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July 28, 1972

Dolores DUBLINO et al., Plaintiffs,
NEW YORK STATE DEPARTMENT OF SOCIAL SERVICES, et al., Defendants, and Onondaga County Department of Social Services and its Commissioner, John L. Lascaris, Defendants-Intervenors

Oakes, Circuit Judge, Henderson, Chief District Judge, and Curtin, District Judge.

The opinion of the court was delivered by: CURTIN

CURTIN, District Judge:

This is an action challenging the constitutionality of various provisions of the New York Social Welfare Law and regulations of the state Department of Social Services, all enacted or adopted within the last year and commonly known as the New York Work Rules. The contested provisions are Sections 131(4) and 164, as amended, *fn1" and 350-k *fn2" of the Social Welfare Law, McKinney's Consol. Laws, c. 55 and Department of Social Services Administrative Letters, Numbers 71 PWD-34 *fn3" and 71 PWD-43. *fn4" In brief, the Work Rules establish a presumption that certain recipients of public assistance under various state welfare programs are employable and require such recipients to report semi-monthly to the New York State Employment Service to pick up their assistance checks and accept referral to employment positions, including employment on public works projects. Relying on Title 42, United States Code, Section 1983, and its jurisdictional complement, Title 28, United States Code, Section 1343, the plaintiffs seek a judgment declaring the Work Rules violative of the Constitution in numerous respects, and an injunction restraining the enforcement of the Rules. Their complaint's demand for damages was ignored in the extensive briefs of the parties and is considered abandoned.

 The named plaintiffs are recipients of public assistance under various general and particular categories of assistance *fn5" and proceed as representatives of a class composed of all other New York residents similarly situated. Temporary restraining orders directing the defendants to issue plaintiffs' assistance checks by mail and restraining enforcement of the Work Rules generally have been issued in the case of the named plaintiffs and a number of additional intervening plaintiffs, each of whom submitted affidavits alleging particular hardships as a consequence of compliance with the Work Rules.

 The Work Rules were enacted in response to a March, 1971 special message from Governor Rockefeller directing the New York Legislature to consider means of transferring the able-bodied from the welfare rolls to payrolls. *fn6" Section 131(4) of the Social Welfare Law was amended to provide that employable welfare recipients, effective July 1, 1971, must pick up their grants in person semi-monthly at a designated office of the Division of Employment of the State Department of Labor. The amendment includes as presumptively employable all persons 16-64 years of age except for reason of

illness or significant and substantial incapacitation, either mental or physical, to the extent and of such duration that such illness or incapacitation prevents such person from performing services; advanced age; full-time attendance at school in the case of minor . . .; full-time, satisfactory participation in an approved program of vocational training or rehabilitation; the need of such person to provide full-time care for other members of such person's household who are wholly incapacitated, or who are children, and for whom required care is not otherwise reasonably available, notwithstanding diligent efforts by such person and the appropriate social services department to obtain others to provide such care.

 In addition to establishing a system of referrals for employment in the regular economy, the Work Rules, Section 350-k, permit the establishment of public works projects in social services districts. *fn7" Failure to report and participate in the operation of the Work Rules deprives one of eligibility for public assistance.

 The plaintiffs contend that the Work Rules compel involuntary servitude in violation of the Thirteenth Amendment, deprive persons subject to the Work Rules of due process and equal protection in violation of the Fourteenth Amendment, and conflict with provisions of the federal Social Security Act *fn8" in violation of Article 6, Clause 2, the Supremacy Clause of the Constitution.

 Turning to the plaintiffs' last argument first, their position is that the application of the Work Rules to AFDC recipients is improper since to do so is to impose conditions of eligibility for assistance in addition to those set out in the pertinent federal statutes, see Title 42, United States Code, Sections 602 et seq., and thereby violate the statutory direction of Section 602(a)(10) that "aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals." The plaintiffs further argue that the Work Rules are in conflict with and preempted by the federal Work Incentive Program (WIN), *fn9" at least with respect to persons in federally reimbursed assistance programs such as AFDC.

 In King v. Smith, 392 U.S. 309, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1968), Townsend v. Swank, 404 U.S. 282, 92 S. Ct. 502, 30 L. Ed. 2d 448 (1971), and Carleson v. Remillard, 406 U.S. 598, 92 S. Ct. 1932, 32 L. Ed. 2d 352 (1972), the Court held that "a state eligibility standard that excludes persons eligible for assistance under federal AFDC standards violates the Social Security Act and is therefore invalid under the Supremacy Clause." Townsend, 404 U.S. at 286, 92 S. Ct., at 505. Plaintiffs point to Section 131(4) of the New York Social Welfare Law and its implementing regulation, 18 N.Y.C.R.R. § 385.6, which provide for the termination of assistance and/or a thirty-day penalty period upon a recipient's failure to comply with the Work Rules as inconsistent with Section 602(a)(10) of the Social Security Act. The state's only answering argument is that the Rules serve merely to implement Section 602(a)(8) of the Act. This section, according to the state, permits the state to disregard, in determining family need, the needs of any person who in the preceding thirty days or more has either deliberately reduced earning capacity, quit a job, or refused to accept employment offered through the State Employment Service. This, however, is a misreading of the statute. Section 602(a)(8) permits the state, where the recipient fails to cooperate in the ways described, only not to disregard the first thirty dollars of earned income and one-third of the balance of the monthly earnings. Clearly the Work Rules go much further -- they permit the denial of public assistance. As to AFDC eligibles, then, the Work Rules are in conflict with Section 602(a)(8).

 Plaintiffs' second argument, that the Rules are preempted by the WIN program, has been successful in recent attacks on analogous state legislation in Virginia, see Woolfolk v. Brown, 325 F. Supp. 1162 (E.D. Va. 1971), aff'd, 456 F.2d 652 (4th Cir. 1972), and Oregon, see Bueno v. Juras, 349 F. Supp. 91 (D. Or. 1972). Both cases describe in detail the statutory and regulatory background of the WIN program, but a brief resume of the program's highlights may be appropriately repeated.

 The WIN program, part of the 1967 amendments to the Social Security Act, is administered by HEW and the Department of Labor. State welfare agencies evaluate AFDC recipients to determine which are "appropriate" for referral to WIN. See Title 42, United States Code, Sections 602(a)(19)(A)(i) and (ii). The evaluation of individuals' proceeds with unemployed fathers initially and other defined groups thereafter. See U.S. Dep't. of Health, Education & Welfare, Guidelines For the Work Incentive Program, § 6101 (1969). Upon referral by a caseworker familiar with the recipient's background, the local Employment Services Agency of the Department of Labor conducts its own assessment of the individual, draws up a plan meeting the individual's employability needs, and places him in a suitable work position, occupational training, or special works projects. See Title 42, United States Code, Sections 602(a)(19)(D), 633(b), 633(d) and 634.

 Like the Work Rules, WIN is "designed to help families and individuals to become self-supporting rather than dependent upon welfare checks," see S. Rep. No. 1589, 87th Cong., 2d Sess. 7 (1962), but, unlike the Work Rules, WIN provides more elaborate procedural protections for the public assistance recipient. Under WIN, the recipient is entitled to a hearing, prior to referral, on the issue of appropriateness for referral. See Title 42, United States Code, Section 602(a)(4) and 45 C.F.R. § 220.35(a)(15). A second hearing, if needed, on the issue of good cause for refusal to accept employment or training after referral to WIN is also required. See Title 42, United States Code, Section 633(g) and 45 C.F.R. § 220.35(a)(16). In the event of a finding that good cause is not present, a recipient may delay termination of assistance by accepting counseling for a period of sixty days. See Title 42, United States Code, Section 602(a)(19)(F).

 As an incentive, WIN enrollees in assessing their welfare needs are permitted to disregard the first thirty dollars of their monthly earned income and one-third of the remainder. See Title 42, United States Code, Section 602(a)(8)(A)(ii). Adequate child care must be assured for working mothers as a precondition of WIN referral. See Title 42, United States Code, Section 602(a)(15)(B)(i). Compulsory referral of the aged, or those required at home for other reasons, is prohibited. See Title 42, United States Code, Section 602(a)(19)(A).

 In contrast to the complex WIN referral procedures, with the use of appropriateness determinations, employability teams, and personal development plans, the screening procedures of the Work Rules are substantially less elaborate. In a recent study *fn10" of the operation and effect of the Work Rules, over sixty-seven percent of a sample of persons declaring themselves unemployable to the Department of Social Services ...

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