results in "the arbitrary denial of the $ 50 pass-through to many AFDC recipients through no fault of their own," Wilcox, 864 F.2d at 920, it sharply conflicts with the Congressional goal of using the pass-through to mitigate the harsh effects of DEFRA. In short, because the Secretary's interpretation conflicts with the language and purpose of § 657(b)(1), I find that defendants' practice and policy of denying multiple pass-throughs violated § 657(b)(1).
Because the court finds that 45 C.F.R. § 302.51(b) violated the statutory mandate of 42 U.S.C. § 657(b)(1), the plaintiffs' constitutional claims need not be reached.
Plaintiffs acknowledge that the 1988 amendment to 42 U.S.C. § 657(b)(1) mooted their claim for relief after the effective date of the amendment. As a result, the relief plaintiffs seek is retroactive in nature, covering the period from October 1, 1984 through January 1, 1989. Relying on decisions that hold that the Eleventh Amendment bars payment of funds from the public treasury for retroactive relief, the secretary and the state defendants contend that the Eleventh Amendment precludes any relief this court might otherwise award to the plaintiffs. I note at the outset that the only court in this circuit to have addressed this issue -- the District of Connecticut in Beasley, 671 F. Supp. at 921-22 -- has decided that the Eleventh Amendment does not bar retroactive relief of wrongfully withheld pass-through payments. However, even putting Beasley to the side and approaching the issue anew, I arrive at the same conclusion, for the reasons stated below.
The Eleventh Amendment provides that:
the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another state or Subjects of any Foreign State.
Despite the clear reference to "citizens of another state," it has long been settled that the Eleventh Amendment also bars suits against a state by one of its own citizens. Hans v. Louisiana, 134 U.S. 1, 33 L. Ed. 842, 10 S. Ct. 504 (1890). Although the Supreme Court has read an exception into the Eleventh Amendment to allow a federal court to order state officials to comply with federal law, even when the required actions produce a direct and substantial impact on the state treasury, Milliken v. Bradley, 433 U.S. 267, 289, 53 L. Ed. 2d 745, 97 S. Ct. 2749 (1977); Ex Parte Young, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908), the Eleventh Amendment still prohibits retroactive money damages against a state. Edelman v. Jordan, 415 U.S. 651, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974).
The Secretary cites several pass-through regulation cases in which courts relying on Edelman v. Jordan denied retroactive relief to the plaintiffs because of the Eleventh Amendment concerns. See, e.g., Mosley v Hairston, 920 F.2d 409, 417 (6th Cir. 1990); Kenyon v. Sullivan, 761 F. Supp. 951, 958 (D.R.I. 1991); Brown v. Angus, supra, No. 88-C-787J, slip op. at 8. But, in each of the cases with Eleventh Amendment implications cited by the Secretary, it was the state department of social services that had collected the child support payments and issued the pass-through payments. In this case, it is the New York City Human Resources Administration and other local social services districts that collect support and issue pass-through payments. In New York, unlike many other states, the local social services district, rather than the state, is ultimately responsible for providing public assistance. For this reason, the Second Circuit has found that these local agencies cannot hide behind the cloak of the Eleventh Amendment merely because they receive from the state some portion of their funding for the AFDC program. Holley v. Lavine, 605 F.2d 638, 644 (2d Cir.1979), cert. denied, 446 U.S. 913, 64 L. Ed. 2d 266, 100 S. Ct. 1843 (1980). Indeed, plaintiffs here do not seek monetary relief against the state; instead they ask that the state be ordered to require the defendant class members -- the local commissioners -- to make payments to plaintiffs. Plaintiffs' Br. at 35, n. 18.
Relying on Green v. Mansour, 474 U.S. 64, 88 L. Ed. 2d 371, 106 S. Ct. 423 (1985) and Fernandez v. Chardon, 681 F.2d 42, 59-60 (1st Cir. 1982), aff'd sub nom Chardon v. Fumero Soto, 462 U.S. 650, 77 L. Ed. 2d 74, 103 S. Ct. 2611 (1983), the Secretary contends that the Supreme Court has cast doubt on the viability of Holley, if not overruled it completely, by holding that in the absence of prospective relief, the Eleventh Amendment bars relief against a state based solely on past violations of federal law. However, the two cases cited by the Secretary are simply inapposite; neither involves the question of the scope of Eleventh Amendment immunity for county or local defendants. In addition, recent decisions issued subsequent to Green and Fernandez demonstrate the continuing vitality of Holley. See, e.g, Mosley v. Hairston, supra, 920 F.2d at 417 ("county defendants are not immunized by the Eleventh Amendment"); Finkielstain v. Seidel, 692 F. Supp. 1497, 1501 (S.D.N.Y. 1988); Tambe v. Bowen, 662 F. Supp. 939, 942 (W.D.N.Y. 1987), aff'd, 839 F.2d 108 (2d Cir. 1988).
Tambe v. Bowen, which was decided after Chardon and Green, is particularly relevant to the case at bar. Tambe was a class action against the Secretary of Health and Human Services, the Commissioner of New York State Department of Social Services, and the Director of a County Department of Social Services. Plaintiffs argued that they were entitled to retroactive payment of AFDC payments wrongfully withheld. "Plaintiffs [had pointed] out in their brief that they [did] not seek monetary relief against State defendant, but they [asked] that the State defendant be ordered to require the County Department of Social Services to make payments to class members." Tambe, 662 F. Supp. at 943. The district court granted summary judgment for plaintiffs, rejected the Eleventh Amendment defense on the strength of Holley, and ordered that the County make corrective payments. The decision was appealed and a unanimous panel of the Second Circuit affirmed the district court decision in its entirety. Although the Second Circuit's opinion did not explicitly discuss the Eleventh Amendment issue, it did state that it was affirming "substantially for the reasons set forth in Judge Telesca's excellent district court opinion." Tambe, 839 F.2d at 111. Given Holley and its implicit reaffirmation in Tambe, the court rejects defendants' Eleventh Amendment defense.
For the reasons set forth above, the court grants summary judgment to the plaintiff and denies the defendants' motion. The time to appeal the granting of plaintiff's motion for summary judgment and the denial of defendants' motion for summary judgment shall run from the date of this opinion.
Date: New York, N.Y.
November 3, 1992
Kimba M. Wood
United States District Judge