Petition — Batterton v. Francis

FEB 19 1976

MICHAEL RODAK, 'P., CLERK |

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

No. ¢5- 1181

RICHARD A. BATTERTON, Evc., ET AL..,

Petitioners,

Vv.

ROBERT FRANCIS, Evc., ET AL.,

Respondents.

“ RICHARD A. BATTERTON, Etvc., ET AL.,

Petitioners,

v.

BARRY BETHEA, Evc., ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FRANCIS B. BURCH,

Attorney General of Maryland,

JOEL J. RABIN,

THEODORE LOSIN,

Assistant Attorneys General,

1100 North Eutaw Street,

Baltimore, Maryland 21201,

Attorneys for Petitioners.

The Daily Record Co., Baltimore, Md. 21202 oR

TABLE OF CONTENTS

PAGE

SI NOD ac icicidiettitescaic~chbnptidicommnaninntanadheniiia 2

RENEE EE a Seer 5 Ae CR TIO OR 2

GOUPMITOORE FPTGTIOTTEDD oo ccescccscsccncescccccsccnescocssssencoeeess 3

STATUTORY AND REGULATORY Provisions IN-

I catctictbernsitinanindiilitennstitianinapisciiibicdipeiicaiansd 3

PPATERNBIEE OF TIT CAG ncecccccccsccccsicccssncosecscoscasoss 5

REASONS FOR GRANTING WRIT. .............ccceccseesseeeees 8

PETER LEN SEE DOE LOT TE 17

TABLE OF CITATIONS

Cases

Bethea v. Batterton, 384 F. Supp. 1274 (1974) .passim

Bowles v. Seminole Rock Co., 325 U.S. 410 (1945) 13.

Carleson v. Remillard, 406 U.S. 598 (1972) ........ 12

Dandridge v. Williams, 397 U.S. 471 (1970) ....... 6

FCC v. Schreiber, 381 U.S. 279 (1965) ................ 13

Francis v. Davidson, 340 F. Supp. 351, aff'd 409 .

a I a i passim

Francis v. Batterton, 379 F. Supp. 78, appeal

dismissed 419 U.S. 1042 (1974) oo... passim

Harrison v. Northern Trust Co., 317 U.S. 476

(Ee ETE PS oe kT Pee) ere 10

ITT Lamp Division v. Minter, 318 F. Supp. 364

(D. Mass., 1969) aff'd., 435 F.2d 989 (1st Cir.,

1970) cert. denied 402 U.S. 933 (1971) .......... 16

King v. Smith, 392 U.S. 309 (1968) ................0 12

Lynch v. Overholser, 369 U.S. 705 (1962) .......... 10

ii

PAGE

New York State Department of Social Services v.

Dublino, 413 U.S. 405 (1978) 2... cceeeeee 11,12

Super Tire Engineering Co. v. McCorkle, 469

F.2d 911 (3rd Cir., 1972), rev’d. and remanded

a ge sien sddcabas 16

Townsend v. Swank, 404 U.S. 282 (1971) .......... 12

Udall v. Tallman, 380 U.S. 1 (1965) ................ 13

United States v. Campos-Serrano, 404 U.S. 293

SEAR or SE Maes eWiect ae SNe Po 10

Statutes

OT I i cesmbsentaniibioashe 2

PE RE EE passim

Regulations

a itil catia cebhibiitescbdacescnninvegntanents passim

Maryland Agency Rules and Regulations MARR

pS BF SE aa Rene oa Sines See oe oe er passim

Miscellaneous

Davis, Administrative Law Treatise, Secs. 5.03.-

04 (1958 and 1970 Supp.) .......cccccee cseseeeeeeereees 13

38 Fed. Reg. 49 (Jan. 3, 1973) ...........cccccccccessessesees 14

38 Fed. Reg. 18549 (July 12, 1973) ...........cceeeeeees 14

40 Fed. Reg. 33461 (Aug. 8, 1975) ........cceeeeeeeeees 15

2A, Sutherland Statutory Constitution, Sec. 47.07

0g Me SRE SE ER Deas: Rees eee 10

IN THE

Supreme Court of the United States

OcTOBER TERM, 1975

No.

RICHARD A. BATTERTON, Etc., ET AL., :

Petitioners,

Vv.

ROBERT FRANCIS, Evc., ET AL.,

Respondents.

RICHARD A. BATTERTON, iErc., Er AL.,

Petitioners,

Vv.

BARRY BETHEA, Etc., ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

The Petitioner, Richard A. Batterton, Secretary,

Maryland Department of Human Resources (formerly

Department of Employment and Social! Services), prays

that a writ of certiorari issue to review the per curiam

opinion and judgment of the United States Court of

2

Appeals for the Fourth Circuit entered in these two

proceedings on September 22, 1975.

OPINIONS BELOW

The per curiam opinion of the Court of Appeals for

the Fourth Circuit, not yet reported, appears in the

Joint Appendix filed with the petition (A. 100a). The

opinions of the United States District Court for the

District of Maryland that resulted in the appeal to the

Court of Appeals, were entered on June 25, 1974, in

Francis v. Batterton, 379 F. Supp. 78 (hereafter Francis-

11) (A. 792) and November 27, 1974, in Bethea v. Mason,

384 F. Supp. 1274 (hereafter Bethea) (A. 86a). The

appeal to the Court of Appeals was consolidated with

the appeal in a companion case, entitled Francis v. The

Chamber of Commerce of the United States of America.

That appeal was decided by the Court of Appeals in the

same per curiam opinion and a petition for certiorari is

also being filed in that case, No.

This Court, by its order of November 20, 1975, upon

application of counsel for the Petitioner herein,

extended the time for filing a petition for writ of

certiorari in this matter to and including February 19,

1976 (A. 104a).

JURISDICTION

The judgment of the Court of Appeals was entered on

September 22, 1975. This petition for certiorari is being

filed within the extended period permitted by the Order

of this Court of November 20, 1975, hereinabove noted.

The jurisdiction of this Court is invoked under 28 U.S.C.

Section 1254(1).

3

QUESTION PRESENTED

Does 45 C.F.R. 233.100(a)(1), as amended, violate the

provisions of 42 U.S.C. 607(a), which authorizes the

United States Department of Health, Education, and

Welfare (HEW). to prescribe standards for the

determination of unemployment in the AFDC-UF

program.

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

The challenged Maryland regulation held invalid

below, MARR 7.02.09 Sec. 10.A(2) (formerly Rule

200X.A.2), provides as follows:

A grant may not be paid from GPA-E or AFDC-E:

- * * * + *

2. To meet need due to being disqualified for

unemployment insurance.

The HEW regulation, 45 C.F.R. 233.100(a)(1), also

held invalid below, provides in pertinent part:

If a State wishes to provide AFDC for children of

unemployed fathers, the State plan under Title V

— Part A of the Social Security Act must...

[exceptions not relevant here]:

(1) Include a definition of a usemployed father

5 «it sae definition must includ: ny father who:

(i) Is employed less than 100 nours a month;

or

(ii) Exceeds that standard for a particular

month, if his work is intermittent and the

excess is of a temporary nature as evidenced by

the fact that he was under the 100-hour

standard for the prior 2 months and is

expected to be under the standard during the

next month; except that, at the option of the

State, such definition need not include a father

4

whose unemployment results from

participation in a labor dispute or who is

unemployed by reason of conduct or

circumstances which result or would result in

disqualification for unemployment

compensation under the State’s unemployment

compensation law.!

Prior to July 12, 1973, when the said regulation was

amended as above, it provided in part as follows:

If a State wishes to provide AFDC for children of

unemployed fathers, the State plan . . . must [with

exceptions not here relevant]. . .:

(1) Include a definition of an unemployed

father . . . who:

(i) Is employed less than 100 hours a month;

or

(ii) Exceeds that standard for a particular

month, if his work is intermittent and the

excess is of a temporary nature as evidenced

by the fact that he was under the 100-hour

standard for the 2 prior months and is

expected to be under the standard during the

next month.

The above State and Federal regulations were held

invalid under Sec. 407(a) of the Social Security Act, 42

U.S.C. 607(a), which provides:

The term “dependent child” shall, notwithstanding

section 606(a) of this title, include a needy child

who meets the requirements of section 606(a)(2) of

this title, who has been deprived of parental

support or care by reason of the unemployment (as

determined in accordance with standards pres-

cribed by the Secretary) of his father, and who is

living with any of the relatives specified in Section

606(a\1) of this title in a place of residence

1 The full text of this regulation is contained in the Joint

Appendix filed herewith (A. 124a).

5

maintained by one or more of such relatives as his

(or their) own home.?

STATEMENT OF THE CASE

A. FRANCIS v. BATTERTON

In this case, petitioner (hereafter “Maryland”) is

contesting the denial of a motion to vacate an

injunction entered on March 6, 1972, requiring the State

to pay AFDC-UF (also known as AFDC-E) benefits to

the two classes represented by the plaintiffs, i.e. those

disqualified from unemployment insurance because

they were engaged in a labor dispute, and those

disqualified because they were discharged for miscon-

duct.

The case has had a long and involved course in the

District Court, the Supreme Court and the Court of

Appeals prior to this petition which illustrates the

significance of the issues involved and a need for their

final resolution at this time. The original complaint was

filed on August 9, 1971. In it, plaintiffs requested that a

Maryland social service regulation, Rule 200X.A.2 (now

MARR 7.02.09 Sec. 10.A.(2)), be declared illegal and be

permanently enjoined. Plaintiffs also requested the

convening of a three-judge District Court and certifica-

tion as a class action on behalf of all other persons

similarly situated. Also, the complaint contended that

the Maryland regulation violated the Equal Protection

Clause, Section 407 of the Social Security Act, 42 U.S.C.

607, and the HEW regulation promulgated thereunder,

45 C.F.R. 233.100(a).

After the convening of a three-judge panel, the

District Court issued an extensive opinion ruling on

cross-motions for summary judgment, 340 F. Supp. 351

* The full text of 42 U.S.C. 607 is reprinted in the Joint

Appendix at A. 34a.

6

(1972) (hereafter Francis-J) (A. 1a). In this opinion, the

District Court specifically rejected the constitutional

claim under Dandridge v. Williams, 397 U.S. 471 (1970).

The court, however, did hold that as to the plaintiffs’

and their represented classes, the Maryland regulation

violated the federal regulation promulgated under the

Social Security Act. Thereaiter, on March 6, 1972, the

Court enjoined the Maryland regulation as violative of

the federal regulation (A. 54a). Maryland appealed that

injunction to this Court. In an amicus curiae memoran-

dum the Solicitor General of the United States urged

this Court to summarily affirm the lower court ruling

on the ground that the federal regulation was ambigu-

ous and that the Secretary of HEW intended to amend

it in order to clarify its meaning (A. 56a). Noting the

effect of the proposed revision of the HEW regulation on

the Maryland regulation, the Solicitor General stated:

We are informed that under the proposed revision

the regulation will expressly permit the States to

vary, within limits, the coverage of their programs

on the basis of factors other than the number of

hours worked. This revision should remove any

doubt concerning the validity of Maryland’s Rule

200.X.A.2. Such a regulation is clearly within the

authority granted by the basic statute. (A. 60a)

(emphasis supplied)

Following the submission of the Solicitor General’s

memorandum, this Court summarily affirmed the

decision below, 409 U.S. 904 (1972) (A. 61a).

On July 12, 1973, HEW did amend the pertinent

federal regulation in the manner indicated, (A. 124a)

and it is undisputed that that amendment clearly

permits state regulations such as Maryland’s regulation

MARR 7.02.09 Sec. 10.A.(2). Accordingly, Maryland

then moved the three-judge court to dissolve its

injunction against the operation of the Maryland

7

*

regulation. In an informal letter opinion, the three-

judge court announced its intention to grant

Maryland’s motion to dissolve the injunction (A. 61la1).

However, the plaintiffs moved for reconsideration of

this informal opinion, and the District Court granted

such request and set the issue for hearing and briefs.

On June 25, 1974, the District Court entered its decision

denying Maryland’s motion to dissolve the injunction,

Francis v. Batterton, 379 F. Supp. 78 (Francis-I]). (A.

79a). On July 25, 1974, Maryland filed notices of appeal

of that decision in this Court and the Court of Appeals.

The appeal to the Court of Appeals was designed to

protect Maryland’s appeal rights if this Court dismissed

the appeal for want of jurisdiction. On December 9,

1974, this Court did dismiss the appeal on that basis

and denied certiorari, treating the papers as a petition

for a writ of certiorari before judgment, 419 U.S. 1042

(A. 99a). Maryland then pursued its appeal filed in the

Court of Appeals. Maryland now is seeking review of

the decision of the Court of Appeals on that appeal.

B. BETHEA v. BATTERTON

The Bethea case involves an action in which

individuais denied public assistance under Maryland’s

AFDC-UF program (that class of individuals

unemployed as a result of being “voluntary quits”) also

challenged the constitutional, statutory and regulatory

validity of the same Maryland regulation challenged in

the Francis case. Following the filing of Maryland’s

Motion to Dismiss and the plaintiffs’ Motion for

Summary Judgment, the District Court entered an

opinion dated November 27, 1974, which dismissed the

State’s motion and granted the plaintiffs’ summary

judgment (A. 86a). The opinion expressly approved the

rationale of Francis-II and held that it also applied to

the subject class (A. 96a). As a result, in a Judgment of

8

December 12, 1974, the District Court directed the State

to pay benefits under Section 407 to all persons in the

complaining class “. . . who would be eligible for these

benefits but for the fact that they are ineligible to

receive unemployment compensation due to having ©

voluntarily quit their prior employment” (A. 98a).

Maryland thereafter filed its Appeal of this order to the

Court of Appeals, which was consolidated with that in

Francis-Il.

On September 22, 1975, the Court of Appeals, in its

per curiam opinion affirmed the decisions in Francis-II

and Bethea for the reasons stated by the District Court

in both cases, and it adopted the opinions of the District

Court as its own (A. 100a). In summary, the Court of

Appeals held that the amended HEW regulation was

invalid and that under the Social Security Act

Marytand could not exclude from the benefits of AFDC-

UF a child whose father is unemployed as a result of

participation in a strike, misconduct, or voluntarily

leaving his employment.

REASONS FOR GRANTING THE WRIT

I.

The reasoning in the decisions below holding the

latest HEW regulation invalid denies HEW any

discretion under the statute to prescribe standards for

the determination of unemployment.

In the Francis-I decision, which was affirmed by this

Court, the District Court recognized the ; broad

discretion granted HEW under the Social Security Act

to prescribe standards for the determination of

“unemployment” and to grant some discretion to the

States with regard to those standards. In the section of

its opinion discussing the misconduct disqualification,

the court emphasized the great weight to be given to the

9

federal agency’s interpretation “. . . particularly when

the Congress has delegated policy making to the

Agency.” 340 F. Supp., at 365 (A. 24a). When addressing

the issue of the disqualification of persons involved in

labor disputes, i.e., strikers, the court noted:

... When Congress removed the parenthetical

words “as defined by the State,” and substituted

the words “as determined in accordance with

standards prescribed by the Secretary, Congress

did not simply substitute the words “as determined

by the Secretary.” Thus, Congress used words

which did not mandatorily require the Secretary to

require each state t. adopt the same meaning of

the word “employment” but instead merely autho-

rized the Secretary to prescribe a national meaning

if the Secretary so. desired. In so doing, this Court

agrees that the Congress empowered the Secretary,

by regulation, to require each participating state (1)

to include or (2) to exclude from its respective

AFDC-E program those out of work because of

involvement in labor disputes, or (3) to leave that

decision to each state. (emphasis in original) 340 F.

Supp., at 367 (A. 26a).

Finally, the District Court expressly suggested to HEW

that it could validate the Maryland regulation with

regard to such persons by modifying its regulation:

id obligations of the State of Maryland

hae with regard to the labor involvement

issue will of course be different if, forthwith after

the filing of this opinion, the Secretary of HEW

amends 45 C.F.R. § 233.100(a) in accordance with

the discretionary authority conferred upon him by,

and within the confines of, 42 U.S.C. §607 as

construed in this opinion. 340 F. Supp., at 368,

n.29a. (A. 29a).

Thus, Francis-I emphasized HEW’s discretion to pres-

cribe standards under the statute, in addition to the

hourly test already embodied in 45 C.F.R. 233.100(a)(1).

10

Contrary to the views expressed in its first decision,

the District Court, and Court of: Appeals have now

concluded that under the discretion granted by the

statute, HEW cannot grant any discretion to the States

with regard to persons disqualified for misconduct, and

any discretion as to strikers must be severly cir-

cumscribed although the nature of these additional

standards is not spelled out. With regard to persons

disqualified for misconduct, the lower courts now have

adopted the view that “unemployment” means “unem-

ployment” regardless of the statutory authority granted

HEW for prescribing standards for the determination of

that status question. In other words, the courts have

adopted a literal or “plain meaning” test for certain of

the statutory words. It is true that this is an established

canon of statutory construction, but also that it is

somewhat discredited, e.g. United States v. Compas-

Serrano, 404 U.S. 293 (1971); Lynch v. Overholser, 369

U.S. 705 (1962); Harrison v. Northern Trust Co., 317

U.S. 476 (1943); 2A Sutherland, Statutory Construction,

Sec. 47.07 (4th ed., 1973). Such approach totally ignores,

of course, the literal meaning of the words following the

word “unemployment” namely those granting HEW the

authority to prescribe standards for the determination

of that status.

Even in Francis-II the District Court seems to

recognize that HEW does have some discretion with

regard to strikers. The court refers to alternative “(3)”

in the language of the earlier opinion quoted above,

indicating that HEW could have left this eligibility

policy question to the states, and states that phrase

should have included the additional words “in accor-

dance with appropriate standards established by the

Secretary.” (A. 84a). After quoting selective legislative

history the court then suggests that some sort of

national standards, although not a national definition,

11

are required in this area, without specifying what the

standards are to be. It is difficult to imagine what

standards HEW could adopt in this area, other than

requirements that all States pay strikers or not pay

them.

Il.

The decisions below run counter to this Court’s efforts

to delimit areas of State policy-making authority in the

administration of the public assistance programs

created by the Social Security Act.

The lower courts reasoning not only errs from the

analysis in Francis-I, but ignores the rule for interpret-

ing the Social Security Act recently asserted by this

Court in another welfare case:

In interpreting this statute, we must be mindful

that “the construction of a statute by those charged

with its execution should be followed unless there

are compelling indications that it is wrong... .”

(citations omitted) New York State Department of

Social Services v. Dublino, 413 U.S. 405, at 421

(1973).

During the course of its consideration of Maryland’s

motion to dissolve the previously issued injunction, the

District Court requested and received the views of HEW

on the validity of its new regulation in light of

plaintiffs’ contentions. That HEW amicus brief is

included in the Appendix, (A. 6l1a2) and makes clear

beyond peradventure that although the interpretation

of the statute in Francis-II is permissible, neither the

words of the statute nor the legislative history compel

such a literal construction of the word “unemployment”

as to persons disqualified for misconduct or the

uniform, national definition as to the inclusion or

exclusion of strikers required by the opinion.

- 12

In addition to their impact on the AFDC-UF program,

the decisions below could result in future holdings

involving other Federal-State welfare programs created

under the Social Security Act contrary to the rule

announced in New York State Department of Social

Services v. Dublino, supra. Prior to the Dubdlino

decision, certain decisions of this Court seemed to

suggest that the States could not impose additional

eligibility conditions in their regular AFDC programs

in the absence of an express congressional authoriza-

tion for such conditions indicated in the Social Security

Act or its legislative history, Townsend v. Swank, 404

U.S, 282, 286 (1971); Carleson v. Remillard, 406 U.S.

598, 600 (1972); King v. Smith, 392 U.S. 309 (1968). The

Dublino decision, however, made clear that there was

room for additional State eligibility conditions in

situations where the language of the Act did not

expressly make the persons eligible. In discussing the

earlier cases and the extent of State discretion, this

Court stated:

In those cases it was clear that state law excluded

people from AFDC benefits whom the Social

Security Act expressly provided would be eligible.

The Court found no room either in the Act’s

language or legislative history to warrant the

States’ additional eligibility requirements. Here, by

contrast, the Act allows for complementary state

work incentive programs and procedures incident

thereto — even if they become conditions for

continued assistance. Such programs and proce-

dures are not necessarily invalid, any more than

other supplementary regulations promulgated

within the legitimate sphere of state administra-

tion. (citations omitted) 405 U.S. 413, at 423.

13

III. :

By substituting théir own interpretation of the

statutory words and intent for that of HEW, the lower

courts have usurped the “legislative” rule-making

authority expressly granted to HEW by the statute,

In substituting their own interpretation of the statute

for that of HEW, the lower courts also violate estab-

lished principles of administrative law, e.g. Bowles v.

Seminole Rock Co., 325 U.S. 410, 413-14 (1945). Udall v.

Tallman, 380 U.S. 1, 16-18 (1965). Furthermore: this

interpretation supplanted a “legislative” rule which. the

Congress had expressly directed the agency to develop

for the implementation of the statute, rather than an

interpretative iuie, adding an administrative gloss to a

statutory term. See Davis, Administrative Law Trea-

tise, Secs. 5.03 and 5.04, and cases cited therein (1958

and 1970 Supplement). A legislative regulation has the

* effect of law and is binding upon a court unless it is in

excess of the granted power, issued pursuant to

improper procedures, or unreasonable, ibid, e.g. FCC v.

Schreiber, 381 U.S. 279 (1965).

The legislative history of the statutory provisions

attached to and discussed in Francis-I shows strong

congressional concern that AFDC-UF payments not go

to persons who are “voluntarily” unemployed. The

materials also show an intent that HEW develop

national standards for determining unemployment,

particularly as to hours worked, but not a mandatory,

uniform federal definition of “unemployment” address-

ing all possible eligibility: questions. The Francis-II

decision not only violates established principles for

construing legislative rules, but also raises questions as

to any rules in which some discretion, however limited,

has been granted to the States or other governmental

14

units or organizations participating in the administra-

tion of the program involved.

LV.

The Court should review the decisions below because

of their major impact on the administration of the

AFDC-UF program and the great public interest in the

issues involved.

The net effect of the decisions below is to require

AFDC-UF payments to all persons who come within the

literal meaning of the statute, whether fired for

misconduct, or on strike, and to deny HEW and/or the

States any meaningful discretion as to the development

of eligibility reauirements, despite the grant of author-

ity to HEW in the statute and the !egislative history

which indicated a reluctance to pay such benefits to

persons “voluntarily unemployed”. This holding will

obviously have a substantial impact on the administra-

tion of AFDC-UF nationally. HEW advised the District

Court that of a total of 23 States which operate the

AFDC-UF program, at least 5 States, in addition to

Maryland, impose eligibility conditions with regard to

strikers, Francis-I, 340 F. Supp. at 363, n.22 (A. 19a).

The lower Courts’ decisions now invalidate the new

HEW regulation designed to make the legality of those

conditions clear. That regulation was adopted by HEW,

as a result of, and presumably in accord with, the

Francis-I decision, and after the careful consideration

of thousands of comments from interested persons and

organizations, 38 Fed. Reg. 49 (January 3, 1973) and

18549 (July 12, 1973). Unless the holding of the Francis-

II decision is reversed, it seems unlikely that HEW can

develop any meaningful standards under the statute.

15

Despite its previous failures, HEW has again begun

the difficult task of developing a regulation which will

pass judicial scrutiny. On August 8, 1975, one month

after argument of these cases before the Court of Appeals,

HEW published new, proposed amendments to

233.100(a)(1) designed to meet the objections to the

present regulation set forth in Francis-II, 40 Fed. Reg.

33461 (A. 121la). This latest proposal would only

prohibit benefits to fathers whose unemployment

results from involvement in a labor dispute when such

involvement disqualifies or would disqualify them from

unemployment insurance. As a result of this single

disqualification, this new revision presumably would

mandate AFDC-UF payments to the remaining classes

involved in these proceedings, ~ “misconducts” and

“voluntary quits”. Thus, this proposed amendment

would substantially amend the operation of AFDC-UF

in the great majority of States which now do not

prohibit AFDC-UF payments to strikers. Although the

period for comments on the proposal expired on

September 8, 1975, no further action has been taken by

HEW, and the status of the proposal is unknown.

If the proposal is adopted, it is quite likely that the

sub-class of strikers involved in these proceedings

would continue to press their claim for AFDC-UF

benefits. For that reason, the adoption of the regulation

would by no means settle or end the dispute, but only

add another chapter to this four-year litigation.

Therefore, the issue of the proper scope of HEW’s

authority, and that of the states, under Section 407(a) of

the Social Security Act should be reviewed and resolved

by. this Court now.

The question as to the eligibility of strikers for

payments has come to this Court before without any

‘

~

16

final resolution of that question, J77 Lamp Di

Minter, 318 F. Supp. 364 (D. Mass., 1969), affd. 435

F.2d 989 (1st Cir., 1970), cert. denied, 402 U.S. 933

( 1971 ); Super-Tire Engineering Co. v. McCorkle, 469

F.2d 911 (3rd Cir. 1972), rev’d and remanded, 414 U.S

1107 (1974). With the involvement of the Chamber of

Commerce as a party, it would appear that this case

might be an appropriate one for resolving this separate

issue. “A reversal of the decisions below and an

affirmance of the validity of the present HEW

regulation would make clear the right of States to pay

or not pay AFDC-UF to families of strikers as each

State determined appropriate.

17

CONCLUSION

By its affirmance of Francis-I, this Court sought to

encourage an administrative solution of the issues

raised in this litigation by means of a new regulation

proposed by HEW. Despite the adoption of that

regulation, the lower courts have refused to vacate the

previous injunction, even though the stated bases for

that injunction have been removed. For the reasons

indicated the decisions of the courts below now raise

substantial questions of public importance concerning

Federal and State administrative authority over welfare

and other governmental programs. Therefore, this

Court should grant plenary review of the decision

below. Also, because of the holding below that the new

HEW regulation is invalid the Court should request the

views of the Solicitor General on the issues raised in

this proceeding.

Respectfully submitted,

FRANCIS B. BuRCH,

Attorney General of Maryland,

JOEL J. RABIN,

THEODORE Losin,

Assistant Attorneys General,

1100 North Eutaw Street,

Baltimore, Maryland 21201,

February 19, 1976 Attorneys for Petitioners.