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DAVIS v. SMITH

May 10, 1977

Priscilla DAVIS, Individually and on behalf of her minor daughter Robyn Gray, and on behalf of all others similarly situated, Plaintiffs, and Rosie Vaszuez, Gail Warren and Geneva Warren, Plaintiffs-Intervenors,
v.
J. Henry SMITH, Individually and as Commissioner of the New York City Department of Social Services, James Dumpson, as former Commissioner of the New York City Department of Social Services, Philip Toia, Individually and as Commissioner of the New York State Department of Social Services, Stephen L. Berger, Individually and as former Commissioner of the New York State Department of Social Services, and Charles Bates, Individually and as Commissioner of the Westchester County Department of Social Services, Defendants


Tenney, District Judge.


The opinion of the court was delivered by: TENNEY

MEMORANDUM

TENNEY, District Judge.

 Plaintiff, a recipient of grants under the Aid to Families with Dependent Children Program ("AFDC") of the Social Security Act, 42 U.S.C. §§ 601 et seq., brought this action pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) challenging the validity of Section 352.7(g)(5) of Title 18 of the New York Code, Rules and Regulations ("NYCRR" or "regulations") under which an advance allowance made to a recipient to prevent a utility shut-off due to nonpayment of past electric bills could be deducted or recouped from subsequent AFDC grants. *fn1" Plaintiff, on behalf of herself and all others similarly situated, sought injunctive and declaratory relief under 28 U.S.C. §§ 2201-02 and Rules 57 and 65 of the Federal Rules of Civil Procedure ("Rules"), arguing that Section 352.7(g)(5) violates due process and equal protection of the law, and that it is also invalid under the Supremacy Clause of the United States Constitution because it contravenes Sections 401, 402(a)(7) and 402(a)(10) of the Social Security Act, 42 U.S.C. §§ 601, 602(a)(7) and 602(a)(10), and the regulations promulgated thereunder, 45 C.F.R. §§ 233.20(a)(3)(ii)(c) & (d) and (a)(12)(i)(a). *fn2"

 The plaintiff moved on February 10, 1976 for class certification, preliminary injunction and summary judgment. On stipulation of the parties dated March 4, 1976 the Court permitted intervention by additional plaintiffs. Plaintiff-intervenors filed an amended complaint as of right on July 28, 1976 to incorporate allegations relating to 18 NYCRR § 372.2(a)(2), *fn3" a new State regulation on emergency assistance. Plaintiff then moved on August 10, 1976 to similarly amend her complaint to incorporate claims relating to emergency assistance under 18 NYCRR § 372.2(a)(2) and 45 C.F.R. § 233.120, which claims appear most salient in light of the decision in Hagans v. Berger, 536 F.2d 525 (2d Cir. 1976), upholding New York State's recoupment of rent advances. Presently before the Court is a motion for intervention by additional plaintiffs and an amended motion for class action certification, summary judgment and a permanent injunction, submitted on behalf of all plaintiffs, plaintiff-intervenors and proposed plaintiff-intervenors (sometimes referred to collectively as "the plaintiffs"). Defendants move to dismiss the original complaint and request that summary judgment be awarded in their favor.

 Despite the plethora of motions in this case, the substantive legal issues may be delineated rather succinctly. However, the defendants urge that the federal court abstain from deciding those legal issues at this time because of appeals pending before the New York State Court of Appeals challenging New York's recoupment provisions. See Adkin v. Berger, 50 A.D.2d 459, 378 N.Y.S.2d 135 (3d Dep't 1976) (recoupment of rent and utility advances upheld where no showing of emergency circumstances); Dunn v. Bates, 50 A.D.2d 561, 374 N.Y.S.2d 677 (2d Dep't 1975) (grant of recoupable rent advance and consequent denial of emergency assistance held invalid).

 A. Motion to Amend Plaintiff's Complaint

 Rule 15(a) instructs that leave to amend pleadings "shall be freely given when justice so requires." During the pendency of this litigation 18 NYCRR § 372.2(a)(2) came into effect limiting the availability of State-awarded emergency assistance to those AFDC recipients whose needs cannot be met by the recoupable advance procedure codified in section 352 of that title. Since this new section is obviously germane to the challenged procedure and to the rights asserted by the plaintiffs, the interests of judicial economy are best served by permitting the plaintiff to amend her original complaint to conform to current developments in the law. The amended complaint, annexed as Exhibit A to Plaintiffs' Notice of Motion For Leave to File Amended Complaint, enables plaintiff to focus on the major issue: whether granting recoupable advances rather than non-recoverable emergency assistance in order to prevent a utility shut-off regardless of the circumstances fails to conform with the federal emergency assistance plan.

 B. Intervention Motion

 Rule 24(b)(2) authorizes permissive intervention "when an applicant's claim or defense and the main action have a question of law or fact in common." The rule, which is to be liberally construed, 7A C. Wright & A. Miller, Federal Practice and Procedure § 1924, at 473 (1972) ("Wright & Miller"); 3B Moore's Federal Practice § 24.10[2] (2d ed. 1977), is satisfied where, despite factual differences between the parties, a common question of law is involved. See Boone v. Wyman, 295 F. Supp. 1143, 1147 (S.D.N.Y.) (Mansfield, J.), aff'd, 412 F.2d 857 (2d Cir. 1969), cert. denied, 396 U.S. 1024, 90 S. Ct. 600, 24 L. Ed. 2d 518 (1970); Brooks v. Flagg Bros., Inc., 63 F.R.D. 409, 414 (S.D.N.Y.1974) (Gurfein, J.). Like the present plaintiffs, the proposed intervenors challenge the validity of section 352.7(g)(5) and section 372.2(a)(2) in light of the Social Security Act's emergency assistance plan requirements. The proposed plaintiff-intervenors were also offered the same Hobson's choice of consenting to recoupable advance payments under section 352.7(g)(5) or receiving nothing. Intervention will not unduly delay or prejudice the adjudication of the rights of the original parties to this action. The proposed intervenors are represented by the same counsel as the plaintiffs already in this action, and their participation facilitates the effective adjudication of the legal issues in dispute. Hence, despite variations in the factual circumstances of the threatened shut-offs, the recipients requesting special assistance do share common legal claims, and therefore the Court grants the motion to intervene.

 C. The Class Action Motion

 The Court declines to certify this action under Rule 23(c). Although plaintiffs satisfy the requirements of the rule, certification of class action status is unnecessary and would not provide a superior method of adjudicating the issues since retroactive monetary relief cannot be awarded under the facts of this case, see Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974); Monell v. Department of Social Services, 532 F.2d 259 (2d Cir. 1976), cert. granted, 429 U.S. 1071, 97 S. Ct. 807, 50 L. Ed. 2d 789 (1977) (No. 75-1914), and since it is clear that the prospective effects of declaratory and injunctive relief will inure to the benefit of all the requested class members. See McGraw v. Berger, 410 F. Supp. 1042, 1045 (S.D.N.Y.), aff'd, 537 F.2d 719 (2d Cir. 1976), cert. denied, 429 U.S. 1095, 97 S. Ct. 1110, 51 L. Ed. 2d 542 (1977); Jones v. Human Resources Administration, 391 F. Supp. 1064, 1086 (S.D.N.Y. 1975), aff'd, 528 F.2d 696 (2d Cir.), cert. denied, 429 U.S. 825, 97 S. Ct. 80, 50 L. Ed. 2d 88 (1976); 7A Wright & Miller § 1772, at 4-5. In finding, for the reasons explained herein, that 18 NYCRR §§ 352.7(g)(5) and 372.2(a)(2) operate unlawfully to foreclose eligible persons from emergency assistance and that they are therefore null and void, this Court does not determine the particular merits of the individual claims for emergency assistance. The judgment in this case merely enjoins the State from enforcing regulations which automatically exclude from eligibility for emergency assistance persons who need aid to prevent utility shut-offs regardless of the emergency nature of the particular situation.

 D. Abstention

 Defendants contend that this Court should abstain from exercising its jurisdiction over the dispute in this case and await the outcome of the pending State litigation in Adkin v. Berger, supra, and Dunn v. Bates, supra. The judicially fashioned policy of self-restraint -- the abstention doctrine -- is not intended, however, to grant state courts the first opportunity to determine certain questions involving federal law. Indeed, the policy of abstention is appropriate only in "exceptional circumstances," Colorado River Water Conservation District v. United States, 424 U.S. 800, 813, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976), quoting Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89, 79 S. Ct. 1060, 3 L. Ed. 2d 1163 (1959), as where clarification of a relevant but ambiguous state statute may dispose of the legal issue presented to the federal court. In such an instance the federal court may properly defer to a state court which has the opportunity of construing the law in a manner which does not offend federal law and thereby preserve the legislation. See Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941). In line with this principle, the United States Court of Appeals for the Second Circuit has explained that

 
"[where] a state statute is unambiguous the court must perform its adjudicative duty and has no right to abstain merely because a state court decision might render a federal adjudication unnecessary." McRedmond v. Wilson, 533 F.2d 757, 761-62 (2d Cir. ...

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