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September 29, 1977

JEANNE BACON, Individually and on behalf of her minor children ROBERT BACON and IFE BACON, and on behalf of all other persons similarly situated, Plaintiffs,
PHILIP L. TOIA, Individually and as Commissioner of the Department of Social Services of the State of New York, and CHARLES W. BATES, Individually and as Commissioner of the Westchester County Department of Social Services, Defendants

The opinion of the court was delivered by: GAGLIARDI


 The named plaintiffs, all recipients of public assistance in the form of Aid to Families with Dependent Children ("AFDC"), 42 U.S.C. §§ 601-610, bring this action pursuant to 42 U.S.C. § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343(3), challenging the validity of Section 350-j of the New York Social Services Law ("NYSSL") as amended May 1, 1977 by the New York Laws of 1977, Chapter 77, Section 10 ("the 1977 amendment"). As explained more fully below, NYSSL § 350-j establishes state eligibility requirements for emergency assistance grants disbursed pursuant to federal emergency assistance legislation, 42 U.S.C. § 606(e). As a result of the 1977 amendment, § 350-j now automatically denies emergency assistance payments (1) in the form of cash to families receiving or eligible to receive AFDC payments; (2) in all cases of loss, theft or mismanagement of a public assistance grant; and (3) in all cases when sought to replace or duplicate a recurring public assistance grant. Plaintiffs claim they applied for and were denied emergency assistance solely due to the 1977 amendment of NYSSL § 350-j. They assert that § 350-j, as amended, violates the Due Process and Equal Protection provisions of the Constitution. Plaintiffs also contend that the 1977 amendment is unauthorized by and in conflict with the federal eligibility requirements provided in 42 U.S.C. § 606(e) and is therefore invalid under the Supremacy Clause of Article VI of the Constitution. Suing on behalf of themselves and their minor children and all other persons similarly situated, plaintiffs seek an injunction against defendants' enforcement of the 1977 amendment to NYSSL § 350-j and a declaratory judgment of its invalidity, pursuant to 28 U.S.C. §§ 2201 and 2202.

 Defendant Philip Toia is sued individually and as Commissioner of the New York State Department of Social Services ("the State Commissioner"), in which capacity he is responsible for the state-wide administration of New York public assistance programs in general and for the enforcement of NYSSL § 350-j, as amended, in particular. Defendant Charles Bates is sued individually and as Commissioner of the Westchester County Department of Social Services, in which capacity he acts as agent for the State Commissioner and is responsible for the administration of New York public assistance programs in Westchester County. *fn1"

 Proceedings to Date

 On June 13, 1977 this court issued a temporary restraining order which enjoined defendants from enforcing the provisions contained in the 1977 amendment to NYSSL § 350-j in their consideration of plaintiff Jeanne Bacon's application for emergency assistance. A motion for class certification pursuant to Rule 23(b)(2), Fed. R. Civ. P., was filed on June 27, 1977. On August 2, pursuant to stipulations entered into by all parties, Gertrude Parrish, Freddie Mae Goodwine and Linda Selders were permitted to intervene as parties plaintiff on behalf of themselves and their minor children, and all prior pleadings, including the original complaint and motion for class certification, were made applicable to them. The court issued a temporary restraining order enjoining defendants from applying the contested portions of the 1977 amendment of NYSSL § 350-j as to the applications for emergency assistance of Ms. Goodwine and Ms. Selders, and the defendants stipulated to refrain from applying the 1977 amendment to Ms. Parrish's application.

 Upon agreement of the parties and pursuant to Rule 65(a)(2), Fed. R. Civ. P., the court determined to treat plaintiffs' application for a preliminary injunction as an application for a permanent injunction. Plaintiffs have moved for summary judgment pursuant to Rule 56, Fed. R. Civ. P., and have renewed their motion for class certification. Concluding that there is no genuine issue as to any material fact and that the disputed legal issues are clearly before it, this court has proceeded to decide the merits of plaintiffs' claim. See Davis v. Smith, 431 F. Supp. 1206 (S.D.N.Y. 1977). For the reasons which follow and to the extent indicated below, the court grants plaintiffs' motion for class certification and their motion for summary judgment.


 The essential facts, established by the pleadings and the affidavits submitted on plaintiffs' motion for summary judgment, are as follows:

 Plaintiff Bacon lives in Mamaroneck, New York with two infant children. She has no bank account and owns no real property, securities or personal property of any value. Her sole source of income consists of public assistance in the form of Aid to Families with Dependent Children (AFDC) amounting to $200 per month, excluding rent. Bacon received her monthly AFDC check on June 1, 1977, cashed it at her bank, paid utility and telephone bills totalling $50, and purchased $130 worth of food stamps for $76. While grocery shopping, Bacon discovered that her wallet containing the food stamps and remaining cash was missing. She promptly notified the Mamaroneck Police Department that her wallet had been stolen and also informed the White Plains office of the Westchester County Department of Social Services ("Westchester Social Services"). She explained that she was consequently without resources to purchase food and other essentials for herself and her children, and requested emergency assistance relief.

 On June 3, 1977 plaintiff Bacon was informed by Westchester Social Services that her application for emergency assistance was denied on the ground that the 1977 amendment to NYSSL § 350-j prohibited the granting of emergency assistance to replace lost or stolen public assistance funds. This denial and its justification were confirmed by Westchester Social Services in a letter dated June 8, 1977, sent to Ms. Bacon at her request. *fn2"

 The circumstances which precipitated the applications for emergency assistance by plaintiffs Parrish, Goodwine and Selders were substantially similar. Each of these women resides in Westchester County with at least one minor child. None has a bank account or valuable personal property, and none owns securities or real property. The sole source of income for each consists of monthly AFDC assistance. In the case of each intervenor, her July 1, 1977 AFDC check was received and promptly cashed; various purchases were made for items such as food stamps, clothing and detergent; and the cash or food stamps remaining after the purchases were subsequently stolen or lost, leaving the victims without the means to buy food and other essentials. Each woman reported her loss to the local police and the appropriate office of Westchester Social Services and all three requested emergency assistance to enable them to purchase necessaries for themselves and their children for the month of July. Each was denied emergency assistance due to the 1977 amendment.

 Ms. Goodwine, who suffered the loss of all of her cash, totalling $200 on July 1, was denied emergency assistance and informed by letter dated July 5 that the 1977 amendment provided there could be "no duplication of [Public] [Assistance] Grants for lost, stolen or mismanaged funds" [emphasis in original]. *fn3" Ms. Parrish's apartment was broken into and ransacked in her absence on July 2, 1977, and all of her remaining cash was stolen, as was all of the food ($130 worth) she had bought with her food stamps earlier that day. Her caseworker's supervisor at Westchester Social Services denied her application for emergency assistance on July 6, informing her that "a new law provides that no Emergency Assistance may be given to needy families who are left without funds because of the loss or theft of a public assistance grant." *fn4" Ms. Selders discovered that the balance of her cash and her unused food stamps voucher were missing from her house following a large social gathering there on the Fourth of July. Her application for emergency assistance to replace the lost cash was denied on the basis of the 1977 amendment, *fn5" although Westchester Social Services did inform her that it would issue a new food stamp voucher for her to use to buy food stamps. However, without cash Ms. Selders was unable to make use of the voucher, for the purchase of food stamps required payment of cash in conjunction with the submission of the voucher.

 Statutes Involved

 An understanding of plaintiffs' claim requires a brief review of the federal-state Aid to Families with Dependent Children program, 42 U.S.C. §§ 601-610, a close examination of its provisions for emergency assistance, 42 U.S.C. § 606(e), and an analysis of New York's statutory plan for participation in the program. AFDC, one of several major categorical public assistance programs established by the Social Security Act of 1935, provides for the economic security of children by authorizing substantial federal funds to states choosing to participate in compliance with federal requirements. As described by the Supreme Court in King v. Smith, 392 U.S. 309, 316-17, 20 L. Ed. 2d 1118, 88 S. Ct. 2128 (1968):

The AFDC program is based on a scheme of cooperative federalism. See generally [U.S. Advisory Commission Report on Intergovernmental Relations, Statutory and Administrative Controls Associated with Federal Grants for Public Assistance (1964)] at 1-59. It is financed largely by the Federal Government, on a matching fund basis, and is administered by the States. States are not required to participate in the program, but those which desire to take advantage of the substantial federal funds available for distribution to needy children are required to submit an AFDC plan for the approval of the Secretary of Health, Education and Welfare (HEW). 49 Stat. 627, 42 U.S.C. §§ 601, 602, 603 and 604. See Advisory Commission Report, supra, at 21-23. The plan must conform with several requirements of the Social Security Act and with rules and regulations promulgated by HEW. 49 Stat. 627, as amended, 42 U.S.C. § 602 (1964 ed., Supp. II). [footnote omitted].

 Congress amended the AFDC statutory scheme in 1968 with the addition of 42 U.S.C. § 606(e), which authorizes participating states to make "emergency assistance payments to needy families with children." *fn6" In brief, this legislation authorizes states to provide specified assistance to a child under 21 who is without available resources if the child is living with relatives specified in 42 U.S.C. § 606(a), if the assistance is necessary to avoid the destitution of, or provide living arrangements for, such child, and if the emergency need did not arise because such child or relative refused without good cause to accept training or employment. Substantially identical provisions are set forth in the administrative implementing regulations, 45 C.F.R. § 233.120(b)(1)(i)-(iv)(1976).

 Prior to May 1, 1977, the effective date of the challenged amendment of NYSSL § 350-j, the New York State requirements for eligibility for emergency assistance set out in § 350-j were essentially the same as the federal eligibility requirements established by the emergency assistance provisions of the Social Security Act, 42 U.S.C. § 606(e), supra.7 The state emergency assistance eligibility requirements then in effect were described by the New York Court of Appeals in Jones v. Berman, 37 N.Y.2d 42, 371 N.Y.S.2d 422, 332 N.E.2d 303 (1975) and their essential identity with federal requirements was noted:

The phraseology and requirements existent in section 350-j of our Social Services Law reflect the applicable Federal provisions (U.S. Code, tit. 42, ...

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