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SHIRLEY v. LAVINE

September 26, 1973

Sylvia SHIRLEY, Individually and on behalf of her minor children, Tammy Lynn, and Lisa Marie, and on behalf of all others similarly situated, et al., Plaintiffs,
v.
Abe LAVINE, Commissioner of the Department of Social Services of the State of New York, et al., Defendants



The opinion of the court was delivered by: PORT

Memorandum-Decision and Order

PORT, District Judge.

The Supreme Court vacated a judgment of this court *fn1" which declared 18 NYCRR § 369.2(f) (3) (ii) (e) *fn2" invalid as establishing AFDC eligibility requirements in conflict with provisions of the Social Security Act, and remanded the case to this court for further consideration in light of Chapter 687 of the 1972 Laws of New York (New York Social Services Law § 101-a, as amended), *fn3" McKinney's Consol.Laws. c. 55 which had become effective subsequent to this court's decision.

 In order to reactivate the matter in the district court after the remand, plaintiffs' attorney obtained an order requiring the defendants to show cause why the three judge court should not be reconvened to reconsider its decision in light of the amendment to § 101-a. Motions were also made for leave to file an amended complaint to squarely put the provisions of the amended section in issue, and for leave for Anna Stuck to intervene as plaintiff. The motions were granted.

 Defendants have moved to dismiss the amended complaint. Affidavits and other matters outside the pleadings having been presented, those motions shall be treated as motions for summary judgment. Rule 12(b), F.R.Civ.P.

 AMENDED COMPLAINT

 The amended complaint does not reallege the facts concerning the original named plaintiffs. This omission was by design since they no longer feel themselves aggrieved due to intervening events. In its present posture, then, this is an action by Anna Stuck on behalf of herself, her minor children, and all others similarly situated, seeking declaratory and injunctive relief from enforcement against them of § 101-a of the New York Social Services Law because of their failure to cooperate in support proceedings as required by the section, and seeking as well the payment of benefits withheld on authority of the section.

 We conclude that, while class action status and retroactive payment of benefits should be denied, the plaintiff is entitled to the declaratory and injunctive relief sought.

 FACTS

 The pertinent facts may be stated briefly. Plaintiff Intervenor has four children, aged 12, 9, 8 and 2. The family has received AFDC for some time. On January 17, 1973, she applied for recertification. This caused the agency to discover that there was no support order outstanding for the youngest illegitimate child. Plaintiff indicated that she did not desire that a paternity action be brought against the putative father.

 She refused to cooperate in connection with such an action beyond stating the name of the putative father and the town where he lived, asserting he was unable to support the child because of physical disabilities. Her refusal was also based on unpleasantness in connection with similar proceedings brought against the father of her three other children.

 After a fair hearing, the family's grant was reduced on the authority of § 101-a to reflect the exclusion therefrom of the plaintiff for her failure to cooperate. According to respective counsel, the reduction was between $75 and $100 per month. The Anna Stuck family, apart from § 101-a, is otherwise eligible for full assistance.

 DISCUSSION

 Plaintiffs, invoking our jurisdiction pursuant to 28 U.S.C. § 1343(3), (4) and 28 U.S.C. § 1331, have raised a substantial question with respect to the constitutionality of New York Social Services Law § 101-a, as amended, which warranted the convening of a three-judge court. King v. Smith, 392 U.S. 309, 312 n. 3, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1968). However, in view of the fact that plaintiffs also raise an issue as to whether § 101-a violates the Supremacy Clause, which we believe to be dispositive of the case, our decision follows the Supreme Court's repeated direction that in such a case we should adjudicate the statutory claim rather than indulge in a ...


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