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July 3, 1979

Roberta GILCHRIST, for herself and as the representative of the Estate of James Gilchrist, Sr., Kenneth Smith and Selma Smith, Individually and on behalf of all other persons similarly situated, Plaintiffs,
Joseph A. CALIFANO, Jr., as Secretary of the Department of Health, Education and Welfare, and Philip Toia, as Commissioner of the New York State Department of Social Services, Defendants

The opinion of the court was delivered by: SAND

This action is brought by recipients of federal and state benefits under the federal Supplemental Security Income (SSI) program, challenging the classifications used by New York State in providing supplemental state benefits as violative of both the Social Security Act and its implementing regulations, 42 U.S.C. § 1382 Et seq., 20 C.F.R. § 416.2030, and the Equal Protection Clause. Plaintiffs seek declaratory and injunctive relief barring the defendants from further use of the challenged classifications, as well as the award of retroactive benefits. The facts are not in dispute. Plaintiffs and the state defendant have made cross-motions for summary judgment; the federal defendant has moved for judgment on the pleadings.

Challenged provisions of the SSI system

 Since January 1, 1974, public assistance for the aged, blind and disabled has been provided through the SSI program, 42 U.S.C. § 1381 Et seq. SSI provides a national minimum benefit level for all eligible persons and allows the states to provide additional benefits through state supplements. Id. § 1382e. If a state chooses to provide such supplements, it may enter into an agreement with the Secretary of the Department of Health, Education and Welfare (HEW) whereby HEW administers the state's supplementary payment program. Id. As a condition of such administration, however, the state supplementation plan must conform to federal regulations. Id.

 The regulations pertinent to state supplementary payments provide two categories of recipients "Individuals" and "Couples" and allow each state to provide for up to five variations in payment level based upon the recipient's "living arrangement". The regulations also provide, however, that any such differences in payment levels "must be based on rational distinctions between both the types of living arrangements and the costs of those arrangements." 20 C.F.R. § 416.2030(b).

 New York State has entered into an Agreement with the Secretary of HEW pursuant to which HEW administers the State's supplemental SSI payments, and pursuant to such Agreement and the federal regulations, the State has elected to provide for five different payment levels based on living arrangements. Three of those categories are group living situations which are not relevant to this action. The other two are designated "Living Alone" and "Living with Others". N.Y.Soc.Serv.L. § 209(3)(a), (b) (McKinney's 1976). "Living Alone" is defined as "living in a private household composed of one eligible individual or one eligible couple"; "Living with Others" is defined in pertinent part as "living in a private household composed of an eligible individual or couple and at least one other person". Id.

 Plaintiffs contend that the category "Living with Others", as applied to married couples, does not comply with the federal requirement that all variations in payment level be based upon "rational distinctions between both the types of living arrangements and the costs of those arrangements" or with the Equal Protection Clause. When a married couple is joined by a third person, its benefits drop because it is reclassified from "Living Alone" to "Living with Others". When two individuals, living together but not married to each other, are joined by a third person, however, their benefits remain the same; the two individuals are already classified as "Living with Others" since they already share a household, and the addition of a third person works no change in that classification. Plaintiffs contend that there is no difference in the additional expense occasioned by the third person, regardless of the original household arrangement.

 Before addressing the merits of this contention, however, we must determine that this Court has subject matter jurisdiction over the action and that the claims presented are justiciable.

 Plaintiffs allege jurisdiction over defendant Blum under 28 U.S.C. § 1343(3), which provides for jurisdiction over "any civil action authorized by law to be commenced by any person . . . to redress the deprivation, under color of any State law . . . of any right . . . secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens . . ..". Plaintiffs' claims against the State are that the New York SSI category of "Living with Others" is contrary to the Social Security Act and regulations promulgated thereunder and violates the Equal Protection Clause of the Fourteenth Amendment. The constitutional claim, if not "absolutely devoid of merit", "wholly insubstantial", or "obviously frivolous", is encompassed within this section. Hagans v. Lavine, 415 U.S. 528, 94 S. Ct. 1372, 39 L. Ed. 2d 577 (1974). Plaintiffs' statutory claim, however, is not: the Social Security Act is not an "Act of Congress providing for equal rights" and may not be treated as a constitutional claim by invoking the supremacy clause. Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 99 S. Ct. 1905, 60 L. Ed. 2d 508, (1979). Nevertheless, we may, if jurisdiction is found over the constitutional claims, hear plaintiffs' statutory claim as a matter of pendent jurisdiction. Hagans v. Lavine, supra.

 Plaintiffs claim that the New York scheme impermissibly discriminates against them on the basis of their marital status for reasons which are wholly irrational. Pl.Br. at 40. This claim meets the very lenient test of Hagans. We may therefore hear both the constitutional and statutory claims.

 Plaintiffs base jurisdiction over the Secretary on a number of grounds: 28 U.S.C. § 1331, federal question jurisdiction; 28 U.S.C. § 1361, mandamus jurisdiction; and 42 U.S.C. § 1383(c), which incorporates the judicial review provision of 42 U.S.C. § 405(g).

 It is, however, well established that where judicial review is available under 42 U.S.C. § 1383(c), that section is the exclusive basis of jurisdiction, and that if a plaintiff does not meet the jurisdictional requisites of that section he may not bring his claim under general federal question or mandamus jurisdiction. Jones v. Califano, 576 F.2d 12 (2d Cir. 1978); Hamilton v. Califano, 77-2157 (D.N.J., April 12, 1978).

 Before a plaintiff can obtain judicial review under § 1383(c), he must first exhaust his administrative remedies. Plaintiff Gilchrist has satisfied this requirement. Plaintiffs Smith, however, have not.

 Plaintiffs Smith are a married couple. In November, 1975, two minor grandchildren came to live with them, and they consequently were reclassified as "Living with Others". This decision was challenged by means of (1) a Request for Reconsideration, upon which Reconsideration the decision was upheld; and (2) a hearing before an Administrative Law Judge, as a result of which the original decision was again upheld. The Smiths did not pursue further appeal to the Appeals Council.

 Had the Smiths based their appeals upon the issue presented in this case I. e., the "double deduction" suffered by married couples who live with third persons *fn1" we would deem them to have exhausted their administrative remedies despite their failure to bring a final appeal. That issue was adequately presented to the Secretary by plaintiff Gilchrist; the Administrative Law Judge stated in his decision that "the general issue to be determined is whether the claimants are to be considered individuals living alone in their own household or individuals living in a household with one or more others." (Tr. 6); after addressing that issue, the ALJ noted that plaintiffs also contended that "the catagory (sic) of "eligible couple living with others' is in violation of the Equal Protection clause of the United States Constitution in that it unfairly discriminates against married couples in favor of unmarried individuals living together", but concluded that "this forum does not have the ...

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