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April 11, 1974

Ricardo LYONS, on his own behalf and on behalf of others similarly situated, Plaintiff,
Caspar WEINBERGER, Secretary of Health, Education and Welfare, Defendant

Motley, District Judge.

The opinion of the court was delivered by: MOTLEY

MOTLEY, District Judge.

This case involves primarily the question whether disabled, blind and elderly persons who were receiving cash benefits in December 1973 pursuant to the New York Combined Program for Aged, Blind and Disabled Persons (AABD)* and who were transferred as of January 1, 1974 to the federally administered Supplemental Security Income (S.S.I.) program,** are entitled to notice and a hearing before their cash benefits are reduced by federal agency officials. Prior to January 1, 1974, when the cash benefits were administered by state agency officials, these recipients were entitled to such notice and hearing pursuant to federal regulation. 45 CFR § 205.10. Defendant, the Secretary of Health, Education and Welfare, acknowledges that thousands of New York recipients of S.S.I. benefits have had their benefits reduced in advance of notice and a hearing.

 Plaintiff, Ricardo Lyons, is a recipient of S.S.I. cash benefits. Prior to January 1, 1974, he received $147.34 per month in cash benefits in addition to his social security check. In January and February, 1974, after transfer to the federally administered S.S.I. program, he continued to receive the same benefits. On March 1, 1974, however, he received an S.S.I. benefit check for only $96.35. The reduction was made without notice to plaintiff and without opportunity to be heard. He did receive a notice after receipt of the reduced check advising him of a right to reconsideration. The notice advised plaintiff that the reduction was based on the fact that the New York City Welfare Department had not paid him the correct amount in December, 1973 because it did not know how much money he was getting in Social Security benefits. This, according to the notice, caused plaintiff to receive excessive S.S.I. payments in January and February. Plaintiff filed this action on March 19, 1974. Thereafter, the Social Security Administration, having been contacted by plaintiff's counsel, agreed to restore plaintiff's benefits after determining that the information furnished it by New York on which the reduction was based was erroneous.

 Plaintiff alleges that the court has jurisdiction under 28 U.S.C. §§ 1331, 1343, 1361; 5 U.S.C. § 701 et seq. He asserts that his cash benefits, as well as the cash benefits of other recipients of S.S.I., have been either reduced or terminated without prior notice and hearing in violation of various federal regulations and the Fifth Amendment to the Constitution.

 Plaintiff brings this action for injunctive relief on behalf of himself and all others similarly situated. Rule 23(b) (2), Fed. R. Civ. P. The court finds that other members of the class have had their S.S.I. benefits reduced based on information furnished by New York; others have been reduced without prior notice or hearing on the ground that they had obtained corresponding increases in their Social Security checks.

 The court, at the conclusion of a hearing on March 20, 1974, and for the reasons stated on the record, issued a temporary restraining order. *fn1"

 Plaintiff now moves for a preliminary injunction and for class action certification. Rule 23(c). The court grants both motions for the reasons which follow.

 Prior to January 1, 1974, needy aged, blind and disabled individuals, including plaintiff, received public assistance benefits under the New York State program established pursuant to Subchapter XVI of the Social Security Act. 42 U.S.C. § 1381 et seq. The Social Security Act authorized a joint federal/state program under which the state received substantial federal aid in support of its assistance program.

 In 1972, Congress enacted a Supplemental Security Income (S.S.I.) program to replace the federal/state assistance programs for the aged, blind and disabled effective January 1, 1974. The Act provides for a minimum level of cash income benefits, funded by the federal government, for eligible individuals. All but specifically exempted income is deducted from the S.S.I. benefit level. However, since the authorized S.S.I. benefit levels were lower than those in effect in several states, including New York, Congress authorized the states to supplement these benefits. 42 U.S.C. § 1382e. The states could elect to have these "optional" supplemental benefits paid directly by the federal government, 42 U.S.C. § 1382e, in which case the actual cost of these "optional" supplementary payments are charged to the states, but the administrative costs of making these payments are borne by the federal government. 42 U.S.C. § 1382e(d). The "optional" benefits made by New York and some other states were still not sufficient to render the benefits received by transferred state recipients such as plaintiff equal to the benefits received by them under the New York program prior to transfer. In order to remedy this problem Congress had to induce the states to make up the difference.

 Congress therefore mandated that any state, such as New York, receiving federal medicaid payments under Title XIX of the Social Security Act must make additional supplementary payments to the aged, blind or disabled so as to bring their S.S.I. benefits and other income up to the level of their December, 1973 income. *fn2" These benefits are known as "mandatory" S.S.I. payments.

 The Act further provides that the states might enter into an agreement with the Secretary of Health, Education and Welfare whereby the Secretary, on behalf of such State, would administer these required supplementary payments. New York has entered into such an agreement.


 The court determines that it has jurisdiction of this action pursuant to 28 U.S.C. §§ 1343, 1361; and 5 U.S.C. § 702.

 1. 28 U.S.C. § 1343(3)

 This section is the jurisdictional statute for the Civil Rights Act, 42 U.S.C. § 1983, and provides in part:

"The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
* * *
(3) To redress the deprivation under color of State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States. . . ."

 Since plaintiff has a substantial constitutional claim, the only question is whether defendant can be held to be acting "under color of State law." According to Kletschka v. Driver, 411 F.2d 436 (2d Cir. 1969), "it was the evident purpose of § 1983 to provide a remedy when federal rights have been violated through the use or misuse of a power derived from a State. [citation omitted]. When the violation is the joint product of the exercise of a State power and of a non-State power then the test under the Fourteenth Amendment and § 1983 is whether the state or its officials played a 'significant ' role in the result." Id. at 448.

 In the instant case New York State is significantly involved in the federal program:

 1. Benefits paid by the Social Security Administration are funded in large part by the state. *fn3"

 2. The level of payments is governed by the AABD benefits paid out by the state in December, 1973.

 3. The state elected to have the supplementary S.S.I. benefits paid out by the Social Security Administration. The state might have chosen to continue to administer the distribution of those benefits required to bring the federal minimum payments up to the levels previously paid by the state.

 4. Defendant concedes that many of the reductions and terminations have resulted from information provided by state agencies which is fed into the Social Security Administration's computers located in Baltimore, Maryland and automatically results in reduced S.S.I. checks. *fn4"

 Therefore, the state plays a critical role in defendant's determination to reduce or terminate benefits in advance of a hearing.

 5. Public assistance has long been a predominantly state and local responsibility.

 Since the court has jurisdiction of plaintiff's constitutional claims, it also has ancillary jurisdiction of plaintiff's claims under the regulations. 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).

 2. 28 U.S.C. § 1361

 The federal mandamus statute, enacted in 1962, provides as follows:

"The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff."

 Mandamus has traditionally been viewed as appropriate "to compel officials to comply with the law when no judgment [or discretion] is involved in that compliance." Leonhard v. Mitchell, 473 F.2d 709, 713 (2d Cir.) cert. denied, 412 U.S. 949, 93 S. Ct. 3011, 37 L. Ed. 2d 1002 (1973); Note, Developments in the Law: Remedies Against the United States and its Officials, 70 Harv. L Rev. 827, 849 (1957).

 Thus, a writ of mandamus may issue, without regard to a jurisdictional amount, when a federal official fails to comply with a specific statutory or regulatory direction, Leonhard, supra, at 713, or with a constitutional mandate. E.g., Burnett v. Tolson, 474 F.2d 877 (4th Cir. 1973); Cortright v. Resor, 325 F. Supp. 797 (E.D.N.Y.) (Weinstein, J.), rev'd on other grounds, 447 F.2d 245 (2d Cir. 1971), cert. denied, 405 U.S. 965, 92 S. Ct. 1172, 31 L. Ed. 2d 240 (1972).

 While it is sometimes said that mandamus will lie only if there is a "clear right" in the plaintiff to the relief sought and a "clear duty" on the part of the defendant to do the act in question, e.g., Burnett, supra, at 880, "[a] judge must judge by his own lights, and if he does see the duty as 'clear, ' that is decisive even though disagreement with him is reasonable." L. Jaffe, Judicial Control of Administrative Action, 184 (1965). *fn5"

 For the reasons stated at pp. 258-262, infra, the court concludes that it is sufficiently clear that defendant had a duty to act in the manner requested by plaintiff, to permit mandamus. *fn6"

 The court does not consider controlling Aguayo v. Richardson, 473 F.2d 1090, 1101 (2d Cir. 1973), in which the Second Circuit held that 28 U.S.C. § 1361 was not a basis for jurisdiction, since the legal questions at issue there were considerably more difficult than those presented here and, therefore, the ...

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