The opinion of the court was delivered by: CURTIN
This case is before the court on remand from the Second Circuit to determine appropriate declaratory, injunctive and monetary relief. The plaintiff, a Canadian citizen, first entered the United States as a non-immigrant student. She subsequently gave birth to six children in this country. Sometime prior to August 1974, the plaintiff began receiving a grant of Aid to Families with Dependent Children (A.F.D.C.) for herself and her six children. In August 1974, the grant to plaintiff's household was reduced by one-seventh because a new state law and corresponding regulation rendered the plaintiff, an illegal alien, ineligible for assistance. N.Y.Soc.Serv.L. § 131-k; 18 N.Y.C.R.R. § 349.3. This determination was upheld by the Commissioner of the New York State Social Services Department on December 19, 1974 after an administrative fair hearing. The reduction was effective on January 15, 1975.
On April 17, 1975, the plaintiff, suing individually and on behalf of her six minor children, filed a complaint in federal district court against Abe Lavine, the Commissioner of the New York State Department of Social Services (the state defendant), and James Reed, the Commissioner of the Monroe County Department of Social Services (the county defendant), respectively. The complaint, alleging jurisdiction under 28 U.S.C. §§ 1343 and 1331, and 42 U.S.C. § 1983, claimed that § 131-k was inconsistent with the Social Security Act and federal regulations and deprived the plaintiff of due process and equal protection in violation of the fourteenth amendment. Plaintiff sought declaratory relief, an injunction, and damages for the amount of benefits denied her household as a result of the operation of the state statute. She also requested a preliminary injunction requiring defendant Reed to restore her household's benefit level to its prior level pending final disposition of this action.
Motions to dismiss were submitted by both defendants, and on July 30, 1975, Judge Burke dismissed this action "for lack of jurisdiction over the subject matter and because the complaint (failed) to state a claim upon which relief (might) be granted." The dismissal was based on Judge Burke's finding that the defendants were not within the scope of § 1983, that the complaint asserted no substantial claim of unconstitutionality, and that the amount in controversy did not exceed $ 10,000, exclusive of interest and costs.
Judge Burke's dismissal of the complaint was reversed by the United States Court of Appeals for the Second Circuit in Holley v. Lavine, 529 F.2d 1294 (2d Cir.) (per curiam), Cert. denied, 426 U.S. 954, 96 S. Ct. 3181, 49 L. Ed. 2d 1193 (1976). The Second Circuit agreed that the amount in controversy did not exceed $ 10,000 and that consequently jurisdiction did not lie under 28 U.S.C. § 1331. Id. at 1295. However, the court found that the complaint stated a substantial claim of unconstitutionality within the scope of § 1983 and remanded the case to the district court to consider the plaintiff's statutory and regulatory claims and to convene a three-judge court, if necessary, pursuant to 28 U.S.C. § 2281. Id. at 1296.
On remand, both defendants answered, and all parties moved for summary judgment. Judge Burke granted the defendants' cross-motions and denied the plaintiff's motion for summary judgment as well as her request to convene a three-judge court to hear the constitutional claims.
The plaintiff appealed and again the case was reversed and remanded in Holley v. Lavine, 553 F.2d 845 (2d Cir. 1977). The Court of Appeals found that since the plaintiff had official assurance that she would not be deported, at least until her children were no longer dependents, she was "permanently residing in the United States under color of law" within the meaning of the pertinent eligibility regulation promulgated under the Social Security Act. Id. at 850. It also stated that its finding of inconsistency between state law and the applicable federal regulation mooted the issue as to whether state law, "if applied to preclude the payment of AFDC benefits to an alien not permanently residing lawfully in the United States, would violate the Fourteenth Amendment to the United States Constitution." Id. Accordingly, the court held that there was no reason to convene a three-judge court to consider plaintiff's constitutional claims. The case was again remanded to the district court with the following instructions:
There remains to be considered by the District Court the appropriate form of injunction as well as issues of damages, (cf. Edelman v. Jordan, 415 U.S. 651, 667, n. 12, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974)) and attorney's fees both in the District Court and in this Court. (See Civil Rights Attorney's Fees Awards Act of 1976, P.L. 94-559, 90 Stat. 2641; Torres v. Sachs, 538 F.2d 10 (2nd Cir. 1976).)
Since it appears the original judge might have difficulty in putting aside previously expressed views, and reassignment is advisable to avoid the appearance of prejudgment, the case will be remanded to the District Court for reassignment in keeping with the principles stated in United States v. Robin, 553 F.2d 8, 10 (2nd Cir., March 30, 1977).
Reversed and remanded for the issuance of an appropriate injunction, and for consideration of issues of damages and attorney's fees both in the District Court and in this Court.
On remand, the case was assigned to my part for determination of appropriate relief. The plaintiff seeks a declaration of the invalidity of the statute and an injunction against its enforcement as well as an award of damages, counsel fees, and litigation costs. The damages sought consist of the funds withheld from the plaintiff's public assistance grant as a result of defendant's decision of August 20, 1974.
The issues have been thoroughly briefed by all of the parties. Oral argument was held on May 23, 1978. On August 9, 1978, upon stipulation of the parties, reargument was held in light of the Supreme Court's recent decisions in Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978) (holding that local governing bodies are subject to suit as "persons" under § 1983), and Hutto v. Finney, 437 U.S. 678, 98 S. Ct. 2565, 57 L. Ed. 2d 522 (1978) (holding that 42 U.S.C. § 1988 does not violate the eleventh amendment), and the Second Circuit's decision in Turpin v. Mailet, 579 F.2d 152 (2d Cir. 1978).
In addition, supplemental briefs were filed with the court. After carefully considering the positions of the parties, I am prepared to rule on the plaintiff's request for relief.
I. DECLARATORY AND INJUNCTIVE RELIEF
The Second Circuit in its second decision found that N.Y.Soc.Serv.Law § 131-k was inconsistent with the controlling federal regulation, 45 C.F.R. § 233.50, because § 131-k denied public assistance to New York residents "permanently residing in the United States under color of law." 553 F.2d at 851. Since it also stated that the plaintiff's status was highly unusual, in that she was an illegal alien with official assurance that she would not be deported, the defendants urge the court to limit declaratory and injunctive relief to the facts of this case. But in light of the Second Circuit's determination of inconsistency, I find no basis for doing so. Cf. Galvan v. Levine, 490 F.2d 1255, 1261 (2d Cir. 1973), Cert. denied, 417 U.S. 936, 94 S. Ct. 2652, 41 L. Ed. 2d 240 (1974). Accordingly, § 131-k is ...