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October 16, 1972

Lydia AGUAYO et al., Plaintiffs,
Elliot R. RICHARDSON, Secretary of the United States Department of Health, Education and Welfare, et al., Defendants

Bauman, District Judge.

The opinion of the court was delivered by: BAUMAN

BAUMAN, District Judge.

This is an action challenging the approval by the Secretary of the Department of Health, Education and Welfare (HEW) of two project applications submitted by the New York State Department of Social Services. These two projects, the Public Service Work Opportunities Project (PSWOP) and Incentives for Independence (IFI) were finally approved as demonstration projects pursuant to Social Security Act § 1115 (42 U.S.C. § 1315) on June 1, 1972 for implementation starting August 1, 1972. A temporary restraining order, issued on August 4, 1972, prevented this and application has now been made for a preliminary injunction. Plaintiffs also petition for the convening of a three judge court pursuant to 28 U.S.C. §§ 2282 and 2284.

 The PSWOP program has been approved for an initial period of one year and is to be in effect in 14 social service districts throughout the State. It requires every "employable" member of a family receiving welfare assistance under the Aid to Families with Dependent Children (AFDC) program to register with the New York State Employment Service for training and employment. Employability is determined by reference to specific guidelines which exempt certain types of welfare recipients: those already employed, receiving training, or unable to accept employment because of the need to care for dependents. If employable under the guidelines, the recipient would be required to accept referral to a suitable manpower training program, or to employment in the public or private sector depending on his particular qualifications. If the recipient is unsuited for a training program or regular employment, he would be referred to a job specifically established by the PSWOP program. Failure to comply would result in loss of benefits.

 The IFI program, also of one year's duration, is to operate only in three of the 14 areas. Like PSWOP, IFI requires welfare recipients to accept training or employment. PSWOP however, only permits recipients to "work off" their welfare grants. They can earn no more than their weekly welfare stipend. Under IFI, a recipient who receives a job could keep a portion of his earnings without a grant reduction and might thus be able to increase his monthly income. IFI differs from PSWOP in two other major aspects. It includes a "Work Motivation For Youth" program which provides jobs for children of AFDC families who are over 16 and attending school as well as counselling for families whose children are school truancy problems.

 Both of these programs are specifically denoted to be experimental.

 Plaintiffs fall into three categories: recipients of public assistance under AFDC, welfare rights organizations, and the City of New York and its Commissioner of Social Services. Their attack on the PSWOP and IFI programs is twofold. First, they allege that the programs are constitutionally defective because they deny plaintiffs' right to due process and equal protection secured by the Fifth and Fourteenth Amendments of the Constitution. Second, they allege that the programs fail to comply with various requirements of the Social Security Act (42 U.S.C. § 301 et seq.).

 For the reasons stated below, I find the plaintiffs' Constitutional claims to be without substance, and that as a consequence, this Court lacks jurisdiction over the State defendants. Jurisdiction over the Federal defendants pursuant to the provisions of the Administrative Procedure Act is properly invoked.


 At the threshold, one encounters a serious question of standing with respect to two of the three categories of plaintiffs. Although plaintiffs do not address themselves to this question, and defendants do so only briefly, it is the view of the Court that the welfare organizations lack the requisite standing to sue and the City of New York has standing only with respect to the statutory claims.

 The case of Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972), seems determinative as to the welfare organizations. In that case, the Sierra Club sought a declaratory judgment and an injunction restraining Federal officials from approving a skiing development in a national forest. The Supreme Court reiterated the test of standing first enunciated in Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970) and Barlow v. Collins, 397 U.S. 159, 90 S. Ct. 832, 25 L. Ed. 2d 192 (1970), i.e., plaintiffs have standing to challenge the action of a Federal administrative agency where such action caused them "injury in fact" and where that alleged injury was to an interest "arguably within the zone of interests to be protected or regulated" by the statute allegedly violated (397 U.S. at 153, 90 S. Ct. 827, 830, 25 L. Ed. 2d 184). In Morton, the Court found no indication that the Sierra Club would be significantly affected by the proposed development and observed that "broadening the categories of injury that may be alleged in support of standing is a different matter from abandoning the requirement that the party seeking review must have himself suffered an injury." 405 U.S. at 738, 92 S. Ct. at 1368.

 In National Welfare Rights Organization v. Wyman, 304 F. Supp. 1346 (E.D.N.Y.1968), Judge Weinstein ruled that two welfare organizations were without standing to contest certain amendments to New York's Social Services Law because there was no showing of any injury to the organizations as distinct from the possible diminution of welfare benefits to its membership. That is the case here as well.

 The City of New York and its Commissioner of Social Services lack the standing to raise constitutional claims. The identical question arose in City of New York v. Richardson, 71 Civ. 802 (S.D.N.Y.1972), a case in which New York City sought to enjoin enforcement of the welfare provisions of the Social Security Act. Judge McLean held that a city, which is a political subdivision of a State, could not challenge the validity of a State statute on Fourteenth Amendment grounds, relying on Williams v. Mayor and City Council of Baltimore, 289 U.S. 36, 53 S. Ct. 431, 77 L. Ed. 1015 (1933), the leading case on this question. Williams states: "A municipal corporation, created by a state for the better ordering of government, has no privileges or immunities under the Federal Constitution which it may invoke in opposition to the will of its creator." (289 U.S. at 40, 53 S. Ct. at 432). I concur with Judge McLean in finding continued vitality in the reasoning of Williams and find that it binds the City of New York and its Commissioner of Social Services here.

 The City of New York does, however, have standing to challenge the Secretary's approval under the provisions of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. 5 U.S.C. § 702 provides: "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." Whether this statute permits municipal corporations to challenge agency action was implicitly determined in Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F.2d 608 (2d Cir. 1965), which held, inter alia, that certain New York towns had standing to obtain review of an FPC decision to build a hydroelectric project. The Court there noted that the towns were "aggrieved parties" because the project's transmission lines would cause a decrease in the proprietary value of publicly held land, reduce tax revenues collected from privately held land, and interfere with long range community planning. See also, Road Review League, Town of Bedford v. Boyd, 270 F. Supp. 650 (S.D.N.Y.1967), holding that a town had standing to challenge an administrative determination regarding the placement of highways.

 Counsel for the City complains that the programs will involve it in additional expense of about $2.6 million. *fn1" Seen in relation to a total budget of over $8.6 billion and approximately 1 1/4 million people on the relief rolls the argument is almost trifling. *fn2" One would think the City would enthusiastically endorse a responsible experiment calculated to enrich the lives of its citizens by taking them off relief and putting them to self respecting work. However, in view of the alleged administrative burden and possible ...

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