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BLOW v. LASCARIS

September 8, 1981

Lorraine BLOW, individually and on behalf of her infant child, Christopher Seymour, Plaintiff,
v.
John L. LASCARIS, in his capacity as Commissioner of the Onondaga Department of Social Services, Defendant



The opinion of the court was delivered by: MCCURN

MEMORANDUM-DECISION AND ORDER

Before the Court is defendant's motion to dismiss an action brought by plaintiff pursuant to 42 U.S.C. § 1983. Plaintiff seeks recovery of costs and attorney's fees incurred by plaintiff in enforcing a federal statutory right in state administrative proceedings. Plaintiff bases her claim on 42 U.S.C. § 1988, as amended by the Civil Rights Attorney's Fees Awards Act of 1976, which provides for the discretionary awarding of attorney's fees in actions or proceedings brought to enforce certain civil rights statutes. Jurisdiction is asserted under 28 U.S.C. § 1331.

Defendant moves to dismiss under Fed.R.Civ.P. 12(b)(1) on grounds: (1) no justiciable controversy exists because plaintiff was successful in her state proceeding, i. e., she received the medical benefits which were the subject of the controversy; (2) Section 1988 does not provide independent subject matter jurisdiction. Plaintiff cross moves for summary judgment.

 FACTS

 On June 4, 1980, plaintiff applied to defendant for a grant of medical assistance to cover medical expenses incurred by her son during the course of an emergency appendectomy. Defendant denied the application, and plaintiff requested an administrative fair hearing before the New York State Department of Social Services. After the hearing, the Commissioner reversed defendant's determination and directed that the requested medical assistance be provided. The decision was based on an interpretation of state court decisions which had considered the requirements of the provision of the Social Security Act under which plaintiff requested benefits, 42 U.S.C. § 602(a)(8). Plaintiff then filed this independent action in federal court to recover attorney's fees. The merits of plaintiff's underlying claim to the benefits is not before this Court.

 DISCUSSION

 As far as can be determined, this case presents a question of first impression for the federal courts. The central issue is whether an individual, who prevailed in state administrative proceedings brought to enforce a federal statutory right protected under 42 U.S.C. § 1983, may thereafter bring an independent action in federal court under 42 U.S.C. § 1988 to recover attorney's fees incurred therein.

 At the outset the Court denies defendant's Rule 12(b)(1) motion to dismiss on the ground that the Court does have subject matter jurisdiction. *fn1" To avoid another round of pleadings, however, this Court will consider the question as if a Rule 12(b)(6) motion was before it.

 For the reasons stated below, the Court dismisses the action for failure to state a cause of action for which relief may be granted. *fn2"

 The relevant portion of 42 U.S.C. § 1988, as amended in 1976, provides:

 
In any action or proceeding to enforce a provision of sections 1981, 1983, 1985, and 1986 of this title, ..., the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.

 42 U.S.C. § 1988 (Supp.1981).

 Plaintiff urges this Court to interpret the words "action or proceeding" to include state administrative proceedings where a claimant prevails upon its § 1983 claim, and, because of the satisfied claim, has no need for a federal court action on the merits. The defendant, while failing to supply this Court with a memorandum of law on its position, undoubtedly contends that "action or proceeding" is restricted to court actions brought to enforce rights under one of the enumerated statutes.

 The Supreme Court has recognized consistently that statutes are to be interpreted "not only by a consideration of the words themselves, but by considering, as well, the context, the purposes of the law, and the circumstances under which the words were employed." Maine v. Thiboutot, 448 U.S. 1, 13-14, 100 S. Ct. 2502, 2509, 65 L. Ed. 2d 555 (1980) (Powell, J., dissenting); District of Columbia v. Carter, 409 U.S. 418, 420, 93 S. Ct. 602, 34 L. ...


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