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November 12, 1980

Joanne SWIFT, individually and on behalf of her Minor Daughter, Michelle Swift, and on behalf of all other persons similarly situated, Plaintiffs, Lylia Roe, Plaintiff-Intervenor,
Barbara BLUM, individually and as Commissioner of the New York State Department of Social Services, et al., Defendants

The opinion of the court was delivered by: WERKER

Plaintiff, Joanne Swift, individually, and on behalf of her minor daughter and on behalf of all persons similarly situated, brought this action pursuant to 42 U.S.C. § 1983 and directly under the fourteenth amendment, against defendants *fn1" seeking declaratory and injunctive relief as well as monetary damages. *fn2" The complaint alleges violation of plaintiffs' constitutional rights by defendants' policy of automatically prorating public assistance grants when an individual who has no legal obligation to support a family receiving Aid to Families With Dependent Children ("AFDC"), and who receives non-welfare income sufficient to meet his or her own needs, resides with an AFDC family.

Three prior opinions have been rendered in this suit with which reader familiarity will be presumed. *fn3" By judgment and order entered December 15, 1978, this court permanently enjoined defendants from enforcing their egregious policy without determining whether and in what amount the non-legally responsible individual is contributing to the AFDC household, or whether and in what amount his or her presence creates a reduced need for the AFDC household. See Swift v. Toia, 461 F. Supp. 578 (S.D.N.Y. 1978), aff'd per curiam sub nom., Swift v. Blum, 598 F.2d 312 (2d Cir. 1979), cert. denied, 444 U.S. 1025, 100 S. Ct. 687, 62 L. Ed. 2d 658 (1980). This case presently is before the court on plaintiffs' motions for civil contempt, summary judgment for class-wide notice and attorneys' fees pursuant to 42 U.S.C. § 1988.


 Plaintiffs contend that defendant Blum has failed to abide by this court's December 15, 1978 order by refusing to restore benefits to the date of judgment. In support of this claim, plaintiffs have submitted the sworn affidavits of AFDC recipients Carolyn Williams, and Rosemary Williams.

 In the case of Carolyn Williams, the Westchester County Department of Social Services refused to restore her benefits prior to June 1, 1979. The county agency began prorating Ms. Williams' AFDC grant in June 1978 because of the presence in the household of two children receiving Social Security benefits. At a "fair hearing," a county representative agreed to recompute Ms. Williams' grant in accordance with this court's order, but refused to restore the benefits wrongfully withheld before June 1, 1979. The county agency reached this decision in reliance on a letter dated November 7, 1979 from the Director of the Bureau of Upstate Field Operation wherein he advised that Swift was not to be applied prior to May 31, 1979, the date of administrative directive 79 ADM-26 which instructed local agencies as to the procedure to follow in complying with this court's order. C. Williams Affid. Exh. C, D. This determination was upheld by decision of defendant Blum dated December 17, 1979.

 Defendant's policy of refusing to grant benefits retroactive to the date of entry of this court's order is further supported by the affidavit of Rosemary Williams. The Rensselaer County Department of Social Services has automatically prorated Ms. Williams' AFDC grant since October 1979. Despite a decision dated May 1, 1980 wherein defendant Blum directed the agency to recompute this grant, the agency has refused to restore benefits retroactive to October 1979. R. Williams Affid. Exh. A.

 In addition to refusing to rebudget benefits retroactive to the date of judgment, plaintiffs claim that defendant has persisted in imposing automatic prorations pursuant to 18 N.Y.C.R.R. 352.31(a)(3) *fn4" in blatant disregard of this court's order.

 For example, the Ulster County Department of Social Services automatically prorated Geneva Ten Eyck's daughter's AFDC grant in September 1979. Relying on 18 N.Y.C.R.R. 352.31(a)(3), defendant Blum affirmed that agency's determination by decision dated January 10, 1980. Ten Eyck Affid. Exh. D. This occurrence was not unique; in September 1979, defendant Blum had affirmed yet another agency's determination insofar as it relied upon 18 N.Y.C.R.R. 352.31(a)(3) to automatically prorate an AFDC recipient's grant. T. Harris Affid. Exh. A.

 Indeed, in the cases of Anderson v. Blum, 80 Civ. 8452 (Sup.Ct. Kings County March 31, 1980) and Leone v. Blum, 73 App.Div.2d 252, 425 N.Y.S.2d 836 (2d Dep't 1980), defendant has continued to defend its policy of automatic proration of AFDC grants because of the presence of self-maintaining individuals in AFDC recipients' households.

 In the Anderson case, in February 1979, the New York City Department of Social Services automatically reduced Ms. Anderson's public assistance grant to a prorated budget after her son began receiving Social Security benefits. On April 24, 1979, at an administrative hearing to review this determination, Ms. Anderson testified that her son's benefits were used solely for his needs. Nevertheless, defendant Blum affirmed the agency's determination by decision dated July 12, 1979. Anderson Affid. Exh. A. Ms. Anderson appealed to the Supreme Court of the State of New York, Kings County which reversed defendant's decision, finding it "contrary to the holding in Swift v. Toia." Anderson Affid. Exh. B at 3. Notwithstanding an order and judgment commensurate with the Supreme Court's decision, as of June 1980, the Department of Social Services continued to prorate Ms. Anderson's AFDC grant.

 Likewise, in Leone v. Blum, the Appellate Division of the New York Supreme Court, Second Department reversed the agency's determination to prorate, citing Swift v. Toia. 73 App.Div.2d at 272-73, 425 N.Y.S.2d at 849-50. *fn5"


 A finding of civil contempt results from "a failure of a litigant to do something ordered to be done by a court in a civil action for the benefit of the opposing party therein." Walling v. Crane, 158 F.2d 80, 83 (5th Cir. 1946). However, "an order of contempt cannot issue unless the order claimed to be violated is specific and definite." UFI Razor Blades, Inc. v. District 65, Wholesale Union, 610 F.2d 1018, 1024 (2d Cir. 1979). Moreover, since the "disciplinary weapon (of civil contempt) is at the severe end of the spectrum ... a civil contempt order ... should only be imposed when there is clear and convincing proof of a violation of a court decree." Erhardt v. Prudential Group, Inc., 629 F.2d 843, (2d Cir. 1980); see NLRB v. Local 282, International Brotherhood of Teamsters, 428 F.2d 994, 1001-02 (2d Cir. 1970). It is well settled that "the violation need not be wilful to evoke such a remedial determination." Aspira of N.Y., Inc. v. Board of Education, 423 F. Supp. 647, 653-54 (S.D.N.Y. 1976); accord, McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S. Ct. 497, 499, 93 L. Ed. 599 (1949). The relevant question is "whether defendants have been reasonably diligent and energetic in attempting to accomplish what was ordered." Aspira of N.Y., Inc., 423 F. Supp. at 654.

 Applying these principles to the facts herein, I find defendant's conduct falls woefully short of the required due diligence and indeed constitutes blatant ...

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