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PERCEY v. BLUM

March 14, 1981

Anna PERCEY, on behalf of herself and her two minor children residing with her; and Ramona John, on behalf of herself and her four minor children residing with her, and all persons similarly situated, Plaintiffs,
v.
Barbara BLUM, as Commissioner of the New York Department of Social Services; Robert Wagner, as Commissioner of the Tompkins County Department of Social Services; Ronald Hackett, as Commissioner of the Cattaraugus County Department of Social Services; Tompkins County, a municipal corporation; and Cattaraugus County, a municipal corporation, Defendants



The opinion of the court was delivered by: MUNSON

MEMORANDUM-DECISION

The plaintiffs in this civil rights action, on behalf of themselves and their minor children residing with them, contest the defendants' practice and policy of not disregarding $ 30.00 and 1/3 of the remainder of the earned income of employed legally responsible caretaker relatives in families receiving Aid to Families with Dependent Children (AFDC), where the needs of these caretaker relatives are not being met by the AFDC grant. This omission, the plaintiffs contend, violates the Social Security Act, 42 U.S.C. § 601 et seq., and the Equal Protection Clause of the Fourteenth Amendment. For this violation, the plaintiffs seek declaratory, injunctive, and monetary relief. Jurisdiction lies under 28 U.S.C. § 1343(3), in view of the substantiality of the Equal Protection question raised. See Calkins v. Blum, 511 F. Supp. 1073 (N.D.N.Y.1980) (Munson, C. J.) Cf: Hagans v. Lavine, 415 U.S. 528, 94 S. Ct. 1372, 39 L. Ed. 2d 577 (1974). Pendent jurisdiction lies over the federal statutory claims. See id. at 543, 94 S. Ct. at 1382; United Mine Workers v. Gibbs, 383 U.S. 715, 724-28, 86 S. Ct. 1130, 1137-40, 16 L. Ed. 2d 218 (1966).

Presently before the Court are motions by the plaintiffs for class action certification, cross-summary judgment and attorneys fees, and by the defendants for summary judgment.

 I.

 Anna Percey resides in Tompkins County with her two minor children and her husband, the children's stepfather. In October, 1978, her family was in receipt of an AFDC grant. The needs of the plaintiff, however, were not met by the grant, pursuant to a determination by defendant County Commissioner Wagner that her husband's earned income adequately met her needs. When the plaintiff resumed work in late October, the County Commissioner recomputed the family's AFDC grant to reflect Ms. Percey's earned income of $ 351.22. In determining the amount of earned income, the County Commissioner did not apply the statutory $ 30 and 1/3 earned income disregard under the AFDC program, although he did apply various statutory income deductions for work related expenses. The County Commissioner then arrived at a grant amount of $ 11.29 for November, 1978. For each month since November, 1978, the County Commissioner has not applied the earned income disregard in determining the family's AFDC grant. Ms. Percey contends that had the County Commissioner applied the earned income disregard, her family's AFDC grant would have been $ 148.36, or $ 30 and 1/3 of her earned income. Following an administrative Fair Hearing, the defendant State Commissioner Blum affirmed the County Commissioner's action, stating that the AFDC earned income disregard was not applicable to the plaintiff because she was not a recipient of AFDC.

 Ramona John resides in Cattaraugus County with her three minor children. In March 1978, the defendant County Commissioner Hackett sent the plaintiff a notice of intent to reduce the family's AFDC grant to reflect the plaintiff's earned income. Ms. John's needs were not met by the grant. In budgeting the family, the County Commissioner did not apply the $ 30 and 1/3 earned income disregard, and thus the April 1978 grant was reduced $ 92.22. For each month from April to September 1978, the County Commissioner did not apply the earned income disregard. Following an administrative Fair Hearing, the State Commissioner affirmed the County Commissioner's action on the ground that Ms. John was not a recipient of public assistance.

 It is the defendants' determinations regarding the AFDC $ 30 and 1/3 earned income disregard that the plaintiffs contest.

 II.

 The plaintiffs seek class action certification under Fed.R.Civ.P. 23(a) and 23(b)(2) on behalf of all persons who have had or will have their AFDC grants terminated, reduced, or denied due to the defendants' practice and policy of not disregarding the first $ 30 and 1/3 of the remainder of the earned income of employed legally responsible caretaker relatives in families receiving AFDC when the needs of these caretaker relatives are not met by the AFDC grant.

 For the reasons set forth below, the Court concludes that the plaintiffs have satisfied the numerosity, commonality, typicality, and adequacy of representation requirements of Rule 23(a), and the requirements of Rule 23(b) (2), and that the defendants' objections are, at the present time, without merit.

 With respect to the numerosity requirement of Rule 23(a)(1), the plaintiffs have submitted evidence that over 400 persons will fall within the proposed definition. Such a number plainly suggests that joinder would be impracticable.

 With respect to the commonality requirement of Rule 23(a)(2), the plaintiffs contend that the question of law underlying the proposed class claims for injunctive and declaratory relief is whether the federal law and the Constitution require the defendants to apply the $ 30 and 1/3 earned income disregard to the earned income of the class members. The Court agrees that this commonality exists.

 With respect to the typicality and representation requirements of Rule 23(a) (3) and (4), the claims of both named plaintiffs appear to typify the injuries of absent class members resulting from the defendants' allegedly wrongful acts. Furthermore, no conflicts of interest appear to exist. Moreover, the defendants have not disputed the apparent qualifications of the plaintiffs' counsel.

 Inasmuch as the plaintiffs have met the requirements of Rule 23(a), the Court must now determine whether they satisfy Rule 23(b)(2). In this regard, the plaintiffs contend that the defendants have refused to act on grounds generally applicable to the class by not applying the earned income disregard, and seek, inter alia, final injunctive relief for this omission. Such an allegation falls squarely within the parameters of Rule 23(b)(2). Additionally, the plaintiffs satisfy the rule in Davis v. Smith, 607 F.2d 535, 540 (2d Cir. 1978), vacated and remanded on other grounds, 607 F.2d at 540 (2d Cir. 1979) by setting forth the problems of mootness and enforcement.

 No justification exists, then, for the denial of certification under Fed.R.Civ.P. 23(a) and 23(b)(2). The defendants, however, maintain that certification would be superfluous, because this Court should assume that public officials would enforce the law and apply any court determination to all persons similarly situated.

 To be sure, certification may be denied where governmental officials have given affirmative assurances that they would apply a court order to all eligible people. See, e.g., Wells v. Malloy, 510 F.2d 74, 76 n. 3 (2d Cir. 1975); Galvan v. Levine, 490 F.2d 1255, 1261 (2d Cir. 1973), cert. denied, 417 U.S. 936, 94 S. Ct. 2652, 41 L. Ed. 2d 240 (1974). Here, no assurances have been given.

 Accordingly, the plaintiffs' motion for class action certification is granted.

 III.

 Insofar as no genuine triable issue as to any material fact exists, the Court shall now turn to the summary judgment motions. Of course, the Court acknowledges its duty to address any "dispositive issues of statutory ... law ... before reaching constitutional issues." Wolston v. Reader's Digest Association, Inc., 443 ...


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