, 398 U.S. 275, 90 S. Ct. 1582, 26 L. Ed. 2d 218 (1970). For the present purpose it is enough to briefly summarize the history of this case.

 Plaintiffs' instant motion for an injunction is, in effect, the renewal of a similar motion made in June, 1969. At that time a three-judge court found that plaintiffs had shown a likelihood of success on their constitutional claim and granted preliminary relief on that basis. Rothstein v. Wyman, supra. The Court delayed its decision on the federal statutory claim because of a pending review of the matter by the Department of Health, Education and Welfare (hereinafter "HEW").

 On appeal the Supreme Court held that the federal statutory claim should be preliminarily decided in advance of any decision on constitutional grounds. The Court vacated the injunction and remanded the case to the District Court

"for an opportunity to pass on the propriety of granting interim relief in accordance with conventional equitable principles on the basis of appellees' statutory claims, or if the question is reached, continuing the present injunction in light of this Court's decision in Dandridge v. Williams, 397 U.S. 471, 90 S. Ct. 1153 [25 L. Ed. 2d 491] (1970)." Rothstein v. Wyman, supra, 398 U.S. at 276, 90 S. Ct. at 1583.

 After this remand, the three-judge court met and remanded the case to the present single judge for a hearing on the statutory claim. At that hearing the attorneys for the parties agreed that the trial of the action on the merits should be advanced and heard with the hearing on the preliminary injunction. The court accepted this agreement and pursuant to Rule 65(a)(2), Fed. R. Civ. P., consolidated the hearing on the preliminary injunction with the trial on the merits.

 Present New York Schedules

 Since the decision by the three-judge court, New York has twice revised § 131-a and the Commissioner has issued new regulations. The first change in § 131-a took effect April 1, 1970 and provided for a 10% cost of living increase to welfare recipients. Chapter 120 of the Laws of 1970. However, the Act continued to provide higher levels of grants to recipients in New York City than to recipients in the surrounding SA-1 counties. In addition, the Act set forth legislative findings as to why New York City residents received higher grants than the residents of surrounding counties. Shortly after this amendment the legislature responded to the decision of the Supreme Court in Rosado v. Wyman, 397 U.S. 397, 90 S. Ct. 1207, 25 L. Ed. 2d 442 (1970), and repealed § 131-a in toto, replacing it with a new § 131-a in Chapter 517 of the Laws of 1970. The present § 131-a provides for levels of grants as follows (in dollars): NUMBER OF PERSONS IN HOUSEHOLD Each 1 2 3 4 5 6 Additional New York City 84 134 179 231 284 329 45 Outside New York City 66 111 156 201 246 282 36

 As can readily be seen, the new law continues the disparity in grants between New York City and the rest of the state. It is this disparity that plaintiffs contend violates the Social Security Act and the HEW regulations. Section 131-a also provides: 1) that defendant Wyman can raise or lower allowances if the total cost of the items included in the grant differs from the statutory levels, and 2) that the defendants must adjust any schedule of grants and allowances "[if] federal requirements make it necessary."

 Defendant Wyman promulgated regulations implementing § 131-a with a defined standard of need and three schedules of allowance. Bulletin 134, Administrative Letter 70 PWD-36; 18 N.Y.C.R.R. § 352.1, and § 352.2. Contrary to the schedules set forth in the statute, the regulations treated New York City and the surrounding counties (the old SA-1 counties) as one unit to receive the allowance levels provided by the statute to New York City. Defendants admit that this was done only because of the court order in the original Rothstein case. Bulletin 134, Administrative Letter 70 PWD-36. In expressly using this court's order as a basis for equal allowances, the defendant has clearly made known his intention to provide lower grants for plaintiffs in surrounding counties than to residents of New York City should the court's directive not be reinstated. *fn4" Therefore, no mootness issue is presented. The only guide to the extent of defendant's contemplated administrative schedule of lower grants is found in his initial schedule (promulgated prior to the original Rothstein case) of grants 7-16% below the New York City schedule.

 Issues Presented

 The disparity in the level of the schedules prescribed by the legislature for New York City and for its surrounding counties presents the court with two issues: 1) whether, there is any evidence that the difference in the levels can be justified on the basis of a difference in the cost of the items forming those levels, and 2) whether, assuming there is no justification for the disparity, does that lack of ...

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