Appeal from a judgment of the United States District Court for the Eastern District of New York, Hon. Jacob Mishler, Chief Judge, holding 18 N.Y.C.R.R. § 352.7(g)(7) violative of 42 U.S.C. §§ 602(a)(7), (10), and enjoining its enforcement. Reversed.
Friendly, Mansfield and Mulligan, Circuit Judges.
On February 10, 1972, the plaintiffs, on behalf of themselves and their infant children and as representatives of those who are recipients of public assistance in the State of New York under the cooperative federal-state Aid to Families with Dependent Children Program (AFDC) (42 U.S.C. § 601 et seq.), commenced this action in the United States District Court for the Eastern District of New York against George K. Wyman, then Commissioner of the New York State Department of Social Services (the State). The complaint sought declaratory and injunctive relief in an action challenging the constitutionality under the equal protection clause of what is now § 352.7(g)(7) of Title 18 of the New York Code of Rules and Regulations (the Regulation), which permits the State to make advance allowances of rent to prevent the eviction of recipient families and to recoup them from subsequent grants and allowances. The complaint also urged that the State Regulation was contrary to the provisions of the Social Security Act governing AFDC (42 U.S.C. §§ 602(a)(7), (10)) (the Act), as well as the regulations of the Department of Health, Education and Welfare (HEW) promulgated thereunder (45 C.F.R. § 233.20(a)). The protracted and tortuous history of this litigation is found in a chronological reading of our opinions in 462 F.2d 928 (2d Cir. 1972) and 471 F.2d 347 (2d Cir. 1973), the Supreme Court opinion in Hagans v. Lavine, 415 U.S. 528, 39 L. Ed. 2d 577, 94 S. Ct. 1372 (1974), and finally our opinion remanding the matter once again to the district court, 527 F.2d 1151 (2d Cir. 1975). We see no need to repeat that narration. Chief Judge Mishler for the fourth time has held that the Regulation is contrary both to the Act and the HEW regulation. The judgment of the district court of February 26, 1976 granted the plaintiffs' motion for leave to intervene twenty-four additional named plaintiffs who are AFDC recipients under the Regulation in its amended form. The Regulation was declared void and its enforcement and implementation were enjoined. No opinion was written, and a stay was granted pending this appeal. Chief Judge Mishler's previous opinion is set forth in 399 F. Supp. 421 (E.D.N.Y. 1975). The defendant has appealed. We reverse and remand for the convocation of a three-judge court on the constitutional issues involved. See 415 U.S. at 544.
The AFDC program was established by the Social Security Act of 1935. It is financed largely by the federal government on a matching fund basis and is administered by the states which elect to participate. Those states are required to submit an AFDC plan for the approval of the Secretary of HEW. King v. Smith, 392 U.S. 309, 316-17, 20 L. Ed. 2d 1118, 88 S. Ct. 2128 (1968). In determining what AFDC benefits will be paid, the states must establish a "standard of need," which determines who is eligible for public assistance, and then must determine a "level of benefits," that is, a percentage or maximum dollar amount of such needs which will be paid. The states are given a "great deal of discretion" in determining both of these criteria, Rosado v. Wyman, 397 U.S. 397, 408, 25 L. Ed. 2d 442, 90 S. Ct. 1207 (1970). New York State is one of only fourteen states which have set the level of benefits at 100% of the established standard of need, and in 1974 increased the standard of need by 11%. Baumes v. Lavine, 38 N.Y. 2d 296, 379 N.Y.S. 2d 760, 765, 767, 342 N.E.2d 543 (1975). General supervision of the New York AFDC program is the responsibility of the Department of Social Services, with day-to-day administration performed by local or county agencies. Section 131-a(2) of the New York Social Services Law enumerates the items to be included in determining the standard of need; in addition to monthly sums determined by family size, allowances for shelter are also provided.
As this litigation establishes, innumerable recipients diverted shelter allowances to other purposes and became delinquent in rental payments. Evictions ensued and placement of AFDC recipients in so-called "welfare hotels" in metropolitan areas became necessary. In an effort to prevent this dislocation to generally unsuitable environs, the New York State Department of Social Services provided for the making of an "advance allowance" to recipients to prevent eviction. The applicable Regulation is 18 N.Y.C.R.R. § 352.7(g)(7) which provides:
For a recipient of public assistance who is being evicted for nonpayment of rent for which a grant has been previously issued, an advance allowance may be provided upon request to prevent eviction or to rehouse the family. Such an allowance may be provided only where the recipient has made a request in writing for such an allowance, and has also requested in writing that his grant be reduced in equal amounts over the next six months to repay the amount of the advance allowance. When there is a rent advance for more than one month, or more than one rent advance in a 12-month period, subsequent grants for rent shall be provided as restricted payments in accordance with Part 381 of this Title.
The plaintiffs below urged, and the district court has held, that the recoupment provision of the Regulation contravenes the intention and the language of the AFDC program as stated in the Act, 42 U.S.C. § 601 et seq., and the regulations promulgated thereunder, 45 C.F.R. § 233.20(a). The judgment below declared the Regulation to be "null, void and of no effect."
Since the purpose of the Act is to encourage "the care of dependent children in their own homes or in the homes of relatives" and "to help maintain and strengthen family life and to help such parents or relatives to attain or retain capability for the maximum self-support and personal independence consistent with the maintenance of continuing parental care and protection," 42 U.S.C. § 601, it is difficult to understand how the Regulation is offensive to the intent or spirit of the Act. It was promulgated to prevent evictions and relocation to other presumably less desirable quarters. Hagans v. Lavine, supra, 462 F.2d at 930. In his dissenting opinion in Hagans v. Lavine, supra, 415 U.S. at 562, Mr. Justice Rehnquist, joined by the Chief Justice and Mr. Justice Powell, commented: "It would seem extraordinary if, having paid petitioners more than their normal monthly entitlement in order to meet an emergency situation, the State had not sought to recoup the payments over a period of time."
The appellees note that 42 U.S.C. § 602(a)(7)*fn1 requires that a State AFDC plan, in determining need, must take into consideration any other income and resources of any child or relative claiming aid, and that § 602(a)(10)*fn2 mandates that aid to AFDC families be furnished with reasonable promptness to all eligible individuals. We fail to see how the Regulation is offensive to either provision of the Act. Section 602 sets forth, inter alia, the criteria governing the determination of eligibility. All of the plaintiffs have obviously been found eligible and are receiving benefits. They are not only receiving them promptly, but in advance of the usual payment date.
The argument made under subdivision 7 seems to be that in determining need, the State can only consider additional sources of income or resources actually available to the recipient and that where there are no such funds during the period of recoupment, there is pro tanto a failure to meet the current needs of the recipient with the aid which subdivision 10 mandates shall be furnished promptly to all eligible individuals. But this argument is not persuasive. Here there is no overall reduction of the total amount received by the AFDC beneficiaries, nor is the State calculating an applicant's need based upon questionable presumptions as to available resources. See King v. Smith, supra; Lewis v. Martin, 397 U.S. 552, 25 L. Ed. 2d 561, 90 S. Ct. 1282 (1970); Van Lare v. Hurley, 421 U.S. 338, 44 L. Ed. 2d 208, 95 S. Ct. 1741 (1975). There is simply an expedition of payment to accomplish a beneficial purpose perfectly consonant with the philosophy of the Act. A comparable argument was rejected in Dandridge v. Williams, 397 U.S. 471, 25 L. Ed. 2d 491, 90 S. Ct. 1153 (1970). The Court there was concerned with a Maryland regulation which imposed an upper limit on AFDC payments of $250 per family in certain counties and $240 elsewhere in the State. Plaintiffs there, as here, argued that the State regulation was contrary to 42 U.S.C. § 602(a)(10) in that it denied benefits to dependent eligible younger children of large families. Mr. Justice Stewart's opinion for the Court upholding the regulation noted:
The appellees rely most heavily upon the statutory requirement that aid "shall be furnished with reasonable promptness to all eligible individuals." 42 U.S.C. § 602(a)(10) (1964 ed., Supp. IV). But since the statute leaves the level of benefits within the judgment of the State, this language cannot mean that the "aid" furnished must equal the total of each individual's standard of need in every family group. Indeed the appellees do not deny that a scheme of proportional reductions for all families could be used that would result in no individual's receiving aid equal to his standard of need. As we have noted, the practical effect of the Maryland regulation is that all children, even in very large families, do receive some aid. We find nothing in 42 ...