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NELSON v. SUGARMAN

November 15, 1972

William NELSON et al., Plaintiffs,
v.
Jule R. SUGARMAN, Individually and as Commissioner of the New York City Department of Social Services, et al., Defendants


Motley, District Judge.


The opinion of the court was delivered by: MOTLEY

Findings of Fact and Conclusions of Law

MOTLEY, District Judge.

 The plaintiffs in this action are all recipients of public assistance from the State of New York under federallyfunded programs, The complaint, as amended on May 24, 1971, charges defendants Sugarman and the New York City Department of Social Services with violating the mandate of Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970), in their refusal to abide by and in their attempts to review ex parte certain "fair hearing" decisions of the New York State Department of Social Services involving the proposed termination, reduction, or suspension of welfare benefits. *fn1" Nine of the plaintiffs alleged that these defendants failed to comply with such fair hearing decisions which were favorable to the plaintiffs and, thereby, deprived them of their due process rights. This claim is similar, if not identical, to the claim presented in the case of Almenares v. Wyman, 453 F.2d 1075 (2d Cir. 1971), cert. denied, 405 U.S. 944, 92 S. Ct. 962, 30 L. Ed. 2d 815 (1972), which held such a claim to be cognizable under 28 U.S.C. § 1343(3), the jurisdictional statute implementing the Civil Rights Act, 42 U.S.C. § 1983. In light of the decision in Almenares and 42 C.F.R. § 205.10(a)(5) *fn2" and their apparent effect on New York welfare procedures in cases involving the termination, reduction and suspension of benefits, the claim is now moot. *fn3"

 The other allegations in the complaint charge all of the defendants with failing to comply with the regulation of the United States Department of Health, Education and Welfare (HEW) which prescribes fair hearing procedures to be followed by state welfare agencies, 45 C.F.R. § 205.10, 36 Fed. Reg. 3034 (1971). Eight of the plaintiffs alleged that defendants failed to implement in timely fashion fair hearing decisions which had upheld their right to increased benefits. *fn4" Another plaintiff, Mrs. Sexton, who was an applicant for public assistance, claimed that she waited almost six months after a fair hearing examiner had determined that she was eligible for assistance before she received any benefits. The specific provision of the HEW regulations which these plaintiffs claim has been violated by the defendants is 45 C.F.R. § 205.10(a)(11) which provides:

 
§ 205.10 Fair hearings.
 
(a) State plan requirements. A State plan under title I, IV-A, X, XIV, XVI or XIX of the Social Security Act must provide for a system of fair hearings under which:
 
* * *
 
(11) Prompt, definitive, and final administrative action will be taken within 60 days from the date of the request for a fair hearing, except where the claimant requests a delay in the hearing.

 In their complaint, all the named plaintiffs alleged that they represented "members of a class, . . . who are all recipients of public assistance in the City and State of New York [and who] have received or will receive a favorable 'fair hearing' decision from [State] Commissioner Wyman with which City Commissioner Sugarman and the [City] Department have refused or will refuse to comply or with which Commissioner Sugarman and the City Department have complied or will comply only after an inordinate and unreasonable delay." [Para. 4] In addition, the complaint represented that plaintiffs were bringing this action "on behalf of themselves and all others similarly situated." [Para. 9] By order dated December 17, 1971, this court granted plaintiffs' motion to prosecute their claims as a class action under Fed. R. Civ. P. 23(b)(2) for injunctive relief against the defendants. *fn5" The Almenares decision is authority for class action treatment in the circumstances presented here. See 453 F.2d at 1083-1086.

 A trial of this action was held in December, 1971 and January, 1972. Subsequently, representations by the defendants of extensive changes in state and local welfare procedures were considered at a hearing on June 29, 1972 and the trial was reopened on September 12, 1972 to receive evidence of compliance by the state with the HEW regulations, in particular, the 60-day rule set forth above.

 At the outset, the court is faced with the challenge by defendants to its jurisdiction over this action. It is clear that the Almenares -type claim would confer jurisdiction in this court and that the ancillary claims would clearly fall within this court's pendent jurisdiction if the Almenares issue were still unresolved. See 453 F.2d at 1083-1084; Serritella v. Engelman, 339 F. Supp. 738, 747 (D.N.J. 1972) and cases cited therein. Consequently, the mootness of the Almenares issue does not deprive this court of its pendent jurisdiction over the statutory claims, for "mootness [is] a factor affecting its discretion, not its power" and "the extent of the investment of judicial energy and the character of the [claims]" warrant assertion of jurisdiction in this case. *fn6" See Rosado v. Wyman, 397 U.S. 397, 403-405, 90 S. Ct. 1207, 1213-1214, 25 L. Ed. 2d 442 (1970).

 Furthermore, the claim that defendants are failing to implement, within a reasonable time, fair hearing decisions on the eligibility of new applicants for public assistance itself presents a colorable cause of action under 42 U.S.C. § 1983. The failure to provide assistance to such applicants, who have been found to have insufficient means of support, is certainly as serious as the "total or substantial withdrawal of benefits from families living near the edge of subsistence." *fn7" See Almenares, supra, 453 F.2d at 1082. And, as in Almenares, the claim of the welfare applicant and members of her class is of "unconstitutionality [of the regulations] as applied." Id. Thus, this claim also comes within 28 U.S.C. § 1343(3) and supports jurisdiction of the related, "pendent" *fn8" statutory claims.

 Indeed, under the broad Supreme Court holding in Lynch v. Household Finance Corporation, 405 U.S. 538, 92 S. Ct. 1113, 31 L. Ed. 2d 424 (1972), which expressly rejected the "personal rights" -- "property rights" analysis undertaken in Almenares, this court has § 1343(3) jurisdiction over all of the claims alleging a failure of the defendants to implement fair hearing decisions within a reasonable time. Those claims present a colorable issue of denial of the due process safeguards mandated in Goldberg v. Kelly, supra, and, therefore, state a cause of action under 42 U.S.C. § 1983.

 Proceeding to the merits of this action, the court must determine whether the defendants are in compliance with the 60-day prompt-action requirement of 45 C.F.R. § 205.10(a)(11) in three ...


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