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RUSH v. SMITH

September 12, 1977

Barbara RUSH, Individually and on behalf of her minor child Roberto Boyce, and on behalf of all others similarly situated, Plaintiffs,
v.
J. Henry SMITH, Individually and as Commissioner of the New York City Department of Social Services, and Carmen Shang, Individually and as Acting Commissioner of the New York State Department of Social Services, Defendants


Stewart, District Judge.


The opinion of the court was delivered by: STEWART

MEMORANDUM

STEWART, District Judge:

 Plaintiff, a recipient of public assistance benefits under the Aid to Dependent Children Program ("AFDC"), of the Social Security Act, 42 U.S.C. § 601 et seq. ("SSA"), brought this action pursuant to 42 U.S.C. § 1983 for declaratory and injunctive relief. Plaintiff is challenging the validity of New York City Income Maintenance Procedure 78-76 which authorizes the termination of public assistance benefits to recipients who fail to report for interviews at the Office of the Inspector General of the Human Resources Administration ("OIG"). The interviews are set up for the purpose of investigating fraudulent receipt of public assistance.

 Plaintiff has brought this action on behalf of herself and on behalf of all other persons similarly situated. Plaintiff, however, has failed to satisfy the requisite numerosity requirement of Rule 23(a)(1). Even if plaintiff had been able to satisfy this requirement, certification 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 . . . 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." Davis v. Smith, 431 F. Supp. 1206 (S.D.N.Y.1977); Galvan v. Levine, 490 F.2d 1255 (2d Cir. 1973) cert. denied, 417 U.S. 936, 94 S. Ct. 2652, 41 L. Ed. 2d 240; McGraw v. Berger, 410 F. Supp. 1042, 1045 (S.D.N.Y.) aff'd 537 F.2d 719 (2d Cir. 1976); Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974). Accordingly, the Court declines to certify this action as a class action under Rule 23.

 In March, 1977, defendant New York City Department of Social Services suspected plaintiff of having cashed two checks which she had reported lost, stolen or undelivered, and for which she received and negotiated substitute checks. Defendants, following New York City Income Maintenance Procedure 78-76, sent plaintiff a letter, which reads in pertinent part:

 
Our records indicate that you have cashed 2 checks since 1974 which you have reported to us as lost, stolen or undelivered. At the time we replaced those checks, you had signed an affidavit stating that you would not cash the missing checks if they came into your possession.
 
A review of the case must be conducted and if the evidence indicates fraudulent receipt of public assistance, Section 145 of the State Social Services Law requires that the case be referred to the District Attorney. Therefore you must report to the Office of the Inspector General . .. at the following address and time . . .
 
You are entitled to bring a representative to be present at the interview. . .. Failure to report will result in termination of your public assistance payments. *fn1"

 Plaintiff refused to attend the interview, and her attorney wrote a letter to the OIG stating that plaintiff would not attend the interview because it was not connected with the criteria for eligibility. As a result of her failure to appear for the interview, plaintiff's public assistance was discontinued. The decision to terminate plaintiff's public assistance for her failure to appear was affirmed, after a fair hearing, by the State Commissioner of Social Services.

 Plaintiff alleges that the regulations requiring interviews and authorizing termination of benefits based on a recipient's failure to appear at such interviews are invalid on both statutory and constitutional grounds. She alleges that the regulations impose conditions on eligibility for AFDC grants which are not authorized by the SSA, and that the required appearance violates a recipient's 5th and 14th Amendment rights. Defendants contend that such conditions are implicitly included in the SSA and that plaintiff's constitutional rights could not have been violated since she never appeared. They also argue that even had she appeared, the procedure followed is constitutional since all that is required of the recipient is that he/she appear; a recipient need not answer any questions. In an affidavit submitted to the Court *fn2" by Wolfram Tschapka, the Director of the Fraud Control Division of the OIG, the procedure is described as follows:

 
13. When a welfare recipient does elect to stand mute, the interview is immediately ended and the investigation continued without the use of a personal interview.
 
14. Under no circumstances are the welfare recipient's benefits terminated because of the welfare recipient's refusal to answer any questions, or even if the welfare recipient has admitted committing fraud.
 
15. As long as the welfare recipient reports to the Fraud Control Division office, the welfare recipient's benefits are continued.

 Plaintiff has raised both statutory and constitutional claims in attacking the regulation. Since the Court should avoid deciding a case on constitutional grounds where there exists an adequate statutory basis for a decision, the Court will first consider plaintiff's statutory claim. The Court must determine whether New York City Income Maintenance Procedure 78-76 imposes a condition on eligibility for ...


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