Appeal from decision of United States District Court for the District of Connecticut, M. Joseph Blumenfeld, J., dismissing plaintiffs' civil rights complaint against Connecticut welfare officials for lack of jurisdiction.
Moore, Feinberg and Oakes, Circuit Judges.
Plaintiff Leonard Andrews and six other welfare recipients, on behalf of themselves and all persons similarly situated, appeal from a decision of the United States District Court for the District of Connecticut, dismissing their action under 42 U.S.C. § 1983 against defendants, the Commissioner and Deputy Commissioner of the Connecticut Department of Welfare. Plaintiffs sought to enjoin defendants from requiring welfare recipients to report for periodic eligibility interviews without reimbursing them for their travel and other expenses in journeying to the nearest district office. In a thorough opinion, reported at 385 F. Supp. 672, Judge M. Joseph Blumenfeld held the district court had no jurisdiction over plaintiffs' claims. We affirm.
We will not recount the facts at great length here, preferring to refer the reader to the opinion of the district court for a fuller statement. It is enough to note that the policy under attack provides that within 90 days after an award of Aid to Families with Dependent Children (AFDC) benefits and at least every six months thereafter, a recipient's eligibility must be redetermined in "a face-to-face interview in the district office" of the Department of Welfare.*fn1 Since there are only a limited number of district offices in the state (13 at the time of the district court opinion), some welfare recipients must travel farther distances than others to be recertified. Defendants have adopted an informal rule that anyone who must travel more than 25 miles one way to the nearest office will be interviewed in his home town. The named plaintiffs all live a considerable distance, but no more than 25 miles, from the nearest city in which a recertification is available.*fn2 Each is thus required to expend at least a roundtrip bus fare, the highest of which for these plaintiffs was apparently $3.10. Plaintiffs also claim that the trip might cause baby-sitting or day-care expenses while they are traveling to and from the welfare office, but it was apparently not established in the hearing before the district judge that any of these plaintiffs would actually incur such expenses.
Plaintiffs' underlying claim is that the Connecticut regulation violates various provisions of the Social Security Act and of regulations of the Department of Health, Education and Welfare (HEW), which require that aid be furnished with reasonable promptness, that it be given to all eligible persons, that the use of the grant not be restricted and that a uniform level of aid be afforded all eligible persons throughout the state.*fn3 Although there is an obvious national interest in claims that federal funds are not being expended in accordance with federal law,*fn4 this does not suffice to give the district court jurisdiction under 28 U.S.C. § 1331(a) because the amount in controversy for each plaintiff is far less than $10,000. Accordingly, in this case as in so many others involving the welfare laws, plaintiffs made a strenuous effort in the district court to constitutionalize their claims, invoking 42 U.S.C. § 1983 and its jurisdictional counterpart 28 U.S.C. § 1343(3), so that the district court could then acquire pendent jurisdiction over the statutory claims.*fn5 In addition, plaintiffs argue that 28 U.S.C. § 1343(3) and (4) themselves give jurisdiction over the statutory claims. Citing Hagans v. Lavine, 415 U.S. 528, 39 L. Ed. 2d 577, 94 S. Ct. 1372 (1974), and Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666-67, 39 L. Ed. 2d 73, 94 S. Ct. 772 (1974), Judge Blumenfeld held that plaintiffs' constitutional claims were so insubstantial that they did not meet "the very minimal standards of merit which must be satisfied before a District Court may assume jurisdiction of a claim under 28 U.S.C. § 1343(3)." 385 F. Supp. at 677. This holding was directed at the three constitutional claims plaintiffs made below. Two of these have apparently been abandoned in this court,*fn6 and we agree with the district judge as to the third, to which we now turn.
Plaintiffs' remaining constitutional argument is that requiring interviews every six months in designated district offices denies them the equal protection of the laws under the fourteenth amendment. This is so because the policy creates two classes of needy children who receive AFDC benefits: One class, whose members do not live near a district office, must spend money for travel and child-care costs as a condition of continued eligibility; the other class is not so burdened. Therefore, say plaintiffs, the first class (to which they belong) is discriminated against. Citing, among other authorities, Ortwein v. Schwab, 410 U.S. 656, 35 L. Ed. 2d 572, 93 S. Ct. 1172 (1973) ( $25 filing fee for judicial review of welfare terminations does not violate due process or equal protection clauses), and United States v. Kras, 409 U.S. 434, 34 L. Ed. 2d 626, 93 S. Ct. 631 (1973) ( $50 filing fee for bankruptcy does not violate fifth amendment), the district court held this claim insubstantial. We agree.
The logical end of plaintiffs' position is that the Constitution prevents a state from providing governmental offices in only a limited number of locations or else requires the state to reimburse those who incur travel or other expenses in getting to a government office. The first alternative is completely without merit. Dublino v. New York State Department of Social Services, 348 F. Supp. 290, 298 (W.D.N.Y. 1972), rev'd on other grounds, 413 U.S. 405, 37 L. Ed. 2d 688, 93 S. Ct. 2507 (1973). As Judge Blumenfeld pointed out, the same logic could equally require innumerable courthouses in which claims like those made here are to be adjudicated. Whatever may be the inadequacy of cost considerations in other contexts, see City of New York v. Richardson, 473 F.2d 923, 932 (2d Cir. 1973), it can not be that a state may not reasonably limit its administrative offices in order to minimize costs.*fn7 The second alternative, reimbursing welfare recipients for travel expenses, raises an issue of policy but not, under Supreme Court decisions, a substantial question of constitutional law. A state legislature is constitutionally free to decide not to provide reimbursement for travel costs in its AFDC grant, however desirable such reimbursement would be. Dandridge v. Williams, 397 U.S. 471, 478, 25 L. Ed. 2d 491, 90 S. Ct. 1153 (1970); Jefferson v. Hackney, 406 U.S. 535, 32 L. Ed. 2d 285, 92 S. Ct. 1724 (1972). Cf. Richardson v. Belcher, 404 U.S. 78, 30 L. Ed. 2d 231, 92 S. Ct. 254 (1971).
Plaintiffs argue that the district court should not have dismissed the action as too insubstantial to justify jurisdiction, no matter how the court might eventually rule on the merits. It is true that the three-judge court in Dublino, supra, did consider a similar argument on the merits, thereby implying that the equal protection claim here is substantial enough to provide jurisdiction (and require the convening of a three-judge court). But the primary argument there was that the requirement of personal appearance at a district office for an arbitrarily-determined group of "employables" was itself irrational, not that the state discriminated geographically. Plaintiffs also cite Henry v. White, 359 F. Supp. 969 (D. Conn. 1973), in which Judge Newman refused to dismiss as insubstantial an analogous equal protection claim based upon the closing of a welfare district office in Norwalk. The judge ruled that it was not apparent, on defendant's motion to dismiss, why "the selection of Norwalk for an office closing bears the requisite rational relationship" to administrative efficiency, particularly since there were "welfare offices in every other city of comparable size (save one) and in numerous smaller cities." Id. at 972. On a fuller record, the judge ultimately did dismiss the complaint. Henry v. White, Civil No. 15,332 (D. Conn. Sept. 12, 1974) (unreported oral opinion). But while the reasonableness of closing a particular office may require factual inquiry, the rationality of not having an office in every locality is self-evident. Moreover, there must come a time, after several adjudications on the merits, when a constitutional claim which was from the first dubious (but worthy of discussion on the merits and capable of supporting pendent jurisdiction) has been rejected convincingly enough that similar or weaker*fn8 claims can only be considered frivolous. In short, we agree with Judge Blumenfeld that plaintiffs' equal protection contention is insubstantial.
Plaintiffs argue, however, that even if their equal protection claim lacks sufficient substantiality to confer jurisdiction, the district court still had jurisdiction to decide the claim that the Connecticut regulation was in conflict with the Social Security Act and with federal regulations.*fn9 Plaintiffs contend (1) that what the district court regarded as pendent statutory claims are themselves claims that constitutional rights have been violated, and that jurisdiction to decide them may be based on 28 U.S.C. § 1343(3); and (2) that even if the claims are merely statutory, jurisdiction exists under 28 U.S.C. § 1343(4).
Section 1343(3) confers jurisdiction on the district courts, without regard to amount in controversy, "to redress the deprivation, under color of State law,... of any right... secured by the Constitution... or by any Act of Congress providing for equal rights of citizens...." We have held that the Social Security Act is not an act "providing for equal rights," and that therefore section 1343(3) does not provide jurisdiction over claims that a state has violated that Act's provisions. Aguayo v. Richardson, 473 F.2d 1090, 1101 (2d Cir. 1973), cert. denied sub nom. Aguayo v. Weinberger, 414 U.S. 1146, 94 S. Ct. 900, 39 L. Ed. 2d 101 (1973); 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); McCall v. Shapiro, 416 F.2d 246 (2d Cir. 1969); Rosado v. Wyman, 414 F.2d 170, 177, 181 (2d Cir. 1969), rev'd on other grounds, 397 U.S. 397, 25 L. Ed. 2d 442, 90 S. Ct. 1207 (1970). Accord, Randall v. Goldmark, 495 F.2d 356, 359 (1st Cir.), cert. denied, 419 U.S. 879, 42 L. Ed. 2d 119, 95 S. Ct. 144 (1974); contra, Blue v. Craig, 505 F.2d 830 (4th Cir. 1974). Plaintiffs contend, however, that section 1343(3) should be construed to provide jurisdiction over any claim under 42 U.S.C. § 1983,*fn10 that the latter statute covers statutory as well as constitutional claims ("rights... secured by the Constitution and laws...), and that therefore the "providing for equal rights" limitation of section 1343(3) must be disregarded. That question, on which there is now a circuit conflict, ...