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November 3, 1978

Sandra GREER, Individually and on behalf of all other persons similarly situated, Plaintiff, and Juanita Rodriguez, Rosa Velasquez, Ana Otero, Maria Burgos, Consuelo Nunez, Margie Goodman, and Rosa Gonzalez, Individually and on behalf of all other persons similarly situated, Plaintiffs-Intervenors,
Barbara B. BLUM, Individually and in her capacity as Commissioner of the New York State Department of Social Services, and Blanche Bernstein, Individually and in her capacity as Commissioner of the City of New York Department of Social Services, Defendants

The opinion of the court was delivered by: WEINFELD

The defendant Blum, Acting Commissioner of the New York State Department of Social Services ("State"), moves to dismiss the complaint; the proposed intervenors move to join this action; and plaintiff Sandra Greer moves to certify this as a class action.

Greer's amended and supplemental complaint, which the Court hereby grants leave to file, challenges alleged policies and practices of the State and of the New York City Department of Social Services ("the agency") which reduce or discontinue benefits provided under the Aid to Families with Dependent Children ("AFDC") program on the ground that there is a "man in the house."

Greer alleges that from 1974 to June 1977, she received AFDC benefits, but in mid-June 1977, her benefits were terminated after an acquaintance incorrectly informed the agency that Greer's husband was residing with Greer. At a conference with a local agency official on July 17, 1977, Greer was told that the termination was based upon the information received from her acquaintance. The agency representative stated that she would request a State Fair Hearing for Greer, and plaintiff, relying on this statement, did not request one herself. In December 1977, no State Fair Hearing having been held, Greer reapplied twice for public assistance; in both instances her application was denied. Plaintiff then requested and received a Fair Hearing on February 8, 1978. At the hearing, the only evidence presented by the agency was a summary of the acquaintance's statement and an indication from the United States Postal Service that mail addressed to Greer's husband was delivered to Greer's home. Plaintiff denied that her husband was living with her and presented his rent receipts for a different apartment. On March 14, 1978, the State reversed the agency decision and awarded plaintiff retroactive benefits to October 1977. Plaintiff has initiated an Article 78 proceeding in New York State Supreme Court, claiming that retroactive benefits should have been awarded as of June 1977, the original termination date.

 Plaintiff contends that the agency reduces or discontinues public assistance on evidence which is insufficient to sustain the action in a subsequent State Fair Hearing and proceeds to Fair Hearings with such insufficient evidence. She claims that the State has violated the due process guarantee of the Constitution and relevant federal and state statutes and regulations by (1) affirming agency determinations for which there is insufficient evidence; (2) authorizing and encouraging wrongful agency actions by way of Informational Letter 76 INF 13, which purports to inform local offices of evidentiary requirements in "man-in-the-house" cases; and (3) failing to grant Greer a Fair Hearing after her alleged July 17, 1977 request. In addition to declaratory and injunctive relief, Greer requests punitive damages against defendant Bernstein, Commissioner of the New York City Department of Social Services, who promulgated the Informational Letter when she was State Deputy Commissioner.


 The State moves to dismiss plaintiff's complaint on the grounds that the case is moot; that the federal constitutional claim is so insubstantial as to deny this Court jurisdiction under 28 U.S.C. § 1343(3); that adequate state procedures exist to remedy plaintiff's claims which caution against the Court's acceptance of jurisdiction; and that the complaint fails to allege facts sufficient to sustain any claims against the State.

 Because the State reversed the agency case action in Greer's case, plaintiff's challenge to the alleged practice of the State in Affirming agency actions based on insufficient evidence is moot. This is not a case in which the defendant sought to frustrate review by settling the case of the individual claimant; *fn1" nor are the plaintiff's claims "capable of repetition yet evading review." *fn2" Appropriate plaintiffs, those whose adverse agency determinations have been affirmed by the State, do exist, as the complaints of several of the proposed intervenors attest. Plaintiff contends that although her individual claim may have become moot, case law supports sustaining a complaint in a class action when other members of the class retain live controversies. *fn3" The rationale underlying these cases is unavailing here because the Court determines that this case should not proceed as a class action. Moreover, Greer was never a member or proper representative of the class of those persons affected by the alleged state practice. *fn4" Finally, the claim that the State has a policy of affirming agency actions on insufficient evidence is contradicted by the various complaints submitted to this Court, which allege several instances apart from Greer's in which the State has reversed the agency determination. In sum, plaintiff's claim against the State for affirming agency actions is dismissed.

 The Court also dismisses plaintiff's claims with respect to the State's Informational Letter. According to plaintiff, the Letter, which purports to clarify the different evidentiary standards required for case actions at the agency level and for review of such actions at the state level, sets forth "the subjective standard of "what is felt to be sufficient corroborating evidence' " rather than "presenting objective legal standards or guidelines for initiating "case actions.' " Further, plaintiff contends that the Letter allegedly is deficient because it fails to inform agency employees that decisions in a Fair Hearing must be based on "substantial evidence" and a "residuum of legally competent evidence" and that claimants must be given an opportunity to cross-examine agency witnesses with personal knowledge of the material facts. Plaintiff charges that the result, "as reflected in the practice and policy of the agency, is to encourage the agency to initiate case actions when it lacks reasonably sufficient evidence to sustain the action at a fair hearing, and to encourage the agency to proceed with fair hearings where it lacks reasonably sufficient evidence to uphold the case action at the fair hearing." In addition, it is alleged that defendant Bernstein in promulgating the Letter "knew or should have known" that it would encourage policies and practices violative of the constitutional rights of welfare recipients. *fn5"

 Plaintiff's vague assertion of a due process violation apparently turns on the belief that the Constitution requires the agency to apply the same evidentiary standard in making its initial determination to reduce or discontinue benefits as the State applies in reviewing the decision at the Fair Hearing. This Court does not believe that the Constitution so hampers the state public assistance programs.

 In the landmark case of Goldberg v. Kelly, *fn6" the Supreme Court stressed the "grievous loss" suffered by the welfare recipient whose relief was wrongfully terminated, *fn7" and held that due process mandated a hearing prior to termination at which the recipient could present evidence and confront and cross-examine adverse witnesses. *fn8" In response to the decision, HEW promulgated regulations embodying the Goldberg due process rights. *fn9" New York has established procedures consistent with these federal requirements: in any case of proposed action to discontinue or reduce benefits, recipients must receive timely and adequate notice; *fn10" recipients may then request a conference with the local agency and alternatively or additionally a State Fair Hearing; *fn11" if the request for a hearing is timely, assistance is continued until the hearing decision is rendered. *fn12" Under these procedures, the "grievous loss" which lay at the heart of Goldberg cannot occur until After a Fair Hearing at which constitutionally mandated protections have been afforded. *fn13"

 Because benefits are not discontinued until after a Fair Hearing, provided the recipient requests one, the only loss to the recipient is the time and effort required for an appearance at the hearing. *fn14" This loss is De minimis. *fn15" Thus, even assuming the Letter influenced agency action in Greer's case, *fn16" she has failed to show a deprivation of liberty or property within the purview of the Fourteenth Amendment. *fn17" Although in this case Greer did not receive benefits for some time, the suspension was due either to her failure to request a Fair Hearing, as the defendants urge, or to the agency's failure to transmit the request, as plaintiff alleges. Whichever explanation is true, any loss of benefits cannot be attributed to the Letter.

 This is not to say that a state directive which encourages the agency to initiate consistently unfounded case actions or actions based on impermissible criteria would never approach a constitutional deprivation. Suffice it to say, the Court is faced with no such allegations here. Even a casual analysis of the Letter indicates that it was issued in an attempt to improve agency determinations, making them more consistent with the dictates of due process. The stated purpose of the Letter was to "assist local districts in the attainment of two major objectives: The successful defense of a higher percentage of case actions in man in the house cases by improved investigation and preparation and a corresponding avoidance of improper case actions." Discussed at considerable length are the relevant evidentiary principles for case actions and fair hearings, including a description of the relative "quality" of direct, circumstantial, and hearsay evidence. Contrary to plaintiff's contention, the Letter explicitly states that "substantial evidence" is necessary to sustain an administrative decision. Further, the Letter provides guidelines for agency preparation for Fair Hearings, recommending that case action be initiated only when there is evidence, "accumulated through as intensive an investigation as resources allow," that "strongly suggests the probability that the man resides in the household."

 There can be no basis for a claim that the Letter fosters arbitrary or illegal action on the part of the agency. If anything, the Letter indicates a high degree of sensitivity in protecting and respecting the rights of claimants. Plaintiff's claims against the State and against defendant Bernstein with respect to the Letter are dismissed for failure to state a claim. *fn18"

 Finally, plaintiff's claim that the State denied her a Fair Hearing in July 1977 is dismissed. The only allegations relevant to this claim concern an agency official's alleged promise to request a Fair Hearing for Greer and the failure to transmit the request. The complaint has no allegations linking the State to this ...

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