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CARTER v. BLUM

June 11, 1980

TERRICIENA CARTER, LUZ FIGUEROA, GLORIA WARD, MELODIE ANY KAY, ETHEL LACY, MARGARET CROFT, LINDA RIDGEWAY, on behalf of themselves and all others similarly situated, Plaintiffs, against BARBARA BLUM, individually and in her capacity as Commissioner of the N.Y.S. Department of Social Services; JOHN FREDERICKS, individually and in his capacity as Director of the Food Stamp Bureau of the N.Y.S. Department of Social Services; JOHN H. BATTISTONI, individually and in his capacity as Commissioner of the Dutchess County Department of Social Services; THOMAS L. KEENAN, individually and in his capacity as Commissioner of the Niagara County Department of Social Services; ROBERT E. LAUNDREE, individually and in his capacity as Commissioner of the Essex County Department of Social Services; NOEL WEINBERG, individually and in his capacity as Commissioner of the Rockland County Department of Social Services; CHARLES V. FIORELLA, individually and in his capacity as Commissioner of the Chautaugua County Department of Social Services; SARAH CURTIS, individually and in her capacity as Commission of the Steuben County Department of Social Services; STANLEY BREZENOFF, individually and in his capacity as Commissioner of the Human Resources Administration of the City of New York, Defendants.


The opinion of the court was delivered by: CANNELLA

MEMORANDUM AND ORDER

Plaintiffs' motions for judgment on the pleadings, or summary judgment, and class certification are denied. Fed.R.Civ.P. 12(c), 56, 23(c).

 Defendants' motion for summary judgment is granted. Fed.R.Civ.P. 56.

 This class action was commenced on behalf of recipients of public assistance residing in various counties in New York who have received a pregnancy allowance under the Aid to Families with Dependent Children ("AFDC") program, and who also receive food stamp benefits. The defendants are the Commissioner of the New York State Department of Social Services, the Director of the Food Stamp Bureau of the New York State Department of Social Services, and various commissioners of county social service departments. The plaintiffs seek to enjoin the defendants from including the pregnancy allowance in calculations of income for the purpose of determining eligibility and benefits under the Food Stamp Act of 1977, 7 U.S.C. § 2011 et seq.

 Under the AFDC program, benefits are graduated according to household size. *fn1" The pregnancy allowance, an optional AFDC program which New York has chosen to offer to its public assistance recipients, provides that an unborn child is to be considered a household member from the fourth month of pregnancy for the purpose of computing AFDC payments. 18 N.Y.C.R.R. § 352.30(c). This increases the AFDC payments received by the household by approximately $ 50 to $ 58 per month. *fn2"

 Eligibility and benefits under the food stamp program, which is administered by the defendants in New York State, are determined by household size and income. *fn3" The State administrators determine entitlement solely upon federal law and regulations promulgated by the Secretary of Agriculture ("the Secretary"). In computing eligibility and benefits under the food stamp program, the defendants include the pregnancy allowance in the income of the household, but do not consider the child a member of the household until its birth. As a result of this practice, the plaintiffs suffer a reduction in food stamp benefits of approximately one dollar for every three dollars of pregnancy benefits received. The plaintiffs contend that this practice violates the provisions of the Food Stamp Act and deprives them of rights secured under federal statutes and regulations in violation of 42 U.S.C. § 1983. *fn4" Jurisdiction is based upon 28 U.S.C. § 1337. *fn5"

 According to the plaintiffs, the inclusion of the pregnancy allowance in the household's income violates the Food Stamp Act and it regulations. They argue that the allowance should be excluded from income under a specific provision in the statute and regulations for the exclusion of "moneys received and used for the care and maintenance of a third-party beneficiary who is not a household member." 7 U.S.C. § 2014(d)(6); 7 C.F.R. § 273.9(c)(6). *fn6" The defendants have moved for judgment on the pleadings, or alternatively summary judgment, on the ground that this exception is inapplicable to the payments in question. The plaintiffs have cross-moved for judgment on the pleadings, or, alternatively, summary judgment. *fn7" Having heard oral argument on these motions on March 19, 1980, the Court finds that there are no material facts in dispute.

 DISCUSSION

 The 1977 amendments to the Food Stamp Act broadly define income to be considered for food stamp purposes. "All moneys are to be considered as income, unless specifically excluded by the statute." 43 Fed.Reg. 47846, 47864 (Oct. 17, 1978). Section 2014(d) states that "household income for purposes of the food stamp program shall include income from whatever source excluding only" ten specific income exclusions, one of which is moneys received and used for the care and maintenance of a third-party beneficiary who is not a household member. 7 U.S.C. § 2014(d)(6). *fn8"

 Pursuant to statutory authorization, id.. § 2014(g), the Secretary has promulgated regulations defining income to which state plans must conform. Id. § 2014(b). These generally follow the language of the statute and specify items to be included in, excluded from, and deducted from income. See 7 C.F.R. § 273.9. Section 273.9(b)(2)(i) provides that payments from federally aided public assistance programs, such as the AFDC program, shall be included in the household's income. The regulations do not, however, specifically address the treatment to be afforded the AFDC pregnancy allowance.

 In attacking the defendants' policy of including the pregnancy allowance in household income while refusing to increase household size, the plaintiffs do not challenge the inclusion of other public assistance benefits in household income, or the Secretary's determination that unborn children are not members of the household entitled to benefits under the Food Stamp Act. See 43 Fed.Reg. 47846, 47852 n.19 (Oct. 17, 1978). *fn9" Instead, they argue that these payments are made for the benefit of the unborn child, who is not considered a member of the household for food stamp purposes, and that therefore they should be excluded from income under 7 U.S.C. § 2014(d)(6) and 7 C.F.R. § 273.9(c)(6). In support of this argument, the plaintiffs point out that the pregnancy allowance is paid to indigent women so that proper prenatal care which is vital to the well-being of the unborn child can be provided. See Bates v. Toia, 45 N.Y.2d 460, 410 N.Y.S.2d 265, 382 N.E.2d 1128 (1978).

 The defendants, on the other hand, argue that the pregnancy allowance is properly includable, since it is received by the pregnant woman, who has complete discretion over its use, and because the fetus cannot be considered a "third party." *fn10" Furthermore, the defendants argue that the Department of Agriculture ("the Department") mandates the inclusion of the pregnancy benefits in income.

 The defendants' characterization of the plaintiffs' claim regarding the application of the exclusion as frivolous is undermined by defendant Fredericks' own initial interpretation. *fn11" Fredericks wrote to John A. Goodale, Chief of the Program Development Section, Family Nutrition Programs, United States Department of Agriculture, to inquire about the exclusion of the pregnancy allowance under this provision. Goodale answered:

 
We are unable to consider (the pregnancy) allowance as a payment to a household for the care and maintenance of a third party beneficiary who is not a household member. In the absence of specific language on (sic ) Food Stamp Act requiring the disregarding of money received as a pregnancy allowance, there is no basis in (sic ) excluding these funds in the determination of a household's income. Therefore, your agency must continue to regard ...

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