The opinion of the court was delivered by: ELFVIN
Plaintiff Lois Cottone commenced this action for declaratory and injunctive relief to remedy the alleged failure of the New York State Department of Social Services ("NYSDSS") to provide full and fair hearings to all persons who have challenged or may in the future challenge agency action by requesting and appearing at such hearings without the assistance of counsel. Plaintiff has moved for class action certification pursuant to Fed.R.Civ.P. 23, and both parties have moved for summary judgment.
Plaintiff is 41 years of age and resides in Olean, N.Y. with five of her children: Sarah, age 21; Dominic, age 18; Russell, age 16; Robert, age 13 and Doris, age 12. The record indicates that plaintiff also has another daughter and granddaughter, both of whom do not presently reside with her. Due to various factors not herein relevant, the composition of plaintiff's household changes periodically.
Plaintiff currently receives a grant of public assistance under the federal Aid to Families with Dependent Children ("AFDC") program, provided to her by the Cattaraugus County Department of Social Services ("CCDSS"), which grant formerly included funds for support of Robert and Doris. Prior to March 4, 1982 plaintiff's AFDC monthly grant was $323.
In September of 1981 plaintiff's daughter Sarah reported to the CCDSS that Robert Hermann, the acknowledged father of Robert and Doris, had been living in their household for the past ten years. Thereafter the agency conducted an investigation and concluded that Hermann had been and was in the home on a continuous basis. Under relevant state regulations, Hermann's income was therefore deemed to be available to meet the needs of his two children. Consequently, on October 20, 1981 CCDSS notified plaintiff of its intention to delete Robert and Doris from her public assistance grant.
Plaintiff requested an administrative fair hearing to appeal this determination. On January 25, 1982 plaintiff appeared in Olean before an Administrative Law Judge ("the ALJ") without an attorney or other representative. Based upon the evidence adduced at this hearing, the ALJ recommended that the NYSDSS affirm the CCDSS determination. On March 4, 1982, the then Commissioner at the NYSDSS issued a Decision After Fair Hearing, affirming the agency determination and authorizing reduction of plaintiff's monthly grant by the amount of $89 per month. Plaintiff also receives a monthly food stamp allotment of $249 per month. Based on the fair hearing decision, the CCDSS has sought to reduce this allotment, but no final action has apparently as yet been taken.
On July 7, 1982 plaintiff commenced this action
seeking declaratory and injunctive relief on behalf of herself and all others who challenge agency action by appearing at administrative hearings without the assistance of counsel. Plaintiff alleges that the NYSDSS has not provided full and fair hearings to this purported class of individuals by failing to require the administrative law judges (1) to fully and fairly develop the record or to adequately explore all relevant facts when a claimant is not represented by counsel and (2) to delineate the key factual issues involved during the hearing and the evidence necessary to resolve those issues. Specifically, plaintiff assails NYSDSS's failure to require its ALJs to (1) explain the sequence of questioning, (2) explain who has the burden of proof, (3) explain the key factual issues to be resolved, (4) explain the evidence needed to meet or counter the burden of proof and resolve the factual issues, (5) affirmatively seek the appearance of material witnesses and the production of material documents and (6) advise claimants of their right to cross-examine adverse witnesses. Plaintiff claims that, due to these omissions by the ALJ during the hearings, defendants have violated the due process clause of the Fourteenth Amendment to the United States Constitution, 42 U.S.C. § 602, 45 C.F.R. §§ 205.10(a)(1)(i) and 205.10(a)(13) and 42 U.S.C. § 1983. She further alleges that the defendants have violated section 7803(4) of New York's Civil Practice Law and Rules ("CPLR"), inasmuch as the Commissioner's decision to reduce the public assistance benefits was not based upon substantial evidence.
On August 31, 1982 plaintiff moved for a preliminary injunction seeking to compel defendants to restore the reduced public assistance benefits to the former level and to restrain defendants from terminating her food stamp allotment. By Memorandum and Order, dated May 6, 1983 and filed May 9, 1983, I concluded that plaintiff was not entitled to injunctive relief because she had failed to demonstrate the existence of any irreparable harm.
Plaintiff failed to move for class action certification within sixty days of the filing of the Complaint, as required by rule 8(c) of the Local Rules of Practice of this Court. She therefore moved on September 28, 1982 for leave to make such application belatedly. Defendants have responded by opposing the motion for class action certification and by moving for summary judgment. Plaintiff's cross-motion for summary judgment was filed on January 24, 1983.
I. Class Action Certification
Plaintiff purports to certify this action as a class action on behalf of "all persons who have requested or may in the future request an administrative 'fair hearing' from the NYSDSS to review a determination of a local agency and appear at such hearing without the assistance of counsel." Complaint, para. 7. Plaintiff claims that her case meets the statutory prerequisites of class action certification under Fed.R.Civ.P. rule 23(a) inasmuch as (1) the class is so numerous that joinder of all members is impracticable, (2) there are common questions of law or fact, (3) her claims and defenses are typical of those of the entire class and (4) she can fairly and adequately protect the interests of the class. She also claims that class certification is appropriate under Fed.R.Civ.P. rule 23(b)(2) in that the defendants have "acted or refused to act on grounds generally applicable to the class" in that they have failed to issue regulations holding the ALJs to a higher standard of care to ensure that claimants appearing without the assistance of counsel receive all procedural due process rights. Memorandum in Support of Plaintiff's Motion for Class Certification at 5.
The Local Rules of Practice in this Court, rule 8(c), requires that a party asserting a claim for class relief move within sixty days of filing of the Complaint for a determination under Fed.R.Civ.P. rule 23(c)(1) as to whether the action is to be maintained as a class action and, if so, the membership of the class. The Complaint herein was filed by plaintiff July 7, 1982. Plaintiff was granted permission to proceed in forma pauperis in an Order filed July 21st. Pursuant to Local Rule 8(d), plaintiff was required to file a motion for class action certification by September 6th. Plaintiff's motion was not filed until September 28th, and apparently was filed only after plaintiff's counsel was advised of its absence by the Court at oral argument on September 20th.
Plaintiff's attorney apparently served his first set of interrogatories on the defendants August 31st in an effort to gain further information concerning the potential size of the proposed class. Plaintiff also requested information concerning the existence of any written directives on the duties of NYSDSS ALJs for unrepresented claimants. Plaintiff's attorney avers that he did not move for class action certification within the sixty-day period because he had mistakenly assumed that such motion would not have to be filed until after September 30th, the date upon which the answers to the interrogatories were due. See Affidavit of Mark H. Wattenberg, paras. 13-18 (filed September 28, 1982).
This Court is unaware of any rule which provides for the moving for class action certification only after interrogatories or other discovery requests have been complied with. Fed.R.Civ.P. rule 23(c)(1) provides that "as soon as possible after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained". The purpose of this provision is to give clear definition as to the action as soon as practicable. See Fed.R.Civ.P. rule 23(c)(1) Advisory Committee Notes. Toward this end Local Rule 8(c), with its sixty-day provision, was promulgated. Had plaintiff needed additional time to obtain information concerning the class constituency, plaintiff ...