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January 4, 1995

JUANA MOREL, ELIZABETH SIMMONS, PAMELA THOMAS, NORMA CINTRON, on their own behalf and on behalf of all others similarly situated, Plaintiffs, against RUDOLPH W. GIULIANI, as Mayor of the City of New York; MARVA LIVINGSTON HAMMONS, as Commissioner of the New York City Department of Social Services; and MICHAEL J. DOWLING, as Commissioner of the New York State Department of Social Services, Defendants.


The opinion of the court was delivered by: KEENAN

JOHN F. KEENAN, United States District Judge:

 This is an action on behalf of a putative class of recipients of benefits under the Aid to Families with Dependant Children ("AFDC") program, 42 U.S.C. § 601 et seq., the federal Food Stamps program, 7 U.S.C. § 2011 et seq., and the New York State Home Relief program, New York State Soc. Serv. Law § 157 et seq.. Jurisdiction exists under 28 U.S.C. § 1331. This Opinion and Order is filed pursuant to Federal Rules of Civil Procedure 23 and 65(d), the latter requiring the Court to set forth with specificity the factual findings and legal conclusions supporting its decision on an application for a preliminary injunction.

 Plaintiffs claim that Defendant Dowling, former Commissioner of the New York State Department of Social Services (the "State agency"), *fn1" has failed to ensure that the State agency timely processes recipients' requests for administrative hearings. Plaintiffs also claim that Defendant Dowling has failed to adequately monitor Defendant Hammons, Commissioner of the New York City Department of Social Services (also known as the Human Resources Administration) (the "City agency"), and Defendant Giuliani (collectively "City Defendants") in the provision of "aid continuing" benefits, in violation of 45 C.F.R. § 206.10(a)(12), 7 C.F.R. § 271.4, and New York State Soc. Serv. Law §§ 20 & 34.

 Plaintiffs claim that City Defendants regularly fail to provide timely aid continuing. Plaintiffs further claim that City Defendants have failed to provide sufficient staff at City agency to implement timely aid continuing in the present or near future, in violation of New York State Soc. Serv. Law §§ 61-62.

 Currently before the Court is Plaintiffs' motion for certification of the proposed class, pursuant to Rule 23 of the Federal Rules of Civil Procedure. For the reasons stated below, Plaintiffs' motion is granted.

 Also before the Court is Plaintiffs' motion for a preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure. Plaintiffs seek an order requiring City agency to provide appropriate aid continuing to the named plaintiffs and members of the proposed class and enjoining City Defendants from further reducing the staff responsible for providing aid continuing pending implementation of a staffing plan which assures the provision of aid continuing benefits.

 At the outset, the Court is well aware of the current struggles of State and City officials to provide public services in times of increasingly constrained resources. The Court is also aware of the many efforts to reform the delivery of many of these services. This opinion is in no way intended to inhibit or otherwise interfere with these necessary and desirable goals, so long as the actions taken in their service are not inconsistent with the constitutional, statutory, and regulatory standards which this Court is sworn to uphold.


 A. Applicable programs and aid continuing regulations

 This case involves three types of aid programs: Aid to Families with Dependent Children (AFDC), Food Stamps, and New York State Home Relief. AFDC is a cash assistance program for families with at least one minor child who has been deprived of parental support or care by reason of death, continued absence from the home, unemployment or physical or mental incapacity of a parent. See 42 U.S.C. § 601 et seq. The Food Stamp program provides cash substitutes to the low-income population in order to raise the level of nutrition among low income households, and thereby safeguard the health and well-being of the nation. See 7 U.S.C. § 2011 et seq. The New York State Home Relief program provides cash assistance to the poorest of the State's residents whose needs are not otherwise met by any other assistance program. See New York State Soc. Serv. Law § 157 et seq.

 Recipients under each program have a constitutionally guaranteed right to have an administrative due process hearing to review an agency action affecting their benefits. See Goldberg v. Kelly, 397 U.S. 254, 264, 266-71, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970) (recipients of public assistance cannot be deprived of necessary benefits without pre-termination evidentiary hearing); 42 U.S.C. § 602(a)(4); 7 U.S.C. § 2020(e)(10); New York State Soc. Serv. Law § 22. Agency actions triggering this right include suspensions, discontinuances, recoupments, reductions, and restrictions of benefits. Moreover recipients who timely request a fair hearing are entitled to a continuation of their benefits, known as "aid continuing," pending issuance of a hearing decision. See 45 C.F.R. § 205.10(a)(6), 7 C.F.R. § 273.15(k)(1), and 18 N.Y.C.R.R. § 358-3.6. A hearing request is timely if it is made within ten days of the notice to the recipient, before the effective date of the proposed action, or, if no notice was sent, when the request was made. See 45 C.F.R. §§ 205.10(a)(4) & 205.10(a)(6); 7 C.F.R. §§ 273.13(a)(1), 273.13(a)(3), & 273.15(k)(1); 18 N.Y.C.R.R. §§ 358-2.23 & 358-3.6(a)(1). Where a recipient has made a timely request but benefits were changed prior to the hearing, the agency is required to restore benefits pending the hearing decision. See 45 C.F.R. § 205.10(6); 7 C.F.R. § 273.15(k)(1); 18 N.Y.C.R.R. § 358-3.6(a)(1)(i)-(ii).

 B. The parties

 1. Defendants

 Defendant Hammons is the Commissioner of the City agency, the local social services district responsible for providing benefits under the AFDC, Food Stamps, and Home Relief programs for New York City residents. See New York State Soc. Serv. Law §§ 61-62. Defendant Giuliani, as Mayor, is responsible for directing Defendant Hammons and the City agency. Defendant Dowling was the Commissioner of the State agency. The State agency determines eligibility for aid continuing within the procedures outlined below. The Commissioner is obligated under federal AFDC and Food Stamp regulations to supervise Defendant Hammons and to ensure that Defendant Hammons complies with applicable federal mandates. See 45 C.F.R. § 206.10(a)(12); 7 C.F.R. § 271.4; New York State Soc. Serv. Law §§ 20 & 34. The Commissioner also has statutory enforcement mechanisms at his disposal to ensure City agency compliance. See New York State Soc. Serv. Law §§ 20 & 34.

 2. Plaintiffs

 Juana Morel is a resident of the Bronx who received public assistance and food stamps. See Order to Show Cause of June 16, 1994, at App. C, Morel Statement PP 2-3. *fn2" Elizabeth Simmons and her son reside in Brooklyn and received AFDC and food stamps. See id. at App. D, Simmons Aff. PP 2-3. *fn3" Pamela Thomas lives in Manhattan and received Home Relief. See id. at App. E, Thomas Aff. P 1. *fn4" Norma Cintron, her minor son, her adult daughter, and her grandchild received AFDC and Food Stamps benefits. See id. at App. F, Cintron Aff. PP 1-5. *fn5" All four named Plaintiffs requested a hearing after learning of City agency action affecting their benefits, were designated to receive aid continuing benefits, but did not receive those benefits within the mandated time frame. In addition, Plaintiffs provided examples of other potential class members, including Jeannette Bello, *fn6" the children of Martha Diaz, *fn7" Delilah Mercado, *fn8" Barbara Muldrow, *fn9" Deborah Hinds, *fn10" Chavis Bullock, *fn11" Mark Sigle, *fn12" Erika "Eddy" Jimenez, *fn13" Dorothy O'Neil, *fn14" Paulette Williams, *fn15" Ruth Parker, *fn16" Dennis Hanlon, *fn17" and Barbara Music. *fn18" The experiences of these persons further illustrate the common questions within the proposed class.

 C. Proceedings to date

 Plaintiffs moved by Order to Show Cause in front of Judge Sweet, the Part One judge, on June 16, 1994. See Order to Show Cause of June 16, 1994. Judge Sweet instructed parties to arrange an expedited discovery schedule among themselves. At that time, City Defendants stipulated to provide temporary relief to named Plaintiffs to the extent of providing them with benefits to which they were entitled pending resolution of the preliminary injunction hearing, which was originally scheduled in July. Parties thereafter stipulated to adjournments, with City Defendants either agreeing or being directed by the Court to forestall any changes in staff pending resolution of the current motions. *fn19"

 D. Current aid continuing procedures and staffing

 A recipient receives notice of a change in benefits by mail or upon actual reduction or discontinuance of credited funds. Upon notice, a recipient must timely communicate a request for an administrative hearing to the State agency. A request is timely if it is filed before the effective date of a notice of impending change, within ten days of the date a notice is mailed to the recipient, or if no notice was sent, when the request is made. Requests may be communicated by mail, phone, facsimile, or in person at agency offices.

 Upon receipt of a timely request, State agency determines whether the recipient is entitled to aid continuing. See Blaustein Aff. PP 11-19; Blaustein Dep. at 160. State agency then issues either a "Fair Hearing Request" notice to City agency indicating if aid is to continue, or an "Aid Continuing Directive" either instructing City agency not to change the recipient's benefits until after a hearing, or ordering restoration of benefits if they have already been changed. State agency also inputs each request into a computerized Fair Hearing Information System. See Carberry Dep. at 35. In cases involving discontinuances and recoupments, expeditious processing can avert some changes in benefits. In cases involving reductions or restrictions, State agency cannot avert the action automatically. Once the change in benefits has been effected, State agency is unable to effect restoration by itself. See id. at 35-37, 47-50.

 All notices are sent to the State agency office in New York City. Each day a City agency messenger retrieves the notices and brings them to City agency's Fair Hearing Control Unit (herein "FHCU")), from which they are sorted for distribution to one of thirty-nine Income Support Centers ("ISCs") citywide. See Carberry Dep. at 37-41. ISCs currently consist of at least six units: Reception, Administration, Applications, Liaison & Adjustment ("L&A"), Undercare, and Control. See Blaustein Aff. at 4-12.

 The L&A unit of each ISC receives the notice and attempts to prevent or to reverse the challenged change in benefits. To reverse a change, supervisors in the L&A units relay the notices to a designated group within the Undercare units. An Undercare group consists of one supervisor, five "eligibility specialists" (the "specialists"), and one half-time clerk. The Undercare group supervisor relays the notice to the specialist for that case. The specialist processes the notice, then returns all the forms to the supervisor, who reviews them and passes them on to the clerk. From the clerk, the forms go to the ISC Control unit for input, upon which the change is reversed. See Blaustein Aff. PP 9-10, 20-41.

 Under these procedures, the three positions most directly responsible for processing aid continuing are the L&A supervisors, the Undercare supervisors, and the Undercare eligibility specialists, the latter being most responsible for the timely processing. At current staffing levels there are approximately 108 L&A supervisors, *fn20" 436 Undercare supervisors, *fn21" and approximately 2,393 Undercare eligibility specialists in the thirty-nine ISCs. *fn22" Defendants claim that the average Undercare specialist currently has a monthly workload of 200 case, with some specialists having up to 300 cases. See Blaustein Dep. at 255-66. Defendants admit, however, that this average does not include upwards of 20,000 cases not assigned to any specialist. See id. at 192-97; Cohan Decl. P 68. Plaintiffs assert, therefore, that the 1994 average caseload is at least 237 cases per specialist. See Cohan Decl. P 67.

 In addition to L&A and Undercare supervisors and specialists, there are L&A and Undercare clerks and Control unit staff who process aid continuing paperwork for the L&A and Undercare units. There are currently approximately 33 L&A and 195 Undercare clerks, and 33 supervisors, 70 assistant supervisors, 209 clerks, and 133 data ...

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