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April 12, 1971

Vicente GALVAN and Marcelino Torres, Plaintiffs,
Martin P. CATHERWOOD, Industrial Commissioner of the State of New York, Defendant

The opinion of the court was delivered by: TYLER

TYLER, District Judge.

Vicente Galvan and Marcelino Torres, plaintiffs, have brought this action pursuant to 42 U.S.C. § 1983 to redress the alleged violation of rights secured to them by the Constitution of the United States. Asserting jurisdiction under 28 U.S.C. § 1343(3), (4), plaintiffs contend that the denial by the defendant, the Industrial Commissioner of the State of New York, of unemployment insurance benefits to them and other native Puerto Ricans similarly situated pursuant to a policy hereinafter described, constitutes a violation of their right to travel, due process of law and equal protection of the laws.

By various interstate agreements, New York State unemployment benefits may be collected by a claimant who has moved away from New York. Every claimant's eligibility for unemployment insurance benefits is partially determined by New York Labor Law, McKinney's Consol. Laws, c. 31, § 591 which provides in pertinent part as follows:

"1. Unemployment. Benefits shall be paid only to a claimant who is totally unemployed and who is unable to engage in his usual employment or in any other for which he is reasonably fitted by training and experience.
"2. Availability and capability. No benefits shall be payable to any claimant who is not capable of work or who is not ready, willing and able to work in his usual employment or in any other for which he is reasonably fitted by training and experience."

 Pursuant to § 591, for many years the policy of the Commissioner has been that benefits are not paid to a claimant who: (1) leaves the labor market area in which he was last employed, and (2) moves his residence to another labor market area where there are no reasonable opportunities of obtaining work for which he is qualified by training and experience. The policy is founded on the determination that a person who insulates himself from any reasonable opportunity of employment is not truly available for work within the meaning of § 591(2).

 Beginning in 1967, following a series of decisions of the New York State Department of Labor Unemployment Insurance Appeal Board, *fn1" the defendant, who is charged with administering the Unemployment Insurance Law, decided that a claimant's removal to an area of "high persistent unemployment" was convincing evidence that he had moved to an area where there was no reasonable opportunity of obtaining work. Accordingly, unless he possesses an occupational skill for which there is a particular demand, such a claimant is now deemed unavailable for work and denied benefits.

 The defendant's definition of an area of high persistent unemployment is derived from a classification which appears in Area Trends in Employment and Unemployment, a publication of the United States Department of Labor, Manpower Administration. *fn2" In practice, the State of New York has limited application of its policy to those areas where the unemployment rate is over twelve percent of the area's total work force. Of the 150 major labor areas classified in Area Trends, only two areas fall into "Group F", the category for those areas having an unemployment rate over twelve percent. Both of those areas are in Puerto Rico. While Area Trends also lists smaller labor markets, it does not compute their unemployment rates. To determine the unemployment rates for these regions, New York apparently relies on statistics provided by the state to which the claimant has moved or on direct correspondence with the local office. It is not at all clear at this stage of the litigation whether there are areas other than those in Puerto Rico with unemployment rates of 12 percent or more to which a New York claimant has moved.

 Plaintiffs are Puerto Rican born citizens of the United States. Each has worked in New York for several years, though his dependents have continued to reside in Puerto Rico. Plaintiffs' New York employment has tended to be seasonal because of decreased activity in their occupations in the winter months. *fn3" While without work, plaintiffs have occasionally sought work in New York; more often, they have returned to Puerto Rico. During these periods of unemployment, both plaintiffs, whether in New York or Puerto Rico, received New York State unemployment insurance benefits. While they were unemployed, plaintiffs continued to look for work and reported their efforts to the appropriate agency. In late 1968, after losing their jobs in New York, plaintiffs upon returning to Puerto Rico were, pursuant to the previously described policy, denied unemployment benefits because of their having moved to an area of "high persistent unemployment". *fn4"

 Plaintiffs challenge the Commissioner's policy on the grounds that: (1) it infringes their right to travel; (2) it violates due process because the standard is arbitrary and vague and does not afford sufficient notice; (3) it violates due process because the distinction between Puerto Ricans who remain in New York and collect benefits and those who move to Puerto Rico and do not, ignores the employment prospect of the former and is, therefore, without a reasonable basis; and (4) it violates equal protection as applied because it discriminates against Puerto Ricans.

 Because of the substantial constitutional questions raised, see the memorandum dated September 2, 1970 filed by the undersigned judge, a three-judge court was convened to hear and determine this controversy. There are presently two motions before the court: defendant's motion to dismiss the complaint and plaintiffs' motion to declare this a class action under Rule 23, F.R. Civ. P.

 Turning first to their contention that the policy in question violates their constitutionally guaranteed right to travel, plaintiffs understandably rely upon Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969) wherein the Supreme Court condemned Connecticut's one-year residence requirement for public assistance. We do not deem it clear in the context of this case, however, that the unlimited right to travel out of the state as asserted by plaintiffs falls within the ambit of constitutional protection. The Court in Shapiro relied heavily on the fact that the restriction involved created an "invidious distinction" between residents of the state. In this case, plaintiffs concededly have left the state from time to time to take up residence in Puerto Rico; conceivably, the benefits or obligations owed by the State of New York to its former residents are not co-equal with those owed to its present residents. Indeed, it may be that New York is not constitutionally required to provide unemployment benefits for anyone who leaves the state.

 In any event, the right to travel freely throughout the several states is not an absolute right. American citizens are "free to travel * * * uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement." Shapiro at 629, 89 S. Ct. at 1329. In the case before us, the restriction involved is a minor one; claimants forfeit their rights only if they go to an area of such "high persistent unemployment" that they are deemed to have effectively isolated themselves from any possibility of reemployment. Furthermore, at least on the record before us, this limitation is reasonably and directly related to the long-standing and valid policy of the unemployment insurance provisions of New York law -- e.g. that a claimant be "ready, willing and able to work". New York Labor Law § 591(2).

 Plaintiffs' second contention, that the standard is arbitrary and vague and thus violative of the due process clause of the Constitution, is without merit. The previously mentioned federal standard from Area Trends defines "persistent unemployment" with adequate precision; defendant's use of the higher figure, cutting off only those claimants who move to an ...

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