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September 14, 1979

Gail PODRAZIK, Individually and on behalf of her five infant children and on behalf of all other persons similarly situated, Plaintiff
Barbara B. BLUM, Individually and as Commissioner of the New York State Department of Social Services, and Richard J. Staszak, Individually and as Commissioner of the Schenectady County Department of Social Services, Defendants.

The opinion of the court was delivered by: FOLEY


Plaintiff Gail Podrazik, a recipient of public assistance under the Federal Aid to Families With Dependent Children (AFDC) program, 42 U.S.C. § 601 Et seq., brings this civil rights action under 42 U.S.C. § 1983 for declaratory and injunctive relief requesting certification of the suit as a class action pursuant to Fed.R.Civ.P. 23(a) and (b)(2). In the complaint, she seeks a declaratory judgment that defendants' policy of denying AFDC benefits to plaintiff and the purported class in reliance on N.Y.Soc.Serv.Law §§ 106 and 360 is unconstitutional, and an injunction restraining defendants from implementing those provisions by denying AFDC benefits to recipients who refuse to execute mortgages on real property owned by them in favor of their social services district. Jurisdiction is predicated on 28 U.S.C. §§ 1343(3) and (4) or, alternatively, 28 U.S.C. § 1331(a).

Plaintiff by motion now seeks a preliminary injunction. However, after review, it is my conviction that this court is without jurisdiction to entertain the instant action. Therefore, the motion of the plaintiff for a preliminary injunction is denied, and the complaint is dismissed for lack of jurisdiction.


 Plaintiff and her five infant children reside in Schenectady, New York. Until June 1, 1979, plaintiff for a substantial period has regularly received monthly AFDC benefits from defendant Staszak in the amount of $ 556. In August 1978, plaintiff purchased the two-family home in which she and her family live for $ 18,900 by making a down payment of $ 600 and obtaining an F.H.A. approved mortgage of $ 18,300.

 N.Y.Soc.Serv.Law § 104(1) creates an implied contractual obligation on the part of a recipient of public assistance to repay the amount of the grant provided. Under §§ 360(1) and 106, a social services official may require a mortgage on real property owned by an AFDC recipient as a condition to the continuation of such aid. The taking of a mortgage is intended to secure the amount of the implied debt, in whole or in part. While the property is occupied by the relative who gave the mortgage or a child benefitting from the assistance granted, the mortgage may not be enforced without the written consent of the State Department of Social Services. § 360(2).

 On October 17, 1978, the Schenectady County Department of Social Services (the agency) contacted appellant and requested that she execute a bond and mortgage on her real property in favor of the agency. On November 15, 1978 and again on February 6, 1979 the agency wrote to plaintiff's attorney requesting execution of the bond and mortgage. Plaintiff's refusal to do so resulted in the agency's issuance of a Notice of Intent to Discontinue Public Assistance, dated February 15, 1979, informing plaintiff of the termination of her aid on February 28, 1979 and of her right to a fair hearing. Plaintiff's timely request for administrative review continued her assistance pending a final decision. The fair hearing was held on March 26, 1979 followed by Commissioner Blum's decision of May 24, 1979 affirming the agency's determination.*

 Plaintiff then commenced this action by filing her complaint on June 12, 1979. She seeks to represent a class comprised of all persons eligible for AFDC benefits in New York State, including those found ineligible for failure to execute a mortgage on real property owned by them when so requested by the relevant social services official. (Complaint, P 6). Plaintiff begins her challenge to the current program by noting that §§ 106 and 360 are permissive rather than mandatory. (Complaint, P 22). The failure of defendants to promulgate regulations governing the discretion afforded them to require a mortgage has allegedly resulted in arbitrary and capricious implementation of the statutory scheme. (Complaint, P 26). This is evidenced by, Inter alia, the lack of a statewide uniform mortgage form, the lack of uniformity in calculating the amount of the mortgage lien, and variations regarding the charging of interest. (Complaint, P 27). Failure to execute a mortgage when so requested results in the termination of benefits not only to the parent but also to the dependent children. (Complaint, P 28). The lack of standards governing the statutory discretion is alleged to be the result of either an improper delegation by the state legislature of its legislative power, or the improper use by defendants of the powers delegated to them.

 Plaintiff's constitutional claims allege a violation of due process and equal protection under the fifth and fourteenth amendments. (Complaint, PP 31-32). Her federal statutory claims allege a violation of the Social Security Act, 42 U.S.C. § 602(a)(1) and (3) (Complaint, P 33) and 42 U.S.C. §§ 602(a) and 606(b). (Complaint, P 35). Finally, her state constitutional claim alleges a violation of N.Y.Const. art. 3, § 1. (Complaint, P 34).

 On June 13, 1979, plaintiff moved for a preliminary injunction by an order to show cause and applied for a temporary restraining order. On the same date, counsel for the defendants consented to entry of a temporary order restraining the discontinuance of AFDC benefits to plaintiff's children. This order has been continued and remains in effect to the present. The motion for a preliminary injunction was argued on July 18, 1979. Defendants contend that the complaint should be dismissed for lack of subject matter jurisdiction.


 Plaintiff contends that 28 U.S.C. §§ 1343(3) and (4) give this court jurisdiction over her constitutional claims. Alternatively, she relies on 28 U.S.C. § 1331(a), the general federal question statute, alleging an amount in controversy in excess of $ 10,000. Pendent jurisdiction is invoked as the basis for adjudicating her federal statutory and state constitutional claims. Since this court is without power to entertain this complaint absent jurisdiction over its subject, I must first consider the alleged bases of that power seriatim.

 1. 28 U.S.C. §§ 1343(3) and (4)

 Section 1343(3) grants district courts jurisdiction of civil actions authorized by law brought to redress the deprivation, under color of state law, "of any right . . . secured by the Constitution of the United States or by any Act of Congress providing for equal rights . . . ." Section 1343(4) applies to authorized actions seeking relief "under any Act of Congress providing for the protection of civil rights . . . ." Jurisdiction will therefore lie if plaintiff's complaint either a) makes a constitutional claim ...

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