Appeal from order of the United States District Court for the Western District of New York, Harold P. Burke, Judge, granting summary judgment to defendants on ground that New York Social Services Law § 131-k-1 is not repugnant to federal Social Security Act and regulations thereunder.
Oakes, Circuit Judge, Holden, District Judge,*fn* and Wyzanski, Senior District Judge.*fn**
WYZANSKI, Senior District Judge:
This is an appeal from a judgment entered by Judge Harold P. Burke in the United States District Court for the Western District of New York. Plaintiff is an alien unlawfully residing in the United States but covered by an official communication from the Immigration and Naturalization Service stating that it "does not contemplate enforcing her departure from the United States at this time." Defendants administer New York Social Services Law § 131-k-1 and New York State Department of Social Services regulation 18 N.Y.C.R.R. § 349.3(a), both of which provide that "an alien who is unlawfully residing in the United States" shall not be "eligible for aid to dependent children".
Pursuant to those New York state regulations defendants cut off payments of Aid for Dependent Children (AFDC) benefits to plaintiff.
The question presented is whether such application of New York state law is repugnant to provisions of the national Social Security Act incorporated in 42 U.S.C. §§ 601, 602 (a) (10), and 606 (b) (1) and to the implementing regulation set forth in 45 C.F.R. § 233.50. The relevant part of the Social Security Act, 42 U.S.C. § 601 authorizes "payments to States which have submitted, and had approved by the Secretary [of H.E.W.], State plans for aid and services to needy families with children." The Secretary, by 45 C.F.R. § 233.50, has stipulated that the "State plan . . . shall include an otherwise eligible individual who is a resident of the United States but only if he is either (a) a citizen or (b) an alien lawfully admitted for permanent residence or otherwise permanently residing in the United States under color of law (including any alien who is lawfully present in the United States as a result of the application of the provision of section 203 (a) (7) or section 212 (d) (5) of the Immigration and Nationality Act)."
The basic facts in this case were found by the New York authorities and are undisputed.
Plaintiff, then called Diane Gayle Rivers, was born in Smith Falls, Ontario, Canada on August 22, 1942. At birth she was, and ever since she has been, a citizen of Canada. As a single girl aged twelve she entered the United States lawfully in 1954 as a temporary non-immigrant student, pursuant to an earlier version of 8 U.S.C. § 1101(a) (15) (F). Since 1954, except for three months in 1958, she has continuously resided in the United States. On September 6, 1959 in the United States she married Norman Stanley McQuoid. She then took the name of Gayle McQuoid. Five children, who are still minors, were born in the United States of that marriage. By virtue of the Fourteenth Amendment to the United States Constitution, they are American citizens. In August 1966 she and Stanley McQuoid separated. Later she had a sixth child born in the United States, and hence an American citizen.
Initially, the New York State Department of Social Services through the Monroe County Department of Social Services paid to plaintiff on account of herself and each of her six children a separately calculated sum on account of the Aid to Families with Dependent Children (AFDC) program cooperatively operated by the State of New York and the federal Department of H.E.W. After the State of New York in 1974 enacted § 131-k-1 of its Social Services Law, which provided that every alien "unlawfully residing in the United States . . . is not eligible for aid to dependent children", the Commissioner of the State Department for Social Services and the Commissioner of the Monroe County Department for Social Services, on behalf of the State of New York, ceased to pay to the plaintiff anything on her own account as parent, but did continue to pay to the plaintiff AFDC benefits for her six children.
Following appropriate application to the New York state authorities which was unsuccessful, plaintiff, on her own behalf and on behalf of her six children, filed a complaint in the District Court against the defendants, who are respectively the Commissioner of the New York State Department of Social Services and the Commissioner of the Monroe County Department of Social Services, seeking equitable and monetary relief on account of the nonpayment to her as a parent of any AFDC benefit. Judge Burke dismissed the complaint for lack of jurisdiction and failure to state a claim on which relief could be granted. This court reversed in a short per curiam opinion, Holley v. Lavine, 529 F.2d 1294 (2nd Cir.), cert. denied, 426 U.S. 954, 96 S. Ct. 3181, 49 L. Ed. 2d 1193 (1976), in which the District Court on remand was directed to convene a three-judge court to consider appellant's constitutional claims unless it found her statutory claims to be meritorious, id. at 1296. On remand both plaintiff and defendants ultimately moved for summary judgment. The District Court entered judgment for defendants. In the District Court Judge's opinion the state statute, § 131-k-1 of the New York Social Services Law, as applied to cut off the plaintiff's individual AFDC benefits as parent, was not repugnant to the national Social Security Act. The District Judge denied the motion to convene a three-judge court. Plaintiff appealed to this court.
We start with the obvious point that the elimination of payments to plaintiff for herself was plainly authorized by the text of the state law. But the first question for us is whether that law is in conflict with the plan approved by the Secretary of H.E.W. pursuant to 45 C.F.R. § 233.50, implementing 42 U.S.C. § 601.
It is not contested that the federal law, so far as it is applicable, governs the payment of AFDC benefits, as a consequence of the Supremacy Clause, Article VI of the United States Constitution. King v. Smith, 392 U.S. 309, 20 L. Ed. 2d 1118, 88 S. Ct. 2128 (1968).
What are contested are the conditions upon which the Secretary of H.E.W. gave his approval to the New York State plan. More specifically the question relates to the meaning of "permanently residing in the United States under color of law", a phrase appearing in 45 C.F.R. § 233.50, which provides that:
". . . A state plan . . . shall include an otherwise eligible individual who is a resident of the United States but only if he is either (a) a citizen or (b) an alien lawfully admitted for permanent residence or otherwise permanently residing in the United States under color of law (including any alien who is lawfully present in the United States as a result of the application of the ...