The opinion of the court was delivered by: POLLACK
MILTON POLLACK, District Judge.
The plaintiffs seek a preliminary injunction pursuant to Federal Rule of Civil Procedure 65(c) restraining enforcement of a new state regulation, Title 18, Section 352.3(a) of the New York Code Rules and Regulations, fixing maximum monthly rent allowances for AFDC recipients in each local Social Services District.
This regulation went into effect on October 1, 1975, and was approved in November 1975 by the United States Department of Health, Education and Welfare as meeting basic federal requirements.
The regulation was not implemented until September 1, 1976, with respect to those already receiving public assistance, and provides that allowances be granted in the amount actually expended for rent but only up to the maximum fixed for the particular local district.
The three named plaintiffs, all New York City residents receiving AFDC payments, seek to maintain a class suit pursuant to Federal Rule of Civil Procedure 23(b)(2) on behalf of all AFDC recipients whose rent allowance is reduced by section 352.3(a), and all AFDC recipients whose actual rent exceeds the maximum rent as fixed by that regulation.
Applied to the named plaintiffs herein, the enforcement of the disputed regulation would reduce their monthly rentals respectively by $ 77, $ 30, and $ 25.84.
Title 18, NYCRR, Section 352.3(a) is the product of two surveys of rent allowances, one in 1972 and the other in 1975. Until October 1, 1975, New York public assistance payments for rent were based on allowance schedules established by each local Social Services District. The prior version of the new regulation mandated that recipients be given the amount actually paid by them for rent, but not in excess of the maximum fixed by the appropriate local district.
This arrangement was challenged in this court before Mr. Justice Cannella in Nero v. Levine, Docket No. 75 Civ. 1024, Southern District of New York. That litigation resulted in a court-approved stipulation ordering New York to implement the rent allowance schedule attacked in the present case.
The gravamen of the complaint in the Nero case was that permitting each local district to fix its own schedules violated the federal requirement of statewide uniformity. While Judge Cannella granted the plaintiffs in the Nero case class action treatment, the class there does not seem to have included the plaintiffs in the present case.
The plaintiffs contend that the new regulation violates the Equal Protection Clause of the Fourteenth Amendment by fixing lower maximum rent allowances for New York City than for four other counties in the state -- namely, Nassau, Suffolk, Westchester and Rockland -- and that the difference in the maximums is without rational basis because it is not founded on a difference in actual rental costs.
Plaintiffs contend further that the challenged regulation violates federal law by fixing different maximum rent allowances for different local districts, contending that the Social Security Act does not permit intrastate variations in the standards used in state AFDC plans to determine the need of recipients unless the variations are justified by differences in actual cost.
They claim that the variations in the new regulations are based not on differences in actual rental costs but rather on differences in past rental allowances.
As a further contention, plaintiffs assert that the regulation violates 42 U.S.C., Section 602(a)(23) and 45 C.F.R., Section 233.20(a)(2)(ii), by reducing the standard used to determine the need of AFDC recipients, and the amounts of payments, from actual rental costs to a maximum based on a percentage of previous rent allowances.
As a late starter, and by way of supplemental argument, plaintiffs have submitted yet a further suggestion of invalidity. Plaintiffs urge that even differences in actual rental costs cannot justify the intrastate differences in maximum allowances, because the ...