to cases which were filed before its enactment and which arose out of conduct occurring before its enactment.)
Plaintiff's claim must be determined in light of § 1383(g) as amended in 1987 and, as amended, the statute clearly permits the reimbursement to a state or local welfare agency for interim assistance rendered to an indigent disabled person during a period between an initial termination and a subsequent reinstatement. 42 U.S.C. § 1383(g)(2), (3). The statute having provided authority for MC DSS to retain $ 23,000 of plaintiff's SSI back payments, I find as a matter of law that such action does not constitute a violation of plaintiff's civil rights under § 1983.
Defendants have raised a number of defenses which, if dispositive, could have precluded this Court from reaching the merits of plaintiff's claim, that is, defenses of immunity, the Eleventh Amendment, and statutes of limitations. If I were not disposing of this case on its substantive merits, I would find that a number of the defenses raised by the defendants would, at the least, preclude judgment for the plaintiff. I would find the State defendant, whose sole alleged basis of liability is his determination in the fair hearing afforded to plaintiff, absolutely immune from suit as a function of the absolute immunity accorded to executive officers engaged in adjudicative functions. Butz v. Economou, 438 U.S. 478, 508-12, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978); see Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 2732, 73 L. Ed. 2d 396 (1982). Notwithstanding Holley v. Lavine, 605 F.2d 638 (2d Cir. 1979), cert. denied sub nom Blum v. Holley, 446 U.S. 913, 64 L. Ed. 2d 266, 100 S. Ct. 1843 (1980), in which the the Second Circuit determined that a county DSS did not constitute "an arm of the state" for purposes of the Eleventh Amendment, I could not find as a matter of law that such holding would apply to the law at issue in this case, 42 U.S.C § 1383, a statute which refers to the state and the county agencies as equivalents/alternatives to one another. Nor could I determine as a matter of law the qualified immunity defense of the director of the county agency. I do not reach the merits of this claim because I find those defenses without merit; instead, I reach the merits of her claim, and dispose of the case accordingly, because this disposition is both legally correct and eminently fair. Plaintiff has merely repayed what was advanced to her by MC DSS at a time when her need was great.
In opposing the cross-motions, plaintiff's counsel has stated in his papers that plaintiff is legally entitled to the relief she seeks; on oral argument, he stated that her long-term status as a welfare recipient, with the pervasive poverty which attends such status, renders the payment she now seeks her just due rather than a windfall. Such an interpretation would allow a result which clearly does not comport with the applicable law.
WHEREFORE, plaintiff's motion for judgment on the pleadings is denied; defendants' cross-motions for judgment on the pleadings are granted and this case is accordingly dismissed.
ALL OF THE ABOVE IS SO ORDERED.
MICHAEL A. TELESCA
United States District Judge
DATED: Rochester, New York
September 29, 1992
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