Appeal from a judgment of the United States District Court for the Southern District of New York, Kevin Thomas Duffy, Judge, ordering defendants to restore day care services to plaintiffs, including reimbursement for any day care services rendered during the pendency of this action, and enjoining the defendants from denying day care services to any applicant because of failure to submit Form DSS 2105 until that form is revised in accordance with the District Court's opinion.
Lumbard, Hays and Timbers, Circuit Judges. Timbers, Circuit Judge (dissenting).
This is an appeal from a judgment of the United States District Court for the Southern District of New York 361 F. Supp. 235, ordering the defendants to restore day care services to plaintiffs (including reimbursement for any day care services rendered during the pendency of this action) and enjoining the defendants from denying day care services to any applicant because of failure to submit Form DSS 2105 (Day Care Application and Eligibility Report) until that form is revised in accordance with the district court's opinion. In issuing the injunction, the district court found that there was a likelihood that the plaintiffs would succeed on their claim that defendant McMurray failed to give adequate notice to the plaintiff parents of the termination of the funding of the day care centers. Using this finding as a basis for pendent jurisdiction, the district court then found that Form DSS 2105*fn1 violated the Social Security Act.
We reverse the decision of the district court. We hold that the plaintiffs' due process claim does not present a substantial constitutional issue. Pendent jurisdiction over the statutory claims must therefore fail.
By Administrative Letter 73 PWD-35 issued by the defendant Commissioner of the Department of Social Services of the State of New York on March 15, 1973, day care centers were required to fill out Day Care Application and Eligibility Report, Form DSS 2105. These forms were mailed by the Commissioner of the Agency for Child Development of New York City to the some 400 day care centers in the New York City area, with an accompanying letter informing them that the forms must be filled out and returned to the Agency for Child Development. Of the 400 day care centers 385 eventually complied with this request and filled out and returned Form DSS 2105. The fifteen remaining day care centers, now plaintiffs in this action, refused to complete and return the form. Consequently, on March 30, the Commissioner for the Agency for Child Development instructed the day care centers that had refused to comply that the form must be completed, and that if the form was not completed and returned by April 9, 1973 action would be taken to "close out your account with this agency."*fn2 The day care centers which had refused to comply were offered technical advice in establishing the eligibility of families and were given an opportunity to meet with representatives of the Agency to discuss the procedure necessary for compliance.
The fifteen day care centers, however, continued in their refusal to submit Form DSS 2105 and on April 12, 1973 the Commission notified the day care centers that agency funds for their center would be terminated, although funding would be continued for another week. The letter of April 12*fn3 also contained an instruction to the day care centers that they were obligated by state law to inform the parents of their right to a fair hearing:
"If you have been serving parents who may be eligible in accordance with Day Care Procedure #3, you have the responsibility under State law to inform these parents of their right to a fair hearing.
To insure the parents being informed of their rights, a letter to them is enclosed informing them of their right to have their status determined."
The letter of April 12 contained such a letter*fn4 to the parents. This letter informed the parents of the name and telephone number of the Resource Director in their area. The letter also indicated that in the event of a favorable determination of eligibility their child or children would be placed in an alternative day care center.
When the funding for these centers was terminated plaintiffs, who include both day care centers and the individual recipients of day care services, brought this action seeking injunctive and declaratory relief under 28 U.S.C. § 1343, 42 U.S.C. § 1983, and 28 U.S.C. §§ 2201-2202. The plaintiffs contended that the submission of Form DSS 2105 violated their right to privacy; that Form DSS 2105 bore no rational relation to a valid State goal and was therefore constitutionally infirm; that Form DSS 2105 violated the Social Security Act and HEW regulations; and finally, that the defendant's failure to give the plaintiffs adequate notice and a hearing before terminating day care center funds constituted a deprivation of due process.
Plaintiffs rely upon 28 U.S.C. § 1343(3) as the basis for jurisdiction in this case. To establish jurisdiction under this statute, a substantial constitutional claim must be advanced. See, e.g., Hagans v. Wyman, 462 F.2d 928 (2d Cir. 1972); Almenares v. Wyman, 453 F.2d 1075, 1082 n. 9 (2d Cir. 1971), cert. denied, 405 U.S. 944, 30 L. Ed. 2d 815, 92 S. Ct. 962 (1972).
Plaintiffs' major constitutional argument, accepted by the district court, is that they were denied due process of law because the defendants failed to give adequate notice that the funding of the day care centers was to be terminated. Plaintiffs contend that the notice was inadequate because the parents of the children affected by the termination of funding were not directly notified by the defendants, and that notice to the day care centers was inadequate to meet the constitutional standard. ...