Appeal from a decision by Judge Milton Pollack of the Southern District of New York,
Lumbard and Timbers, Circuit Judges, and Knapp, District Judge.*fn*
This is an appeal from an order by Judge Milton Pollack of the Southern District dismissing plaintiffs' complaint on its face. Plaintiffs are nine brothers and sisters who allege that city and state welfare officials have not been making a conscientious effort to keep their family together, and that this violates the fourteenth amendment and the Social Security Act. We affirm on the ground that plaintiffs have failed to state a claim upon which relief can be granted.
Plaintiffs' complaint, filed in November 1975, sets forth the following facts. Mrs. Frances Black, the mother of all the plaintiffs, lives with five of them in a four-bedroom apartment at a public housing project on the upper west side of Manhattan.*fn1 She and her children have been receiving AFDC benefits since before 1969.*fn2 The other four plaintiffs have since 1971 been in foster care at the Mission of the Immaculate Virgin on Staten Island, along with approximately 700 other children. Mrs. Black says she agreed to the foster placement only because she had no practical alternative, especially in view of the cramped quarters in which her family must live. It is also alleged that Mrs. Black's welfare benefits and services have been delayed and denied at times and that she has been humiliated and intimidated in her attempts to secure adequate public assistance and housing.
Plaintiffs claimed that the state had violated the Constitution and the Social Security Act by misallocating welfare resources and thereby failing to provide housing and services sufficient to keep the Black family together. As an indication of the nature of the relief they were seeking, plaintiffs proposed a plan aimed at reuniting the Black family and putting it back on its feet. The principal ingredient was to be a part-time social worker, who could aid Mrs. Black in locating a larger home, finding jobs for herself and her older children, and coping with other transitional problems. The plan allegedly would cost less than what the state is presently expending to maintain the four Black children in foster care.
Upon motion of defendants Judge Pollack dismissed the complaint under Rules 12(b)(1) & (6) on September 1, 1976. 419 F. Supp. 599. He found plaintiffs' constitutional claims to be frivolous and dismissed the statutory claims for lack of jurisdiction.
Appellants argue that once the state decides to offer public assistance to the poor, it is constitutionally required to do so in a manner that is not unnecessarily destructive of family unity. There is a long line of precedents indicating that the government may not unreasonably interfere with familial privacy and the freedom to conceive and raise one's children as one wishes. See Meyer v. Nebraska, 262 U.S. 390, 399-401, 67 L. Ed. 1042, 43 S. Ct. 625 (1923) (right to have child learn foreign language); Pierce v. Society of Sisters, 268 U.S. 510, 69 L. Ed. 1070, 45 S. Ct. 571 (1925) (right to send child to private school); Skinner v. Oklahoma, 316 U.S. 535,, 62 S. Ct. 1110, 86 L. Ed. 1655 (1942) (right not to be sterilized); Griswold v. Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965) (right to contraception); Stanley v. Illinois, 405 U.S. 645, 651, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972) (right of father to custody of child); Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973) (right to abortion). Recognizing that the state has no constitutional obligation to support the Black family, plaintiffs rely on the doctrine that where a fundamental right is in jeopardy the courts must strictly scrutinize state actions to ensure that the "least restrictive alternative" is being used. See, e.g., Shelton v. Tucker, 364 U.S. 479, 488, 5 L. Ed. 2d 231, 81 S. Ct. 247 (1960) (free speech); Aptheker v. Secretary of State, 378 U.S. 500, 12 L. Ed. 2d 992, 84 S. Ct. 1659 (1964) (foreign travel); Griswold v. Connecticut, supra at 485 (contraception); Dunn v. Blumstein, 405 U.S. 330, 343, 31 L. Ed. 2d 274, 92 S. Ct. 995 (1972) (interstate travel and right to vote); Covington v. Harris, 136 U.S. App. D.C. 35, 419 F.2d 617, 623-24 (1969) (rights to civilly committed mentally-ill).
Such judicial scrutiny is neither practicable nor appropriate in this case. The Supreme Court has specifically rejected the applicability of the "least restrictive alternative" doctrine to welfare regulations and their effects on family integrity. In Dandridge v. Williams, 397 U.S. 471, 25 L. Ed. 2d 491, 90 S. Ct. 1153 (1970), the Court turned down a challenge on equal protection grounds to a Maryland statute which placed a ceiling on the AFDC grant available to a single family irrespective of the number or numbers of the family. The Dandridge plaintiffs had claimed that, among its other faults, the statute led to the destruction of families by encouraging the "farming out" of younger children to relatives not receiving the maximum grant, id. at 477, but the Court held that as long as the state's approach had a rational basis it could not be invalidated:
We do not decide today that the Maryland regulation is wise, that it best fulfills the relevant social and economic objectives that Maryland might legally espouse, or that a more just and humane system could not be devised. . . . But the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court. . . . The Constitution does not empower this Court to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients.
Id. at 487. Thus, the fourteenth amendment does not afford a basis for a court to engage in the sorts of fiscal and psychological speculations that would be required before such competing contentions as are made in this case can be resolved.
Plaintiffs also seek to premise their argument on statutory grounds. At the outset we must reject the district court's decision to dismiss these federal statutory claims for lack of jurisdiction. General federal question jurisdiction under 28 U.S.C. § 1331 does supply a basis for jurisdiction here. Plaintiffs have alleged over $10,000 in controversy.*fn3 It is true that speculative allegations of indirect, nonpecuniary benefits may not be used to meet the amount in controversy requirement. See, e.g., Rosado v. Wyman, 414 F.2d 170, 177-78 (2d Cir. 1969), rev'd on other grounds, 397 U.S. 397, 90 S. Ct. 1207, 25 L. Ed. 2d 442 (1970). In this case, however, the value to the plaintiffs of the relief they are seeking clearly exceeds $10,000. Although - as they have taken special pains to point out - plaintiffs are not seeking any additional state expenditures, they are seeking to redirect funds that do amount to more than $10,000. The cost for the social worker whose assistance they seek is estimated at $9,000 per year. Moreover, it is obvious that plaintiffs' interest in family services is "common and undivided," and that aggregation of their individual claims is therefore proper under Snyder v. Harris, 394 U.S. 332, 22 L. Ed. 2d 319, 89 S. Ct. 1053 (1969). Thus, we conclude that there is jurisdiction over plaintiffs' statutory claim.
On the merits, however, we find plaintiffs' statutory analysis unpersuasive. Plaintiffs place their principal reliance on 42 U.S.C. § 601, which says that a goal of the AFDC program is "encouraging the care of dependent children in their own homes or in the homes of relatives . . . to help maintain and strengthen family life." See also S. Rep. No. 628, 74th Cong., 1st Sess. 13 (1935) (aim is "to keep . . . young children with their mother in their own home, thus preventing the necessity of placing [those] children in an institution"). In addition, 42 U.S.C. § 602(a) (15) requires each state to submit to the Department of Health, Education and Welfare a plan "for preventing or reducing the incidence of births out of wedlock and otherwise strengthening family life."
We do not believe that these, or any of the other Social Security Act provisions cited by appellants, could have been intended to create a cause of action under the circumstances here alleged. Since the concerns expressed by the Dandridge Court are also applicable to a statutorily-based action, the federal courts should not interject themselves amidst the complications of state welfare administration unless expressly so directed by Congress. General statements of goals in the federal welfare statutes do ...