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MENDOZA v. LAVINE

January 7, 1976

GLORIA MENDOZA, MARIA RIVERA ZAYAS, LUZ MILAGROS PEREZ, BERNADINA GONZALEX, CARMEN ESPONDA, LILIA ORJUELA, RAMON NICANOR NUNEZ, GENERA ESPINOSA, individually on their own behalf, on behalf of their minor children, and on behalf of all other persons similarly situated, Plaintiffs,
v.
ABE LAVINE, Individually and as Commissioner of New York State Department of Social Services, and JAMES R. DUMPSON, individually and as Commissioner of the New York City Department of Social Services, and CASPER WEINBERGER, individually and as Secretary of the United States Department of Health, Education and Welfare, Defendants



The opinion of the court was delivered by: DUFFY

KEVIN THOMAS DUFFY, D.J.

 The federal, state, and city defendants have each moved to dismiss this class action which was brought pursuant to 42 U.S.C. §§ 1983, 1988 to prevent the alleged deprivation of rights secured to plaintiff welfare recipients and welfare applicants under the Fifth and Fourteenth amendments to the United States Constitution, Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq.) and the Social Security Act (42 U.S.C. §§ 601 et seq., 1381 et seq., and 1396 et seq.). Jurisdiction is claimed under 28 U.S.C. §§ 1343(4), 1361, 1331, and, as to the federal defendant, under 5 U.S.C. § 701. Plaintiffs also request declaratory relief under 28 U.S.C. §§ 2201, 2202.

 Plaintiffs are Hispanic persons who, because of difficulty with the English language (their dominant language being Spanish,), allegedly receive unequal treatment in their receipt of public assistance.

 The complaint basically alleges that the failure to provide sufficient bilingual personnel, forms, notices, applications, etc., violates rights of the plaintiffs under the Constitution, Title VI of the Civil Rights Act of 1964, the Social Security Act and regulations of HEW.

 The public assistance programs involved in this suit are (1) Aid to Families with Dependent Children Program ("AFDC"), 42 U.S.C. § 601 et seq. (Supp. III, 1970); (2) Medical Assistance Program ("Medicaid"), 42 U.S.C. § 1396 et seq. (Supp. III, 1970); and (3) Supplemental Security Income ("SSI"), 42 U.S.C. § 1381 et seq. (Supp. III, 1970).

 The first two programs are partially financed by the federal government through the Department of Health, Education, and Welfare ("HEW"), but are wholly administered by the state. In order to be eligible for federal funds, the state must submit a plan to HEW conforming to the applicable federal statutes and regulations. The Secretary of HEW reviews the plan and, if it is acceptable, approves it. 42 U.S.C. §§ 601, 602, 1396, 1396a (Supp. III, 1970). Thereafter, HEW oversees the state programs to insure continuing compliance with the statutes and regulations. 42 U.S.C. §§ 601-04, 1396a-c. (Supp. III, 1970). HEW contracts only with the state. The New York State Department of Social Welfare prepares the plan and negotiates with HEW. N.Y. Soc. Welfare Law §§ 358 and 363-b (McKinney 1966). The state transfers the federal funds as well as certain state funds to the city which, as a public welfare district, administers the program for those within the city. N.Y. Soc. Welfare Law §§ 61, 62 (McKinney 1966). Federal funds cover approximately 50 per cent of the city's costs. The state and city split the remaining costs of the programs.

 The SSI program is administered by HEW through the Social Security Administration. *fn1"

 The federal defendant, Casper Weinberger, Secretary of HEW, has moved to dismiss the complaint for failure to exhaust available administrative remedies. The state defendant, Abe Lavine, Commissioner of New York State Department of Social Services, and the city defendant, James R. Dumpson, Commissioner of the New York City Department of Social Services, have moved to dismiss for failure to state a claim on which relief can be granted. I will first address myself to the federal defendant's motion.

 On August 28, 1973, plaintiffs filed a complaint with HEW pursuant to 45 C.F.R. § 80.7(b) claiming discrimination in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. which provides in pertinent part:

 
"No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d.

 The regulations promulgated under this statute, 45 C.F.R. Parts 80 and 81 (1973), provide examples of prohibited discrimination, require assurances of compliance by applicants, and require record keeping by recipients of funds. Where non-compliance with the statutes and regulations is indicated by a complaint or otherwise, the agency must make a prompt investigation (45 C.F.R. § 80.7(cc), attempt a resolution by informal means (45 C.F.R. § 80.7(d)), and, if informal means fail, undertake formal procedures to achieve compliance (45 C.F.R. § 80.8). The formal procedures available to HEW include a reference to the Department of Justice and/or termination of funds after (1) a full hearing at which non-compliance is found to exist and (2) a report to the appropriate committees of the House and the Senate. Final agency action is also subject to judicial review. 45 C.F.R. §§ 80.10, 80.11.

 In August 1973, when plaintiffs filed their complaint with HEW, the agency had already begun a review of New York City's compliance with Title VI. Thereafter, the review was divided into two parts, one part being a formal investigation of the plaintiffs' complaint. The HEW review has involved reports from the city and state; field investigation of personnel, clients, and files; and various computer techniques and programs for analyzing and collecting data.

 Plaintiffs initiated this suit in November 1974, fifteen months after filing their complaint with HEW. The nature of the suit as to HEW is a mandamus action (28 U.S.C. § 1361) to require the agency to fulfill its obligations under the Constitution, Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq.) and the regulations promulgated thereunder, and the Social Security Act (42 U.S.C. §§ 601 et seq., 1381 et seq., and 1396 et seq.). At the time this motion to dismiss was made, the federal defendant represented that it was vigorously working to determine whether or not there was a violation of Title VI. If a violation was found to exist, the agency's next step was to be an attempt at informal resolution of the problem and, failing that, formal enforcement proceedings. The plaintiffs had apparently demonstrated a willingness to cooperate with HEW and had met with representatives of the agency and had provided "useful information" (Defendant's Brief at 15) to HEW. The defendant also represented that its deadline for the comprehensive investigation was June 30, 1975.

 On the day that I heard argument on this motion, May 2, 1975, the defendant further represented that based upon a survey by the City of eight welfare centers (the Kircheimer memorandum which HEW construed as an admission) it had found the City "in non-compliance with Title VI, at least in respect to those eight centers . . . but in principle, anywhere the discrepancy is discovered, everywhere in the City . . ." (Transcript at 12). An April 11, 1975 letter from HEW to Commissioner Lavine had also contained notice of this finding. The defendant ...


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