# Appendix — Batterton v. Francis

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2185%3A02

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1977
- **Citation:** 432 U.S. 416

## Text

Supreme Court, UM |

75-1181 kiteD i.
@5-1182 ' f5i9 we |

4

IN THE

Supreme Court of the United States

OcTOBER TERM, 1975

Nos.

RICHARD A. BATTERTON, etc., ET AL., Petitioners,
v.
ROBERT FRANCIS, etc., et AL., Respondents.

RICHARD A. BATTERTON, erc., er AL., Petitioners,
Vv.

BARRY BETHEA, etc., eT At., Respondents.
THE CHAMBER OF COMMERCE OF THE UNITED
STATES OF AMERICA, Petitioner,

Vv

ROBERT FRANCIS. et AL., Respondents.

APPLICATIONS FOR A WRIT OF CERTIORARI TO THE
UNITED STATES CouRT OF APPEALS
For THE FOURTH CIRCUIT

PETITIONERS’ JOINT APPENDIX

a ee

GERARD C. SMETANA, FRANCIS B. BURCH,
WituiAM H. DuRoss, III, Attorney General of Maryland,
BorovskYy, SMETANA, EHRLICH One South Calvert Street,
& KRONENBERG, Baltimore, Maryland 21202,
2011 Eye Street, N.W., 383-3718
Suite 800 JoeL J. RABIN,

Washington, D. C. 20006, Assistant Attorney General,
Attorneys for Petitioner Tyeopore LosIN,
in No. Assistant Attorney General,
1100 North Eutaw Street,
Baltimore, Maryland 21201,
383-3508,
Attorneys for Petitioners.
in No.

The Daily Record Co., Baltimore, Md. 21202 >=

TABLE OF CONTENTS

Opinion of District Court in Francis v. Davidson
340 F. Supp 351 (Francis-J), filed January 28,
RRS LE Sa RE See RO, ORNS A Oe

Memorandum and Order of District Court, dated
RSE ISTE Ste oa

Memorandum and Order of District Court, filed
EP ISTERED SD a Ie TE

Transcript of Oral Opinion of District Court,
RRS on ome

Order of District Court, filed March 6, 1972 .....

Memorandum for the United States as Amicus
Curiae by the Solicitor General, August, 1972

Order of Affirmance by the Supreme Court 409
U.S. 904, October 16, 1972 ..................cccc000000..

Letter Opinion of District Court, December 10,
SEP cevdisstiillasintenattingiticstatiiiicteiesadbssdinitsanisidhietiambias

Memorandum Amicus Curiae of the Department
of Health, Education, and Welfare, February
RR ES SRT FIO

Opinion of the District Court in Francis uv.
Davidson, 379 F. Supp. 78 (Francis-IJ, of
RE SE Sar Leonel BTM. aoe

Opinion of the District Court in Bethea v. Mason,
384 F. Supp. 1274, filed November 27, 1974

Judgment Bethea v. Mason, filed December 12,
PUY alates libata pabiniited issn Mii

Order of dismissal by the Supreme Court, Mason,
etc., et al. v. Francis, 419 U.S. 1042, filed
SU Th
U.S.C. § 607, providing aid for children in a family in whic
the father is unemployed. Prior to the enactment of that
statute, there had been in existence a program known as
AFDC pursuant to 42 U.S.C. §§ 601-606 under which aid was
made available for children in families in which the father
was absent from the home, incapacitated or dead. See King v.
Smith, 392 US. 309, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1968).
That program was continued in effect after the establishment
of the AFDC-E program. Since 1961, the two programs ae
run side by side. Both depend upon a combination of —
and state funds and are administered by the states under

ja
behalf of themselves and others similarly situated,
allege that benefits under that program have been
denied to their respective children by the Department of
Employment and Social Services of the State of
Maryland under Rule 200.X.A. (2) of that Department,’
in violation of (a) 42 U.S.C. §607' and 45 C.F.R.
§ 233.100(a),* and (b) the Fourteenth Amendment of the
Federal Constitution. Defendants, named in their
individual and representative capacities, are, respec-
tively, the Secretary of the Maryland Department of
Employment and Social Services and the Director of the
Maryland Social Services Administration, a division of
that Department.° HEW has submitted its views with
regard to the issues in this case, pursuant to the request
of this Court addressed to that agency in accordance
with the strong policy suggestion stated by the Supreme
Court of the United States in Rosado v. Wyman, 397
U.S. 397, 90 S. Ct. 1207, 25 L. Ed. 2d 442 (1970).° The

regulations promulgated by the Department of Health,
Education and Welfare (HEW) pursuant to statutory author-
ity delegated to HEW by the Congress.

The history of AFDC is discussed in Dandridge v.
Williams, 397 U.S. 471, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970),
and in Rosado v. Wyman, 397 U.S. 397, 90 S. Ct. 1207, 25 L.
Ed. 2d 442 (1970). All states participate in AFDC. The history
of AFDC-E is set forth in Macias v. Finch, 324 F. Supp. 1252
(N.D. Calif. 1970). Twenty-two states and the District of
Columbia presenily participate in AFDC-E.

* See n. 14 infra.
* See n. 10 infra.
* See n. 12 infra.

* During the pendency of this case, Raleigh C. Hobson
resigned as the Director of the Social Services Administra-
tion and his replacement, Dr. Irene Olson, automatically
became a party defendant herein in his place and stead
pursuant to Federal Civil Rule 25(d)(i).

® Whenever possible the district courts should obtain the
views of HEW in those cases where it has not set forth its
views, either in a regulation or published opinion, or in cases
where there is a real doubt as to how the Department’s
standards apply to the particular state regulation or pro-
gram.
Rosado v. Wyman, supra at 407-408, 90 S. Ct. at 1215
(footnote omitted).

4a

United States Chamber of Commerce and the Chamber
of Commerce of Metropolitan Baltimore were permitted
to file amicus briefs and to take part in oral argument.’

Robert Francis, one of the two original plaintiffs in
this case, became out of work on July 1, 1971 when the
union, of which he was a member, called a strike at the
plant at which he was working. The other original
plaintiff, Franklin Wilkens, was discharged from his
employment on June 22, 1971 because of gross miscon-
duct. Wilkens subsequently obtained new employment
and withdrew his compiaint herein. At the time of
Wilkens’ withdrawal, Edward Wright was granted
leave to become a plaintiff herein.* Wright’s employer
discharged him on May 12, 1971 for alleged gross
misconduct (excessive absenteeism). Both Francis and
Wright (as well as Wilkens during the period he was out
of work) applied for and were denied AFDC-E benefits
by the Department of Social Services of the City of
Baltimore. Wright is still out of work. Francis went
back to work on September 10, 1971 when the strike
which had been called by his union ended.

In the 1961 legislation originating the AFDC-E
program, the term “dependent child” was defined in 42
U.S.C. §607(a), Pub. L. No. 87-31, §407, 75 Stat. 75
(1961), to include “a needy child” under the age of

7 The United States Chamber of Commerce, which sought
leave to intervene herein as a party under Federal Civil Rule
24(b), was given the opportunity, both in written and oral
argument, to present its contentions inst the background
of proffered facts which the national Chamber stated it stood
seady to prove if permitted to intervene as a party. In this
opinion, this Court assumes, arguendo only, the correctness
of those proffered facts, and for that reason, without
determining whether such intervention would, in the words
of Rule 24(b), unduly delay or prejudice the adjudication of
the rights of the original parties,” concludes that there is no
reason to permit the same and accordingly hereby denies the
said application to intervene.

8 The two original rgemays Wilkens and Francis, as well
as the plaintiff Wright, were permitted to proceed in forma
pauperis after filing affidavits indicating their lack of-funds
and property.

5a

eighteen “who has been deprived of parental support or
care by reason of the unemployment (as defined by the
State)” of a parent, and who is living with any of his
relatives “in a place of residence maintained by one or
more of such relatives as his (or their) own home.”
(Emphasis added). In 1968, Congress enacted extensive
amendments and, inter alia, replaced the word “parent”

_ with the word “father,” replaced the above italicized

parenthetical words with the words “as determined in
accordance with standards prescribed by the Secre-
cl and added 42 U.S.C. §607(b), providing as
ollows:

The provisions of subsection (a) of this section
shall be applicable to a State if the State’s plan
approved under section 602 of this title—®

(1) requires the payment of aid to families with
dependent children with respect to a dependent
nar as defined in subsection (a) of this section
when—

(A) such child’s father has not been employed (as
determined in accordancé with standards pres-
cribed by the Secretary) for at least 30 days prior to
the receipt of such aid. [Emphasis added.]!°

® 42 U.S.C. §602 provides that each state shall have the
right to submit its own plan for the administration of its
AFDC-E program, provided same meets the standards of the
statute. Congress is not required to provide funds to a'state
without such a program. King v. Smith, supra; Carroll v.
Finch, 326 F. Supp. 891 (D. Alaska 1971); Woolfolk v. Brown,
325 F. Supp. 1162, 1170-1171 (E.D. Va. 1971); Cooper v.
Laupheimer, 316 F. Supp. 264, 268 (E.D. Pa. 1970). Nor is a
state required to have an AFDC-E program. Henry v. Betit,
323 F. Supp. 418 (D. Alaska 1971).

All references in this opinion to the “Secretary” are to the
Secretary of HEW, except to the extent that there is specific
reference to the Secretary of the Department of Employment
and Social Services of the State of Maryland.

10 42 U.S.C. § 607, in its entirety, as amended in 1968 and
as tly in force and effect, is set forth in Appendix A. In
addition to the amendments enacted by the Congress in 1968,
certain other amendments, not material herein, have been
made to 42 U.S.C. §607 since the inception of the AFDC-E

program.

—

6a

After the 1968 statutory amendments by the Con ’
the Secretary of HEW promulgated, as 45 FR.
§ 233.100(a), a regulation, providing, inter alia, that “[i}f
a State wishes to provide AFDC for children of
unemployed fathers, the State plan * * * must, except
as specified in paragraph (b) of this section!! * * *
fiInclude a definition of an unemployed father * * *
[and] shall include any father who is employed less
than 30 hours a week, * * *12

'! The exceptions set forth in (b) are not material herein.

'? Effective October 1, 1971, the Secretary amended the
regulation to substitute “100 hours a month” for “30 hours a
week.” 36 Fed. Reg. July 21, 1971.

That regulation also requires that any such plan shall
provide for payments only if the “father has been unem-
ployed for at least 30 days prior to the receipt of such aid
and only if the “father has not without good cause, within
such 30-day period prior to the receipt of such aid, refused a
bona fide offer of employment or training for employment
and only if the “father (a) has six or more quarters of work
o's (The regulation states that “[a] ‘quarter of work’ with
respect to any individual means a period * * * in which he
received earned income of not less than $50 a within
any 13-calendar-quarter period ending within 1 year prior to
the application sd such aid, or (b) — — l-year meee
received unemployment compensation under an unemploy-
ment coins law of a State or of the United States, or
was qualified * * * for such compensation under the State’s
unemployment compensation law.” The regulation further
provides that “{ajn ee pose be fey aod eee
unemployment compensation un e 8 unemploy-
ment pre bemnedior ms law if he would have been eligible to
receive such benefits upon filing Mgr y or he performed
work not covered by such law which, if it had been covered,
would (together with any covered work he rmed) have
made him 1 ampee to receive such ts upon
application.” The regulation specifically calls for ‘the
of * * * aid * * * lif, and for as long as, such child’s father is
not currently registered with the public employment offices in
the State, and [w]ith respect to any week for which such
child’s father receives unemployment compensation under an
unemployment compensation law of a State or of the United
States.”

45 C.F.R. §233.100(a), 34 Fed. Reg. 1146 (1969), as
continuously in force and effect since 1969, is set forth in
Appendix B.

7a

Section 6 of Maryland’s Unemployment Insurance
Law, Md. Ann. Code art. 95A, § 6 (1969 Repl. Vol.), sets
forth certain disqualifications for benefits and provides,
inter alia, that an individual shall be disqualified for
benefits when he is discharged for “gross misconduct”
(section 6(b)), and when the Executive Director finds
that “his unemployment is due to a stoppage of work,
other than a lockout, which exists because of a labor
dispute * * * [emphasis added ].”’!3

Rule 200.X.A. of the Social Services Administration,
Department of Employment and Social Services, of the
State of Maryland, denies AFDC-E aid if the father is
“disqualified for unemployment insurance.’”’!4

[1, 2] Plaintiffs, on behalf of themselves and others
similarly situated, seek injunctive and declaratory relief
as well as damages in the form of the payment of

pursuant to Rule 200.X.A."5 Because injunctive relief is
sought, inter alia, restraining state officials “from the
enforcement, operation and execution of a statewide
regulation on the ground of its unconstitutionality,”
King v. Smith, 392 U.S. 309 n. 3, 88 S. Ct. 2128, 2130, n.

3, 20 L. Ed. 2d 1118 (1969), and because those

allegations of unconstitutionality are not so frivolous or

13 Md. Ann. Code art. 95A, §6 is set forth in Appendix C.

‘* Rule 200.X.A. provides, in rt, as follows: .
A grant may not be paid foes GPA or AFDC-E:
* *

* * * *

2. To meet need due to being disqualified for unemploy-
ment insurance.

‘8 While exhaustion is not required in actions brought
under 42 U.S.C. nang and 28 U.S.C. § 1343, “where the
constitutional enge is sufficiently substantial, as here, to
require the convening of a three-judge court,” King v. Smith,
supra at 312 n..4, 88 S. Ct. at 2131 n. 4, plaintiffs herein have
in fact exhausted their state administrative remedies.

.

8a

I.

Plaintiffs assert jurisdiction in this case pursuant to
28 U.S.C. § 1343(3)'6 and (4),!7 which are jurisdictional

counterparts of 42 U.S.C. §1983,'* the violation of -

which is alleged by plaintiffs. In a concurring opinion
in Hague v. C.I.0., 307 U.S. 496, 59 S. Ct. 954, 83 L. Ed.
1423 (1939), Mr. Justice Stone wrote (at 531, 59 S. Ct. at
971) that section 1343(3) applied “whenever the right or
immunity is one of personal liberty, not dependent for
its existence upon the infringement of property rights.”
In Weddle v. Director, Patuxent Institution, 436 F.2d
342, 343 (4th Cir. 1970), Judge Winter, noting his
acceptance of Judge Friendly’s analysis in Eisen v.
Eastman, 421 F.2d 560 (2d Cir. 1960), held that
“{wjhere, as here, the infringement is one solely of
property rights, § 1331 is the applicable jurisdictional
statute, and jurisdiction may be sustained only upon

16 28 U.S.C. § 1343(3) and (4) provides:
The district courts shall have original jurisdiction of
any civil action authorized by law to be commenced by

any person:

* * * * * *

(3) To redress the deprivation, under color of any State
law, statute, ordinance, regulation, custom or usage, of
any right, privilege or immunity secured by the Constitu-
tion of the United States or by any Act of Congress
providing for equal rights of citizens or of all persons
within the jurisdiction of the United States;

(4) To recover damages or to secure equitable or other
relief under any Act of Congress providing for the
protection of civil rights, including the right to vote.

17 See n. 20 infra.

8 42 U.S.C. § 1983 provides:

Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or
Territory, subjects, or causes to be subjected, any citizen
of the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for

9a

satisfaction of the amount in controversy requirement
{footnote omitted].”%* See alsc Garren rg City of
ee North Carolina, 439 F.2d 140 (4th Cir.

_In King v. Smith, supra, the Supreme Court declared

invalid as inconsistent with certain provisions of the
Social Security Act, Alabama’s “substitute father”

“the statutory route” followed by the majority of the
Court, Mr. Chief Justice Warren, for the majority, wrote
(at 313 n. 3, 88 S. Ct. at 2131):

We intimate no views as to whether and under
what circumstances suits challenging state AFDC
Provisions only on the ground that they are
inconsistent with the federal statute may be
brought in federal courts.

In Eisen v. Eastman, supra, 421 F.2d at 564, Judge

visit her on weekends.”

In Rosado v. Wyman, 397 U.S. 397, 90 S. Ct. 1207, 25
L. Ed. 2d 442 (1970), in which a New York statute was
held to have defined a standard of need for AFDC

yments in violation of the federal statutory standard,
Mr. Justice Harlan (at 405 n. 7, 90 S. Ct. at 1214) did not

~* In Weddle, an inmate in an institution all custodial
officers had taken several items of his sesvaunl poenauee

10a

reach the issue posed by Mt. Justice Stone’s formula in
Hague, stating:

Since we conclude that the District Court
properly exercised its pendent jurisdiction, we have
no occasion to consider whether, as urged by
petitioners, this statutory claim satisfies the
$10,000 amount-in-controversy requirement of the
general federal jurisdiction provision, 28 U.S.C.
§ 1331, or whether it could be maintained under 28
U.S.C. §1343(3), which contains no amount-in-
controversy limitation, as an action “[t]o redress
the deprivation, under color of any State law. . . of
any right, privilege or immunity secured by .. .
any Act of Congress providing for equal rights of
citizens. . . .” See King v. Smith, 392 U.S., at 312 n.
3, [88 S. Ct. 2128, 20 L. Ed. 2d 1118] see generally

‘ Note, Federal Judicial Review of State Welfare
‘ Practices, 67 Col. L. Rev. 84 (1967).

On the same day as Rosado was decided, the Supreme
Court in Dandridge v. Williams, 397 U.S. 471, 90 S. Ct.
1153, 25 L. Ed. 2d 491 (1970), held valid and non-
violative of equal protection principles Maryland’s
placing of a dollar limit per month upon AFDC grants
without regard to need or to size of family. In so doing,
while the Supreme Court reversed the three-judge
district court’s contrary determination on the merits, it
took no issue with the district court’s holding that
“(jurisdiction is properly invoked under Civil Rights
Act, 28 U.S.C.A. §1343(3) and (4), and 42 U.S.C.A.
§ 1983 * * *.” Williams v. Dandridge, 297 F. Supp. 450,
453 (D. Md, 1968). Earlier in Lewis v. Martin, 397 U.S.
552, 90 S. Ct. 1282, 25 L. Ed. 2d 561 (1970), the Su e
Court held a California welfare ion invalid upon
statutory grounds without indicating any doubts as to
the existence of jurisdiction. And earlier, in a per
curiam opinion in Shapiro v. Solman, 396 U.S. 5, 90 S.
Ct. 25, 24 L. Ed. 2d 5 (1969), the Supreme Court affirmed
a three-judge district court opinion, 300 F. Supp. 409 (D.
Conn., 1969), in which a Connecticut welfare practice
was invalidated upon statutory grounds and in which
section 1343(3) jurisdiction held to exist. Most
recently, in Townsend v. Swank, 404 U.S. 92 S. Ct.

lla

502, 30 L. Ed. 2d 448 (1971), reversing the judgment
below for defendants in Alexander v. Swank, 314 F.
Supp. 1082 (D. Ill. 1971), the wiT-ri Court, in
consideri a challenge under 42 U.S.C. §1983 to
Illinois’ AFDC program on the grounds that the latter
was inconsistent with federal law and this void under
the Supremacy Clause, and was also violative of equal
protection principles, raised no question concerning the
assumption of jurisdiction by the court below and
reversed on the ground that the Illinois statute and
regulation conflicted with federal law and were invalid
under the Supremacy Clause. Mr. Justice Brennar
wrote that the Court therefore did not reach the equal
protection issue (92 S. Ct. at p. 508). However, he did
note (at p. 508 of 92 S. Ct.) that “we think there is a
serious question whether the Illinois classification can
withstand the strictures of the Equal Protection
Clause.” Concurring, Mr. Chief Justice Burger stressed
that in his opinion the ey omy tery inquiry in we bine
should be simply whether the State has indeed adhered
to the provisions [of the federal statute] and is
accordingly entitled to utilize federal funds in support
of its program. Cf. Rosado v. W , 397 U.S. 397, 420
90 bg — 1207, 25 L. Ed. 2d 442] (1970).” (at p. 508 of 92

In Tichon v. Harder, 438 F.2d 1396 (2d Cir. 1971),

Judge Anderson, in a case involving i e of a
=e wegen employee of Connecticut’s ent of
elfare, wrote (at 1399): “It is apparent, however, as

Eisen recognized, that some classes of cases are not
readily characterized as involvi either rights of

personal liberty or rights but take on charac-
teristics of both. Cases ing the procedures used
in a di fro blic emp ent are such a

Circuit held (at 1402) that
i bsence of a clear, immediate and substantial
impact on the employee’s reputation which effectively

such facts does seem to tip the scales
towards the personal liberty side of the equation and to cause
Beg (3) jurisdiction to be present. Birnbaum v. Trussell, 371

12a

involved” (footnote omitted), and also commented (at
1400) that “unlike welfare recipients, who exist at a
bare subsistence level, it cannot be said that an
employee’s rights to the profits from his job entail ‘some
sort of right to exist in society.’ Johnson v. Harder, 438
F.2d 7 (2 Cir. 1971).”

Johnson v. Harder, supra, involved a challenge to
Connecticut’s action in reducing AFDC payments to a
mother with ten children by the amount of Old Age,
Survivors and Disability Insurance benefits payable to
two of the children because of the death of their father.
Writing (438 F.2d at 12) that “{s}ince welfare cases by
their very nature involve people at a bare subsistence
level, disputes over the correct amounts payable are
treated not merely as involving property rights, but
some sort of right to exist in society, a personal right
junder the Stone formula” (footnote omitted), and
, distinguished McCall v. Shapiro, 416 F.2d 246 (2d Cir.
1969), in which a Connecticut welfare regulation was
challenged on appeal only upon statutory grounds and
in which section 1343 jurisdiction was held lacking,
Judge Smith, for himself and Chief Judge Lumbard and
Judge Anderson, held (438 F.2d at 12) that “so long as a
colorable constitutional claim has been raised, jurisdic-
tion will properly lie.” Holding the constitutional claim
before it not to be insubstantial, the Court in Johnson v.
Harder, supra, filed after the Supreme Court’s opinion
in Dandridge v. Williams, supra, held the constitutional
(equal protection and due process) claims before it not
“to be insubstantial in the light of the recent Supreme
Court AFDC cases” (438 F.2d at 13).

Just a few days ago, in Russo v. Kirby, 453 F.2d 458
(2d Cir. 1971), Judge Hays, writing for himself and
Judges Moore and Mulligan, in a class action case in
which the district court had granted a ray vrs
injunction on the ground that the New York Social
Services Law’s provision prohibiting the granting of
welfare benefits to strikers infringed federal rights of
the plaintiff-claimants, reversed the judgment of the
district court below holding that no individual claim of
any one plaintiff exceeded $10,000, that aggregation of
claims was impermissible under Snyder v. Harris, 394

13a

U.S. 332, 89 S. Ct. 1053, 22 L. Ed. 2d 319 (1969), that “no
colorable constitutional claim is presented,” citing
Dandridge v. Williams, supra, as dispositive of the
equal protection contention, and that accordingly no
federal jurisdiction existed under 28 U.S.C. § 1343 or
under 28 U.S.C. § 1337.19

Less than two years earlier, Judge Hays, concurring
specially in a three-judge district court case, in
McClellan v. Shapiro, 315 F. Supp. 484, 494 (D. Conn.
1970), ex similar views in stating his disagree-
ment with the majority’s assumption of jurisdiction in a
suit challenging the validity of Connecticut’s definition
of a “dependent child” in its AFDC program. Judge
Blumenfeld, for the majority, held the Connecticut
statute to be valid, after first determining at the
threshold, in disagreement with Judge Hays, that
jurisdiction was present under the authority of Judge
Friendly’s suggested reading of King v. Smith, supra, in
Eisen v. Eastman, supra.

In Roberge v. Philbrook, 313 F..Supp. 608 (D. Vt.
1970), Judge Leddy, after reviewing in epth, inter alia,
Rosado v. Wyman, King v. Smith, Eisen v. Eastman, as
well as numerous other federal court opinions rendered
in jurisdictions outside the Second Circuit, held section
1343(3) jurisdiction to be present in a welfare case. In
Henry v. Betit, 323 F. Supp. 418 (D. Alaska 1971), the
Court, after referring to King v. Smith, Dandridge v.
Williams, Eisen v. man, McCall v. Shapiro, and
McClellan v. _—— also concluded that it had
jurisdiction. In ition, see Caulder v. Durham
Housing Authority, 433 F.2d 998 (4th Cir. 1970), in
which the Fourth Circuit, in a post-Weddle opinion

in connection with a procedural due process
attack upon certain replevin procedures.
198 See n. 20 infra.

l4a

[3, 4] While it is the understatement of the new year
1972 to say that the matter is not free of doubt, this
Court, in the absence of any clear guidance from the
Supreme Court or from the Fourth Circuit, adopts the
approach followed in Johnson v. Harder, supra, and
holds that the alleged deprivation of AFDC-E benefits
in this case constitutes ai: allegation of infringement of
personal liberties and that the constitutional equal
protection contentions advanced by plaintiffs herein,
while rejected, are not frivolous. “{WJhether the com-
plaint states a cause of action on which relief could be
granted * * * must be decided after and not before the
court has assumed jurisdiction over the controversy,”
Bell v. Hood, 327 U.S. 678, 682, 66 S. Ct. 773, 776, 90 L.
Ed. 939. (1946). Once having assumed jurisdiction
because of the constitutional challenge, this Court
believes that whether or not jurisdiction would other-
wise exist, it should continue to assert its jurisdiction
and proceed to resolve the issues herein involving
_ federal statutes and federal regulations. The views
stated by Mr. Justice Harlan in Rosado v. Wyman,
supra, 397 U.S. at 402-403 and 422-423, 90 S. Ct. 1207, 25
L. Ed. 2d 442, and by Mr. Chief Justice Warren in King
v. Smith, supra, would appear so to teach.2°

20 This Court thus finds it unnecessary to determine if
jurisdiction also exists in this case under 28 U.S.C. § 1343(4),
or whether the Hague-Eisen-Weddle distinction applies in
connection with § 1343(4) as well as § 1343(3). For opinions in
which those two subsections have been, on the one hand,
seemingly considered as one, and, on the other hand, as
constituting separate jurisdictional bases, see, e. g., Dale v.
Hahn, 440 F.2d 633, 641 (2d Cir. 1971); Eisen v. Eastman, 421
F.2d at 562 n. 2; McCall v. Shapiro, supra; Roberge v.
Philbrook, 313 F. Supp. at 614-615 n. 7. Nor does this Court
reach the question of whether jurisdiction is present herein
under 28 U.S.C. § 1337 which provides:

The district courts shall have original jurisdiction of

_any civil action or proceeding arising under any Act of

Congress regulating commerce or protecting trade and
commerce against restraints and monopolies.

In Russo v. Kirby, supra, Judge Hays held jurisdiction under

§ 1337 did not attach because the case did not arise “directly”

under federal law. Cf. Barlow v. Marriott Corporation, 328 F.

15a

II.

[5, 6] Originally, in their complaint, plaintiffs asked

is Court to permit this proceeding to take place as a
class action under Federal Civil Rule 23(a) and (b) (2).
During oral argument, counsel for plaintiffs stated
agreement with a position sugg by this Court,
namely, that if this Court should determine that it has
nu power to award damages in this case, there would be
no need to form a c!=ss herein. Nevertheless, there may
be reason to form t..: class herein. in order to avoid the
possibility of mootness in view of the fact that the
plaintiff Francis has returned to work (see p. 355 supra).
See Doremus v. Board of Education, 342 U.S. 429, 72 S.
Ct. 394, 96 L. Ed. 475 (1952); and Troy State University
v. Dickey, 402 F.2d 515 (5th Cir. 1968). See also SEC v.
Medical Committee for Human Rights, 404 U.S. a
S. Ct. 577, 30 L. Ed. 2d 560 (1972); Barrows v. Jackson,
346 US. 249, 257 n. 3, 73 S. Ct. 1031, 97 L. Ed. 1586
(1953); Smith v. Board of Education, 365 F.2d 770, 776
(8th Cir. 1966). While this Court recognizes that the

. . . ‘

principles of mootness, see
ITT Lamp Division v. Minter, 435 F.2d 989, 991 (ist
Cir.), cert. denied, 402 U.S. 933, 91 S. Ct. 1526, 28 L.
2d 868 (1971), reh. denied, 404 U.S. 874, 92 S. Ct. 27
L. Ed. 2d 120; Jenkins v. United Gas Corp., 400 F.
(5th Cir. 1968), i
rather i

Rule 23(b) (2), by determines that this action
be maintained as a class action on behalf
separate subclasses, namely, (1) those who have i
unsuccessfully for AFDC-E benefits and have

involved in a labor dispute and (2) those who have also

E

E

|

E

5

3
Seek

2,
RIES

has this Court found any cases other than Russo in which
plaintiffs have a state welfare statute or
tion as violative of rights allegedly created by
statutes or tions and in which jurisdiction has been
suggested § 1337.

16a

so applied and have been so denied because they have
been discharged by their respective previous employers
for misconduct. In so determining, this Court finds that
each of the said two classes is so numerous that joinder
of all members is impractical; there are questions of law
and fact common to the members of each of the said
two classes; the claims of the respective parties herein
are typical of the claims of all members of the class to
which those representatives respectively belong; the
representative parties will fairly and adequately protect
the interests of the class; and counsel for the named
plaintiffs have most diligently and competently repres-
ented the interests of the members of the two sub-
classes. Because the classes are designated pursuant to
Rule 23(b) (2), no notice is stauioas ‘er Rule 23(c) (2).

ile, in some instances, notice to each member of the
class may be required in order to avoid violation of due
process principles, in this case, this Court, under the
' circumstances, holds that notice need not be given to
each member of the two classes. If any retroactive
payments are required (see the discussion at p. 371,
infra), this Court has confidence that the federal and
Maryland authorities will take appropriate steps to
inform all persons entitled to such benefits of their
rights thereto. For a discussion of notice requirements
in class suits pursuant to Federal Rule 23, see, on the
one hand, Johnson v. Georgia Highway Express, Inc.,
417 F.2d 1122 (5th Cir. 1969); Northern Natural Gas Co.
v. Grounds, 292 F. Supp. 619, 636 (D. Kan. 1968), as
contrasted with Eisen v. Carlisle and Jaccuelin, 391
F.2d 555 (2d Cir. 1968). See also 3B J. Moore, Federal
Practice, 92355 at 1152-53 (2d ed. 1969), favoring the
views expressed in the first two cases that notice in a
Rule 23(b) (2) case is not always required.

—_— —

(7, 8] In Dandridge v. Williams, supra, 397 U.S. at
478, 90 S. Ct. at 1158, 25 L. Ed. 2d 491, Mr. Justice
Stewart wrote:

*** In King v. Smith, supra, we stressed the
State’s “undisputed power,” under these provisions
of the Social ity Act, “to set the level of
benefits and the standard of need.” Id. at 334. [20
L. Ed. 2d at 1135] * * * We described the AFDC

17a

enterprise as “a scheme of cooperative federalism”,
id. at 316 [20 L. Ed. 2d at 1125] * * *, and noted
carefully that “{tJhere is no question that states
have considerable latitude in allocating their

resources, since each State is free to set its
own standard of need and to determine the level of
benefits by the amount of funds it devotes to the
program.” Id. at 318-319 [20 L. Ed. 2d at 1126]* * *.

Those comments would seem to apply with equal force
to the AFDC-E program. In Dandridge, Mr. Justice
Stewart, pas for a unanimous Court and holding
that Maryland’s administrative practice which imposed
an ro ga limit on the total amount of money any one
family unit might receive under the AFDC program, did
not violate the Equal Protection Clause and was not in
— with any provision of the Social Security Act,
O wrote:

In the area of economics and social welfare, a
State does not violate the Equal Protection Clause
merely because the classifications made by its laws
are imperfect. If the classification has some
“reasonable basis,” it does not offend the Constitu-
tion simply because the classification “is not made
with mathematical nicety or because in practice it
ee iieay some inequality.” * * * [at 485, 90 S. Ct.
at 1

We do not decide today that the Maryland
regulation is wise, that it best fulfills the relevant
social and economic objectives that Maryland
might ideally espouse, or that a more just and
humane system could not be devised. Conflicting
claims of morality and intelligence are raised by
opponents and proponents of almost every mea-
sure, certainly including the one before us. But the
intractable economic, social, and even philosophi-
cal problems presented by public welfare assist-
ance are not the business of this Court. The
Constitution may impose certain proced safe-

guards upon of welfare administration.
Goldberg v. Kelly 397 U 8. 254 [90 S. Ct. 1011, 25 L.

18a

Ed. 2d 287] [1970]. But the Constitution does not
empower this Court to second-guess state officials
charged with the difficult responsibility of allocat-
ing limited public welfare funds among the
myriad of potential recipients. [citations omitted ]
[at 487, 90 S. Ct. at 1162].

See also Richardson v. Belcher, 404 U.S. 78, 92 S. Ct.
254, 30 L. Ed. 2d 231 (November 22, 1971).

In this case, plaintiffs urge that Maryland’s Rule
200.X.A.(2) discriminates without rational basis against
certain children. whose fathers happen to be out of work

use of their own misconduct which justified their
discharge by their employer, or because of a labor
dispute. Plaintiffs stress the need to focus upon the
welfare of each child and to disregard other factors

determinations of the type underlying the two applica-
tions of Maryland Rule 200.X.A.(2) which are chal-
lenged herein, and that it is not up to the courts to

the state and local Chambers of Commerce, as amici
herein, urge this Court to hold the Maryland Rule,
denying AFDC-E benefits to children of fathers out of
work because of involvement in labor disputes, valid

we em ee ee

19a

ITT Lamp Division v. Minter, 435 F.2d 989 (ist Cir.),
cert. denied, 402 U.S. 933, 91 S. Ct. 1526, 28 L. Ed. 2d
868 (1971), pet. for reh. denied 404 U.S. 874, 92 S. Ct. 27,
30 L. Ed. 2d 120, in which the Massachusetts AFDC-E
program, which permits aid to fathers out of work

use of involvement in labor disputes, was held not
in conflict with any federal statutes. HEW, in its

constitutionally permitted to follow both of the two
Maryland practices under attack in this case, or
practices contrary and opposite thereto. This Court
believes that the HEW position is sound.

rational bases exist for Maryland’s sition denying
AFDC-E benefits to children of fathers who are out of

22 The State of Maryland, in a meriorandum filed in this
case, has set forth the following “separate, although
somewhat related, bases upon which the Rule may
justified:”

1. To harmonize the State’s unemployment compensa-
tion program and its AFCD-E program, both such

the Social Act.
”, To discourage cence ol unemployment and there-
by to promote employment in te

largest measure of neutrality in collective
and strikes, so as not to incur the risk of y

20a

protection challenge to Maryland’s denial of benefits to
such fathers must be rejected.

Nor has the Congress, by the enactment of labor laws
having national scope, in any way, by the terms of
those statutes or otherwise, indicated that those laws or
the policies underlying them are intended to control the
resolution of those opposing viewpoints of social
welfare which underlie the differences between the
Maryland and the contrary rules relating to the grant
or denial of -E benefits to those out of work

use of involvement in labor disputes. In Minter, 435
F.2d at 992-993, Judge Coffin has written:

* * * Where Congress has not clearly manifested
‘Its purpose to exclude state action which takes the
form of exercise of its historic police powers, such
State action will not be invalidated under the
Supremacy Clause, “in the absence of persuasive
reasons”, Florida Lime & Avocado Growers, Inc. v.
Paul, 373 U.S. 132, 142 [83 S. Ct. 1210, 10 L. Ed. 2d
248] (1963), or unless the administration of the
| State law “palpably infringes” upon the federal
policy. Southern Pac. Co. vy. Arizona ex rel.
Sullivan, 325 U.S. 761, 766 (65 S. Ct. 1515, 89 L. Ed.
1915] (1945). See also Head v. New Mexico Bd. of
Examiners, 374 U.S. 424 [83 S. Ct. 1759, 10 L. Ed.
2d 983] (1963); Buck v. California, 343 U.S. 99 [72 8S.
Ct. 502, 96 L. Ed. 775] (1952). [Footnote omitted. ]

Judge Coffin’s statement, written in the context of
labor disputes, would seem equally applicable with
regard to the attack under the Supremacy Clause upon
Maryland is the only state” which “conditions eligibility for

AFDC-UF [see n. 1 supra] on eligibility for unemployment
compensation,” but that the questionnaire HEW has ad-

such restrictions, and there is, therefore, at least a possibility
that similar provisions exist in other state AFDC-UF plans.”
The State of Maryland has furnished information to this
Court which may indicate that at least one other state may
not permit strikers to register for the retaining and/or
or oF foe which is a condition precedent to the grant of
AFDC-E benefits.

2la

Maryland’s denial of aid to children of fathers dis-
charged from their last employment because of miscon-
duct. And the reasons which require rejection of the
equal protection challenge upon denial of aid in

misconduct. Accordingly, the constitutional challenge
stated by plaintiffs is rejected, in toto.23

IV

Plaintiffs also contend that the Maryland Rule is in
conflict with the federal statute and the HEW regula-

*° Having so disposed of the consitutional attack, this
three-judge court could dissolve itself and return the question

with regard to the non-constitutional issues, this three-judge
court, in view of the importance of the issues set forth herein,
p ae lve itself and to reach, as a three-

0 v. Wyman, 397 U.S. supra at 403, 90 S. Ct. at 1213,
Mr. Justice Harlan, approving the dissolution of a three-
. e district court where a constitutional claim had been

moot, wrote
Y Even had the constitutional claim not been
moot, most appropriate course may well
have been to remand to e single district judge for

judge court have nomi three of the members of this three-

federal regulation, other than
not apply to fathe

olvement in a labor
fications in a state’s
state violating federal]
uirements.

been out of work because
3 i infra, 45

“if a State wishes to
employed fathers the
lude a definition of an

hildren of un
must * * * [iInc

can reasonably
h an anomaly
phen a sae ny

under Mary s
ngress or the Secretary

y event, Maryland, b
m the benefici

23a

under the state’s AFDC-E program, on the ground that
the father of the needy child is unemployed because his

i e from employment was due to his own
misconduct. Such a father is clearly not employed.
Consequently, Maryland Rule 200X.A. (2), insofar as it
attempts to transplant, within the framework of
Maryland’s AFDC-E program, the disqualification
requirements of sections 6(b) and/or (c) of the Maryland
Unemployment Compensaticn law, is violative of

urge upon this Court that HEW’s approval of the
Maryland Rule in question is presumptively valid since
(1) the Congress delegated broad rule-making powers to

W in connection with administering the program, (2)

W, in promulgating its regulation, left great leeway
for each state to determine many details in its own .
plan,?5 and (3) HEW approved the Maryland Rule. It is
true that such approval is entitled to considerable

; i , 380
US. 1, 4, 16 and ff, 85 S. Ct. 792, 13 L. Ed. 24 616

absence of any co ional intent in connection with
disqualification for E benefits because of discharge for
misconduct.

24a

the Congress has delegated policy-making to the

(4th Cir. 1969); Hammond v. Lenfest, F.2d 705 (2d
Cir. 1968). Cf. Townsend v. Swank, supra. That is
particularly true where the regulation uses unambigu-
ous, mandatory language. A man out of work because
he was discharged for cause by his employer is
unemployed. There can be no two ways about that
conclusion. Accordingly, this Court holds that the
disqualification in Maryland’s Rule 200.X.A. (2) of
fathers who were discharged because of gross miscon-
duct or as a disciplinary measure, is in conflict with 45
C.F.R. §233.100(a) and that the said Maryland Rule is
invalid insofar as that disqualification is concerned.

The wording of 45 C.F.R. 233.100(a) also requires a
similar holding with canal i

disputes. While the legislative history of 42 U.S.C. § 607
throws little light on the subject,” it is contended that
the provisions of the statute,” which indicate the

plaintiff cis did apply for a new job and did agree
to take part in the required training.”*

*° See Appendix D.
77 See Appendix A.

Fs

25a

[13-15] In King v. Smith, supra, the Supreme Court
analyzed the purposes of the AFDC program and
concluded that the Alabama regulation, which, the
State of Alabama contended, was intended to discour-
age immorality and illegitimacy and also to avoid
unfairly penalizing families where an official marital
relationship existed, was inconsistent with the statute
on the ground that Congress intended to include in the
category of the word “parent” a person who had a legal
obligation to support the child in question. With regard
to the immorality point, the Supreme Court, 392 U.S. at
324-325, 88 S. Ct. at 2137, stated that federal public
welfare policy “now rests on a basis considerably more
sophisticated and enlightened than the ‘worthy person’
concept of earlier times. * * * In sum, Congress has
determined that immorality and illegitimacy should be
dealt with through rehabilitative measures... .” Thus,
the Supreme Court, in King v. Smith, found that the
justifications which the State of Alabama offered were

Bureau of Labor Statistics classifies persons out of work

use of involvement in labor disputes as “employed
persons’ rather than “unemployed: persons.” However, it
must be noted that the Bureau classifies some persons who
might well be thought by the average person to be
unemployed, as neither “employed” nor “unemployed,” but
rather in the “not in the labor force grouping.” An example is
persons who are “voluntarily idle.” See Handbook of Labor
Statistics (1970), U. S. “eo of Labor, Bureau of Labor
Statistics Technical Notes, Current Population imo .1
& 2. Thus, the Bureau’s classifications are not too h ptul in
the context of this case where it is necessary to decide if
claimants for AFDC-E benefits are either employed or
unemployed. Under the National Labor. Relations Act, a
striker continues to have rights to his job and to his employee
status. 29 U.S.C. § 152(3). See also NLRB v. Mackay Radio &
Teleg. Co., 304 U.S. 333, so ny S. Ct. 904, 82 L. Ed. 1381

26a

incompatible with the federal eae pe. In
this case, the State of Maryland, and the Chambers of
Commerce, particularly the national Chamber of
Commerce, strenuously urge this Court to hold that the
Congress has clearly indicated, through its labor
legislation, and in other ways that it did not intend to
lend governmental support to those out of work because
of labor disputes and that therefore the word “unem-
ployment,” as used in the statute and defined in the
regulation by HEW, should be read to exclude such

rsons. The difficulty with that approach is that it is a
oe strap one because there is little or nothing in the
legislative history, or in the words of the statute itself,
or in the words of the regulation, or indeed in the advice
received by this Court from HEW, to indicate whether
the word “unemployment,” as used in the statute and
amplified in the regulation, was or was not intended to
. include such persons. Perhaps it is in recognition of
that fact that HEW would have us go both ways and
say that the Congress empowered HEW to leave to each
participating state — and that HEW in turn by its
regulation has left to each state — the determination of
whether the word “unemployment,” in the context of a
state’s own AFDC-E peng, includes or excludes such
persons. In support of that view, it is to be noted that
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, Con-
gress used words which did not mandatorily require the
Secretary to require each state to adopt the same
meaning of the word “employment” but instead merely
authorized the Secretary to prescribe a national
meaning if the Secre so desired. In so doing, this
Court agrees that the Congress empowered the Secre-
tary, by oo mpey 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 iy Soy or (3) to leave that decision to each state.
A quick look at 45 C.F.R. § 233.100(a) (1) (ii) reveals a
specific instance in which each state is given the power

27a

of definition by the Secretary.2** Thus, the Secre

demonstrated that he knew exactly how to state er
when he desired to leave a matter to the discretion of
each state. By contrast, the language of 45 C.F .R.
§ 233.100(a) (1) @) is crystal clear, ie., “* * * the State

considered by the industry to-be full time for the job,
whichever is less * * *” (Emphasis added). The
presence of those words renders the Secretary’s regula-
tion incapable of being construed in more than one of
the three ways left open to the Secretary by the
Congress. A father who is not working at all because of
his involvement in a labor dispute is a father who “is
employed less than 30 hours a week” and less than
three quarters of his industry’s average. Whether the
word “unemployment” covers or does not cover persons
out of work because of labor disputes, the 5
acting under the authority delegated to him by the
Congress, mandatorily, by the unequivocal words of his

own regulation, required that ea state’s plan must
include all fathers, who otherwise qualify, who are
employed less than a given number of hours. In order
otherwise to qualify, such a father must not have
available to him from his own resources or other
sources including strike benefits assets or income which
place him outside of the needy category. Further, he
must register for other work and for retraining and
ay and participate in both in good faith. Considered
in their sum total, the statute and the regulations
provide safeguards to ensure that only needy fathers
who are willing to be retrained if necessary, and to
engage in other employment, can qualify for benefits
which are made available primarily to help the children
of such fathers. In Townsend v. Swank, supra, in which
the Supreme Court held invalid that part of Illinois’
AFDC program under which certain needy dependent
children attending high school or vocational school

288 See Appendix B.

28a
were eligible for benefits, but those attending college or

university were not, Mr. Justice Brennan (at p. 505 of 92
S. Ct.) wrote:

ity Act or its legislative history, a state eligibility
standard that excludes persons eligible for assist-
ance under federal AFDC standards violates the
Social Security Act and is therefore invalid under
the Supremacy Clause. We recognize that regula-
tions of the Department of Health, Education, and
Welfare seem to imply that States may to some
extent vary eligibility requirements from federal
standards. However, the principle which accords
substantial weight to interpretation of a statute by
the department entrusted with its administration is
inapplicable insofar as those regulations are
inconsistent with the requirement of § 402(a) (10)
that aid be furnished “to ail eligible individuals.”
(Emphasis supplied.) King v. Smith, 392 US. at
333 n. 34. [88 S. Ct. 2128 20 L. Ed. 2a 1118]
[Footnote omitted.]

The following paraphrase of Mr. Justice Brennan’s last-
quoted sentence controls this case as to those involved
in labor disputes: The principle which accords substan-
tial weight to an agency’s interpretation of its own
regulation is inapplicable insofar as that interpretation
Is Inconsistent with the requirements (in this case,
mandatory requirements) of its own regulation validly
promulgated under authority delegated to it by the
Congress.29 The Secretary could have authorized
ef to wpe od og a ee oe those out of
work because of labor disputes. t, by regulation, the
Secretary mandatorily required the opposite, and
having so done, he may not ignore his own regulation.
Accordingly, this Court holds that Maryland’s Rule
200.X.A. (2), insofar as it denies AFDC-E benefits to

9 See also Heffner v. United States, supra; United States
ex rel. Brooks v. Clifford, supra; Hammond v. Lenfest, supra.

29a

disputes, conflicts with the federal regulatory require-
ments promulgated by the Secretary, and that the
plaintiff Francis and others similarly situated are
entitled to relief herein.

[16] It follows from our conclusion that Maryland’s
program, insofar as Maryland fails to afford AFDC-E
relief where fathers are out of work because of gross
misconduct on because of involvement in labor dis-
putes, is incompatible with federal regulatory require-
ments, and that the plaintiff Wright and others
similarly situated and the plaintiff Francis and others
similarly situated “are entitled to declaratory relief and
an appropriate injunction by [this Court] against the
payment of federal monies” in contravention of this
Court’s holding here, “should the State not develop a
conforming plan within a reasonable period of time,”
Rosado v. Wyman, 397 U.S. supra at 420, 90 S. Ct. at
1222 (emphasis by Mr. Justice Harlan). This Court,
having confidence that, if this Court’s holdings herein
become final, the State of Maryland will conform its
plan, effective as of the date of the filing of this opinion
and as required by this Court’s declaration of the law
herein, finds it unnecessary, at this time, to enjoin or
otherwise issue any order to respondents herein.2%

V.

Maryland is required to disperse whatever public
funds are available for AFDC-E benefits in accordance
with this opinion. Rosado v. Wyman, supra.* See

298 The said obligations of the State of Maryland here-
under 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.

© Mr. Justice Harlan, in Rosado (at 420-421, 90 S. Ct. at
1222) wrote:

We have considered and rejected the argument that a
federal court is without power to review state welfare
provisions or prohibit the use of federal funds by the
States in view of the fact that Congress has lodged in the

30a

Henry v. Betit, 323 F. Supp. 418, 421 (D. Alaska 1971);
Dews v. Henry, 297 F. Supp. 587-592 (D. Ariz. 1969). But
there remains the question of whether the plaintiff
Wright and the plaintiff Francis and others respectively
similarly situated are entitled to be paid AFDC-E
benefits not only prospectively from and after the date
of the filing of this opinion, but retroactively. In
Westberry v. Fisher, 309 F. Supp. 12 (D. Maine 1970),
upon remand by a three-judge court to him as a single
judge for determination of damage claims, Judge
Gignoux was faced with a claim for retroactive AFDC
benefits withheld during the period from the date of the
filing of the complaint by the plaintiffs in that case, in
which a class was established under Federal Civil Rule

for noncompliance with statutory requirements. We are
most reluctant to assume Congress has closed the
avenue of effective judicial review to those individuals

136 [87 S. Ct. 1507, 18 L. Ed 2d 681] (1967); Association of
Data Processing Service Organizations v. Camp, 397
U.S. 150, [90 S. Ct. 827, 25 L. Ed. 2d 184] (1970); Barlow
v. Collins, 397 U.S. 159 [90 S. Ct. 832, 25 L. Ed. 2d 192]
(1970). We adhere to King v. Smith, 392 U.S. 309 [88 S.
Ct. 2128, 20 L. Ed. 2d 1118] (1968), which implicitly
rejected the argument that the statutory provisions for
HEW review of plans should be read to curtail judicial
relief and held Alabama’s “substitute father” regulation
to be inconsistent with the federal statute. While King
did not advert specifically to the remedial problem, the
unarticulated premise was that the State had alternative
choices of assuming the additional cost of paying
benefits to families with substitute fathers or not using
federal funds to pay welfare benefits according to a plan
that was inconsistent with federal requirements.

3la

liable under section 1983, under the doctrine of Monroe
v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492
(1961), and although Pierson v. Ray, 386 U.S. 547, 554,
87 S. Ct. 1213, 1218, 18 L. Ed. 2d 288 (1967), only goes so
far as to say that Congress, in enacting section 1983,
did not intend “to abolish wholesale all common-law
immunities,” and while the Supreme Court “has not
definitively spoken on the applicabiiity of the doctrine
of governmental immunity” 2! in actions brought under
section 1983 against state administrative officials, this
Court, as did Judge Gignoux, adopts Judge Magruder’s
views as expressed in Cobb v. City of Malden, 202 F.2d
701 (1st Cir. 1953), and in Francis v. Lyman, 216 F.2d
583 (1st Cir. 1954). In the latter case, Judge Magruder
concluded (at 588) that while “it is no defense to the
state officials that they may have acted, not mali-
ciously, but in the good-faith belief that they were
performing their official duty under what they thought
was valid state legislation” where they are dealing with
problems of race discrimi ation, and may therefore be
“said to act at their peril” in such situations, neverthe-
less, in other situations, “it seems to be the tendency of
the decisions to restrict the application of the Civil
Rights Act so as to avoid the appalling inflammation of
delicate state-federal relationships which undoubtedly
would ensue.” See also the citations in Westberry v.
Fisher, 309 F. Supp. supra at 17, of the opinions of other
courts and writers written both before and after the
Supreme Court’s pronouncements in Pierson, which
have followed Judge Magruder’s approach, and the
observation of Professor Davis that J udge Magruder’s
approach “seems likely to control the law of the future.”
3 Davis, Administrative Law § 26.06, pp. 478-479 (1958).

[17] To the extent plaintiffs seek to hold defendants
herein liable for damages under section 1983 in their
official capacities as officers of the State of Maryland,
“such a suit is in actuality one against the State, even
though the State is not named as a defendant.” 2

3: 309 F. Supp. supra at 16.

32 Suits ing injunctions against state officials who are
attempting to enforce state statutes alle; y violative of the
Federal Constitution fall into different classi cations. Griffin

32a

Westberry v. Fisher, supra, 309 F. Supp. at 18, and
cases cited thereat. See also O’Neill v. Early, 208 F.2d
286, 289 (4th Cir. 1953).

[18] Approaching the case as one against the State,
all claims herein for damages must fail. In the first
place, the State is not a person within the meaning of
section 1983. Monroe v. Pape, supra, 365 U.S. at 187-
192, 81 S. Ct. 473, 5 L. Ed. 2d 492; Hewitt v. City of
Jacksonville, 188 F.2d 423 (5th Cir.), cert. denied, 342
U.S. 835, 72 S. Ct. 58, 96 L. Ed 631 (1951); Westberry v.
Fisher, supra, 309 F. Supp. at 18.

[19, 20] In the second place, the Eleventh Amend-
ment*’ not only bars, without the consent of a state, a
federal court suit against that state by citizens of
another state, but also by citizens of its own state.
Great Northern Life Insurance Co. v. Read, 322 U.S. 47,
ol, 64 S. Ct. 873, 88 L. Ed. 1121 (1944); Hans vy.
Louisiana, 134 U.S. 1, 10S. Ct. 504, 33 L. Ed. 842 (1890);
Westberry v. Fisher, supra, 309 F. Supp. at 18. In this
case, the defendants, speaking on behalf of the State of
Maryland, have not only not waived that bar but
indeed vigorously press it. Thus, at the very least, as
Judge Winter wrote in Williams v. Dandridge, 297 F.
Supp. 450, 452 n. 1, 469 (D. Md. 1968), the Eleventh
Amendment does not permit this Court to require the
State of Maryland to appropriate additional money to
pay AFDC-E claims which would have been presented
to and paid by the State of Maryland in years prior to
the current fiscal year but for the disqualifying
v. er School Bd. of Prince Edward Coun , 377 US. 218,
228, 84 . Ct. 1226, 12 L. Ed. 2d 256 (1964): ia R.R. &
Banking Co. v. Redwine, 342 U.S. 299, 304, 72 S. Ct. 321, 96 L.
Ed. 335 (1952); Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52
L. Ed. 714 (1908). See Rosado v. Wyman, supra 397 USS. at
420, 90 S. Ct. 1207, 25 L. Ed. 2d 442.

8 The Eleventh Amendment to the Constitution of the
United States provides:
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

33a

provision of Maryland Rule 200.X.A. (2).* Additionally,
this Court holds that the Eleventh Amendment, when
asserted on behaif of the State as it is herein, precludes
this Court from requiring payment of any such claims
which have arisen, during the State’s current fiscal
year which commenced July 1, 1971, prior to the date of
the filing of this opinion.* In so holding, this Court has
scruntinized a number of cases in which monetary
payments by states, relating to the past, have been
required by federal courts. See the cases cited and the
discussion of several of them in Westberry v. Fisher,
309 F. Supp. supra at 15, n. 5, 19, 20 n. 12. See also Doe
v. Swank, 332 F. Supp. 61 (N.D. Ill. 1971); Grubb v.
Sterrett, 315 F. Supp. 990 (N.D. Ind.), aff'd, 400 U.S. 922,
91S. Ct. 187, 27 L. Ed. 2d 182 (1970); Doe v. Harder, 313
F. Supp. 575 (D. Conn.), app. dismissed, 399 U.S. 902, 90
S. Ct. 2202, 26 L. Ed. 2d 557 (1970); Brooks v. Yeatman,
311 F. Supp. 364 (M.D. Tenn. 1970), which have been
decided since Westberry. But in most of these cases, the
Eleventh Amendment problem was apparently either
not raised or not faced. And in.none of them has any
satisfactory reason been advanced for voiding the bar
of the Eleventh Amendment.

Whether retroactive payments are required under any
HEW and/or Maryland regulations dealing with the
subject of “corrected payments,” see Grubb v. Sterrett,
supra, 315 F. Supp. at 995; Westberry v. Fisher, supra,
309 F. Supp. at 20-21; Robinson v. Washington, 302 F.
Supp. 842, 844 (D.D.C. 1968); and Solman v. Shapiro,
300 F. Supp. 409, 416 (D. Conn. 1969), poses a question
which has not been fully briefed or argued in this case.
For that reason and, even more importantly, because
this Court has confidence that if this Court’s holding
herein becomes final, both HEW and the State of
Maryland will take such steps, if any, as are required
by their respective regulations in connection with the
making of retroactive payments, this Court, at this

34 Unless perhaps in connection with regulations of HEW
and/or the State of Maryland as to which this Court
expresses no opinion herein. See the discussion at p. 371 in
the body of this opinion.

35 See n. 34 supra.

34a

time, does not believe it necessary or advisable to state
any position or comment further in connection there-
with, including whether or not the Eleventh Amend-
ment bar has been lowered by any express or implicit
undertaking by Maryland in connection with its
acceptance of federal funds. If further developments
lead any of the parties to believe that they are entitled
to any relief in this Court with regard to the failure of
either HEW and/or any Maryland or local administra-
tive agency to make retroactive payments in accor-
dance with its own regulations, further application for
such relief may be timely made to this Court under such
circumstances.

For the reasons set forth in this opinion, this Court
holds that each of the plaintiffs and others res ively
similarly situated are entitled to prospective relief only,
_but that, at least at this time, no decree or order would
appear necessary to effectuate that prospective relief.*®

It is so decreed and ordered.

APPENDIX A
42 U.S.C. §607, as amended in 1968, provides:

§607. Dependent children of unemployed fathers;
definition

(a) The term “dependent child” shall, notwithstand-
ing 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 umemployment (as determined in accord-
ance with standards prescribed 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 maintained by one or more of such relatives
as his (or their) own home.

(b) The provisions of subsection (a) of this section
shall be applicable to a State if the State’s plan
approved under section 602 of this title—

36 See the discussion at p. 369 n. 30 supra, adopting Mr.
Justice Harlan’s approach in Rosado v. Wyman, supra.

35a

(1) requires the payment of aid to families with
dependent children with respect to a devendent child as
defined in subsection (a) of this section when—

(A) such child’s father has not been employed (as
determined in accordance with standards prescribed by
a tary) for at least 30 days prior to the receipt of
such aid,

(B) such father has not without good cause, within
such period (of not less than 30 days) as may be
prescribed by the Secretary, refused a bona fide offer of
employment or training for employment, and

(C) (i) such father has 6 or more quarters of work (as
defined in subsection (d) (1) of this section) in any 13-
calendar-quarter period ending within one year prior to
the application for such aid or (ii) he received unemploy-
ment compensation under an unemployment compensa-
tion law of a State or of the United States, or he was
qualified (within the meaning of subsection (d) (3) of
this section) for unemployment compensation under the
unemployment compensation law of the State, within
one year prior to the application for such aid; and

(2) provides—

(A) for such assurances as will satisfy the Secretary
that fathers of dependent children as defined in
subsection (a) of this section will be referred to the:
Secretary of Labor as provided in section 602(a) (19) of
this title within thirty days after receipt of aid with
respect to such children;

(B) for entering into cooperative arrangements with
the State agency responsible for administering or
supervising the administration of vocational education
in the State, designed to assure maximum utilization of
available public vocational education services and
facilities in the State in order to encourage the
—- of individuals capable of being retrained;
an

(C) for the denial of aid to families with dependent

children to any child or relative specified in subsection
(a) of this section—

36a

(i) if, and for so long as, such child’s father is not
currently registered with the public employment offices
in the State, and ,

(ii) with respect to any week for which such child’s
father receives unemployment compensation under an
unemployment compensation law of a State or of the

United States.

(c) Notwithstanding any other provisions of this
section, expenditures pursuant to this section shall be
excluded from aid to families with dependent children
(A) where such expenditures are made under the plan
with respect to any dependent child as defined in
subsection (a) of this section, (i) for any part of the 30-
day period referred to in subparagraph (A) of subsection
(b) (1) of this section, or (ii) for any period prior to the
time when the father satisfies subparagraph (B) of such
subsection, and (B) if, and for as long as, no action is
taken (after the 30-day period referred to in subpara-
graph (A) of subsection (b) (2) of this section), under the
- program therein specified to refer such father to the
> sad of Labor pursuant to section 602(a) (19) of this
title.

(d) For purposes of this section—

(1) the term “quarter of work” with respect to any
individual means a calendar quarter in which such
individual received earned income of not less than $50
(or which is a “quarter of coverage” as defined in
section 443(a) (2) of this title), or in which such
individual participated in a community work and
training program under section 609 of this title or any
work and training program subject to the limitations in
section 609 of this title or the work incentive program
established under part C;

(2) the term “calendar quarter” means a period of 3
consecutive caléhdar months ending on March 31, June
30, September 30, or December 31; and

(3) an individual shall be deemed qualified for
unemployment compensation under the State’s unem-
ployment compensation law if—

37a

(A) he would have been eligible to receive such
unemployment compensation upon filing application,
or

(B) he performed work not covered under such law
and such work, if it had been covered, would (together
with any covered work he performed) have made him
eligible to receive such unemployment compensation
upon filing application.

APPENDIX B

45 C.F.R. §233.100(a), as promulgated in 1969,
provides:

§ 233.100 Dependent children of unemployed fathers.

(a) Requirements for State Plans. If a State wishes to
provide AFDC for children of unemployed fathers, the
State plan under Title I[V—Part A of the Social Security
Act must, except as specified in paragraph (b) of this
section:

(1) Include a definition of an. unemployed father

(i) Which shall include any father who is employed
less than 30 hours a week, or less than three fourths of
the number of hours considered by the industry to be
full time for the job, whichever is less, and

(ii) Which may include any father who is cinployed
less than 35 hours a week, or less than the number of
hours considered by the industry to be full time for the
job, whichever is less.

(2) Include a definition of a dependent child which
shall include any child of an unemployed father (as
defined by the State pursuant to subparagraph (1) of
this paragraph) who would be, except for the fact that
his parent is not dead, absent from the home, or
incapacitated, a dependent child under the State’s plan
approved under section 402 of the Act.

(3) Provide for payment of aid with respect to any
dependent child (as defined by the State pursuant to
su ph (2) of this paragraph) when the condi-
tions set forth in subdivisions (i) (ii), and (iii) of this
subparagraph are met:

38a

(i) His father has been unemployed for at least 30
days prior to the receipt of such aid.

(ii) Such father has not without good cause, within
such 30-day period prior to the receipt of such aid,
refused a bona fide offer of employment or training for
employment. Before it is determined that a father has
refused a bona fide offer of employment or training for
employment without good cause, the agency must make
a determination that such an offer was actually made.
(In the case of offers of employment made through the
public employment or manpower agencies, the determi-
nation as to whether the offer was bona fide, or whether
there was good cause to refuse it, will be made by that
office or agency.) The father must be given an
opportunity to explain why such offer was not accepted.
ne a with respect to the following factors must be
resolved:

(a) That there was a definite offer of employment at
wages meeting any applicable minimum wage require-
ment and which. are customary for such work in the
community;

(b) Any questions as to the father’s inability to
engage in such employment for physical reasons or
because he has no way to get to or from the particular
job; and

(c) Any questions of working conditions, such as
risks to health. safety, or lack of workman’s compensa-
tion protection.

(iii) Such father (a) has six or more quarters of work
(as defined in subdivision (iv) of this subparagraph),
within any 13-calendar-quarter period ending within 1

such 1-year period, received unemployment compensa-
tion under an unemployment compensation law of a
State or of the United States, or was qualified under the
terms of subdivision (v) of this subparagraph) for such
compensation under the State’s unemployment compen-
sation law.

(iv) A “quarter of work” with respect to any individ-
ual means a period (of 3 consecutive calendar months

—— ad

39a

ending on March 31, June 30, September 30, or
December 31) in which he received earned income of not
less than $50 (or which is a Me sey yer of coverage” as
defined in section 213(a) (2) of the Act), or in which he
participated in a “eo Re work and training pro-
gram under section 409 of the Act or any other work
and training program subject to the limitations in such
section 409, or the work incentive program established
under part C of title IV of the Act.

it had been covered, would (together with any covered
work he performed) have made him eligible to receive
such benefits upon filing application.

(4) Provide for entering into cooperative arrange-
ments with the State agency responsible for administer-
ing or supervising the administration of vocational
education to assure maximum utilization of available

ublic vocational education services and facilities in the
State to encourage the retraining of individuals capable
of being retrained.

(5) Provide for the denial of such aid to any such
dependent child or the relative specified in section
406(a) (1) of the Act with whom such child is living,

(i) If, and for as long as, such child’s father is not
nay, eoaiatered with the public employment offices
in the State, and |

(ii) With respect to any week for which such child’s
father receives unemployment compensation under an

unemployment compensation law of a State or of the
United States.

(6) Provide that within 30 days after the receipt of aid
with respect to such children, such unemployed fathers
will be referred for participation ma Gn fh eg om
Program, as provided in section a e

d the samuiaih

40a

(7) Provide, where application for aid with respect to
a dependent child (as defined by the State pursuant to
subparagraph (2) of this paragraph) is made within 6
months after the effective date of the modification of
the State plan in accordance with the provisions in
subparagraphs (1) through (6) of this paragraph, that
the father of such child will be considered to have met
the requirements of subparagraph (3) (iii) of this
paragraph if he met such requirements at any time
after April 1961 and prior to the date of such
- application.

(8) Provide, if the approved State plan in effect prior
to January 1, 1968, including aid with respect to
dependent children of unemployed parents, that for
purposes of subparagraph (7) of this paragraph an
individual who received such aid under such plan for
the last month ending before the effective date of the
modification referred to in subparagraph (7) of this
section will be considered to have filed application for
aid under the plan as modified on the day after such
effective date.

APPENDIX C
Md. Ann. Code art. 95A, §6 provides, in part:
§6. Disqualification for benefits.
An individual shall be disqualified for benefits—
(a) Voluntarily leaving work. * * *

(b) Gross misconduct.—For any week in which his
unemployment is due to his having been discharged for
gross misconduct connected with his work, if so found
by the Executive Director. Such disqualification shall
continue until such individual has become reemployed
and has earnings therein equal to at least ten (10) times
his weekly benefit amount. For the purposes of this
article, the term “gross misconduct” shall include

ST em me ~

a .

4la -

(c) Discharge or Suspension as a disciplinary mea-
sure, * * *

(d) Failure to apply for or accept work; determination
of suitable work, * * *

(e) Sto page of work because of labor disputes.—For
any week with respect to which the Executive Director
finds that his unemrnioyment is due to a stoppage of
work, other than a iockout, which exists because of a
labor dispute at the factory, establishment, or other
premises at which he is or was last employed, provided
that this subsection shall not apply if it is shown to the
satisfaction of the Executive Director that—

_ (1) He is not ag ge in or financing or directly
interested in the labor dispute which caused the
stoppage of work; and

(2) He does not belong to a grade or class of workers
of which, immediately before the commencement of the
stoppage, there were members employed at the premises

in separate departments of the same premises, each
such department shall, for the purposes of this
subsection, be deemed to be a separate factory,
establishment, or other premises.

(f) Pregnancy. * * *

(g) Benefits under law of another state or of the
United States. * * *

(h) Remuneration from pensions. * * *
(i) Dismissal payment or wages in lieu of notice. * * *

42a

APPENDIX D

The following excerpts from the legislative history of
42 U.S.C. §607 would appear relevant:

In his message proposing AFDC-E legislation,
President Kennedy stated:

Under the aid to dependent children program,
needy children are eligible for assistance if their
fathers are deceased, disabled, or family deserters.
In logic and humanity, a child should also be
eligible for assistance if his father is a needy
unemployed worker — for example, a person who
has exhausted unemployment benefits and is not
receiving adequate local assistance. Too many
fathers, unable to Support their families, have
resorted to real or pretended desertion to qualify
their children for help. Many other fathers are
prevented by conscience and love of family from
taking this route, thereby disqualifying their
children under present law.

I recommend that the Congress enact an interim
amendment to the aid to dependent children

Congress on Program for Economic Growth and
Recovery, U.S. Code Cong. & Admin. News 1961,
87th Cong., Ist Sess., p. 1032. ]

During the hearings before the House Committee on
Ways and Means, the following colloquy between Mr.
John W. Tramburg, of the American Public Welfare
Association, and Representative Byrnes, a co-sponsor of
the bill and ranking minority Committee member,
occurred:

Mr. Byrnes. Well, let me put it this way. I would
take it that you do not believe that we should have
a test of suitability of employment as a factor in
determining whether the person is involuntarily
unemployed, when it comes to the relief program?

y tempo i
opened, he should take it. {Hearings on H.R. 3865
before the House Committee on Ways and Means,
87th Cong., Ist Sess., p. 241 (1961).]

When the bill was being debated in the House,
Representative Byrnes stated:

What the legislation does is to add the new
category which says that if the breadwinner is able
to work and if he is involuntarily unemployed and
no work is available, we will treat that family in
the same manner we treat the family when the
breadwinner is dead, absent or incapacitated.

I recognize, and I think the committee recognizes,
that as we move into this ca ory of involuntarily
unemployed people, we do ve an additional
problem, namely, the determination of whether it is
really involuntary unemployment. In the case of

“the disabled breadwinner, you can test that readily.

the case of his absence from the home, you can
test that and determine whether for a fact that
situation exists. The death of the breadwinner is a
certainty. But here we do get the problem of

pat ars i whether, in fact, this person is
involuntarily unemployed and I put the emphasis

If you will look at the Bill on page two, you will
find the additions made by the committee to assure

sense may be more or less voluntarily unemployed
and who are refusing work. I think it is appropriate
that this legislation is enacted on a temporary

44a

basis so that we can see how it is administered by
the States and those in charge of the program with
respect to the determination of whether or not the
people who receive this aid or the families who
receive this aid are in a situation where the
breadwinner is truly, in fact, involuntarily unem-
ployed. I would serve notice on the Department
here and now that if I am around in 1962 when this
program expires, I certainly am going to want and
demand detailed information as to how that as

of the program has been administered. I think they
should be in a position and should recognize now
that the Committee will want to know how this
aspect of the program has been administered and
how it has worked. [107 Cong. Rec. 3528 (daily ed.
March 10, 1961).]

Again, during the House Debate, Congressman
Byrnes referred to the provisions of a section of the bill
which “assure that aid would only go to children of the

involuntarily unemployed * * *.” 107 Cong. Rec. 3528.

But, on the same day during that debate, in answer to
the question of Representative Domonick, Chairman
Mills, of the House Ways and Means Committee, stated
that states could, if they wished, grant AFDC benefits
wee 107 Cong. Rec. 3526 (daily ed. March 10,
1961).

The Report of the Senate Committee on Finance
(87th Cong., Ist Sess., p. 3 (1961) stated:

Your committee’s bill, as does the House-passed bill
requires that a State agency administering the
expanded aid to dependent children program must
enter into cooperative arrangements with the State
agency administering the public employment
offices looking toward the employment of the
unemployed parents of the children receiving aid.
The arrangements which the State public assist-
ance agency will need to have with the employ-
ment service must include provisions for approp-
riate registration for work and periodic
reregistration of the unemployed parent of a child

and for otherwise making maximum utilization of

45a

the job placement services and other services and
facilities of the employment office. The purpose of
this provision is, so far as ible, to secure
employment for the unemploved person in any jobs
that may be available which there is not good
cause for him to refuse as determined by the State.

Your committee believes that an unemployed
individual whose family is receiving aid under this
program should accept any reasonable offer of
employment. Accordingly, the bill would require
that a State plan include provisions to assure that
aid is not provided if, and for as long as, the
unemployed parent refuses without good cause to
accept employment in which he is able to engage.
Considerable latitude would be left to the State in
determining the period during which assistance
would be denied. It is not intended to permanently

isqualify the family during subsequent a
when no offer of employment is availab e. The
state would determine whether the parent had good
cause for refusing an offer of employment.

In 1967, speaking before the Senate Committee on
Finance in connection with the pending amendments,
Mr. Wilbur Cohen, then Under Secretary of HEW and
later to become HEW Secretary, stated:

Well, I would say, Senator, that in view of the fact
that the Federal Government is spending several
billion meee’ 3 on Fs apg funds in _ welfare
program, we should give priority to a total program
of work and making people independent, people
that are on the welfare rolls. That is a cost to the
general taxpayer. These are people who the general
taxpayer is supporting and to the maximum extent
that it is feasible, priority should be given to
helping the States and the localities have a total

rogram in which work is a central part. .. .
i —— on HR 1208, before the Senate Commit-
Oo

H
tee on Finance, 90th Cong., Ist Sess., p. 264 (1967).]

46a

In 1967, when the House Ways and Means Committee
pro what eventually became the amendments to
42 U.S.C. § 607, its report stated with regard thereto:

A major characteristic of the law is the authority
left to the States to define “unemployment.” Your
committee believes that this has worked to the
detriment of the program because of the wide
variation in the definitions used by the States. In
some instances, the definitions have been very
narrow so that only a few people have been helped.
In other States, the definitions have gone beyond
anything that the Congress originally envisioned.
Your committee’s bill is designed to correct this
situation and to make other improvements in the
program.

The overall objective of the amendments proposed
by the Committee is to authorize a Federal
definition of unemployment by the Secretary (but
within certain limits set forth in the legislation), to
tie the program more closely to the work and
training program authorized by the bill, and to
protect only the children of unemployed fathers
who have had a recent attachment to the work
force. With these changes, the committee recom-
mends that the program become a permanent part
of the Social Security Act, still on an optional basis
with the States. [H.R. Rep. No. 544, 90th Cong., Ist
Sess., pp. 107-08 (1967). See also S. Rep. No. 744,
90th Cong., Ist Sess., p. 160 (1967), U.S. Code Cong.
& Admin. News 1967, p. 2834.]

In a July 8, 1969 message to Congress, President
Nixon stated that “a worker who exercises his right to
strike is not involuntarily unemployed” (115 Cong. Rec.
1853 (1969)).

47a
MEMORANDUM AND ORDER

In The United States District Court
For The District of Maryland

Civil No. 71-853-K

2 Robert Francis, etc., et al.
v.
Rita C. Davidson, etc., et all.

Plaintiffs have filed herein, on February 9, 1972, a
Motion for Immediate and Final Injunctive Relief and
also, apparently in connection with said motion,
interrogatories addressed to the defendant Rita C.
Davidson. Counsel have also suggested that the failure
of this Court clearly to grant or deny injunctive relief
might be the cause of confusion if either party desired
to appeal. See Gunn v. University Committee to End
War in Viet Nam, 399 U.S. 383 (1970); Mitchell v.
Davidson, 398 U.S. 42 (1970).

At page 34 of the opinion filed in this Court on
January 28, 1972, the following sentence appears: ~

This Court, having confidence that, if this Court’s
holdings herein become final, the State of Mary-
land will conform its plan, effective as of the date
of the filing of this opinion and as required by this
Court’s declaration of the law herein, finds it
unnecessary, at this time, to enjoin or otherwise
issue any order to respondents herein.

The above-quoted sentence on page 34 is hereby
changed to read as follows, effective as of the date of
this Memorandum and Order:

This Court ‘has confidence that if no appeal is
taken from this Court’s opinion, or, if an appeal is

~ ee es ee re ees -- ewes sees
—— = a —— + — _=

48a

taken, then if this Court’s opinion is affirmed on
appeal, the State of Maryland will conform its
plan, effective as of the date of the filing of this
Court’s opinion, namely, January 28, 1972, as
required by this Court’s declaration of the law
herein, without any injunction being issued by this
Court. Therefore, this Court hereby denies, at this

time, plaintiffs’ request for an injunction herein. .

Cf. Gunn v. University Committee to End War in
Viet Nam, 399 U.S. 383 (1970); Mitchell v. David-
son, 398 U.S. 42 (1970).

The Motion for Immediate and Final Injunctive
Relief, referred to hereinabove, is hereby denied. The
interrogatories addressed to the defendant Rita C.
Davidson, in connection with said motion, need not be
answered by the said defendant. If the State of
Maryland does not forthwith conform its plan at the
expiration of the appeal period, if no appeal is taken, or,
if an appeal is taken, after affirmance on appeal of this
Court’s opinion in this case, in accordance with this
Court’s opinion, the plaintiffs may, at that time,
reapply to this Court for injunctive relief.

It is So Ordered, this 23rd day of February, 1972.

HARRISON L. WINTER,

United States Circuit Judge,
FRANK A. KAUFMAN,

United States District Judge,
JOSEPH H. YouNG,

United States District Judge.

$$ __________+____— ———— ——

49a

MEMORANDUM AND ORDER
(Filed March 1, 1972)

In The United States District Court
For The District of Maryland

Civil No. 71-853-K

Robert Francis, etc., et al.
v.
Rita C. Davidson, etc., et al.

Footnote 15 on page 8 of the opinion filed in this case
on January 28, 1972 is hereby amended, effective as of
the date of January 28, 1972, by striking the period at
the end of that footnote and adding the following
words: “except administrative review. Defendants
concede that the pursuit of administrative review would
have been, and remains as of this date, futile.”

It is So ORDERED, this 1st day of March, 1972.

HARRISON L. WINTER,

United States Circuit Judge,
FRANK A. KAUFMAN,

United States District Judge,
JOSEPH H. YOUNG,

United States District Judge.

50a

ORAL OPINION OF THE COURT
(March 1, 1972)

In The United States District Court
For The District of Maryland

Civil No. 71-853-K

Robert Francis, et al.
v.
Rita C. Davidson, et al.
Defendants.

Joseph H. Young, Associate Judge, U. S. District Court

for the District of land, at 2:40 o’clock p.m.
Appearances

For the Plaintiffs:

C. Christopher Brown and Curtis L. Decker. For the
Defendants:

Judge Kaufman will speak for the Court.

(Judge Kaufman) Gentlemen, I think all the members
of this Court want to compliment counsel in the case for
the way in which the case was presented, and certainly
compliment the State for all the efforts that have been

5la

made to try to take carve of the emergency situations
which have arisen. |

Originally, this Court was informed that counsel on

th sides thought that the emergencies that cropped
up could be taken care of as they came along. However,
we have now been given information by plaintiffs,
embodied in the material submitted by Mr. Brown in
the motion for reconsideration which is before this
Court today and in the several documents which he has
filed within the last twenty-four to forty-eight hours.

Turning to the standards which are set forth in Long
v. Robinson, 432 F.2d 977, particularly at page 979, that
being a Fourth Circuit 1970 opinion written by Judge
Winter, and another opinion, which Judge Winter also
authored, West Virginia Highlands Conservancy vy.
Island Creek Coal Company, 441 F.2d 232, Fourth
Circuit 1971, this Court has come to the conclusion that
the motion of the plaintiffs for immediate injunctive
relief should be granted insofar as the subclass
composed of those who are unemployed because of
discharge for misconduct is concerned.

Similarly, under those standards and for reasons
which will be stated in a m~ment, the motion for
injunctive relief will be granted with regard to the other
subclass, namely, those out of work because of labor
involvement.

However, with regard to that latter subclass, the
injunctive relief which this Court grants today will be
stayed pending appeal.

Insofar as the injunction concerning the subclass of
those who are out of work, because of discharge for
misconduct is concerned, there will be no stay. The
Order of this Court granting the injunction will be
effective immediately as of now.

Long v. Robinson sets forth four standards. As has
been indicated during the colloquy between Judge
Winter and one or more of counsel, those four standards
do not each have to be met in order for injunctive relief
ef Ys granted and in order for any request for a stay to

enied.

52a

Nevertheless, turning to each one of the standards
and considering the problem before this Court in
connection with the subclass which for short-cut
purposes I will call the misconduct subclass, it would
seem that each one of the Long v. Robinson standards
is met in terms of the position advanced today by the
plaintiffs.

First of all, in the opinion of this Court, this Court
believes that the plaintiffs will likely prevail on the
merits of the appeal.

_ Second, the facts which have been presented to us,
incontrovertible facts, facts which the State commenda-
bly in no way disputes and which the State has helped
bring before this Court in a most cooperative manner,
established beyond doubt that irreparable harm will be
— by at least three families if a stay of relief
continues.

Insofar as the State is concerned and the possibility
of substantial harm being incurred, we note the absence
of any figures or data today other than rough estimates
and general estimates.

However, the injunctive relief being granted today is
without prejudice to the State to apply to this Court for
the institution of a stay in connection with the
injunctive relief which we make effective today with
regard to the misconduct class if pending appeal new
facts or new evidence come to the attention of the State
which in the State’s judgment require that an applica-
tion be made for a stay of the injunctive relief which we
are putting in force and effect today.

cates they are currently being put, or at least three
families are being put and there is reason to believe
that other families are in a similar position.

_ With regard to the defendants’ application for an
immediate injunction covering the second subclass, the

53a

subclass composed of those out of work because of labor
involvement, this Court grants the injunction but will
stay the effect of the injunction pending appeal.

That grant of the stay is without prejudice to
plaintiffs’ reapplying to this Court for a removal of that
stay and for an immediate injunction covering that
subclass, should new facts or new evidence come to the
attention of the plaintiffs which cause the plaintiffs to
believe that this Court should be asked to reconsider its
—, of relief with regard to the labor involvement
subclass.

Counsel] are asked to confer and to poaptne an order.
If counsel can agree upon the words of the Order, they
are asked only to present the Order. If not, plaintiffs’
counsel are asked to present the Order, with comments
by counsel for the defendants. That should be done as
quickly as possible.

However, in the meantime, the injunctive relief
granted today, subject to the provisions which I have
orally stated in the last few moments, becomes effective
immediately as of this moment.

(Judge Winter) Judge -Young, do you have any
comments or any additions you want to make?

(Judge Young) No.

(Judge Winter) I have none either, and I concur in
Judge Kaufman’s statement of the Court.

Now, you understand, gentlemen, that we consider
the injunction in effect. As far as formalizing the
injunction, we want you to try to agree on the language.
If you cannot agree on the language, of course then we
will hear you, at least informally, on your disagree-
ments and enter an appropriate Order of our own.

I might add also that Judge Young will not be
available for a period of some days after this afternoon.
However, Judge Kaufman and | expect to be here
continuously and we can sign the Order for the Court.

When you have an Order prepared, may I suggest

that you submit it to Judge Kaufman as the managing
Judge of the Court.

54a

If there is nothing further, gentlemen, we will adjourn
for the day.

Thank you very much. |
(Thereupon, the hearing was concluded.)

ORDER
(Filed March 6, 1972)

In The United States District Court
For The District of Maryland

Civil No. 71-853-K

Robert Francis, et al.,

Plaintiffs,
v.
Rita C. Davidson, et al.,
Defendants.

Upon consideration of Plaintiffs’ Motion To Recon-
sider Denial of Motion For Immediate and Final
Injunctive Relief; Defendants’ response thereto; the
record, pleadings and affidavits in this matter; and the
oral arguments of both parties thereon; and

In accordance with and for the reasons set forth in
our findings and opinion announced in open Court on
the 29th day of February, 1972, which reasons are
incorporated herein by this reference thereto,

This Court finds that Plaintiffs are suffering and will
suffer irreparable injury unless Defendants are perman-
ently enjoined from denying public assistance under the
program of Aid to Families With Dependent Children of
Unemployed Fathers (AFDC-E) to persons who are

55a

eligible for such assistance but for the fact that such
persons are disqualified for Unemployment Insurance
benefits as a result of misconduct in their previous
employment or involvement in a labor dispute.

Whereupon, it is this 6th day of March, 1972, Ordered,
Adjudged and Decreed:

1. That Plaintiffs’ Morion To RECONSIDER etc., and
PLAINTIFFS MoTION FoR IMMEDIATE AND FINAL
INJUNCTIVE RELIEF be and the same hereby are
greated; and

2. That Defendants Rita C. Davidson and Irene
Olson, their successors in office, agents, employees, and
other persons in active concert or participation with
them be and they hereby are PERMANENTLY ENJOINED
AND RESTRAINED from refusing to grant public assist-
ance under the AFDC-E program to persons otherwise
eligible for such assistance but for the fact that such
persons are disqualified for Unemployment Insurance
benefits as a result of misconduct in cheir previous
employment or involvement in a labor dispute; and

3. That, pending an appellate decision on the merits,
the aforegoing injunction is hereby STAYED with respect
to the sub-class of persons disqualified for Unemploy-
ment Insurance benefits due to involvement in a labor
dispute; and

4. That the issuance of the aforesaid Stay is without
prejudice to the right of the Plaintiffs to apply for
reconsideration thereof in the light of new facts or
evidence; and

5. That the denial of a Stray of the aforesaid
injunction with respect to the sub-class of persons
disqualified for Unemployment Insurance benefits by
reason of misconduct is without prejudice to the right of
the Defendants to apply for reconsideration thereof in
the light of new facts or evidence; and

6. That costs be borne by the Defendants.

HARRISON L. WINTER,

United States Circuit Judge,
FRANK A. KAUFMAN,

United States District Judge.

56a

MEMORANDUM FOR THE UNITED ST
AS AMICUS CURIAE ons

In the Supreme Court of the United States

October Term, 1972

No. 71-1447
Rita C. Davidson, et al., Appellants
v.
Robert Francis, et al.

No. 71-1554
Chamber of Commerce of the United States,
. Appellant,

Robert Francis, et al.

On Appeals From
The United States District Court
For The District of Maryland

; This memorandum is filed in res to i
invitation to the Solicitor General Mo file he ree
dum expressing the view of the United States.

‘i QUESTION PRESENTED

ether Maryland Social Services Administrati

seen 200.X.A.2, Raring payment of certain a
nefits both to individ disqualified for unemploy-

ment insurance and to families of such individuale is

57a

valid under Department of Health, Education, and
Welfare Regulation 223.100(a)(1).'

INTRODUCTION AND STATEMENT

This case involves the validity, under regulations
promulgated by the Secretary of Health, Education, and
Welfare, of certain provisions of Maryland’s federally-
assisted program of aid to families with dependent
children of unemployed fathers (“AFDC-UF’’). Federal
payments on behalf of such State programs are
authorized by Section 401 of the Social Security Act, 42
U.S.C. 601. Section 407(a) of that Act defines “depend-
ent child” as including a “needy child * * * who has
been deprived of parental support or care by reason of
the unemployment (as determined in accordance with
standards prescribed by the Secretary) of his father
* * *” and Section 407(b) provides that in order to
qualify for federal assistance, a State AFDC-UF
program must provide payment of aid to any family
with a dependent child when, with limitations not here
relevant, “such child’s father has not been employed (as
determined in accordance with standards prescribed by
the Secretary) for at least 30 days * * *.”

Pursuant to the Secretary’s authority to prescribe
standards for the determination of the definition of
“unemployment” to be used in State AFDC-UF pro-
grams, the following regulation, 45 C.F.R. 233.100(a)(1),
was promulgated:

If a State wishes to provide AFDC for children of
unemployed fathers, the State plan must * * *
[include a definition of an unemployed father

(i) [wJhich shall include any father who is
employed less than 30 hours a week? * * * and

(ii) [wJhich may include any father who is
employed less than 35 hours a week * * *.

\ The Appeal in No. 71-1554 also challenges the district
cot rt’s denial of the motion by the United States Chamber of
Commerce to intervene. We express no opinion on that issue.

2 After this action was instituted, the regulation was
amended to read “* * * less than 100 hours per month * * *”
36 Fed. Reg. 13604 (July 22, 1971).

58a

The purpose of the regulation was to establish a
uniform hours-worked criterion for determining unem-
ployment. Indeed, the wide variation in State hours-
worked criteria was the main reason the Secretary was
given authority in 1968 to prescribe federal standards
under Section 407. See Macias v. Finch, 324 F. Supp.
1252, 1256-1257 (N.D. Cal.). The Secretary had not
intended to do more than set a general hours-worked
standard and had contemplated that the States would
remain free to vary the coverage of their programs, on
the basis of factors other than the number of hours
worked, in accordance with their differing needs and
policies. Thus’it is the = of the Secretary that the
standards prescribed by Regulation 233.100(a)(1) and
by Section 407(b) do not constitute a complete and
exclusive definition of “unemployment” or of “unem-
ployed father.”

Maryland Social Services Administration Rule
200.X.A.2 denies assistance under the Maryland AFDC-
UF program when the father is disqualified for State
unemployment insurance. Under Maryland law, strik-
ers and persons discharged from employment due to
“gross misconduct” are amon mae so disqualified. As
a consequence, the Marylan am excludes from
coverage some persons who ouk ess than 30 hours a
week and satisfy the other coverage requirements of
Section 407(b). The Maryland program, however, does
adopt the federal hours-worked criterion for the purpose
of determining generally whether a person is unem-
ployed. Therefore, the Secretary’s approval of the
Maryland AFDC-UF program was consistent with his
interpretation of Regulation 233.100(a)(1).°

3 Of course, be re of the Maryland program for

purposes of fed assistance does not indicate that the

Secretary deems the exclusion of families of men disqualified

for unemployment insurance to be desirable. To the contrary,

- Secretary has strongly recommended that State AFDC-

a provide the maximum coverage permit-

e Social Security Act and the regulations thereunder.

The Secretary has also concluded, however, that, within

————- limits, this question of coverage is one best left to
e States

59a

This action was instituted after appellees and their
families were denied Maryland AFDC-UF assistance
solely because they were disqualified for State unem-
ployment insurance.‘ The complaint contended that
Rule 200.X.A.2 was invalid under both the Equal
Protection Clause of the Fourteenth Amendment and
the Secretary’s regulation; declaratory and injunctive
relief was requested. A three-judge district court was
convened pursuant to 28 U.S.C. 2281.5 Applying
Dandridge v. Williams, 397 U.S. 471, the court deter-
mined that the exclusionary classifications prescribed
by Rule 200X.A.2 had a reasonable basis and accord-
ingly held that the Rul does not violate appellees’
rights to equal protection.®

In the exercise of its pendent jurisdiction, however,
the court held that Rule 200X.A.2 was invalid under the
Secretary’s regulation. It reasoned that the language of
the regulation could only be read as requiring partici-
pating States to include within the coverage of their

UF programs, without exception, the families of
all fathers who worked less than 30 hours per week and
satisfied the other requirements set fo in Section
407(b). The court determined that appellees were
entitled to prospective relief only and enjoined appel-
lants (in No. 71-1447) from — grant assistance
to persons eligible tor assistance but for the fact that
they are disqualified for unemployment insurance as a
result of their misconduct in previous employment o or
their involvement in a labor strike.’

4 Appellee Francis was disqualified because he was out of

work p ta to a labor dispute; appellee Wright had been

—e from his previous employment for “gross miscon-
uct.”

5 Appellants challenge the jurisdiction of the three-judge
district court, contending that the constitutional claim was
insubstantial. We express no opinion on that contention.

6 We agree with the district court’s decision on the
constitutional issue and believe that it requires no further
discussion in this memorandum.

’ The injunction was stayed pending appeal with respect to
persons disqualified for unemployment insurance by reason
of involvement in a labor we stele.

60a

DISCUSSION

Long-standing principles of regulatory interpretation
and administrative law require that deference be
accorded to the Secretary’s interpretation of his own
regulations. Udall v. Tallman, 380 U.S. 1, 16-18. The
decision below, however, illustrates that there is at least
a legitimate basis for disagreeing with the current
administrative interpretation of Regulation
233.100(a)(1). Therefore, in view of the conflicting
constructions which have been placed on the regulation
and the resulting potential for confusion in other States
about its proper interpretation in these and other
circumstances, the Secretary has determined to amend
the regulation in a manner consistent with his original
intent, in order to clarify its meaning. 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 Mary-
land’s Rule 200.X.A.2. Such a regulation is clearly
within the authority granted by the basic statute. In
these circumstances, this case does not warrant plenary
review by this Court.

CONCLUSION

For the foregoing reasons, the judgment below shouid
be summarily affirmed.

Respectfully submitted.

ERWIN N. GRISWOLD,
Solicitor General.

August 1972.

6la

Rita C. Davidson, Secretary, Maryland Department o
Employment and Social Services, et al., .

Appellants,
v.

Robert Francis, etc., et al. No. 71-1447.

Appeal from the United States District Court
District of Maryland. oe

Former decision, 408 U.S..920, 92 S. Ct. 2495.
Facts and opinion, D.C., 340 F. Supp. 351.

_ Oct. 16, 1972. Motion of appellees for leave to proceed
in forma pauperis granted. Judgment affirmed.

6la-1l

In the United States District Court
For the District of Maryland

December 10, 1973

C. Christopher Brown, Esq.
Mrs. Diana G. Motz

James P. Garland, Esq.
Rob Ross Hendrickson, Esq.
George Beall, Esq.

Dear Mrs. Motz and Gentlemen:

Re: Francis, et al. v. Davidson, et al.
Civil No. 71-853-K

Judges Winter and Young and I have conferred with
regard to this case and have concluded that, for reasons
set forth by this Court in its opinion filed January 28,
1972, and in the light of the amendments to the
applicable federal regulations, set forth in 38 Fed. Reg.
18549, effective July 12, 1973, the motion of the
defendants to dissolve the injunction previously
granted by this Court should be granted. We are also of
the opinion that the motion for intervention on behalf
of the Chamber of Commerce of the United States
should be granted. Accordingly, we request that counsel
for the defendants and counsel for the proposed
intervenor submit appropriate orders to this Court, with
copies to counsel for plaintiffs, defendants, and the
proposed intervenor, as well as to any other party
which has enjoyed the status of amicus curiae in this
case, on or before December 21, 1973.

Intervention at this time by the Chamber of Com-
merce will not cause any delay in the determination of
the issues currently before this Court. That was not the
situation when intervention was original!y applied for.

6la-2

At that time, intervention would almost certainly have
caused substantial delay.

Very truly yours,
FRANK A. KAUFMAN.

ec: Honorable Harrison L. Winter
Honorable Joseph H. Young

MEMORANDUM AMICUS CURIAE OF THE
DEPARTMENT OF HEALTH, EDUCATION,
AND WELFARE

In the United States District Court
For the District of Maryland

Civil No. 71-853-K

Robert Francis, et al.
v.
Rita C. Davidson, et al.

Introduction

This memorandum is submitted pursuant to the
Court’s request of January 8, 1974.

The Secretary of the United States Department of
Health, Education, and Welfare (hereinafter “the
Secretary”) respectfully states that the defendants’
Motion to Dissolve the Injunction Previously Issued,

62a

filed on September 14, 1973, should be granted by this
Court in that the Secretary’s regulation promulgated at
38 Federal Register 18549 (July 12, 1973) was expressly
promulgated in accordance with the suggestion of this
Court in its prior opinion on this matter and that said
regulation is consistent with the applicable provisions
of the Social Security Act and within the Secretary’s
discretionary authority. Furthermore, the plaintiffs’
Motion for Reconsideration is without. merit and should
in no way affect the dissolution of the Court’s prior
injunction.

This memorandum is directed solely to the issues
arising under the Social Security Act and the imple-
menting HEW regulations. The Secretary expresses no
opinion as to whether the provision of AFDC-E to
individuals participating in a labor dispute is contrary
to federal labor laws and national labor policy.

Statement of the Case

On February 7, 1972, this Court held that Rule
200.X.A.2 of the Social Services Administration, Depart-
ment of Employment and Social Services, of the State
of Maryland, which denied assistance under the
Maryland AFDC-E program when the father was found
disqualified for state unemployment insurance, was
violative of the Secretary of HEW’s regulation promul-
gated at 45 C.F.R. 233.100(a)(1). Under the Maryland
Rule, strikers and persons discharged from employment
as a disciplinary measure or due to “gross misconduct”
are among those so disqualified. Pursuant to that
decision, on March 6, 1972, this Court enjoined the
operation of the Maryland Rule, specifically enjoining
the defendants from “refusing to grant public assist-
ance under the AFDC-E program to persons otherwise
eligible for such assistance but for the fact that such
persons are disqualified for unemployment insurance
benefits as a result of misconduct in their previous
employment or involvement in a labor dispute.” In its
underlying opinion, this Court explained that the basis
for its decision was a determination that the Maryland
Rule “conflicts with the federal regulatory require-
ments” promulgated by the Department of HEW. See

63a

ma uv. Davidson, 340 F. Supp. 351, 368 (D.C. Md.,

In response to HEW’s amicus memorandum filed in
September, 1971, at the invitation of the Court, this
Court stated that:

“The said obligations of the State of Maryland
hereunder 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 368-9,
footnote 29a.

Acting expressly on this suggestion, and in
accordance with this Court’s statutory construction
that “Congress used words which did not manda-
torily require each state to adopt the same meaning
of the word ‘employment’. . .,” 340 F. Supp. at 367;
the Secretary of HEW proposed (38 Federal
Register 18549, July 12, 1973), a modification to his
regulation authorizing states to adopt the Mary-
land age | at issue in this litigation. introduc-
tion to the Secretary’s proposed regulation ex-
pressly stated that it was being considered as a
result of this Court’s prior decision.

Therefore, the basis for this Court’s previously
issued injunction barring implementation of the
Maryland Rule no longer exists and such injunc-
tion should be dissolved.

Applicable Law

42 U.S.C.A. § 607, as amended in 1968, provides
as herein relevant:

§ 607. dent children of unemployed fathers;
definition.

(a) The term “dependent child” shall notwith-
stan section 606(a), include a needy child who
meets the requirements of sec‘ion 606(a)(2), who
has been deprived of parental support or care by

64a

reason of the unemployment (as determined in
accordance with standards prescribed by the
Secretary) of his father, and who is living with any
of the relatives specified in section 606(a)(1) in a
place of residence maintained by one or more of
such relatives as his (or their) own home.

(b) The provisions of subsection (a) shall be
applicable to a State if the State’s plan approved
under section 602—

65a

(1) is employed less than 100 hours a menth,
or

(ii) exceeds that standard for a particular
month, if his work in intermittent. . eumant abe.
at, the option of the State suck definition need not
include a father whose unemployment results from
participation in a labor dispute or who is unem-
ployed by reason of conduet or circumstances
which result or would reswit in ualification for

(1) requires the payment of aid to families unemployment compensation r the State's
with dependent children with respect to a unemployment compensation law.
dependent child as defined in subsection (a) The land Rule, formerly Social Services Admin-
when— istration Rule 200.X.A.2, which was enjoined as

(A) such child’s father has not been em-
ployed (as determined in accordance with
standards prescribed by the Secretary) for at
least 30 days prior to the receipt of such aid,

violative of the federal regulation previded as follows:
A grant may not be paid from GPA or AFDC-E:

9. 2 weet week Sie 60 Bites Gececltid for

The federal regulation, 45 C.F.R. 233.100(a), 34 Fed. unemployment insurance. (Emphasis supplied.)

Reg. 1146 (Jan. 24, 1969) which was found to be violated Section 6 of Maryland’s Unemployment Insurance
by Maryland Rule 200.X.A.2, provided in pertinent part Law, Md. Anno. Code Art. 95A provides in relevant
that: , part:

If a State wishes to provide AFDC for children of An individual shall be disqualified for benefits—

unemployed fathers, the State plan . . . must [with (>) Gross misconduct. — For any week in whtich
exceptions rot here relevant]: is due to his having been
(1) include a definition of an unemployed father diecharged for erose ncn connected with
(i) which shall include any father who is his work. . . .
employed less than 30 hours a week, or less than
three-fourths of the number of hours considered by

a industry to be full time for the job, whichever is
ess,

That federal regulation, 45 C.F.R. 233.100(a), was
amended, 38 Fed. Reg. 18549, effective July 12, 1973 to |
provide (new language underscored): . ;

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 employed father.
. Such definition must include any father who:

66a

Argument

I. The Only Basis for the Injunction was the
Finding that the Maryland Rule Violated 45
C.F.R. 233.100.

Plaintiffs’ complaint alleged that Maryland Rule
200.X.A.2. was invalid under the Equal Protection and
Due Process Clauses of the Constitution; Section 407 of
the Social Security Act, 42 U.S.C.A. 607; and the
Secretary’s regulation, 45 C.F.R. 233.100. However, it is
clear that the only ground on which the Court based its
injunction was the conflict that the Court found
between the Maryland Rule and the HEW regulation.
As the Court stated:

“Tt follows from our conclusion that Maryland’s
program, insofar as Maryland fails to afford
AFDC-E relief where fathers are out of work
because of gross misconduct or because of involve-
ment in labor disputes, is incompatible with federal
regulatory requirements. . .” 340 F. Supp. at 368.

Applying Dandridge v. Williams, 397 U.S. 471, this
Court determined that there is a rational basis for the
state’s decision to deny public assistance to those
ineligible for unemployment insurance, and _ that,
therefore, Maryland’s Rule is constitutional.

This Court also overruled plaintiffs’ statutory
claim, specifically with regard to the labor dispute
disqualification and by necessary implication with
regard to the gross misconduct and discharge as a
disciplinary measure disqualification.

As to the labor dispute disqualification, this Court
specifically found that the statute, 42 U.S.C.A. 607,
permitted the Secretary to authorize a labor dispute
disqualification option, but that the federal regulation
then in effect expressly prohibited such an option. 340
F. Supp. at 367-368.

Absent the same prohibitory regulation, the Court
also implied that the federal statute is broad enough to
permit the Secretary to authorize a gross misconduct
and discharge as a disciplinary measure disqualifica-
tion option. The Court stated,

67a

“It is true that such approval [HEW al of
Maryland’s Rule] is entitled to conaiderstle walgha
by this Court, particularly when Congress has
delegated policy-making to the agency.”

340 F. Supp. at 365. Thus, with regard to the of the

1 ak ats Rule involving fathers who were di ed

because of gross misconduct or as a disciplinary

measure, the Court concluded it was only the “unambig-

uous and mandatory | e” of the then existing

— regulation which pone oll with the Maryland
e.

II. Due to the Amendment of the Federal
of the Marl fis Goals ee ee
o e Sho issolved
Pursuant to F.R.C.P. 60 b (5). ‘

As we have stated, pursuant to 38 Federal Register
18549 (July 12, 1973), 45 C.F.R. 233.100(@) has been
—— so that the states’ definition as to unemployed

ers:

“need not include a father whose employment
results from participation in a labor dispute or who
is unemployed by reason of conduct or circumstan-
ces result or would result in disqualification
for unemployment compensation under the State
unemployment insurance law.”

This change in the tion
ec states to implement Eyer enjoined land
as a matter
of thin New of fact, was as a result
of this Court’ that such action be taken. 340
F. Supp. at 29a.
Due to this action the , the
eee See ge | be
of Rule 60b(5) of the Federal
of Civil Procedure rt be ne matic
Rule 60b(5) allows relief from a judgment where “it is

68a

Supreme Court in a case involving the amendment of
the Railway Labor Act:

“There is . . . no dispute but that a sound judicial
discretion may call for the modification of the
terms of an injunctive decree if the circumstances,
whether of law or fact, obtaining at the time of its
issuance have changed, or new ones have arisen.”
System Federation No. 91, Railway Employees v.
Wright, 364 U.S. 642, 644-645 (1961).

. The Secretary submits that his recent amendment to
45 C.F.R. 233.100(a) which specifically authorizes the
enjoined Maryland Rule, has removed the basis for this
Court’s injunction and therefore the continuation of
said injunction of the Maryland Rule is no longer
equitable. Tobin v. Alma Mills, 172 F.2d 133, 136 (4 Cir.
1951) cert. denied, 343 U.S. 933 (1952); Pennsylvania v

aa & Belmont Bridge Company, 59 U.S. 421

III. Plaintiffs’ Contentions, Previously Rejected
by the Court, Continue to Lack Merit.

As we have previously stated, this Court has already
rejected plaintiffs’ constitutional and statutory claims.
As there has been no factual or legal change therein,
this Court’s prior determination is binding on the
plaintiffs and may not now be relitigated.

Furthermore, plaintiffs’ continuing attack on the
amended HEW regulation ignores the fact that virtu-
ally all of plaintiffs’ arguments were previously made to
this Court and have been expressly or impliedly rejected
by this Court in its prior opinion at 340 F. Su p. 351,
affirmed 409 U.S. 904. In fact, the said Eedlaion,
specifically indicated that a regulation such as the
amended HEW regulation would be appropriate and

would validate the Maryland Rule. 340 F. Supp. at 368,
footnote 29a.

The Supreme Court has stated, “the rule of the law of
the case is a rule of practice, based upon the sound
policy that when an issue is once litigated and decided,
_ that should be the end of the matter.” USA and LCC. v.
Smelting, Refining and Mining Co., 339 U.S. 186. As

69a

h is the case here, this Court’s previously issued
cteusiitiin should be dissolved on the above stated

grounds.

IV. Secre ’s Regulation is Consistent
8 pray 407 of the Social Security Act
and This Court’s Prior Determination on
This Matter.

Assuming, arguendo, that this Court determines that
its prior pe Be and the subsequent amendment of the
HEW regulation are not in and of themselves a
sufficient basis on which to dissolve the injunction
previously granted, but that further consideration is
necessary, the Secretary asserts that the amended
regulation is consistent with both Section 407 of the
Social Security Act and this Court’s prior determination
of this matter.

A. The Extent of the Federal Definition of
Unemployment.

As the Secretary stated in his prior amicus brief,
when Congress first enacted an unemployment segment
to the AFDC program, section 407 of the Social Security
Act expressly referred to “unemployment (as defined by
the State)” [Emphasis supplied]. P.L. 87-31, sec. 1.
However, this section 407 was amended by P.L. 90-248,
section 203(a), effective January 1, 1968 and still in
effect, and now refers to “unemployment (as determined
in accordance with standards prescribed by the Secre-
tary.)” The report of the House Ways and Means
Committee gave the following explanation:

A major characteristic of the law is the authority
left to the States to define “unemployment.” Your
committee believes that this has worked to the
detriment of the program because of the wide
variation in the definitions used by the States. In
some instances, the definitions have been very
narrow so that only a few people have been helped.
In other States, the definitions _ gone he soo
anything that the Congress originally envisioned.
Your committee’s bill is designed to correct this
situation and to make other improvements in the

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program. The overall objective of the amendments
proposed by the Committee is to authorize a federal
definition of unemployment by the Secretary (but
within certain limits set forth in the legislation), to
tie the program more closely to the work and
training program authorized by the bil!, and to
protect only the children of unemployed fathers
who have had a recent attachment to the work
force. With these changes, the committee recom-
mends that the program become a permanent part
of the Social Security Act, still on an optional basis
with the States. H.R. Rep. No. 544. 90th Cong., Ist
Sess. 160 (1967).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2185%3A02. Public record. Not legal advice.