April 24, 1978, Argued, August 11, 1978, Decided
ON PETITION FOR REHEARING
In an order and opinion dated August 11, 1978 we affirmed the judgment of the district court (Tenney, J.) 431 F. Supp. 1206 (S.D.N.Y.) declaring invalid certain regulations of the New York State Department of Social Services. Appellants have moved for rehearing, arguing that our action is inconsistent with the Supreme Court's decision in Quern v. Mandley, 436 U.S. 725, 56 L. Ed. 2d 658, 98 S. Ct. 2068 (1978). Plaintiffs-appellees dispute this claim. Though we express no view on which position is correct, we grant the motion for rehearing, recall our earlier order, and remand the case to the district court for further consideration in light of Quern v. Mandley.
TIMBERS, Circuit Judge, dissenting from grant of petition for rehearing:
This is a striking example of the mischief that results when we brush aside a controlling rule and reach out to grant a "petition for rehearing" which never has been filed and to which appellees never have been afforded an opportunity to respond all at the belated behest of a government agency which continues to ignore our rules.
Since the Supreme Court undoubtedly will be requested to review this matter in due course, I think it is important to point out Now the infirmity in the jurisdictional underpinning of today's order of our Court purporting to grant a nonexistent "petition for rehearing" without complying with the most basic provisions of F.R.A.P. 40(a).
The judgment and opinion of our Court here involved were filed on August 11, 1978, Davis v. Smith, 607 F.2d 535 (2 Cir. 1978), in which we unanimously affirmed the judgment of the district court entered on the opinion of Charles H. Tenney, District Judge, 431 F. Supp. 1206 (S.D.N.Y.1977), which declared invalid certain regulations of the New York State Department of Social Services.
Although the judgment and opinion of our Court were filed on August 11, 1978, the State Attorney General's office on behalf of appellants waited until four weeks thereafter before moving For an extension of time to file a petition for rehearing. Under F.R.A.P. 40(a), a petition for rehearing is required to be filed "within 14 days after entry of judgment unless the time is shortened or enlarged by order."*fn1 On September 25, 1978, we entered an order which granted "leave to file a petition for rehearing." No such petition for rehearing has ever been filed.
Apparently the majority treats the State's motion for an extension of time to file a petition as the petition itself. Aside from the fact that the rule makes no provision for so doing, the procedure which the majority is sanctioning by today's order has dispensed with two integral provisions of F.R.A.P. 40(a):*fn2
(1) "The petition shall state with particularity the points of law or fact which in the opinion of the petitioner the court has overlooked or misapprehended and shall contain such argument in support of the petition as the petitioner desires to present."
(2) "No answer to a petition for rehearing will be received unless requested by the court, But a petition for rehearing will ordinarily not be granted in the absence of such a request." (emphasis added).
Referring first to item (2) above, it is undisputed that appellees never have been requested to answer the State's "petition for rehearing" which the majority grants by today's order, even construing the State's motion for an extension of time as the petition itself. Cutting off appellees' right to respond not only is grossly unfair to appellees and their counsel; it deprives the Court of what may very well be critical information which may cast serious doubt on the propriety of granting this so-called "petition for rehearing".
Referring to item (1) above requiring particularity in the statement of law and fact relied on, the most that can be gleaned from the State's motion for extension of time to file a petition for rehearing (no petition for rehearing ever having been filed), is that (A) somehow the instant Davis v. Smith case should be shackled to the entirely separate case of Bacon v. Toia, 580 F.2d 1044 (2 Cir. 1978) (order); and (B) our decision in Davis v. Smith should be reconsidered by the District court in the light of Quern v. Mandley, 436 U.S. 725, 747, 56 L. Ed. 2d 658, 98 S. Ct. 2068 (1978), which was decided more than two months before we decided Davis v. Smith.
(A) With respect to the Bacon v. Toia claim, the attempt to shackle the instant Davis v. Smith case to Bacon v. Toia has been attempted repeatedly by the State AG's office and has been rejected repeatedly by this Court before argument, during argument, after argument, and after our decision. The two cases involve entirely different substantive provisions in the New York scheme of public assistance. As a matter of fact, the regulations involved in the instant case (18 NYCRR §§ 352.7(g)(5) and 372.2(a)(2)) Were superseded by the newly enacted statute (N.Y. Soc. Serv. Law § 350-j) which was involved in Bacon v. Toia. See our opinion in Davis v. Smith, supra, 607 F.2d at 536. In short, the issue with respect to the interpretation of the regulations involved in Davis v. Smith in all likelihood will not arise again. This is hardly an appealing ground for the granting of the non-existent "petition for rehearing" in the instant case.
(B) With respect to the Quern v. Mandley claim, that decision was brought to our attention long before our Davis opinion was filed. Regardless of what bearing, if any, Quern has on Bacon, as the author of our Davis v. Smith opinion I did not think then, and I do not think today, that Quern even addressed the issue which was before us in Davis. Presumably the State AG's office thought likewise because it did not communicate with us with respect ...