Petition — Joseph a Califano, Jr. v. Venus Mandley

eS

Supreme Court, U. X

FILED

76-1416 APR 13 1977

e

Ju the Supreme Court of the Wnited States

Octonen Term, 1976

Joseru A. CALIFANo, In., Secretary or HEALTH,

EpvucatTion, AND WELFARE, PETITIONER

v.

Venus MANDLEY, BT AL.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

WADE K McCREE, II.

Solicitor General,

BARBARA ALLEN BABCOCK,

Assistant Attorney Generel,

Att .

Department of Justice,

Washington, D.C. 20580.

ttorney, 2

Department of Health, Education, and Welfare.

Washington, D.C. 20201.

eT ̃ atten —

INDEX

D

SE .

Arrow Transportation Co. v. Southern Ry.

nee —

Burns v. Alcala, 420 U.S. 75

Federal Power Commission v. Idaho Power

Hemilton-Brown Shoe Co. v. Wolf Brothers

1 4ͤ 1 — TT

Irwin v. Dizion, 9 How. 103.

Messenger v. Anderson, 225 U.S. 436

232-453-—-17 —1

3117 ee

454

Milliken v. Bradley, 418 U.S. 717-------- 17-18

Piper v. Chris-Craft Industries, Inc., No.

75-353, decided February 23, 1977 14

Toledo Scale Co. v. Computing Scale Co.,

20449883 14

Udall v. Tallman, 380 U.S. 122 11, 16

United States ex rel. Redfield v. Windom,

11 16

Whitcomb v. Chavis, 403 U.S. tc.

Williams v. Wohlgemuth, 540 F. 2d 168.. 11

Statutes:

Social Security Act, 49 Stat. 620, as

amended, 42 U.S.C. (and Supp. V) 301

et seq.:

See. 3(a), 42 U.S.C. (and Supp. V)

— ————————————— 6

Sec. 401, 42 U.S.C. 601 ——— 2, 3, 55a

Sec. 402 (a), 42 U.S.C. (Supp. V)

5 3, 4, 14, 554-564

Sec. 402(a)(1), 42 U.S.C. (Supp. V).

602(a)(1) ------------------ — 2,14, 55a

See. 402(a)(10), 42 U.S.C. (Supp. v)

602(a)(10) ~......-.-- 2, 3, 7, 14, 554-564

Sec. 402 (b), 42 U.S.C. 602 (b)) 2 3

Sec. 403 (a), 42 U.S.C. (and Supp. v)

GREG) ——— — 6, 564-574

Sec. 403 (a) (1), 42 U.S.C. 603 (a) () 2,

4, 6, 10, 11, 12, 13, 564-574

Sec. 403(a) (2), 42 U.S.C. 603 (a) (2)— 4

See. 403 (a) (5), 42 U.S.C. (Supp. V)

603(a)(5) -------- 2, 5, 6, 9, 10, 12, 15, 574

Sec. 406(a), 42 U.S.C. 606(a) wl! &

3, 5, 574-584

Sec. 406 (b), 42 U.S.C. 606 (b) * 2,

3, 11, 584-604

See. 406(e), 42 U.S.C. 606(e) 2,

6, 11, 14, 16, 604

See. 406(e)(1), 42 U.S.C. 606(e)(1)_- 3,

7, 9, 12, 13, 15, 604

Sec. 406 (6) (2), 42 U.S.C. 60602) — 14

See. 1003(a), 42 U.S.C. (and Supp.

„bbb 6

Sec. 1102, 42 U.S.C. 1302. 16

Sec. 1118, 42 U.S.C. 1318.........._- 6

See. 1403(a), 42 U.S.C. (and Supp.

CO EE 6

Sec. 1603(a), 42 U.S.C. (Supp. V)

EE 6

See. 1905, 42 U.S.C. (and Supp. V)

1 — ———— 6

Sec. 1905 (b), 42 U.S. C. (Supp. V)

ä — 6

Pub. L. 94-439, 90 Stat. 1418, 1429. 13

r 11

Miscellaneous:

45 C. F. R. 233.20 (a) (2) (v) 4,11

45 C.P.R. 233.190(a)............... 16, 614-624

Gerne. 62-634

33 Fed. Reg. 10229...................... 16

0) 16

Handbook of Public Assistance Adminis-

tration, Part IV, See. 3131(3) (Febru-

CE 11

Handbook of Public Assistance Adminis-

tration, Part IV, Sec. 3131(2) (Febru-

Ee 11

Hearings on H.R. 12080 (Social Security

Amendments 1967) before the Senate

Committee on Finance, 90th Cong., 1st

En 15

IV

H.R. Rep. No. 544, 90th Cong., Ist Sess.

CC ——ß6—vV—&ꝗ—˖(êłTk43łj—ß—ßL⸗ -. ——4

S. Rep. No. 744, 90th Cong, Ist Sess.

1

Supreme Court of the United States, Rule Lb

50000

Gn the Supreme Court of the United States

Octoser Term, 1976

No. —

Joseru A. CU xo, Jr., Secretary or Hearn,

EDUCATION, AND WELFARE, PETITIONER

.

Venus MANDLEY, yr.

PETITION FOR A WRIT OF CERTIORARI TO THE STATES

The Solicitor General, on behalf of the Secretary

of Health, Education, and Welfare, petitions for a

writ of certiorari to review the judgment of the

United States Court of Appeals for the Seventh

Cirenit in this case.

The opinion of the court of appeals of November

23, 1976 (App. A, infra), is reported at 545 F. 2d

1062. The order of the district court of July 12, 1976,

dismissing the case as moot (App. B, infra), is not

reported. The opinion of the court of appeals of

September 25, 1975 (App. C, infra), is reported at

523 F. 2d 415. The district court’s decision and orders

(1)

2

of March 14, 1975 (App. D, infra), and November 21,

1974 (App. E, infra), are not reported.

The judgment of the court of appeals (App. J,

infra) was entered on November 23, 1976. A timely

petition for rehearing was denied on December 14,

1976 (App. F, infra). On March 4, 1977, Mr. Justice

Stevens extended the time for filing a petition for a

writ of certiorari to and including April 13, 1977. The

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

1254(1).

QUESTIONS PRESENTED

1. Whether the Secretary has authority under See-

tion 403(a)(1) of the Social Security Act to reim-

burse amounts expended by the states in providing

emergency “aid to families with dependent children”

within the meaning of Section 406(b) of the Act.

2. Whether those states that elect to provide “emer-

gency assistance to needy families with children,”

within the meaning of Section 406(e)(1) of the Act,

must furnish such assistance to all needy families

with children to the extent necessary to avoid

destitution.

3. Whether the court of appeals abused its equit-

able discretion in ordering nationwide relief on behalf

of a statewide class.

STATUTES AND REGULATIONS INVOLVED

Sections 401, 402(a) (1) and (10), 403(a) (1) and

(5), and 406 (a), (b), and (e) of the Social Security

Act, 49 Stat. 620, 627, as amended, 42 U.S.C. (and

Supp. V) 601, 602(a) (1) and (10), 603(a) (1)

and (5), and 606 (a), (b), and (e), and fhe relevant

regulations of ihe Department of Health, Education,

and Welfare, are set forth in pertinent part in Ap-

pendix G, infra.

STATEMENT

1. Pursuant to Title IV-A of the Social Security

Act, 42 U.S.C. (and Supp. V) 601, et seq., federal

assistance is furnished to the states [f lor the pur-

pose of encouraging the care of dependent children

in their own homes or in the homes of velatives * * *.”

Section 401 of the Act, 42 U.S.C. 601. The federa!

assistance is made available to those states that adopt

a plan for aid and services to needy families with

children” that satisfies the requirements of Section

402(a) of the Act, 42 U.S.C. (Supp. V) 602(a), nd

is approved by the Secretary of Health, Education,

and Welfare under Section 402(b).

One of the requirements imposed upon state plans

is that aid to families with dependent children shall

be furnished with reasonable promptness to all eligi-

ble individuals.” Section 402(a)(10) of the Act. The

term “aid to families with dependent children” is

defined in Section 406(b) generally to mean “money

payments with respect to * * * a dependent child or

dependent children.“ In turn, dependent child” is

defined in Section 406(a) to mean “a needy child (1)

who has been deprived of parental support or care by

or physical or mental incapacity of a parent, and who

4

is living [in the home of a relative], and (2) who is

(A) under the age of eighteen, or (B) under Gs cg

of twenty-one [if a student].”

The amount of monthly assistance provided to

individual families with dependent children is deter-

mined by the state subject to the general guidelines

provided by Section 402(a). A percentage of the

amounts expended by a state as aid to families with

dependent children pursuant to its approved plan is

reimbursed by the federal government; the reimbutse-

ment for each state is determined in accordance with

the formula prescribed by Section 403(a)(1).of the

Act.“ 1

Section 402 (a) does not require participating states

to provide assistance to meet special emergencies.

The Secretary’s regulations, however, permit states

to include in their plans assistance with respect. to

“special need items incurred by families with de-

pendent children. 45 C.F.R. 233.20(a)(2)(v). W

are informed by the Secretary that approved state

plans have included such special need items as, for

example, emergency needs arising from catastrophe

or natural disaster and emergency child care. State

payments with respect to such special need items on

behalf of families with dependent children have been

reimbursed by the federal government pursuant to

Section 403(a)(1), in accordance with the same

formula that governs reimbursement of other amounts

The amount of reimbursement to which Puerto Rico, the Vir-

Ein Islands, and Guam are entitled is determined in accordance

with Section 403(a) (2) of the Act.

5

expended by the states as aid to families with de-

pendent children.

The Secretary also is authorized, under Section

403(a)(5) of the Act, to reimburse 50 percent of

the amounts expended by the states “as emergency

assistance to needy families with children.” The

emergency assistance reimbursable under that provi-

sion may be provided to persons in addition to “fam-

ilies with dependent children.” Section 406(e)(1)

defines “emergency assistance to needy families with

children’’ to mean assistance to “a needy child under

the age of 21 who is * * * living with * * * rela-

tives * * *, but only where such child is without

available resources [and] the payments, care, or

services involved are necessary to avoid destitution

of such child or to provide living arrangements in a

home for such child * * *.”

Thus, unlike the payment of “special need items”

as aid to families with dependent children, “emergency

assistance to needy families with children” may be

furnished without regard to whether the child has

been deprived of parental support. Compare Section

406(a) with Section 406(e)(1). On the other hand, as

to any given family, “emergency assistance to needy

families with children” provided by a state is reim-

bursable by the federal government only “for a period

not in excess of 30 days in any 12-month period.” See-

tion 406(e)(1). No such limitation governs reimburse-

ment of amounts expended for “special need items”

as aid to families with dependent children. Finally, the

1

*

4

*

J

amount of federal reimbursement may differ depend-

ing upon whether payments are made as aid to fami-

lies with dependent children or as emergency assist-

ance to needy families. Compare Section 403(a) (1)

with Section 403(a)(5).”

2. In 1973, the Secretary approved the adoption hy

the State of Illinois of a program of “emergency as-

sistance to needy families with children” within the

meaning of Section 406(e). Under that program, the

State limited eligibility to persons also eligible for

(and applicants presumptively eligible for) aid to

families with dependent children (AFDC), and it

limited coverage to the emergency need for shelter re-

sulting from building damage or eviction for reasons

other than failure to pay rent and the emergency

need for clothing or furnishings (App. C, infra,

p. 29a).

Respondents, who are Illinois recipients of the

Aid to Families with Dependent Children (AFDC)

program and the Illinois and Chicago Welfare Rights

Organizations” (App. C, infra, p. 25a), brought this

class action against the Illinois Department of Public

Aid and its director in the United States District

States participating in the medicaid program under Title

XIX of the Act alternatively may substitute the medicaid reim-

bursement formula prescribed by Section 1905 of the Act, 42

U.S.C, (and Supp. V) 1396d, to determine the total reimbursement

to which they are entitled under Sections 3(a), 403(a), 1003(a),

1403(a), and 1603(a) of the Act. See Sections 1118 of the Act, 42

U.S.C, 1318, Under the medicaid reimbursement formula, “the

Federal medical assistance percentage shall in no case be less than

50 per centum or more than 83 per centum.” Section 1905(b) of

the Act.

7

Court for the Northern District of Illinois, challeng-

ing the validity of the eligibility and coverage restric-

tions of the State’s emergency assistance program.

The state defendants joined the Secretary as a party

defendant.

Respondents contended, inter alia, that the eligibil-

ity and coverage restrictions on the State’s emergency

assistance program violated the Social Security Act.

In particular, they asserted that if a state adopts such

a program, it must provide such assistance to all

needy families with children to whom assistance may

be provided under Section 406(e)(1), not just to per-

sons eligible for AFDC assistance, and that such

assistance must cover all emergency situations posing

the risk of destitution, not just particular emergency

needs (App. C, infra, p. 31A). Respondents requested

declaratory and injunctive relief, including an order

requiring expedited processing of claims for assist-

ance (App. C, infra, p. 26a).

The district court sustained the State’s program

of emergency assistance as valid (App. E, infra,

pp. 50a-—51a). The court of appeals reversed (App. C,

infra). The court of appeals reasoned that Section

402(a)(10), which requires that AFDC benefits

“shall * * be furnished with reasonable prompt-

ness,” was intended to impose a like requirement with

respect to emergency assistance benefits, and that the

definition of ‘‘emergency assistance to needy families

with children” in Section 406(e)(1) thereby fur-

nished mandatory standards for eligibility under, and

coverage of, emergency assistance programs. The

court of appeais remanded the case 6 —

court for entry of appropriate relief. unread alt

3. Before the time for filing a petition for a writ

of certiorari for review of the judgment of the court

of appeals had expired, the State notified the Sed-

retary of its election to terminate its emergency

assistance program (C.A. Joint Appendix at 9-70).

On remand, therefore, the distriet court dismissed

the case as moot (App. B, infra).

The court of appeals again reversed (App. A,

infra). The court noted that when the State ter-

minated its emergency assistance program, it had

amended its AFDC plan to provide coverage fer

“special need items” identical in substance to the

emergency need items that formerly had been covered

by its emergency assistance program (App. A. infra,

b. 12a). The court then held that, contrary to the

Secretary's longstanding regulations, emergency spe-

cial need items may not be covered under an AFDC

plan but rather may be covered only under an emer-

gency assistance plan (App. A, infra, pp. 134-18).

The court concluded that the “special need items”

component of the State’s AFDC plan was, as a mat-

ter of law, a continuation of its invalidated emer-

gency assistance plan and that the case therefore was

not moot (App. A, infra, pp. 10a, 18a)

& copy of this joint appendix, which was filed with tha tourt

of appeals in No. 76-1865, has been lodged with the Curt.

owe — — — — —

The court of appeals remanded to the district court

with instructions to enter judgment in accordance

with respondents’ proposed final judgment (with cer-

tain modifications noted in its opinion) (App. A,

infra, pp. 204-234). Included in that judgment (App.

H,-infra, pp. 714-724) were requirements that the

Secretary promulgate regulations conforming to the

two opinions handed down by the court of appeals; *‘

that the Seeretary approve state plans for emergency-

type assistance only where such assistance is to be pro-

vided: t all persons to whom assistance may be pro-

vided under Section 406(e)(1) and for all emergency

situations posing a risk of destitution; and that the

Secretary not reimburse expenditures made under

state programs for emergency-type assistance, how-

ever designated, under any statutory authority other

than Section 403 (a) (5).

sa ‘REASONS FOR GRANTING THE PETITION

hte ease presents questions of major importance

to the administration of the federally assisted pro-

grams of aid to families with dependent children and

emergency assistance to needy families with children.

The court of appeals did not understand the different

characteristics of these two programs and as a con-

sequence committed serious errors in construing the

definitional and funding provisions that govern them.

* The Secretary submitted proposed regulations to the district

court on. February 22, 1977.

Moreover, even though respondents represent only

a statewide class, and the programs of only a single

state were involved in the litigation, the court of ap-

peals has ordered the district court to enter a judg-

ment that may adversely affect the operations of the

AFDC or emergency assistance programs of virtually

every state in the Union. The court’s order that the

Secretary not reimburse expenditures for programs of

emergency-type assistance under any statutory author-

ity other than Section 403(a)(5) of the Act calls into

question the Secretary's authority to reimburse state

payments for emergency “special need items” made

under AFDC plans, since such reimbursement is paid

under Section 403(a)(1) of the Act and not under

Section 403(a) (5) (see pp. 3-6, supra) ; at present, 45

states include special need items in their AFDC plans

(App. I, infa, p. 784), and the federal assistance

available to such states with respect to such items may

be required to be reduced or terminated if the decision

below is not reversed. Similarly, the court’s order that

the Secretary not approve state plans for emergency-

type assistance unless they satisfy the eligibility and

coverage requirements set forth in the court’s opin-

ions may affect the emergency assistance programs

of the 27 states that have adopted such programs

(App. I, infra, p. 78a).

Appendix I sets forth the affidavit of Nicholas Norton, Com-

missioner, Assistance Payments Administration, Department of

Health, Education, and Welfare, which was submitted to this

Court in support of the Secretary's application for a stay on

February 18, 1977.

In short, although there is no conflict among the

courts of appeals on the statutory issues presented,“

the entry of nationwide relief in this case has de-

prived the Secretary of the opportunity effectively to

litigate the issue before other courts of appeals. In

these circumstances, this case presents “important

question[s] of federal law which [have] not been, but

should be, settled by this court.“ Rule 19(1)(b) of

the Rules of this Court.

1. The Secretary has authority under Section 403

(a)(1) of the Act to reimburse amounts expended by

the states in providing emergency “aid to families

with dependent children” within the meaning of Sec-

tion 406(b). The Secretary's regulations permit state

AFDC plans to include coverage of “special need

items.” 45 C. F. R. 233.20(a)(2)(v). This administra-

tive interpretation long antedates the enactment of

authority for the emergency assistance program in

1968 (81 Stat. 893). See, .., Handbook of Public

Assistance Administration, Part IV, Section 3131(3)

(February 23, 1966); Handbook of Public Assistance

Administration, Part IV, Section 3131(2) (Febru-

ary 14, 1949). This long-standing construction of the

statute by the agency charged with its administra-

tion is entitled to great weight. See, c. g., Udall v. Tail-

man, 380 U.S. 1, 16.

The Third Circuit, following a different line of reasoning, also

has concluded that emergency assistance programs must cover all

persons who are potentially eligible under Section 406(e). Me.

liams v. Wohlgemuth, 540 F. 2d 163.

12

Congress’ principal purpose in authorizing. the

emergency assistance program was to give the states

additional flexibility to deal with short-term, and

catastrophic emergencies. See, e. 9., H.R. Rep. No, 544,

goth Cong., Ist Sess. 109 (1967); S. Rep. No, 744,

90th Cong., Ist Sess. 165-166 (1967). For that reason,

emergency assistance was permitted to be paid to

needy families with children, without reference to the

special AFDC eligibility requirements, but only for a

period of not more than 30 days in any consecutive

12-month period. See Section 406(e)(1) of the Act.

But nothing in the legislative history suggests an

intention to limit the duration of emergency-type as-

sistance paid to AFDC beneficiaries under state

AFDC plans to only 30 days. Nothing in the legisla-

tive history, in other words, suggests an intention to

bar the states from continuing to provide emergency-

type assistance under their separate AFDC plans,

whether or not they choose to adopt — assist-

ance plans as well.

Mesoven, an if to exaphhasins the Gistiastahis ifthe

two programs, Congress enacted a separate funding

provision governing only emergency assistance pro-

grams. Thu., whereas federal reimbursement of state

AFDC payments is made according to the formula

set forth in Section 403(a)(1) of the Act, state emer-

———— — — LS

rate of 50 percent under Section 403 (a) (5).

"Fis court of appeats based ts hebding on the sida illo

that reimbursement of emergency “special need items” under Sec-

; ’ ’

13

Since the programs manifestly are different in

their implications for potential beneficiaries, for the

States, and for the federal government, it was not

merely u sham for the State of Illinois in this case

to terminate its emergency assistance program and,

in place of that program, amend its AFDC plan to

include emergency special need items. Accordingly,

the district court correctly determined that the State's

termination of its emergency assistance program

rendered respondents’ attacks on that program moot,

and the court of appeals erred in reversing that

determination.

2. States that elect to provide “emergency assist-

anee to needy families with children,“ within the

meaning of Section 406(e)(1) of the Act, need not

furnish such assistance to all such needy families in

every emergency situation posing a risk of destitu-

tion 408(a)(1) would reduce the amount of federal funds made

available for other AFDC payments (see App. A, infra, pp. IS a-

194). Section 401 of the Act authorizes appropriations of “a sum

sufficient to carry out the purposes” of Tithe IV-—A and provides

that the monies “made available under this section shall be used for

making payments to states” with approved plans. In turn, See-

tion 400 (6) (1) requires that the Secretary of Treasury “shall

pay” to the states the amounts calculated according to the formula

there preseribed. There is no authorization ceiling that limits total

federal reimbursement in a way that would require a reduction

in federal reimbursement of other AFDC benefits in order to ac-

commodate the reimbursement of emergency AF DC benefits,

Moreover, appropriation acts for Title 1V-A do not distinguish

AFDC and emergency assistance programs. See, ¢.g., Pub.

1 90 Stat. 1418, 1429. Expenses incurred under one pro-

gram therefore would be as readily reimbursed, within the limits

of appropriated funds, as those incurred under the other.

—

— -

*

2 ̃ 82 “- — 2

14

tion.“ In holding otherwise, the court of appeals

rested its analysis on Section 402(a)(10) of the Act.

But that provision explicitly refers only to AFDC

programs, not to emergency assistance programs. It

states: “aid to families with dependent children

shall * * be furnished * * * to all eligible individu-

als“ (emphasis added), Yet the court of appeals con-

cluded that the requirement of Section 402(a) (10)

should be extended to emergency assistance programs,

because AFDC and emergency assistance programs

are closely related (App. C, infra, pp. 364-384).

* This issue originally was decided by the court of appeals in its

first opinion (App. C. infra). Certiorari was not then sought,

because the issue of mootness remained for consideration in the

district court (see p. 8, supra) and the judgment of the court of

appeals implicate the AFDC and emergency assistance programs

of only a single state, The court of appeals reaflirmed its holding

on this issue in its second decision and broadened the relief to

affect the programs of other states not parties to the litigation. In

these circumstances, the issue may be brought before this Court on

petition for a writ of certiorari to review the second judgment.

See, c. Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399,

418; Hamilton-Brewen Shoe Co. v. Wolf Brothers d Co., 240 US.

251, 257-258, See also Messenger v. Anderson, 225, U.S. 436, 444.

Cf. Piper v. Chris-Craft Industries, Inc. No, 7-858, decided

February 23, 1977.

2 — noted that Section 408 (e) (2) partially exempts

ciergenty assistance programs from the requirement, imposed by

Section 402(a)(1), that programs be in effect in all political sub-

‘(livisions of the state, The court inferred that emergency assistance

programs were not exempted from any of the other requirements of

Section 402 (a), including the mandatory eligibility requirement of

Section 492(a)(10), But the court overlooked that, unlike the

other requirements imposed by Section 402(a), which gen-

erally to plans “for aid and services to needy families with chil-

len.“ ineluding emergency assistance programs, Section 402 (a)

(10) by its terms applies only to “aid to families with dependent

children.”

15

“This departure from ordinary principles of statutory

interpretation is not supported by [this] Court's

prior decisions. Burns v. Alcala, 420 U.S. 575, 580.

Although the AFDC and emergency assistance pro-

grams are closely related, nevertheless they are

separate and distinct programs, and the statutory

provisions relating to each should be given separate

effect.

The statutory provisions explicitly addressed to

emergency assistance programs are Sections 403(a)

(5) and 406(e)(1). The former simply authorizes the

Secretary to reimburse state payments of “emergency

assistance to needy families with children.’’ The

latter defines such emergency assistance in broad

terms, setting forth the outside limits of a state's dis-

cretion to make reimbursable emergency assistance

payments, Nothing in either provision requires the

states to choose between making such payment either

to all needy families with children or to none, and

between making such payments either in all emerg-

ency situations posing a risk of destitution or in no

emergency situations at all.

The legislative history of Sections 403(a)(5) and

406(e)(1) indicates that it was intended that the

siales would have flexibility in devising emergency

assistance programs. See Hearings on H.R. 12080 (So-

cial Security Amendments 1967) before the Senate

Committee on Finance, 90th Cong., Ist Sess. 717, 1306

(1967). Consistent with that history, the Secretary has

read Section 406(e)(1) simply as prescribing the outer

limits within which the states have flexibility to estab-

lish eligibility and coverage limitations. 45 C. F. R.

233.120(a).” The court of appeals did not accord this

consistent administrative interpretation the weight to

which it was entitled. See Udall v. ——

380 U.S. at 16.

3. The court of appeals abused ite equitable \die:

eretion in ordering nationwide relief on behalf: of a

statewide class. Respondents represent only Illinois

AFDC recipients and welfare organizations (App. C.

infra, pp. 25a, 45a), and they instituted this litigation

solely to challenge the validity of that State’semer-

geney assistance program. Yet the court of appeals has

ensees tho Secretary to sovise his edmininttation ef

the Act on a nationwide basis."

Many states, and many APD ond —

— — ae ea

"Shortly after Section 406(e) became effective, the

——— 1 ————j—§—

specify conditions of eligibility for

the limits set by the statute. 33 Fed. Reg. —— —

The regvlations were made permanent on January 10, 1908, 36

Fed. Reg. 393.

"The onder requiring the Secretary to promulgate regulations

in accordance with the court's opinions constitutes a “

judicial “ew into the administrative domain.” Arrow Iron

portation Co. v. Southern Ry. Co., NA U.S. 658, 670, The Seere-

tary, not the courts is delegated authority to determine whether

and, if so, what regulations are “necessary to * * * efficient ad-

ministration.” Section 1102 of the Act, 42 U.S.C. 1302. It is in-

appropriate for a court affirmatively to order a particular exercise

of that delegated authority. United States ex rel. Redfield v.

Windom, 137 U.S. 636, 643-644. Cf. — ———

daa Power Co., U.S. 17, 20-21.

— 2 —

invalidate many such plans (see p. 10, supra) ; states

having such plans apparently will be required either

to terminate them or to expand them in a manner that

they may regard as prohibitively costly.” Similarly,

the de¢ision below may bar the Secretary from reim-

bursing the states for their pament of emergency

special need items under their AFDC plans. If so,

the affected states would be required either to termi-

nate such payments, to continue such payments with-

out federal reimbursement, or to provide such pay-

ments as part of a considerably more costly emergency

assistance programs.

‘The court of appeals should not have ordered the

to be used sparingly, to provide only the degree of

relief needed to afford redress. See, e. g., Milliken v.

IHinois and Wisconsin have terminated their emergency as-

sistafce programs because of the additional -xpense that would

be incurred in implementing the requirements of the opinions

below and similar litigation, and Arkansas has suspended its

program due to “severe financial difficulties” (Apo. I. infra, p.

).

Bradley, 418 U.S. 717, 738, 744; Whitcomb v. Chavis,

403 U.S. 124, 160-161; Irwin v. Dizion, 9 How. 10, 33.”

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

Wave H. MecCnrr, Jr.,

Solicitor General.

Barpara ALLEN Bapcock,

Assistant Attorney General.

Wu Kanter,

Harry R. Si.ver,

Attorneys.

Rea I. BRATTIE, N

Acting General Counsel, A

Rosert P. Jaye,

Deputy Assistant General Counsel,

Rosert S. Manse,

d. Attorney,

* Department of Health, Education, and

Welfare.

Apri, 1977.

Furthermore, the unnecessary granting of nationwide relief

against federal officers places a burden on this Court. Holdings

that might not warrant this Court's review if relief had been

narrowly tailored necessarily assume substantially greater signifi-

cance when the relief requires revision in the nationwide adminis-

tration of a federal program.

a ltl aaa

APPENDIX A

United States Court of Appeals for the Seventh

Cireuit

No. 76-1865

Venus MANDLEY PT AL., PLAINTIFFS-APPELLANTS

v.

James IL. TRAINOR ET A., DEFENDANTS-APPELLEES

Argued Nov. 4, 1976—Decided Nov. 23, 1976

Rehearing and Rehearing En Bane—Denied Dec. 14,

1976

Before Cum™Mines and Tone, Cirenit Judges, and

CAMPBELL, Senior District Judge“

Cummuinos, Cireuit Judge.

This appeal is a sequel to the proceedings discussed

in our earlier opinion reported in 7 Cir., 523 F.2d

415 (1975) (Mandley 1). There we held that the Illi-

nois Emergency Assistance Program for needy fami-

lies with children defined eligibility more narrowly

than Section 406(e)(1) of the Social Security Act

(42 U.S.C. §606(e)(1)) and therefore violated the

Act. Our mandate was returned to the district court on

October 24, 1975." On November 26, the plaintiffs sub-

Senior District Judge William J. Campbell of the Northern

District of Illinois is sitting by designation.

In December 1975, the Department of Health, Education, and

Welfare requested and received an extension of time in which to

(la)

2A

mitted a proposed final judgment and decree disposing

of the controversy. A few days thereafter the state

defendants filed a motion to dismiss the cause of ac-

tion on the ground that on November 21, 1975, Illinois

had withdrawn from participation in the Emergency

Assistance Program established under Section 406(e).

They did not inform the Court that they intended to

carry on virtually the same program under a differ-

ent name but still with the usual 50 per cent federal

funding as part of their regular Aid to Families with

Dependent Children (AFDC) program. The record

shows that this new plan was to avoid our Septem-

her 25 decision and was conceived as early as Novem-

her 17, 1975, and formally presented to HEW on

April 23, 1976, but effective January 1, 1976, H

ever, on November 18, the state defendants

the Court by asserting that only state funding would

be employed.

HISTORY OF EMERGENCY ASSISTANCE AFTER MANDLEY I

In order to understand how the state defendants

have vacillated between affected compliance with

Mandley I and a final blatant disregard of the con-

gressional eligibility requirements enforced thereby,

petition the Supreme Court for certiorari. However, no petition

for certiorari was ever filed. In January 1976, the Department

sought to have us recall our mandate on the ground of mootness

but we denied its petition on January 30, 1976.

In a letter dated March 9, 1976, from Director Trainor of the

Illinois Department of Public Aid to the Legislative Advisory

Committee on Public Aid, Trainor revealed: “the special needs

program we substituted affords the virtually same benefits and em-

ploys the delivery system we were using prior to the Court's ruling

that our program was not in accord with 8406 (e) of the Soeial

L

3A

it is” necessary to trace the history of emergency,

assistance in Illinois after that decision became final.

At the November 17, 1975, meeting of the Illinois

slative Advisory Committee on Public Aid, de-

fendant Trainor submitted the recommendation dated

October 30, 1975, of his Department to “Eliminate

[42 V. S. C.) 606 (e) Program and Create a Program

for Meeting Emergent Burnout Cases to be Funded

Under Section 602 and Section 603.“ After considera-

tion of the Department’s proposal, the Committee en-

dorsed the Department's recommendations and

a that the Department report back to the

“at its April 1976 meeting with the results

program and [its] recommendations to handle

oth special emergency needs which may not have

been met.“

In its October 30 position paper, the Department

indicated that “[e]liminat[ion] [of] the 606(e) Emer-

gency Assistance Program” was out of the question:

The Department, although believing this

— ing] alternative to be legally aecept-

is alternative toten unacceptable.

The’ — believes that certain Emer-

ney conditions, such as homelessn rough

rn outs are needs which the Depa nt of

Public Aid clearly ought to meet and the De-

“partment would not wish to curtail its ability

) do 80

**(O)fficial notification to the Department of Health,

Education, and Welfare that Ilinois shall not request

reimbursement pursuant to §406(e) of the Social

Security Act (42 U.S.C. § 606(e)) for any expenses

ineurred after November 21, 1975, as the Department

is tefminating its program for ‘Emergency Assistance

to Needy Families with Children’ existing pursuant

4A

to said §406(e)” was given by the Department of

Public Aid in a November 21, 1975, letter to HEW.

On April 23, 1976, the state defendants submitted a

plan to HEW (Joint Appendix 21-132—21-140) that

was consistent with this notification of November 21.

The April 23 plan, discussed infra, is the one now in

effect.

On April 26, 1976, before another meeting of the

Legislative Advisory Committee on Publie Aid,

Trainor indicated that the Department would assent

to a broader emergency assistance program to alle-

viate destitution:

After July 1, 1976, Sr rogram would be on

a six-month trial basis. It would broaden the

emergency needs to include persons to whom

destitution exists or to whom destitution is

threatened, and remedy any cause of destitu-

tion (Tr. at 40).

On May 3, 1976, in a report to the Court, defendants

averred that the:

Department will in all R choose to

apply 12 funding pursuant to 8 the

—5 the ited de et

, when i com design — an

— and submit

the necessary —— amendments to the

rtment of ealth, Education and

Welfare.

In the same report, defendants stated they were not

“presently claiming any funds under § 606 (e).“

In a May 12 report to the Court, defendants sub-

mitted a proposed plan which laid out eligibility re-

quirements at least colorably consistent with Section

406(e)(1). At a May 17, 1976, meeting of the Legisla-

tive Advisory Committee, Representative Mann indi-

5a

cated that the implementation date of the broadened

plan would be advanced from July 1, 1976, to April 1,

1976.

On May 19, 1976, HEW filed its comments on the

May 12 plan. Acknowledging that the new plan “dif-

fers radically from the old emergency assistance pro-

gram,” HEW noted.

It is the Secretary's understanding that the

description is merely a report to to the Court

ee the present state of the Director's

— — a new Illinois emergency

program. When and tf, that thinki

crystalizes — 24 2— embodied in — . — —

that plan will be submitted to the Secretary

for approval. Until that time, the Secretary

can have no formal views on the acceptability

of any plan that the director may be consider-

ing. [Italies supplied. ]

Because of the broadened eligibility requirements,

the plaintiffs believed that the ‘‘objections to the ear-

lier plan [they] intended to file on May 19, 1976

[might] be unnecessary either in whole or in part.“

although the plaintiffs reserved the right to file objec-

tions to the amended plan.

On June 14, the Legislative Advisory Committee

approved a plan with the following eligibility

ares

ts of the Departusee —— GA 3 —

If 2 b e for

un-

det 21 and the meet lo

be is li An additional condition of eligi-

bility is that the must be destitute or

— threa with destitution.

6a

This plan, by its own terms, sought reimbursement,

at least in part, pursuant to Section wo

On June 16, 1976, the plaintiffs were served with a

June 15 notice of filing in the district court of the

Assis-

mittee had approved on June 14. Curiously, on June

17, 1976, counsel for the State informed the plain-

tiffs that he had been ordered not to file the new plan.

The next day, the State filed a report of status which

averred that the State would not ‘formulate or im-

in part or in whole employs federal funds, pursuant

to Section 406(e) of the Social Security Act.” Per-

haps counsel for the State was inadvertently confirm-

ing the classic Shakespearean lesson on semantics:

What's in a name? That which we call a rose by any

other name would smell as sweet.” (Romeo and Juliet,

Act II, Scene ii.) At any rate, that June 15 plan was

never filed in court.

The plan submitted to HEW on April 23, 1976

(Joint Appendix 21-132-21-140) was virtually the

same plan as that declared illegal in Mandley I. Even

in its brief here, Illinois lists only two minor changes

in the plan submitted to HEW, neither of which has

any relevancy to broadened eligibility requirements’

The liberal plan worked out between the April 26 and

June 14 Legislative Advisory Committee hearings

which HEW felt “radically different” from the pro-

Mandley I plan has never been submitted to HEW as

Sar an cam be determined foem Ge epagne wmend de

fore us.

See note 6 infra.

7A

Rather the plan submitted to the regional office of

HEW on April 23, 1976, was a program with eligi-

bility requirements which were identical in all ma-

terial particulars to the pre-Mandley I program. Thus

on July 12, 1976, when the district judge declared the

case moot, the only change with respect to the Illinois

Emergency Assistance Program funded by HEW was

that the source of funding had been switched from

Section 403(a)(5) to Section 403(a)(1). Most im-

portantly for our purposes, the scope of the program's

requirements was identical to that of the

eligibility requirements declared illegal in the pre-

Mandley I plan.

The end result is succinctly detailed in a June 1,

1976, colloquy between the district judge and plain-

tiffs’ counsel :

een 112. 1

8 epri emergency assistance,

. not get it under Section 606

271

r

— 2 (Tr. at 8)

DISMISSAL OF ACTION

On December 9, 1975, the defendant Secretary of

Health, Education and Welfare filed a motion to dis-

miss on the ground of mootness. The state and federal

motions to dismiss were answered by plaintiffs and

denied by Judge McMillen on December 31, 1975, and

he ordered the defendants to file objections to the

plaintiffs’ proposed final judgment and decree within

three weeks. Such objections were filed by the state

defendants on January 21, 1976, and by HEW on the

ACT AS IT RELATES TO FPUNDING OF AID PROGRAMS

In order to appreciate the funding of “emergency

year a sum sufficient to carry out the general purposes

of Part A of Subchapter IV- Aid to Families with

Dependent Children. The sums so appropriated are

made available to states which have submitted AFDC

plans. Only states whose plans have been approved

by the Secretary of Health, Education and Welfare

may receive federal funds. The criteria for approval

and the mechanics of approval are set forth in See-

tion 402.

Once a State AFDC plan has been approved, Section

403(a) directs the Secretary of the Treasury to pay

funds to the state from the funds appropriated under

the authority of Section 401. Subsections (1)-(5) of

Section 403(a) describe the various formulae used to

calculate the actual dollar amounts to be paid. Since

Section 403(a) actually directs the payment of funds,

it is the section of Part A which should be referred

to as the funding' provision of Part A. Section

Oa

403(a)(5) provides that the Secretary of the Treasury

shall pay 50 per cent of a states expenditures for

“emergency assistance” to needy families with chil-

dren. It is the only part of Section 403(a) dealing

with “emergency assistance.”

THE DEFENDANTS’ FRAMING OF THE MOOTN ESS ISSUF

At the time of Mandley I the state defendants were

receiving emergency assistance funds under Section

403(a)(5). These funds were expended under the

State’s plan as “emergency assistance to needy fami-

lies with children” as defined by Section 406(e) (1).

We are now advised that Illinois has ceased receiv-

ing funds pursuant to Section 403(a)(5) with the at-

tached strings of Section 406(e)(1). Instead the

State is receiving federal funds for emergency assist-

ance under its regular AFDC plan pursuant to Sec-

tion 408(a)(1). Since Section 403(a) (1) does not on

needy families with children,“ the ate argues that

the funds expended under Section 403(a)(1) no lon-

ger come with the attached “strings” of Section 406

(e)(1). Defendants argue that the mandatory appli-

cation of Section 406(e)(1) eligibility standards to

the states announced in Mandley I occurs only if fed-

eral funding is received pursuant to Section 403(a)

(5). Their argument concludes that since funding is

now received only under Section 403(a)(1), the case

is moot. Plaintiffs counter by alleging a circumvention

the plaintiffs’ pleadings are broad enough to permit

us to decide whether the defendants’ change of fund-

10a

ing is an artifice to avoid the Mandley mandate.

amended complaint is an action brought to

rights established by Section 406(e) (1) of the

Security Act. Those are the rights that plaintiffs

1

seek to vindieate. The developments that took place

after Mandley I were covered by the federal and state

defendants’ motions to dismiss, the plaintiffs’ answer

thereto, and the supporting documents filed by the re-

spective parties. The very issue now before us was

thus submitted and before the district court without

the need of further amendments to the complaint.

This case is not moot, for the state defendants are

still operating an emergency assistance

matching federal funds, although under the guise of

a “special assistance” program.’ There is a live case

or controversy because plaintiffs maintain that the

state defendants must still comply with the standards

of Section 406(e)(1) as long as federal funding 1s

used for this program, while the state and’ federal

defendants remain juxtaposed against plaintiffs.

WHETHER SECTION 406(B) (1) “srRINGS” ATTACH TO

EMERGENCY ASSISTANCE REGARDLESS OF FUNDING

The Effect of Section 1318. Before reaching the

ultimate issue—whether Section 406(e)(1) “strings”

„Since we answer the issue of mootness at this fundamental

level, we need not pass on the plaintiffs’ answer to the defendants’

motions to dismiss on grounds of mootness wherein they allege

that “defendants intend by a technical maneuver to tem-

porarily requesting funds under § 406 (e), to persuade this dis-

trict] court to dismiss the case as not based on that suspension,

and once the case is dismissed to return to § 406(e) funding without

any prohibitions, injunctive or otherwise, from this [district]

court.” (Plaintiff's Memorandum in Opposition to Motions to

Dismiss, December 17, 1975, at 5).

5

114

assistance regardless of fund-

whether the present funding

Section 403(a)(1). This is be-

recently informed us that the federal

42 U.S.C. § 1318. Section 1318

pertinent part:

0

for N quarter, the total of

ts to which such State is entitled

oa, and for each succeeding

same fiseal year (which for pur-

this section means the 4 calendar

ing with June 30), under para-

(2) of section * * * (a),

title shall, at the option of the

rmined by application of the

assistance percentage (as de-

1396d of this title), instead of

provided under * * * such

the expenditures under its State

2 under * * * part A of sub-

of this chapter, which would be in-

determining the amounts of the Fed-

ts to which such State is entitled

section, but without regard to any

on the dollar amounts per recipieut

may be counted under section.

This ' it relates to Section 603(a) See-

tion a) of the Social Security Act) was added in

1968 by the Social Security Amendments of 1967. 1

U.S. Code Cong. & Admin. News 1042 (1967). The

1965 provision it amended was itself put in the Social

Security Act merely to:

11

if

bi

oS

2

:

2

} ]

:

1 *

f

uf

12

Be

>

772

einem

etal

pellee [HEW]” (Nov. 1, 1976, HEW motion to correct

its brief). The state defendants have not mentioned

Section 1318 orally or on brief, evidently also realizing

it does not change their position. As with emergency

assistance funding under Section 403(a)(5), Illinois

receives a 50 per cent federal share for its AFDC pro-

gram under Section 1318 alone or in combination with

Section 403(a) (1).

The Ultimate Issue. The state defendants admit

- A —Ä—ä—4— —

— ge whose State

plan approved Sedlon 08 602 [Section 402

of Social Security Act) of this title includes

Hater supplied} such [emergency] assistance.

ä

include a provision in its state plan in order to re-

ceive federal funding under Section 403(a)(5) for

Section 406(e)(1) emergency assistance. The legis-

lative history of Section 406(e) reinforces this read-

ing of the statute. As the Senate Finance Committee’s

report stated :

a new program optional with the States

would authorize 3 a

matching to provide 17

— 4 the a variety o — fased faced by

in families with emergencies, 2

Fa Code Cong, & Admin. News 2838 (1967).

But the fact that a State has the option of whether or

not to claim federal funding under Section 403(a)(5)

for Section 406(e)(1) emergency assistance is totally

distinct from the question of whether a state has the

option to choose whether to receive federal funding

for emergency needs under Section 403(a)(5) or 403

(a)(1). We conclude the state does not enjoy such an

option.

HEW’s principal argument is that Section

403(a) (5) merely provides an additional source of

15a

gram is sought from the total amount of monies in a

year allocated to fund Section 403(a)(1) AFDC, pro-

grams, these other programs presumably would be re-

ciprocally limited. Since Section 403(a)(5) draws on

a different block of the funds appropriated for emer-

gency assistance in any given year, a similar limiting

tension would not exist on state emergency programs

funded under Section 403(a)(5). In this sense, Sec-

tion 403(a)(5) funding is “additional.” But by under-

scoring these funding subtleties, HEW has shown

why Section 403(a)(5) should be construed as the ex-

clusive funding provision for emergency assistance.

The 1967 amendments were introduced to correct the

unsatisfactory delivery of state emergency assistance.

Those amendments would be undermined if HEW’s

construction were permitted to create this limiting ten-

sion on Section 403(a)(1) AFDC funds while the

Section 403(a)(5) block of funds appropriated by

1967, Senator Curtis explained them on the floor of

the Senate (113 Cong. Rec. 36319 (1967)) :

money 14 on Ii

been in the law ore.

Families with emergency trouble will be able

to receive emergency assistance in whatever

form it is best for at their time of need.

personal —e - 4 yl 222

money, care, rovided,

cont to, or whatever else is to deal with

L

or adding this provision, 1

loitation or abuse. Under the islation,

tates are required to have, in advance, plans

to deal with these

red,

when necessary, to find why 3 children

removed from the home the courts. For

these children, F my wy provisions have been

The tenor of these remarks shows the importance

of the program and that participating states would

have to provide a plan approved by HEW. Emer-

gency assistance was meant to supplement normal

— ree ——

— ——

17a

AFDC payments, As the Senate Finance Committee

reported :

The Committee understands that the process

of determining AFDC eligibility and author-

izing ab — Vr the meet-

emergency needs crisis occurs.

11 the event of or when utilities are

cut-off, or when an ie parent leaves

children without f immediate action is nec-

—— — It frequently is unavailable under State

— (2 U.S. Code Cong. & Ad-

an Wen News (1967) ).

The federal regulations require that “emergency as-

sistance will be given forthwith’ (45 C. F. R. Section

233.120(a)(5)), but Congress provided in Section

406(e)(1) that emergency assistance should be fur-

nished only once in any 12-month period. It is thus

apparent that regular AFDC public assistance was

administratively and congressionally distinguished

from emergency assistance, which is a one-time grant

to “avoid destitution’ (Section 406(e)(1)). As we

held in Mandley I, relying in part on additional leg-

islative history, Congress intended the eligibility pro-

visions of Section 406(e)(1) to be mandatory on

states giving emergency assistance. 523 F. 2d at 420-

423. To like effect, see Williams v. Wohlgemuth, 540

F. 2d 163 (3d Cir. 1976); Note, Meeting Short-Term

Needs of Poor Families: Emergency Assistance for

Needy Families with Children, 60 Corn. L. Rev. 879,

886-891 (1975) (hereinafter cited as Cornell Note).

In our view, the synergistic sum of all these factors

results in the conclusion that Congress intended See-

tion 403(a)(5) to be the exclusive source of federal

funding in Part A of Subchapter IV of the Social

184

Security Act for the Section 406 (e) emergency assist-

ance needs of the citizens of the states. ;

Illinois cannot evade the Section 406(e)(1) eligi-

bility requirements by relabeling its emergency assist-

ance program as AF'DC “special assistance“ while still

obtaining matching funds from the federal govern-

ment. See Youakim v. Miller, 425 U.S. 231, 96 S. Ct.

1399, 47 L. Ed. 2d 701.’ If that were permissible by a

mere change in nomenclature, the requirements of See-

tion 406(e)(1) would be totally eviscerated“ There-

fore, if Illinois continues to accept federal funds for

its “special assistance” program, the guidelines estab-

lished by Congress in Section 406(e)(1) must be met

(Williams v. Wohlgemuth, supra, at 170 n.37; Lynch v.

Philbrook, —— F. Supp. , (D.Vt. 1976)),

and HEW must continue to provide half the funding

under Section 403(a)(5), as it formerly did with re-

spect to Illinois. |

We may take note that state funds available for

expenditure on welfare programs are tightly limited.

The Senate Finance Committee’s report shows ‘that

through emergency assistance Congress meant t lo

In discussing Youakim, HEW has recognized that for a foster

care plan to be funded under Section 403(a) (1) or 1318, it must

meet the inclusion requirements in Section 408 (Br. 11). Similarly

here, even if an emergency assistance plan (by whatever name) is

funded under Section 403 (a) (1) or 1318, it must meet the eligibility

requirements of Section 406(e) (1). In the words of another meta-

phor of the same genus, whatever Illinois presently dubs’ its

emergency assistance plan, “a rose is a rose is a rose.“

* The amici curiae, various private charities, state in their brief

that if this were “successful, [Illinois] would make permanent

the transfer of the burden of providing for most emergencies to

the private social welfare organizations in violation of the basic

principles of both federal and state welfare policy.“

—— ee ee a es

19a

encourage public welfare agencies to move promptly

and with maximum effectiveness in [emergency situ-

ations].” 2 U.S. Code Cong. & Admin. News 3003

(1967), Congressman Mills noted in the debates that

with emergency assistance, the House believed “that

encouraging the States to move quickly in family crises,

supplying the family promptly with appropriate serv-

ices, would in many cases preclude the necessity for

family having to go on [AFDC] assistance on a more

or less permanent basis.” 113 Cong. Ree. 23054 (1967).

Funding with Section 406(e)(1) eligibility require-

ments for emergency assistance requires the states to

meet the needs of a broader class of individuals.

Cornell Note, supra, at 883, 884. The total state share,

assuming maintenance of the present level of benefits,“

for funding emergency needs when the federal match-

ing share comes under Section 403(a)(5) would

normally be larger than if the federal funding comes

under AFDC Section 403(a)(1) (whether singly or

in conjunction with Section 1318), a provision ostensi-

bly free of the Section 406(e)(1) eligibility require-

ments. Congress would be thwarted in its aim to en-

courage the provision of emergency relief to those

children who it intended as targets if a state had the

choice of claiming emergency assistance funds under

Section 403(a)(1) for AFDC without the “strings”’

of Section 406(e) (1).

* Of course, the level of state benefits does not have to remain

constant. As we said in Mandley I. “Because Illinois has accepted

federal funds to operate an emergency assistance program, it is

bound by the eligibility provisions of 42 U.S.C. § 606(e). This need

not result in additional expense to the state but with existing

appropriations should at least result in helping a broader number

of persons, although more moderately than at present.” 523 F. 2d

at 423.

20a

This case concerns emergency needs of people in

dire straits. Yet over three years have pased since the

filing of the complaint and over one year has gone by

since the return of our mandate in Mandley I. There-

fore, we now consider sua sponte the objections of the

defendants to the merits of plaintiffs’ proposed final

judgment of November 26, 1975. Cf. Hartford-Empire

Co. v. United States, 323 U.S. 386, 410-435, 65 S. Ct.

373, 89 L. Ed. 322.

The state defendants object principally on the

grounds that Section “406(e) funding” is no longer

utilized by Illinois, For the reasons stated above, we

cannot sustain this line of objection.” Lest Illinois

The state defendants also apparently maintain that Purnell v.

Edelman, 511 F. 2d 1248 (7th Cir. 1974), is a form of stare decisis

upon our decision here. In the words of defendants’ objection:

“That case presented a problem to the Trial Court on remand

identical to the instant situation. In Purnell, the Illinois Depart-

ment of Public Aid chose to cease its participation in the same

406(e) Emergency Assistance program of utility service ‘turnons’

and instead adopted a different mode of handling the problem

which did not use § 406 (e) funds. Plaintiffs, on remand to the

Court below, sought a Rule to Show Cause why the Defendants

should not be held in contempt of Court. Upon being satisfied that

the state was no longer claiming funds under the 406(e) Emer-

gency Assistance program, plaintiffs withdrew their motion for a

rule. In that case withdrawal from the 406(e) program was suffi-

cient to moot the controversy.” [Italics supplied.] The answer to

this objectic»- «= “mmediate. In Purnell, the plaintiffs withdrew

their own motion on the propriety of the State’s funding of emer-

gency assistance with federal funds not subject to Section 406(e)

eligibility standards, thereby voluntarily mooting the case. But

in Mandley II the plaintiffs, far from voluntarily mooting their

own case, are vigorously pursuing an attack on the validity of

the state’s emergency assistance program.

— ——äͤ— N;

2 * ³ —

214

mistakenly understand this opinion to strip it of con-

trol over the implementation of its emergency assist-

ance program, we hereby reaffirm our observations in

Mandley I:

Illinois, should it elect to continue to pro-

vide an emergency assistance program in the

future, will still have substantial control of its

a. It will be able to choose the level of

nefits that it will provide and to set the stand-

ard of need, It may reasonably limit the

amounts paid out in emergency assistance, Dan-

dridge v. Williams, 397 U.S. 471, 90 8. Ct. 1153,

25 L. Ed. 2d 491, but it will not be able to de-

clare ineligible those who come within the fed-

eral definition of eligibility in Section 606(e).

This Court need not establish the exact mean-

ing of the eligibility provisions of Section 606

(e) because this case uires only that the

validity of the specific Illinois program be de-

termined. The problem of setting workable defi-

nitions for the somewhat amorphous eligibility

criteria in Section 606(e) may be addressed by

HEW rule-making. Such rule-making should

aid the states in preparing programs that are in

accord with the eligibility criteria set by Con-

gress. 523 F. 2d at 422-423.

Part of the proposed final judgment orders HEW

to file a proposed regulation with district court to

conform to our opinion. HEW contends that a fed-

eral district court has “no authority to order the

performance of a discretionary act, such as the

adoption of any particular regulation.“ But the

duty of the Secretary to promulgate regulations im-

plementing the provisions of the Social Security Act

is a mandatory one. 42 U.S.C. § 1302. Implicit in

HEW’s objection is the notion that ordering the

promulgation of regulations is an untoward invasion

of the province of the Secretary. This contention has

been persuasively answered by the Second Circuit. In

Kingsbrook Jewish Medical Center v Richardson, 486

F. 2d 663 (2d Cir. 1973)," the court reversed

the order below and remand [ed] to the dis-

trict court with instructions to grant

brook’s motion for summary judgment, to

extent of a Secretary of Health,

Education and Welfare to promulgate regula-

tions consistent with the interpretation [42

U.S. C.] 1395x(v)(1) that we have announced.

486 F. 2d at 670.

In an explanatory footnote, the court observed that:

Where there are no material issues of fact

in dispute, an appellate court reviewing the

dismissal of a complaint can, upon reversal,

also remand with directions to grant summary

judgment on appellant’s previously denied

cross-motion. Under the circumstances present

here “we perceive no reason for not bringing

this litigation to an end.” Stein v. Oshinsky,

348 F. 2d 999, 1002, (2d Cir. 1965) ; 6 J. Moore,

+ Practices 756.13 at 2251-52 (2d ed.

1 ; od

Since the defendants did not object to the findings

of fact in the plaintiffs’ final judgment, we can per-

ceive no reason not to bring the instant case “to an

end.“ *

Paragraph B-1 of the proposed final judgment pur-

ports to order the Secretary to include some specific

items in the regulation, viz. “definitions of such terms

as ‘necessary to avoid destitution’ and ‘lack of avail-

m Professor Davis has approvingly characterized this case as

an instance of a court being “guided by [its] usual common sense.”

K. Davis, Administrative Law of the Seventies, § 23.09 at 545

(1976).

BA

able resources’ which are compatible with providing

emergency assistance when a needy child is approach-

ing destitution.” While it would be salutary to include

such definitions in the new regulation and while the

Seeretary might find it necessary as a matter of

administrative practicality to include them, we will

not order HEW specifically to include any items in

its new regulation.” Of course, whatever regulations

the Secretary issues must be consistent with today’s

opinion and Mandley I.

We have considered the defendants’ other objec-

tions to the proposed judgment and find them without

merit. Because there has been no compliance with our

previous mandate for more than a year, we direct

the district court to enter plaintiffs’ proposed judg-

ment forthwith except with respect to the definitional

aspect of Paragraph B-1. In addition, finding of fact

7 should be deleted as obsolete, and Paragraph

A-1(¢) must be modified in accord with note 12. A

fresh mandate will issue and be returned to the dis-

trict court this day.

Judgment reversed and remanded for further pro-

ceedings consistent herewith.

Because of this change, Paragraph A-1(c) of the final judg-

ment is modified to commence “Until HEW files regulations

under Paragraph B-1 below,”.

APPENDIX B

United States District Court, Northern District of

Illinois Eastern Division

No. 73 C2453

MANDLEY v. TRAINOR

July 12, 1976

THomas R. MoMnzx, Presiding Judge.

Defendant’s motion to dismiss for mootness is

granted, and this cause is dismissed for lack of case

or controversy.

(24a)

APPENDIX C

United States Court of Appeals for the

Seventh Circuit

Nos. 75-1083, 75-1245

VENUS MANDLEY ET AL., PLAINTIFFS-APPELLANTS

v.

James L. TRAINOR ET AL., DEFENDANTS-APPELLEES

Argued June 6, 1975—Decided Sept. 25, 1975

Before Moore,* Senior Circuit Judge, CumMINGs

and Baver, Circuit Judges

Cumminas, Circuit Judge.

This class action was brought by Illinois recipients

of the Aid to Families with Dependent Children

(AFDC) program and the IIlinois and Chicago Wel-

fare Rights Organizations against the Illinois Depart-

ment of Public Aid (the Department), its director

and the United States Department of Health, Educa-

tion and Wei‘are (HEW). Plaintiffs alleged that the

Department’s revised program for emergency assist-

ance to AFDC recipients violated Section 406(e) of

the Social Security Act (42 U.S.C. § 606(e)), regula-

tions promulgated thereunder by HEW, the Equal

Protection Clause of the Fourteenth Amendment, and

the Illinois Publie Aid Code (III. Rev. Stats. ch. 23,

*Senior Circuit Judge Leonard Page Moore of the Second

Circuit is sitting by designation.

(25a)

J

§ 12-8 (1973)). Plaintiffs sought declaratory and in-

junctive relief against the implementation and opera-

tion of the program and an injunction requiring

expedited processing and delivery of emergency assist-

ance to those eligible to receive it.

After a bench trial, the district court rendered a

decision holding that the Illinois program for emer-

gency assistance conforms to the requirements of fed-

eral and state law, except that the processing was too

slow. Jurisdiction was refused with respect to the

pendent state claim that the Illinois program violates

the IIInois Public Aid Code. However, the State de-

— — — SHED. SGN &

expediting emergency assistance.

ie fis cosend —— opiates, the ,Aictaict

court ordered the State defendants to show cause why

emergency assistance checks could not be written in

Chicago or in a district office other than Springfield,

Illinois, or why some other method of payment could

not be devised to eliminate delays from unnecessary

Springfield mailings.

The district court’s final decision was entered on

March 14, 1975. This order specified the steps to be

taken by the Department to speed up the delivery of

assistance in Cook County. However, in practical effect

the order did not require the state defendants to fur-

nish emergency assistance in the 101 other Illinois

counties by any means other than mailing from

Springfield.

Plaintiffs appealed from the original and final

orders of the district ¢ irt insofar as they denied

plaintiffs the requested relief. We find the Illinois

emergency assistance scheme to be in conflict with the

Social Security Act and therefore invalid by virtue

of the Supremacy Clause of the Constitution. Accord-

27a

ingly, we reverse that portion of the district court’s

order that is to the contrary.’

‘In 1935, Congress enacted the AFDC program as

Title IV-A of the Social Security Act. Provision for

the economic security of children was made by offer-

ing substantial federal funds to states submitting

plans complying with the Act and HEW regulations.

In 1968, Congress enacted an emergency assistance

program to enable states to meet the immediate needs

of children. The present dispute concerns the manda-

tory scope of the program under the federal statute

once a state decides to include emergency assistance

in its plan.

The key provision of the Social Security Act with

respect to emergency assistance to needy children is

contained in 42 U.S.C. § 606(e) (Section 406(e) of

the Act) which provides:

II) The term “emergency assistance to needy

families with children“ means any of the fol-

lowing, furnished for a period not in excess of

30 days in any 12-month period, in the case of

a needy child under the age of 21 who is (or,

within such period as may be specified by the

Secretary, has been) living with any of the rel-

atives specified in subsection (a) (1) of this

section in a place of residence maintained by

one or more of such relatives as his or their

own home, but only where such child is without

available resources, the payments, care, or serv-

ices involved are necessary to avoid destitution

of such child or to provide living arrangements

in a home for such child, and such destitution

or need for living arrangements did not arise

because such child or relative refused without

* Such reversal was also sought by various charities that filed a

brief amici curiae.

232-453-717 4

284

.

0

r employment

5 money payments, 14 — in kind,

or such other payments as State agency

may specify with respect to, or medical

care or any other type of remedial care

recognized under State law on behalf of,

such child or any other member of the

household in which he is living, and

(B) such services as may specified

by the Secretary ;

but only with respect to a State whose State

lan approved under section 602 of this title

section 402 of the Act] includes provision for

such assistance.

(2) Emergency assistance as authorized

under paragraph (1) may be provided under

the conditions specified in such paragraph to

migrant workers with families in the State or in

such part or parts thereof as the State shall

designate.

In summary, this statute authorizes emergency assist-

ance to a needy child under 21, living with relatives

specified in 42 U.S.C. § 606(a), who is without avail-

able resources, if the assistance is necessary to avoid

destitution or to provide living arrangements in a

home, and if the need did not arise because such child

or relatives refused without good cause to accept

training or employment.

Under the March 1971 Illinois emergency assistance

plan, its first election of the reimbursement of pro-

visions in 42 U.S.C. § 606 (e), eligibility was limited

to AFDC recipients and confined to the following

needs: ,

§ 6510 EMERGENCY ASSISTANCE PRO.

VISIONS: ACTIVE AFDC ONLY

(a) Paying delinquent rent or property

payments allowed in lieu of rent to pre-

vent eviction;

77444 e e

ee

(b) Paying delinquent utilities bills to

restore discontinued service; and

(e) Meeting immediate, emergent needs

for other items of basic need included in

the Standards of Assistance.

Moving costs were later added, and needy families not

eligible for AFDC were excluded unless their needs

resulted from civil disorders.

Subsequently HEW suggested that Illinois should

be more specific in the listing of the emergencies it

did compensate. Therefore, on October 1, 1973, the

Department revised its program and limited assist-

ance to situations where an “emergent need' existed.

The payments were still restricted to those eligible for

AFDC and further restricted by ibe definition of

“emergent need”’:

An “emergent need’’ exists when one of the

following crisis situations occurs:

1. The AFDC family is homeless (with-

out shelter) as a result of damage to the

building rendering it uninhabitable (ex-

ample: fire, condemnation).

2. A court-ordered eviction occurs for

reasons other than the recipient’s failure

to pay rent.

3. The AFDC family is tentially

homeless due to damage to a portion of the

building.

A. The AFDC applicant, determined pre-

sumptively eligible for AFDC, is in emer-

gent need of clothing and/or household

furnishings and equipment.

(Ch. 6500 of the Categorical Assistance Manual

of the Department.)

Since the eligibility provisions were severely re-

stricted in the October 1973 revisions in the program,

the Department has provided only about one-fifth of

30a

the total dollar aid provided to needy families under

the prior program.

Plaintiffs challenge the Illinois program for admin-

istering reimbursable emergency assistance under 45

U.S.C. § 606(e), Section 406(e) of the Social Security

Act, as invalid for both constitutional and non-consti-

tutional reasons. In accord with the time-honored

practice of avoiding constitutional questions where a

non-constitutional ground exists for resolving the case,

this Court deals first with plaintiffs’ statutory

argument.’

* Plaintiffs plead federal question jurisdiction, which requires

that more than $10,000 exclusive of interest and costs be in con-

troversy. 28 U.S.C. § 1331. The complaint asserts that such an

amount is in controversy and defendants do not complain that

jurisdiction has been improperly exercised by the district court.

This Court must assure itself that the district court had jurisdic-

tion, regardless of the positions taken by the parties, because fed-

eral courts are courts of limited jurisdiction. '

Assuming without deciding that the plaintiffs canno: properly

show $10,000 as to each member of the class because of tne 30-day

per year restriction on emergency (Barter v. Minter, 378 F. Supp.

1213, 1216-1217 (D. Mass. 1974) ), there is no § 1331 jurisdiction.

See generally Note, Federal Judicial Review of State Welfare

Practices, 67 Colum.L.Rev. 84 (1967). Since plaintiffs here allege

Civil Rights Act jurisdiction through 42 U.S.C. § 1983 and 28

U.S.C. § 1343, and since the claim is not insubstantial, the statutory

claims against the state defendants, at least, may be taken pend-

ently. See Philbrook v. Glodgett, 421 U.S. 707, 95 S. Ct. 1898, 44

L. Ed 2d 525, Jurisdiction over the federal defendant is unavail-

able under the Civil Rights Act, so that the assertion of pendent

jurisdiction over it is a complex and difficult jurisdictional ques-

tion. See Philbrook, supra, at 720-722,95 S. Ct. 1893. *

However, since the plaintiffs also allege jurisdiction under 28

U.S.C. § 1361, and since this Court concludes infra that Section

606 (e) yet to he ote *

of clear intent to the contrary in the federal statute or its history,

mandamus jurisdiction will lie with respect to the federal defend-

ant. Thus this Court need not reach the difficult pendent jurisdic-

—

— —— —

„

3LA

VALIDITY OF ILLINOIS EMERGENCY ASSISTANCE PLAN

Plaintiffs first argue that defendants’ program un-

lawfully excludes persons made elegible by the emer-

gency assistance provisions of the Social Security

Act. Plaintiffs claim that the Illinois program has

unlawfully established eligibility standards narrower

than those in 42 U.S.C. § 606(e) because that program

provides assistance only to persons whose emergency

needs fall within four limited types of crisis situa-

tions and provides no emergency assistance for fami-

lies who are not applicants for or recipients of AFDC.

Thus needy families who are in danger of destitution

within the meaning of 42 U.S.C. § 606(e), but who are

not otherwise eligible for AFDC or whose destitution

came about in a manner not enumerated in Chapter

6500 of the Department’s Manual, are denied emer-

gency assistance. Plaintiffs rely especially on Carle-

son v. Remillard, 406 U.S. 598, 92 S. Ct. 1932, 32 L.

Ed. 2d 352; Townsend v. Swank, 404 U.S. 282, 92 8.

Ct. 502, 30 L. Ed. 2d 448; Lewis v. Martin, 397 U.S. 552,

90 S. Ct. 1282, 25 L. Ed. 2d 561; and King v. Smith,

392 U.S. 309, 88 S. Ct. 2128, 20 L. Ed. 2d 1118.“ Those

tional question. In holding Section 1361 applicable here, we are

mindful of the criteria set out in City of Highland Park v. Train,

519 F. 2d 681 at 691 (7th Cir. 1975, and modified July 24, 1975),

for exercising mandamus jurisdiction. These criteria are satisfied

in this case.

Since HEW would be practically bound by our decision, even

if it were technically handed down only with respect to the state

defendants, we assume that HEW would move to intervene on

remand even if we had dismissed it in this Court. See Philbrook,

supra, at 720-722, 95 S. Ct. 1893.

* See also Van Lare v. Hurley, 421 U.S. 338, 95 S. Ct. 1741, 44

L. Ed. 2d 208; Philbrook v. Glodgett, 421 U.S. 707, 95 S. Ct. 1893,

44 L. Ed. 2d 525; Burns v. Alcala, 420 U.S. 575, 95 8. Ct. 1180, 43

L. Ed, 2d 469; and Lascaris v. Shirley, 420 U.S. 730, 95 S. Ct. 1190,

43 L. Ed. 2d 583.

32a

cases establish that a state program which restricts

eligibility beyond what was intended by Congress is

invalid for inconsistency with the Social Security Act.

In Townsend, the Illinois defendants and HEW as-

serted that Congress authorized the states to vary

eligibility requirements from federal standards. How-

ever, the Court held that once a state elected to ex-

tend benefits to 18-20 year-olds, it was required to

include all those made eligible by 42 U.S.C.

§ 606(a)(2)(B), including college students. The other

cases cited supra are similar. Each case involves a

state’s attempt to draw AFDC eligibility criteria more

narrowly than the eligibility criteria set out in the

Social Security Act and each attempt was rejected as

invalid as contrary to the intent of Congress.

Section 406(e) of the Act extends coverage for

emergency service to a family with a needy child

under 21 living with any of the relatives specified in

Section 406(a)(1), in a place of residence maintained

by one or more of such relatives as his or their own

home. However, Congress limited the reimbursement

for emergency assistance for such a needy family to

situations where the child is without available re-

sources and assistance and the assistance is necessary

to avoid destitution or to provide a living place in a

home for such child, provided “such destitution or

need for living arrangements did not arise because

such child or relative refused without good cause to

accept employment or training for employment.“ In

our view, all children who fall within this definition

are made eligible for emergency assistance.

Section 406(e) specifically permits two areas of

state discretion. Thus the state is permitted to furnish

emergency assistance in the form of money pay-

ments, payments in kind, or such other payments as

33A

the State agency may specify.” Also, Congress pro-

vided that a state may provide emergency aid to

migrant farmworkers (presumably despite residency

requirements in the state plans), and may select parts

of the state in which to provide emergency assistance

to migrant workers (presumably despite the mandate

in 42 U.S.C. § 602(a)(1) that elected programs must

be administered statewide).

The state defendants and, to a lesser degree, the fed-

eral defendant insist that the language of 42 U.S.C.

5606 (e) (1) does not establish standards of eligibility

at all, but merely defines the maximum limits of reim-

bursable emergency assistance. Thus in their view

Section 606(e)(1) describes what is provided rather

than who is covered. We reject this semantical argu-

ment. Similar arguments could have been made in

King, Townsend and Carleson as to the eligibility pro-

visions of the Social Security Act discussed there; yet

the Supreme Court viewed the provisions as relating

to eligibility. The provisions in Section 606 (e) (1) dis-

cussed supra describe eligibility criteria for the emer-

gency aid program. Thus the central issue in this case

becomes whether Congress intended to allow the states

to apply eligibility criteria that are narrower than

those set out in Section 606(e)(1). If, as plaintiffs

argue, Congress intended that any state which elected

to participate in the emergency aid reimbursement

program must provide aid to all those eligible under

the provisions of Section 606(e)(1), the Illinois pro-

gram is invalid since it more narrowly restricts the

availability of emergency assistance. See the quotation

from the Department’s Categorical Assistance Man-

ual, Ch. 6500, supra at 5, and the surrounding discus-

sion. If, however, Congress intended to allow the

states to adopt their own eligibility requirements, II-

SAA

linois’ program does not conflict with Section 606(e).

Our task is to interpret the intent of Congress. In at-

tempting to discern that intent, this Court is mindful

that no special presumptions in favor of coverage are

to be applied in interpreting provisions of the Social

Security Act and that the normal tools of legislative

interpretation are to be employed. Burns v. Alcala,

420 U.S. 575, 578, 95 S. Ct. 1180, 43 L. Ed. 2d 469.

As is often the case, the legislative history of 42

U.S.C. § 606(e) contains little information helpful as

to Congressional intent on the crucial issue here. See

Senate Report No. 744, 90th Cong., Ist Sess., 2 U.S.

Code, Congressional & Admin. News, 2834, 3002-3004

(1967). Both sides in this case point to various por-

tions of the legislative history for support of their

positions but nothing cited is conclusive.

We deem it worthwhile to note that it is clear from

the Senate Report on the bill that Congress intended

that families who were not eligible for AFDC should

be eligible, as far as the federal Government was con-

cerned, for emergency aid under Section 606(e). Idem

at 3003. While this does not answer the question

whether Congress intended the states to have the right

to narrow the eligibility under Section 606(e), it does

indicate that Congress was concerned about a broader

group of needy children than Illinois’ program

covers. Moreover, it appears that Congress was con-

cerned with needy children who were approaching

destitution from a variety of causes other than those

recognized by Illinois. Thus the Senate Report states:

The committee understands that the process

of determining AFDC eligibility and authoriz-

5 payments — 7 1 precludes the meeting

of emergency hen a crisis occurs. In the

event of eviction or when utilities are turned

D eEEEeeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeeGCEeES—0c_————

—

.... ˙ Olle ee

„ Op ar ee

35⁴

off, or when an alcoholic parent leaves children

without food, immediate action is necessary.

It frequently is unavailable under State pro-

grams today. When a child is suddenly de-

prived of his parents by their accidental death

or when the agency finds that conditions at

home are contrary to the child’s welfare, new

arrangements and court referrals may have to

be made. (Idem at 3002.)

While the legislative history is not conclusive of Con-

gress’ intent, it does show that there is no specific

indication that Congress intended the states to be able

to narrow the eligibility criteria, that Congress was

much concerned with the emergency needs of all chil-

dren approaching destitution, whether or not they

were AFDC eligible, and that Congress considered

that there was need for aid to needy children who ap-

proached destitution due to reasons other than those

recognized in the Illinois program. We also note that

the general tenor of the legislative history shows great

concern for those families with children who are in

need of emergency aid.

Defendants rely on the HEW regulation that in-

terprets Section 406(e) of the Act to allow the states

to set the criteria for eligibility, 45 C.F.R. § 233.1200

(1974). Defendants claim that this interpretation of

the agency charged with administering the program

is entitled to great weight, especially in the absence

of a clear legislative intent in the provision’s history.

See New York Department of Social Services v.

Dublino, 413 U.S. 405, 421, 93 S. Ct. 2507, 37 L. Ed.

2d 688; Udall v. Talman, 380 U.S. 1, 16, 85 S. Ct. 792,

13 L. Ed. 2d 616. However, another regulation pro-

mulgated by HEW after the Townsend decision is

also relevant. 45 C. F. R. § 233.10 (a) (1) (ii) applies to

364

the chapter of the Act containing Section 406(e) and

provides in part:

(ii) A State may:

(A) Provide more limited public assistance

coverage than that provided by the Act only

where the Social Security Act A its legislative

history authorizes more limited coverage;

[italies added].

As has been seen, there is no clear indication in the

legislation or its history indicating that Congress in-

tended to allow the states to construct narrower eli-

gibility requirements than those in the statute. Thus

it is difficult to perceive the justification for HEW’s

promulgation of 45 C. F. R. § 233.120. This would not

be the first time that HEW has sought discretion for

the states that the courts have held was not intended

by Congress to be given to them. In light of these

factors we do not feel it proper to rely heavily on the

administrative interpretation of Section 406(e). See

also Application of Bryant v. Lavine, 79 Mise. 2d. 425,

359 N.Y.S. 2d 492 (Sup. Ct. 1974); Application of

Preston v. Barbaro, 61 Mise. 2d 327, 305 N. V. S. 2d

627 (Sup. Ct. 1969).

The Government notes that the Carleson, Townsend,

Burns and King cases, supra, relied on 42 U.S.C.

§ 602(a)(10) which provides that “aid to families with

dependent children shall be furnished with reasonable.

promptness to all eligible individuals.” Then the Gov-

ernment contends that this provision does not apply to

42 U.S.C. § 606 (e) because dependent child” is not

used therein. We believe that Sections 602(a) and

606(e) cannot be so neatly and completely severed.

Section 602 sets forth what state plans must provide

in order to qualify for federal reimbursement. It also

contains the hearing provisions (§ 602 (a) (4)), the

„er

374

„reasonable promptness provisions (see Adens v.

Sailer, 312 F. Supp. 923, 926 (E. D. Pa. 1970)), the

state reporting provisions (5 602 (a) (6)), and others

that must apply to Section 606 (e) in any reasonable

interpretation of the entire Act. It also appears that

when Congress wished to make an exception to the

generally applicable provisions of Section 602 (a), it

was able to do so clearly. Thus in Section 606(e) (2)

Congress expressly noted that emergency assistance to

migrate workers need not be statewide. This seems an

apparent exception to Section 602(a)(1), requiring a

state plan to be in effect in all political subdivisions of

the state. The close relationship between Sections

602(a) and 606(e) leads us to believe that Congress

intended that Section 606(e) be treated in the same

way as Section 606(a), which also is closely related

to Section 602, despite the inclusion in Section

602(a)(10) of the phrase “families with dependent

children.” The Supreme Court cases listed earlier in

the opinion hold that Congress intended the eligibility

requirements of Section 606(a) to be mandatory on

the states. See, e.g., Burns, supra, 420 U.S. at 578, 95

S. Ot. 1180; Carleson, supra; Townsend, supra. It

therefore appears that Congress intended that the

eligibility provisions of Section 606(e) be mandatory

on the states, just as the courts have held with respect

to the eligibility requirements of Section 606(a).

In summary, Section 606(e) is part of the same

statutory scheme as Sections 606(a) and 602. The

same Congressional concern with deprivation of chil-

dren that brought forth the AFDC program was at

the root of the emergency assistance program as well.

Since the legislative history of the latter program

demonstrates continuing Congressional concern with

the nation’s poor children and contains no indication

384

that its eligibility provisions are to be more in state

control than its closely related sister program, we

must follow the number of Supreme Court cases that

have held that the eligibility provisions of the federal

program cannot be narrowed by the states.

Illinois, should it elect to continue to provide an

emergency assistance program in the future, will still

have substantial control of its program. It will be able

to choose the level of benefits that it will provide and

to set the standard of need. It may reasonably limit

the amounts paid out in emergency assistance, Dan-

dridge v. Williams, 397 U.S. 471, 90 S. Ct. 1153, 25

L. Ed. 2d 491, but it will not be able to declare ineligi-

ble those who come within the federal definition of

eligibility in Section 606(e). This Court need not

establish the exact meaning of the eligibility provi-

sions of Section 606(e) because this case requires only

that the validity of the specific Illinois program be

determined, The problem of setting workable defini-

tions for the somewhat amorphous eligibility criteria

in Section 606(e) may be addressed by HEW rule-

making.“ Such rule-making should aid the states in

preparing programs that are in accord with the eligi-

bility criteria set by Congress. Illinois may no longer

* Plaintiffs amended the conclusion of their main brief to re-

quest restitution for one of the named plaintiffs, Frances Gallman,

who was allegedly eligible under the federal criteria when she was

robbed of her monthly aid funds. Since we do not here decide the

exact content of the emergency assistance program, but only hold

inois’ present regulations are invalid, it would be inappro-

priate us to decide whether Gallman was indeed eligible,

particularly since HEW has not had an opportunity to make rules

aiding the states and the courts in discerning the specific rules as

to who is eligible. Accordingly, we decline to consider Gallman’s

request for restitution on this appeal.

39a

conduct an emergency assistance program under Sec-

tion 606(e) in which some of the families with needy

children described in Section 606(e) are given aid and

some are not. Because Illinois has accepted federal

funds to operate an emergency asistance program, it

is bound by the eligibility provisions of 42 U.S.C.

§ 606(e). This need not result in additional expense

to the state but with existing appropriations should

at least result in helping a broader number of persons,

although more moderately than at present.

Since we hold that the Illinois emergency assistance

program defines eligibility more narrowly than 42

U.S.C. § 606(e) and therefore is in violation of the

Social Security Act, we need not consider whether

the program violates the Equal Protection Clause of

the Fourteenth Amendment or the Illinois Publie Aid

Code.

MAILING OF EMERGENCY ASSISTANCE CHECKS OUTSIDE

COOK COUNTY

As noted, Section 402(a)(10) of the Act requires

aid to be furnished with reasonable promptness.”

Section 406(e) itself prescribes no time for delivery

of emergency assistance, but a regulation of HEW

requires that a state plan provide that “emergency

assistance will be given forthwith.” 45 C.F.R. § 233.-

120(2)(5). This accords with the Senate Report on

the 1967 amend ients showing that “immediate ac-

tion is necessary” to alleviate “an immediate need”

for emergency assistance. Sen. Rep. No. 744, 90th

Cong., Ist Sess., 2 U.S. Code Cong. & Admin. News

at 3002 (1967).

Plaintiffs have not satisfied us that Judge McMillen

was wrong in stating in his March 14, 1975, order that

“Up to this date there has been no evidence of delays

outside of Cook County * *.” If, on remand, plain-

tiffs can show that payments are not delivered “forth-

with” in the downstate Illinois counties, the district

court should require the state defendants to adopt

other methods (such as disbursing orders or preposi-

tion checks) to avoid unnecessary delays in alleviat-

ing destitution. See Purnell v. Edelman, 511 F. 2d

1248 (7th Cir. 1974); Adens v. Sailer, 312 F. Supp.

923 (E.D. Pa. 1970).“ However, if downstate pay-

ments are quickly processed and received by mail one

or two days afterwards, judicial intervention will be

unnecessary.

In closing, we are not satisfied that the district

court’s order of March 14, 1975, failed to provide

plaintiffs with adequate relief with respect to the

“forthwith” requirement. On remand, that court will

surely retain continuing jurisdiction or otherwise af-

ford plaintiffs further relief if they can show the

necessity therefor.

The order of March 14, 1975, is affirmed. The order

of November 21, 1974, is reversed insofar as it sus-

tained the validity of the Illinois program for emer-

gency assistance. Costs of this appeal are awarded to

plaintiffs.

* Since the court ordered the same delivery procedures for the

downstate counties as for Cook County, we cannot agree that the

court discriminated in favor of Cook County in violation of Section

402(a) (i) of the Act and 45 C. F. R. § 250.120(a).

APPENDIX D

United States District Court, Northern District of

Illinois, Eastern Division

No. 73 C 2453

VENUS MANDLEY, ET AL., PLAINTIFFS

V.

James L. Tnaixon, Acrixd Director

OF THE ILLINOIS DEPARTMENT OF

Pusiic Alb, ET AL., DEFENDANTS

DECISION

The defendant Illinois Department of Publie Aid

filed its Report on February 18, 1975 in compliance

with this court’s order of February 5, 1975. Plaintiffs

filed their objections thereto in the form of a Re-

sponse and a Supplement on February 21 and Feb-

ruary 24, 1975. Defendant has not modified its Report

subsequent to plaintiffs’ objections.

The objections by the plaintiffs do not refer to

specific paragraphs of the defendant’s report but deal

with subject matters, as follows:

I. Mailing of checks from the Bureau of Fiscal

Operations in Chicago to emergency assistance recip-

ients in Cook County. Plaintiffs propose that defen-

dant use its existing messenger service for delivering

checks to local offices, and to supplement this by spe-

cial messengers for immediate delivery. To the extent

that the delivery of a check will be expedited by use

(414)

42a

of the existing messenger service, this proposal should

be adopted, although it will result in delivery to de-

fendant’s offices instead of to the recipient’s address.

Use of the mails should not be mandatory, but de-

fendant’s agents should be given discretion to use the

most prompt means available. This includes direct

mail to the recipient, special delivery mail to the re-

cipient when requested by the local office, messenger

delivery to the local office followed by personal pick-

up by the recipient, or personal pick-up at the Bureau

of Fiscal Operations in Chicago.

II. “Immediate delivery” in the 101 other Illinois

counties by use of local disbursing orders. Up to this

date there has been no evidence of delays outside of

Cook County and no evidence of alternative methods

of delivery besides the U.S. Postal Service. The court

will authorize the same procedure to be used in down-

state counties as is used under par. I above, unless

and until plaintiffs demonstrate that payments are

not thereby delivered ‘“‘forthwith”. We believe that

the par. I procedures will provide a prima facie satis-

faction of the uniformity requirement of 45 C. F. R.

§ 205.120(a).

III-A. The intervention of the Regional Office

Emergency Assistance representative in requesting

the issuance of a check by the Bureau of Fiscal Oper-

ations (step e. on page 4 of defendant’s Report) is ob-

jected to as an unnecessary “‘bureaucratic procedure”.

We agree that the local office administrator should

be given the authority to determine whether an appli-

cant has exhausted his 30-day emergency assistance

within the past 12 months (as is apparently required

for Federal matching purposes) and, if not exhausted,

to request a check from the appropriate Bureau of

Fiscal Operations. In fact, the caseworker who is

434

handling the request should be authorized to take

these ministerial steps in the event the local adminis-

trator is unavailable, subject to verification by a call-

back or use of a simple numerical code.

III-B. Defendant will be required to file a report

after 30-days’ experience with the new procedure as

modified in accordance with the foregoing. Such a

report should show the number of checks issued for

emergency assistance in Cook County and downstate

and the time elapsed between the initial notification

by the applicant and his receipt of a check. This re-

port can be implemented by requiring the recipient to

acknowledge when his check is received and is not in-

tended by the Court to be continued after the 30-day

period if it demonstrates that the new system is re-

sulting in delivery forthwith.

IT IS THEREFORE ORDERED, ADJUDGED

AND DECREED that defendant Illinois Department

of Public Aid shall implement the emergency assist-

ance procedure described in their February 18, 1975

Report, as modified hereinabove, by amending, pub-

lishing and circulating to all Illinois Department of

Public Aid personnel the A. F. D. C. Manual materials

attached to the Report and

IT IS FURTHER ORDERED that the Report

filed Feb. 18, 1975 is approved except to the extent

it is inconsistent with this Decision, and the plain-

tiffs’ objections are overruled to the extent that they

have not been sustained hereinabove, and

IT IS FURTHER ORDERED that said defendant

report to the court the length of time required for

delivering emergency assistance paymen.s after notifi-

cation by the applicant, covering a period of 30 days’

after the foregoing order has been complied with.

232 453 77—8

444

This case will be called for a status report on Thurs-

day, May 1, 1975 at 10:00 a.m.

Enter.

/3/THomas R. McMILLen

Judge, U.S. District Court,

Dated: March 14, 1975.

APPENDIX E

United States District Court, Northern District of

Illinois, Eastern Division

No. 73 C 2453

VENUS MANDLEY, ET AL., PLAINTIFFS

v.

James L. Tnalxon, Acrixd Director or THE ILLINOIS

DEPARTMENT OF PusBLic Alp, THE ILLINOIS Depart-

MENT OF PuBLIC Alb AND THE UNirep States De-

PARTMENT OF HEALTH, EpucatTion, AND WELFARE,

DEFENDANTS

DECISION

This case came on to be tried as a complaint testing

the administration of emergency relief to A.F.D.C.

recipients in Illinois. Plaintiffs represent a class of

beneficiaries who have allegedly been denied emer-

gency benefits under the defendants’ program as it

existed in July 1974. Both sides have submitted evi-

dence in the form of testimony, depositions and ex-

hibits and agreed to be bound by a decree under

F. R. C. P. 23(b)(3). On the basis of all the evidence,

we find and conclude that Illinois’ program for emer-

gency assistance conforms to the requirements of

Federal and State law, with the exception that the

processing is too slow.

Plaintiffs attack the program on the ground that

only certain types of emergencies are provided for

under Illinois’ plan and contend that § 406(e) of the

(45a)

464

Social Security Act requires such assistance for all

families receiving benefits under the A. F. D.C. pro-

gram when they encounter any emergency.

Section 406 (e) (1) provides in relevant part as fol-

lows (42 U.S.C. § 606 (e) (1)):

(e)(1) The term “emergency assistance to

needy families with children“ means any of the

following, furnished for a period not in excess of

30 days in any 12-month period * * * where such

child is without available resources, the paymen

care or services involved are necessary to avoi

destitution of such child or to provide living ar-

rangements in a home for such child, * * *

(A) money payments, payments in kind,

or such other payments as the State cy

may specify with respect to, or medical care

or any other type of remedial care recognized

under State law on behalf of, such child or

any other member of the household in which

he is living, and

(B) such services as may be specified by

the Secretary; but only with respect to a

State whose State plan approved under sec-

tion 602 of this title includes provision for

such assistance.

The Federal defendant allows the State consider-

able latitude in determining whether it is to have any

emergency assistance program and, if it does, what

the program covers. For example, 45 C.F.R. § 233.120

(a) provides:

§ 233.120 Emergency assistance to needy fami-

lies with children.

(a) Requirements for State plans. A state

plan under Title IV, Part A, of the Social

Security Act, providing for emergency as-

sistance to needy families with children must:

(1) Specify the eligibility conditions im-

posed for the receipt of emergency assistance.

474

These conditions may be more liberal than

those applicable to other parts of the plan.

(2) Specify if migrant workers with fami-

lies will be included and, if emergency assist-

ance will not be available to them Statewide,

the part or parts of the State in which it will

be provided.

(3) Specify the emergency needs that will

be met, whether mass feeding or clothing dis-

tribution are ineluded, and the methods of

providing payments, medical care, and other

remedial care.

(4) Specify which of the following services

will be provided: Information, referral,

counseling, securing family shelter, child care,

legal services, and any other services that

meet needs attributable to the emergency or

unusual erisis situations.

(5) Provide that emergency assistance will

be given forthwith.

Furthermore, on March 20, 1973 H.E.W. wrote to

the original defendant Joel Edelman as Director of

the Illinois Department of Public Aid as follows:

The Federal regulation requires that the State

plan must: “(3) specify the emergency needs that

will be met * States are free under Federal

policy to develop their own definition of the kind

of emergencies they will meet under this pro-

gram. Their definition may be as broad or as nar-

row as they wish, within the scope of the criteria

in Federal policy.

45 C. F. R. § 233.10 was amended effective July 24,

1974, apparently to conform to Townsend v. Swank,

404 U.S. 282 (1971), and provides:

(a) State 1 requirements. A State plan un-

der title I, IV-A, X, XIV, or XVI, of the Social

Security Act must:

(1) Specify the groups of individuals,

on reasonable classifications, that will

484

be included in the and all the con-

ditions of eligibility that must be met by

the individuals in the groups. The grou

selected for inclusion in the plan and the

eligibility conditions imposed must not ex-

clude individuals or groups on an arbitrary

or unreasonable basis, must not result in

inequitable treatment of individuals or

groups in the light of the provisions and

urposes of the * assistance titles of the

al Security Act. Under this requirement:

(i) A State shall impose each condition of

eligibility required by the Social Security

Act; an

(ii) A State may:

(A) Provide more limited public assist-

ance coverage than that provided by the Act

only where the Social ity Act or its

legislative history authorizes more limited

coverage ;

U

(B) Impose conditions upon applicants

for and recipients of public assistance which,

if not satisfied, result in the denial or termi-

nation of public assistance, if such conditions

assist the State in the efficient administration

of its public assistance programs, or further

an independent State welfare policy, and are

not inconsistent with the provisions and pur-

poses of the Social Security Act.

(iii) There must be clarity as to what

groups are included in the plan, and which

are within, and which are outside, the scope

of Federal financial participation.

(iv) Eligibility conditions must be applied

on a consistent and equitable basis through-

out the State.

Agency regulations and interpretations are of

course entitled to great weight in applying the statute.

Udall v. Tallman, 380 U.S. 1, 16 (1965); Wilson v.

Weaver, —— F. 2d ——, (7th Cir. #73-1541 et al.,

49a

May 9, 1974). We conclude that the foregoing regula-

tions and letter tolerate the defendants’ decision to

cover only certain categories of emergencies.

The defendants’ plan for emergency relief is limited

to four categories of emergencies. These are listed in

Plaintiffs’ Ex. 4 as follows:

An “emergent need“ exists when one of the fol-

lowing crisis situations occurs:

1. The AFDC family is homeless (without

shelter) as a result of damage to the building

rendering it uninhabitable (example: fire,

condemnation ).

2. A court-ordered eviction occurs for rea-

sons other than the recipient’s failure to pay

rent.

3. The AFDC family is potentially home-

less due to damage to a portion of the

building.

4. The AFDC applicant, determined pre-

sumptively eligible for AFDC, is in emergent

need of clothing and/or household furnish-

ings and equipment. (Emergent food and

rent can also be authorized by disbursing

order at the time the applicant is determined

presumptively eligible as provided in this

paragraph. Any amount thus authorized may

not exceed the amount calculated as the ap-

plicant’s first month’s payment, and will be

deducted from the applicant’s first month’s

payment.) |

Verification by staff of the emergent need is

required prior to authorization of Emergency

Assistance.

These four categories were promulgated by the

former defendant Joel Edelman on October 2, 1973

and narrowed the previous emergency assistance cate-

gories considerably. Illinois’ new plan was approved

by H.E.W. on June 20, 1974. The previous plan, which

504

plaintiffs now seek to have reinstated, had never been

approved, but Federal funds were disbursed to the

State nonetheless. Many persons who would have been

eligible for emergeney relief under the old plan are

admittedly unable to obtain it under the new plan,

with the result that public expenditures for this pur-

pose have been reduced and private charities have

picked up much of the load, unwillingly. The new

plan provides no emergency relief for the robbery

which allegedly befell the plaintiff Gallman, for

example. Plaintiffs also mention agency error,

vandalism and parental desertion.

This result does not violate either the Social

Security Act or the Fourteenth Amendment to the

Constitution, however. Townsend v. Swank, supra

p. 4, does not require the alleviation of all emergencies

sustained by victims of A.F.D.C. but merely requires

that the aid be dispensed with an even hand and in

accordance with the requirements of the Social

Security Act. Illinois’ new program fulfills the re-

quirements of § 406 (e) (1) and the regulations there-

under, and this State is not obliged by the statute or

the Constitution to revert to the more liberal poliey

which was in effect before October 2, 1973.

Plaintiffs contend that they are deprived of equal

protection of the law because some recipients of

AF. D.C. can receive emergency relief and some can-

not. This occurs, of course, because some recipients

encounter the type of emergencies which Illinois

chooses to cover and some do not. Regulation 233.10

(a)(1), supra p. 4, in substance requires eligibility

conditions which are not arbitrary, unreasonable or

inequitable. Assuming that the plaintiffs are complain-

ing of the inequitable administration of the Illinois

statute rather than the provisions of the statute itself,

514

the evidence shows that defendants’ classifications of

emergencies are based on sound and valid criteria.

These criteria include the frequency of occurrence

and the feasibility of verifying it. Lurking in the

background is also the fact that some emergencies can

be handled by private agencies or by other programs

of the State, but these considerations are apparently

involved in another lawsuit, not here. Without at-

tempting to summarize the evidence (and plaintiffs

have not deemed it necessary to do so), we find and

conclude that defendants’ selection and classification

of emergencies is not arbitrary or unreasonable and

does not discriminate against any group of A.F.D.C.

recipients. Dandridge v. Williams, 397 U.S. 471, 485

(1970).

If Illinois’ program complies with Federal law, then

the plaintiffs have no cause of action against the

Federal defendant. Likewise the fact that the burden

of emergency relief is returned to private charities is

not violative of any section of the Federal or Illinois

statutes. The policy of the statute, including such cases

as Memorial Hospital, et al. v. Maricopa County, et al.

415 U.S. 250 (1974), is not to replace private charities

with public aid but to help alleviate need to the extent

which Congress sees fit to do so.

Plaintiffs also assert a pendent claim that Tllinois’

new program violates § 12-8 of the Illinois Publie Aid

Code (Ch. 23, Ill. Rev. Stat.) This contention is not

cognizable as a pendent action if the principal action

fails. Furthermore, we do not choose to pass on the

interpretation of the Illinois statute before the state

courts have an opportunity to do so, particularly since

a case is presently pending in the Circuit Court of

Cook County covering some of the same issues in the

case at bar.

52a

Plaintiffs’ final contention is that emergency pay-

ments are not made forthwith“ as required by Reg.

233.120(a)(5), supra p. 3. The new program took

some of the discretion away from local offices and

caseworkers and centralized the administration of the

program in Springfield. This was to prevent duplica-

tion and other abuses but does result in slower pay-

ments. Unfortunately plaintiffs were unable to present

any satisfactory statistics concerning the amount of

increased delay caused by the new program or any

alternative program by which delay could be signifi-

cantly reduced. In fact, their principal proposal in

this respect seems to be to require H.E.W. to moni-

tor’’ all emergency requests in its Chicago office,

which in our opinion would merely add one more

layer of administrative delay to the present program.

Illinois’ plan was amended on July 10, 1974 to pro-

vide that ‘‘ Verification by staff * shall be accom,

plished immediately“, and that requests shall be

processed immediately upon verifying the need”,

Certainly the letter of these rules complies with the

requirement to provide emergency assistance “forth-

with“, but the plaintiffs’ evidence shows by the weight

of the evidence that 7-10 days’ delays in making

emergency payments are not uncommon.

Defendant Edelman had decentralized some of the

procedures in the event of certain dire emergencies.

We find and conclude that his successor can and

should do more. The record is not clear as to whether

the previous program produced more prompt payment

than the current one, and if so, why, but defendant

should devise a method to overcome these administra-

tive delays on a formalized and systematic basis.

We see no good reason why emergency payments

53a

should have been completely taken out of the hands

of the caseworker or the local offices and suggest this

is one cause of the delays.

The State acknowledges that it plans to proceed

with more decentralization. We feel certain that it

ean do so, perhaps after consultation with plaintiffs

and with the private agencies which are amicus

curiae. We will require the State defendant to devise

and file a proposal for emergency payments which

will more nearly satisfy the requirement of Regula-

tion 233.120(a)(5). See Adens v. Sailer, 312 F. Supp.

923 (E.D. Pa. 1970).

IT IS THEREFORE ORDERED, ADJUDGED

AND DECREED that judgment is entered in behalf

of the defendants on the Amended Complaint insofar

it challenges the content of former defendant Edel-

man’s emergency assistance program as it existed on

October 2, 1973, ut the State defendant is ordered

to show cause within a reasonable time hereof how the

administration and delivery of emergency assistance

can be expedited, preferably on the next court date.

This case will be called for a progress report on

Tuesday, December 3, 1974 at 10:00 a.m.

Enter.

/s/ THOMAS R. MeMnex,

Judge, U.S. District Court.

Dated: November 21, 1974.

APPENDIX F

United States Court of Appeals For the Seventh

Cireuit, Chicago, III.

No. 76-1865

Venus MANDLEY, ET AL., PLAINTIFPS-APPELLANTS

v.

James L. TRAINOR, ET AL., DEFENDANTS-APPELLEES

Before Hon. Water J. Cumminos, Circuit Judge,

Hon. Pause W. Tong, Cireuit Judge, and Hon.

Wu J. Curl, Senior District Judge“

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division. No.

73 C 2453 Thomas R. MeMillen, Judge

December 14, 1976

ORDER

On consideration of the petition for rehearing,

IT IS ORDERED that “allocated” be substituted

for “appropriated” in lines 1 and 13-14 of page 13 of

the slip opinion ef November 23, 1976.

No member of the panel and no judge in regular

active service having voted for an en banc rehearing,

and the panel having voted to deny a rehearing,

IT IS ORDERED that the petition of the appellee,

F. David Mathews, is denied.

*Senior District Judge William J. Campbell of the Northern

District of Illinois is sitting by designation.

(54a)

APPENDIX G

42 U.S.C. 601:

Appropriations.

For the purpose of encouraging the care of

t children in their own homes or in

the homes of relatives by enabling each State

to furnish financial assistance rehabilita-

tion and other services, as far as practicable

under the conditions in such State, to needy

— 1 children and the parents or relatives

with whom they are living to maintain and

＋ family life and to help such parents

or relatives to attain or retain capability for

the maximum self-support and personal inde-

pendence consistent with the maintenance of

— IN care and protection, there

is autho to he ropriated for each fiscal

year a sum sufficient out the purposes

of this part. The sums available under

this section shall he used for ing payments

to States which have submitted, had ap-

proved by the Secretary, State plans for aid

and services to needy families with children.

42 U.S.C. (Supp. V) 602(a)(1) and 10:

(a) A State plan for aid and services to

needy families with children must (1) provide

that it shall be in effect in all political sub-

divisions of the State, and, if administered by

them, be mandatory upon them; * * *

7 * * * *

(10) effective July 1, 1951, that all

individuals wishing to make application for aid

to families with dependent children shall have

(85a)

232 453 77—

56a

rtunity to do

wile dependent ehibaven shall, suhjost to pare-

graphs (25) and (26), be furnished with reason-

able promptness to all eligible individuals;

42 U.S.C. (and Supp. V) 603(a)(1) and (5):

Payment to States; computation of amounts;

(a) From the sums appropriated therefor,

the Secretary of the shall pay to each

State which has an approved plan for aid and

services to needy families with children, for

each quarter, * hae the quarter com-

State plan (including expenditures for

remiums under part B of subchapter

574

the form of medical or any other type

of remedial care, plus (iii) the number

of individuals, not counted under

clause (i) or (ii), with respect to

whom payments escribed in section

606(b)(2) of this title are made in

such month and included as expendi-

tures for purposes of this paragraph

* (B) the Federal’ pereentage of the

1 by which such expenditures

exceed the maximum which may be

counted under clause (A), not count-

ing so much of any expenditure with

respect to any month as exceeds ©

the product of $32 multi ＋ by the

total number of reeipients of aid to

families with de ependent children (oth-

er than such aid in the form of foster

— for such month, plus (ii) the

uct of $100 multip ied by the total

— of recipients 51 aid to families

with dependent children in the form of

foster care for such month; * * *

() in the case of any State, an amount

equal to 50 per centum of the total amount

expended under the State plan during such

—<——_—

2s. 606 (a), (b), and (e):

Definitions.

(a) The term “de t child” means a

te 2 child (1) who been deprived of pa-

Au

contin bsence from the home, or physical

or mental Tompediy of a 1 — and who is

* with his father, mother ——

r, brother, sister, step ather, step-

SBA

mother, stepbrother, stepsister, uncle, aunt, first

cousin, nephew, or niece, in a place of residence

maintained by one or more of such relatives as

his or their own home, and (2) who is (A)

under the age of eighteen, or (B) under the age

of — — and (as determined by the State

in acco ce with standards prescribed by the

Secretary) a student regularly attending a

school, college or university, or regularly at-

tending a course of vocational or technical

training designed to fit him for gainful

employment ;

) The term “aid to families with depend-

ent children” means money payments with re-

spect to, or (if provided in or after the third

month before the month in which the recipient

makes application for aid) medical care in be-

half of or any type of remedial care recognized

under State law in behalf of, a dependent child

or dependent children, and includes (1) money

payments or medical care or any type of reme-

dial care recognized under State law to meet the

needs of the relative with whom any dependent

child is living (and the spouse of such relative if

living with him and if such relative is the child’s

parents and the child is a dependent child by

reason of the physical or mental incapacity

of a parent or is a dependent child under sec-

tion 607 of this title), and (2) payments with

respect to any dependent child (including pay-

ments to meet the needs of the relative, and

the relative’s spouse, with whom such child is

living, and the n of any other individual

living in the same home if such needs are taken

into account in making the determination under

meer y Ngo (7) of this — Rae in ~s

meet the preceding requirements of this su

section, but which would meet such require-

ments except that such payments are made to

another individual who (as determined in ac-

cordance with standards prescribed by the See-

5OA

retary) is interested in or concerned with the

welfare of such child or relative, or are made

on behalf of such child or relative directly to a

person furnishing food, living accommodations,

or other goods, services, or items to or for such

child, relative, or other individual, but only with

respect to a State whose State plan approved

under section 602 of this title includes pro-

vision for—

(A) determination by the State agency

that the relative of the child with respect

to whom such payments are made has such

inability to manage funds that making

payments to him would be contrary to the

welfare of the child, and, therefore, it

is necessary to provide such aid with re-

spect to such child and relative through

payments described in this clause (2);

(B) undertaking and continuing special

efforts to develop greater ability on the

part of the relative to manage funds in

such manner as to protect the welfare of

the family;

(C) periodic review by such State agency

of the determination under clause (A) to

ascertain whether conditions justifying

such determination still exist, with provi-

sion for termination of such payments if

they do not and for seeking judicial ap-

pointment of a guardian or other legal

representative, as described in section 1311

of this title, if and when it appears that the

need for such payments is continuing, or

is likely to continue, beyond a period speci-

fied by the Secretary;

(D) aid in the form of foster home care

in behalf of children described in section

608(a) of this title; and

(E) opportunity for a fair hearing be-

fore the State agency on the determination

60a

referred to in clause (A) for any individ-

ual with respect to whom it is made;

*

(e) (!) The term “emergency assistance to

needy families with children” means any of the

following, furnished for a period not in excess

of 30 days in any 12-month period, in the case

of a needy child under the age of 21 who is

(or, within such period as may be specified by

the Secretary, has been) living with any of the

relatives specified in subsection (a)(1) of this

section in a place of residence maintained by

one or more of such relatives as his or their

own home, but only where such child is with-

out available resources, the payments, care, or

services involved are necessary to avoid desti-

tution of such child or to provide living ar-

rangements in a home for such child, and such

destitution or need for living ts did

not arise because such child or relative refused

without good cause to accept employment or

training for employment—

A) money payments, pa ts in kind,

or such other payments as State agency

may specify with respect to, or medical

care or any other type of remedial care

recognized under State law on behalf of,

such child or any other member of the

household in which he is living, and

(B) such services as may be specified by

the Secretary ;

but only with respect to a State whose State

plan approved under section 602 of this title

includes provision for such assistance.

(2) Emergency assistance as authorized

under paragraph (1) may be provided under

the conditions speci in such paragraph to

migrant workers with families in the State or

in such part or parts thereof as the State shall

designate.

61A

45 C. F. R. 233.20(a) (2) (v):

Need and amount of assistance.

(a) Requirements for State Plans. A State

Plan for OAA, AFDC, AB, APTD or AABD

must, as specified below :

7

(2) Standards of assistance.

(v) If the State agency includes special

need items in its standard, (a) describe those

that will be recognized, and the circumstances

under which they will be included, and (b)

provide that they will be considered in the

need determination for all applicants and

reeipients requiring them.

45 C. F. R. 233.120:

Emergency assistance to needy families with

children.

(a) Requirements for State plans. A State

— under Title IV, Part A, of the Social

rity Act, providing for emergency assist-

ance to needy families with children must:

(1) Specify the eligibility conditions im-

for the receipt o ＋ assistance.

conditions may be more liberal than

those applicable to other parts of the plan.

(See paragraph (b)(1) of this section for

scope of Federal financial participation. )

(2) Specify if migrant workers with families

will be included and, if emergency assistance

will not be available to them Statewide, the

part or parts of the State in which it will be

provided.

(3) Specify the emergency needs that will

met, w r mass feeding or clothing dis-

tribution are included, and the methods of

providing payments, medical care, and other

remedial care.

62a

_ (4) Specify which of the following serv-

ices will be provided: Information, referral,

counseling, securing family shelter, child care,

legal services, and any other services that meet

needs attributable to the emergency or un-

usual crisis situations.

(5) Provide that emergency assistance will

be given forthwith.

(h) Federal financial participation. Begin-

ning with the effective date 0 proval of

the amendment to the State plan for AFDC

which provides for emergency assistance to

needy families with children pursuant to sec-

tion 406(e) of the Act:

(1) Federal financial participation is avail-

able for emergency assistance to or on behalf

of a needy child under the age of 21 and any

* 4 — of the household in which he

is li if —

(i) Such child is (or, within 6 months prior

to the month in which such assistance is re-

quested, has been) living with any of the rela-

tives „ in section 406 (a) (1) of the Act

in a place of residence maintained by one or

more of such relatives as his or ir own

home,

(ii) Such child is without resources immedi-

ately accessible to meet his

(üi) The I assistance is necessary

to avoid destitution of such child or to provide

living ts for him in a home, and

(iv) His destitution or need for living ar-

rangements did not arise because he or such

—— — Sa —— to —

employment or training for employmen

42 The rate of Federal financial partici-

pation in expenditures during a quarter as

emergency assistance in accordance with the

provisions of an approved State plan is 50 per-

cent of the total amount of such expenditures

which are (i) in the form of money payments,

63a

payments in kind, or such other payments as

the State agency specifies, including loans and

vendor payments, or medical or remedial care

i under State law, with respect to or

on behalf of individuals described in subpara-

graph (1) of this paragraph; (ii) for adminis-

including costs incurred in determining

eligibility, in the payment process, and for other

related administrative activities; and (iii) for

the following services provided to individuals

described in subparagraph (1) of this para-

graph, directly by staff of the agency, or by

urchase from other sources: Information, re-

erral, counseling, securing family shelter, child

care, legal services, and any other services that

meet needs attributable to the emergency or

unusual crisis situations.

(3) Federal matching is available only for

emergency assistance which the State authorizes

during one period of 30 consecutive days in any

12 consecutive months, including payments

which are to meet needs which arose before

such 30-day period or are for such needs as

rent which extend beyond the 30-day period.

Another condition for Federal participation is

that the State has a reasonable method of deter-

mining the value of goods in kind or services

provided for emergency assistance.

APPENDIX H

IN THE UNITED STATES DISTRICT Pi

FOR THE NORTHERN DISTRICT OF ILL

NOIS, EASTERN DIVISION

(No. 73 C 2453)

Venus MANDLEY, ET AL., PLAINTIFFS

V.

JaMeEs L. TRAIN OR, ETC., ET AL., DEFENDANTS

Received November 26, 1975.

THOMAS R. MeMnxx, Judge, United States Dis-

trict Court.

FINAL, JUDGMENT AND DECREE

This matter comes on for entry of a final judgment

and decree pursuant to prior decisions of this court

and pursuant to the mandate of the Court of Appeals

reversing in part and affirming in part the orders

of this court to and including this court’s order of

March 14, 1975. The court being fully advised finds

and concludes as follows: |

FINDINGS OF FACTS

1. Except as modified herein, the factual findings

of this court’s memorandum decisions of November

21, 1974, February 5, March 14, August 1, and Octo-

ber 24, 1975 are incorporated herein as part of this

final judgment.

2. The class of plaintiffs is composed of all (1)

Aid to Families with Dependent Children (AFDC)

(644)

65

recipients, (2) applicants for AFDC and (3) other

families with needy children, in Illinois who are eli-

gible for emergency assistance within the eligibility

standard of 606(e), as set out in paragraph9 E

standard of § 606(e) of the Social Security Act (the

Act), 42 U.S.C. § 606(e), as set out in paragraph 9

(p. 5) below

3. Plaintiff Frances Gallman and her family met

the eligibility standard of § 406(e) at the time of their

application in November, 1973, to defendant Illinois

Department of Public Aid (IDPA) for emergency

assistance.

4. Defendants IDPA and its directors Edelman and

Trainor have denied and continue to deny emergency

assistance to plaintiff Gallman and to members of the

plaintiff class who meet the eligibility standard of

§ 406(e) but whose emergency need arises from cir-

cumstances other than those described in defendants’

regulations, IDPA Categorical Assistance Manual Ch.

6500, since renumbered as Ch. PO 610.5.

5. The state defendants have reported to this court

the length of time taken to process requests for emer-

gency assistance, these reports having been made pur-

suant to the court’s order of March 14, 1975. There the

eourt required defendants to speed up the processing

of emergency assistance requests from the “not un-

common” 7-10 days found by the court in its order

of November 21, 1973, so that emergency assistance

requests will norme lly be disposed of within 24 hours.

These reports show and I find as follows:

a. For requests for emergency assistance

granted during the two reporting periods, May 8-

June 9, 1975 and August 1-27, 1975, the periods

of time taken for processing requests up to the

time a check was ready to be placed in the mail

or for pick up was more than one day in 83.88

(103 116) of cases in Cook County and in

Cook Percent Downstate Percent

Same day or 1 da 13 il 27 28. 4

Ee a 22 18. 6 26 27.4

ee 40 33. 9 21 22.1

ese 16 13. 6 13 13.7

. 17 14.4 7 17.4

ese 7 5.9 1 1. 1

26 or more days 1 8 0 0

Not ascertained. 2 1. 7 0 0

— 118 99. 9 95 100. 1

b. Roo nye for emergency ad (Mar

ran uring the two reporting —

8 June 9 — Aug. 1-27, 1975) four methods

of delivery of emergency assistance checks were

used: mail, pick up by client at fiscal

manage-

ment office, disbursing order at local office and

by C. D.“ (unexplained), as follows:

— 60 74

Disease GEER. ccc cccccccccccccccesesescs 16 0

Pick-up at Fisc. Mgmt 42 9

11 0 12

— 118 95

c. The amount of time from the date a check

was ready for delivery by mail until receipt by

— client during the two reporting periods was as

ollows:

Cook Downstate

1[KK— T ˙ A 31 14

2 ::— 8 6

—. . 0 1

2% cccccesccosccccesoqueqcoses 0 1

LE 1 3

ep 20 29

—ßkß———- 60 74

V7 Ä -W ᷣ D

674

Therefore, of those known, checks were delivered one

or two days after mailing in 97.5 percent of cases in

Cook and 88.9 percent downstate.

d. The reports demonstrate and the court finds

pat gee eat and exceniv delays —- to exist

of emergency assi checks,

80 that only a small — 4 of checks are

processed within 24 — and delivered to the

client within one or two days thereafter.

6. Since the mandate of the Court of Appeals was

returned to this court, the state defendants have re-

ported that they plan imminently to withdraw from

the emergency assistance program authorized by e-

tion 406(e) of the Act and have further reported

that they plan to provide the same limited emergency

assistance available under their program which was

challenged and found unlawful in this lawsuit. In

so doing, defendants intend to claim federal funds

for this emergency assistance program under 66 402

and 403 (a) (1) (regular AFDC funds (of the Act)).

CONCLUSIONS OF LAW

8. As defined in paragraph 2 above, this is a proper

class action under Rule 23 of the Federal Rules of

Civil Procedure.

9. The state defendants have violated and continue

to violate § 406(e) of the Act in denying emergency

assistance to plaintiff Frances Gallman and members

of the class who are eligible for emergency assistance

as defined in § 406(e), to wit: families with a needy

child (i) under the age of 21, (ii) who is living with

any of the relatives specified in § 406(a)(1) of the

Act in a place of residence maintained by such rela-

tive as a home, (iii) where such child is without avail-

able resources, (iv) where emergency assistance is

684

necessary to avoid destitution of or to provide living

arrangements in a home for such child, and (v) where

such destitution or need for living arrangements did

not arise because such child or relative refused with-

out good cause to accept employment or training for

employment.

10. Because defendants’ emergency assistance pro-

gram, Categorical Assistance Manual Ch. 6500 (PO

610.5), limits eligibility more narrowly than § 406(e)

permits, its enforcement and operation are unlawful.

11. Congress, in §§ 406(e) and 403(a)(5) of the

Act, has determined the terms of eligibility and

funding for an emergency assistance program. The

state defendants’ effort to avoid the eligibility stand-

ards of § 406(e) by claiming funding for emergency

assistance from funds available for AFDC or for

any other federally funded program is contrary to

he cher intent of Ge At end 0 Ce OE

(e) (J).

12. Defendant United States Department of

Health, Education, and Welfare has violated §§ 406

(e) and 402(b) of the Act, 42 U.S.C. 55 606(e) and

602(b), and its own regulations, 45 C. F. R. § 233.10

(a) (I) (i) ), in approving and funding Illinois’

emergency assistance plan which denies such assist-

ance to members of the plaintiff class made ‘eligible

by § 406(e).

13. Defendant H.E.W., furthermore, may not ap-

prove or fund a state’s emergency assistance pro-

gram, whether designated as a “special need or

otherwise, except as authorized by § 406(e). —

14. The state defendants have violated and con-

tinue to violate § 406(e) of the Act and regulations

promulgated thereunder, 45 C. F. R. § 233,120(a) (5),

which require that emergency assistance be given

forthwith, by causing, and failing to correct after

this court’s order of November 21, 1974, serious

delays in providing emergency assistance to members

of the plaintiff class.

IT IS THEREFORE ORDERED AND DE-

CREED, as follows:

A. Defendants the Illinois Department of Public

Aid, Joel Edelman and James L. Trainor, their suc-

cessors in office, agents, employees and assigns are

enjoined, so long as Illinois receives federal funding

under Title IV-A of the Social Security Act, from

claiming reimbursement for emergency assistance

(however designated) under any other section of the

Act than §§ 406(e) and 403(a)(5) and are enjoined

from using any other means of limiting eligibility for

emergency assistance more narrowly than the provi-

sions of §406(e), and are further enjoined from

denying emergency assistance to plaintiff Frances

Gallman and to any member of the plaintiff class with

a panne ehild

0% “who who i 10 under — of 21,

any of the relatives

72 54084000 of the. Act in a place of

residence maintained by such relative as a home,

(iii) where such is without available re-

sources,

(iv) where emergency assistance is necessary

to avoid destitution of or to provide living ar-

rangements in a home for such child, and

=) such such destitution did not arise because such

or relative refused without good cause to

accept employment or training for employment.

In furtherance of this injunction these defendants are

Oe eae en

1. Within 7 days from entry of this order, de-

fendants shall file with the court and with defend-

70a

ant HEW amendments to its AFDC Categorical

Assistance Manual (and to forms and other nec-

essary instructions to staff) consistent with the

terms of this order. These amendments shall

(a) pt aie , cn

assistance to families with a needy

the terms set out in (i)-—(v) above.

(b) Specify that non-A eli chil-

dren are eligible for emergeney if

— Sen (i)-(v)

—5 Until HEW files regulations under

22 ph B-1 below, establish a definition of

— “lack of available resources” and

necessary to avoid destitution“ — 4 are

compatible with I 3

a —

ance when a needy ch

destitution.

(d) Establish amounts of assistance, forms

Ce ee ee

provi

(e) Set forth examples of common forms

of destitution to be avoided 2 _of

emergency -

ited to imminent eviction, immit termina-

tion of utilities, and lack of food, basic

and household furnishings.

of such destitution, including but not limited

to fire and other disaster causing homeless-

ness or damage to personal evic-

tion, theft, abandonment by a parent, delays

in awaiting Pp AFDC

normal processing

applications, failure to receive AFDC assist-

anee due to administrative error and failure

to receive other forms of income.

2. Defendants’ submission pursuant to para-

graph A. 1(p. — herein shall not define eligibil-

ty more narrow — than § 406 (e) of the Act and

hall be as required by 45 C. F. R.

§ 233.10(a) 05 (ii).

714

3. Defendants shall review within 30 days from

entry of this order the IDPA hearing decision,

No. 73-4155, of March 18, 1974 denying emer-

gency assistance to paintift Frances man in

circumstances alleged in this complaint, and

shall enter a new decision in com with

the Court of Appeals decision this order.

Such decision shall be pay filed with this

— 4 pa! 1 — endants 1 further

ine payment e with respect to

her administrative appeal. —

4. In order to assist the parties and this court

with further proceedings for compliance the state

defendants shall, within 30 days of the entry of

this order, commence to register all requests by

needy families with children for emergency aid,

categorizing such requests by a) type of need,

re rtment res „ and

d) reasons for denial if denial of the request

and shall submit to this court monthly

until order of court the information ob-

tained from such i

8 Plain a’ shall have 7 days after 3

0 materials ui in paragraphs A. 14

herein in which 4 file —— or 2322

B. Defendant U.S. Department of Health, Educa-

tion and Welfare is hereby enjoined from approving

state plans for emergency assistance which limit eli-

gibility more narrowly than § 406(e) of the Act or

funding an emergency assistance program (however

designated) under any provision of the Act other than

§§ 406(e) and 403(a)(5). In furtherance of this in-

junction, H.E.W. is specifically ordered as follows:

1. Within 60 days from entry of this order, it

shall file with the court proposed regulations gov-

erning emergency assistance, which proposed reg-

ulations shall be in accord with the opinion of the

Court of Ap with this order and with 45

C.F.R. § 233.10(a) (1) (ii) (A).

232-453—_77—_7

72a

(a) Plaintiffs shall have 15 days after sub-

mission of the proposed regulations in which

" G Upon by this court and

pon approva is com-

pletion of procedures required by law for

og of regulations, defendant

E. W. shall publish the lations in the

Federal Register and of Federal

lations.

2. Within 90 days after submission of IIli-

nois’ plan for emergency assistance pursuant

to Paragraph A (pp. 7-9) above, H.E.W.

shall notify the cou 1

action in approving or disapproving

amended K accordance with standards

set by the Act, this order and the decision of

the Court of Appeals.

C. Defendants Illinois Department of Publie Aid,

Joel Edelman and James L. Trainor, their succes-

sors in office, employees, agents and assigns are

enjoined from failing to ensure that emergency as-

sistance grants are given forthwith to members of

the plaintiff class, and are specifically directed in

furtherance of this injunction to modify their pro-

cedures to provide as follows:

1. Caseworkers and necessary supervisory and

other assistance over all other work assi = ts.

Within 24 hours of a request staff verify

need, determine eligibility and follow all necessary

procedures to secure issuance of the emergency

assistance 22 whether by disbursing order

= time period may not be extended

excep

(a) for the time attributable to delay

caused by an — — failure to provide

essential information within his or her under-

standing and immediate control, or

(b) by waiver signed by the applicant for

emergency aid.

734

Delay based upon an applicant’s fault in (a)

above shall be clearly described in the applicant’s

case record maintained by the department. In a

case of waiver, the original waiver shall be main-

tained in the case record and the applicant shall

be furnished a copy.

2. An individual requesting emergency assist-

ance shall be advised orally and in writing during

the initial interview that if eligible he or she may

receive a disbursing order at the local office that

day or within 24 hours of the request or, if the

client prefers, a check may be mailed from

Spri d or Chicago to an address provided by

the client.

3. An applicant for emergency assistance not

yet regularly receiving AFDC, as well as an appli-

cant for emergency assistance currently receiving

AFDC, shall have his or her emergency assistance

request acted upon within the time limits of

paragraph 1 above.

4. Defendant Trainor shall amend the Depart-

ment’s Categorical Assistance Manual to incor-

porate paragraphs B 1, 2 and 3 above.

(a) copy of the amendment shall be

submitted to the court not later than 15

days from entry of this order. Plaintiffs

may within 10 days thereafter file comments

in response thereto.

(b) Defendants shall distribute the bul-

letin or amendment to casework staff within

10 working days after receipt of the court’s

approval of it.

e) The amendment issued in compliance

with this order shall be filed with the court

and shall not be modified or in any way

changed without obtaining leave of court

beforehand. ;

5. For each month ing with the first

month following entry of this order and con-

tinuing thereafter until further order of the

court, defendants shall report their compliance

74a

with this order in a form substan similar

to defendants’ rts of June (undated) and

September 18, 1 with additional information

the cause ap ph— Fe - 4

hours the time of req until a disburs-

ing order or cheek is ready for delivery.

D. Defendant Trainor is further ordered to give

notice to class members by the following methods,

J. In the next regular mailing for AFDC

warrants, defendants shall enclose a notice set-

ting out in easily understandable language the

— 2 in emergency assistance effected by this

order,

2. Within 60 days of entry of this order, de-

fendant shall cause to be displayed

in all public areas of each public aid office in II-

E. This order and compliance with this order shall

not be interpreted as altering or in any manner affect-

ing other obligations defendants have with respect to

providing prompt assistance to AFDC applicants and

recipients and/or providing emergency assistance to

AFDC applicants and recipients pursuant to other

judgments rendered prior to the date of this order or

pursuant to state law.

F. This judgment shall be binding on defendants,

their officers, agents, attorneys, servants, employees

and their suecessors, and upon those persons in active

concert or participation with them who receive ac-

tual notice of the judgment by personal service or

otherwise,

7ha

G. This court shall retain continuing jurisdiction

over this cause for purpose of enforcement.

H. Plaintiffs are awarded their costs in this matter.

Tomas R. Menne,

United States District Judge.

Date: November 29, 1976.

ain

11

APPENDIX I |

In the Supreme Court of the United States

Miscellaneous No. ——

In Re: Application of Department of Health, Edit-

cation, and Welfare |

Arripavit or Nicnotas Norron, ComMMIssionga, 4

sistance Payments ApMINistraTION, DePaRTMENT

or Hatun, Epucation, and Weirane

Crry or Wasiinoron

District of Columbia

I, Nicholas Norton, being duly sworn, do depose

and say, that:

1. I am the Commissioner of the Assistance Pay-

ments Administration (APA), of the Social and Re-

habilitation Service (SRS), Department of Health,

Education, and Welfare (HEW). I administer APA

under the direction of the Administrator of SRS.

2. As Commissioner of APA, I advise the Admini-

strator of SRS on matters relating to financial assist-

ance and employment incentive programs; coordinate

the development, implementation, and monitoring of

APA program objectives and operations with other

SRS organizations; develop and recommend legisla-

tion, regulations, procedures, systems, organization

models, and staffing patterns related to the APA pro-

grams; and develop and propose the budget for the

APA administered programs, (Statement of Organi-

zation, Funetions and delegations of Authority, 40

Federal Register 17622 (April 21, 1975)).

3. On November 29, 1976, the United States Dis-

(Ma)

_

774

triet Court for the Northern District of Illinois, Kast-

ern Division, pursuant to the mandate of the United

States Court of Appeals for the Seventh Circuit,

ordered HEW to file, within sixty days, proposed

regulations governing emergency assistance for needy

families with children under title IV-A of the Social

Security Act. The Court also enjoined HEW from

approving state programs for emergency assistance

(EA) which limit eligibility more narrowly than

§ 406(e) of the Social Security Act, or from funding

“an emergency assistance program (however desig-

nated)” under any provision of the Act other than

§§ 406(e), which defines “emergency assistance,” and

403(a)(5), the funding provision.

4. In the absence of an express statutory require-

ment, HEW has historically been given discretion

whether or not to issue regulations. Indeed, with re-

spect to many sections of the Social Security Act, no

regulations have ever been issued, and HEW does not

contemplate issuing regulations.

If the order of the District Court is not stayed, not

only will this discretion be irreparably breached prior

to review by the Supreme Court, but once compliance

oceurs the issue will be moot.

5. Furthermore, if the Department of Health, Edu-

cation, and Welfare is required to submit the pro-

posed regulations to the District Court, and if they are

approved and promulgated prior to Supreme Court

review of the decisions of the Court of Appeals, HEW

will suffer irreparable injury due to the immediate

and substantial burdens of enforcement which would

result, and which would be rendered meaningless if

the Supreme Court ultimately overturns the decision

of the Seventh Cireuit.

After promulgating regulations in accord with the

Court Order, HEW would be required to review the

7B

plans of all states which had either an EA program,

or special cireumstance items in their AFDC plan,

or both, since compliance with the new regulation

would require an EA program to be broad enough

to meet all the emergency needs of all eligible fam-

ilies. In addition, HEW would be required to as-

certain if any State had special circumstance provi-

sions dealing with emergency situations that rose

to the level of a emergency assistance program.“

The AFDC program is in operation in fifty-four

states.’ Since only four states have neither EA nor

special circumstance items the burdensome review

procedures outlined below would be multiplied at

least forty-six times over.

This review of the states’ compliance with the new

regulation would have two points of focus. For the

twenty-seven states which have EA programs at

present, there would have to be a determination of

whether their programs are broad enough to comply

with § 406(e) as interpreted by the court in Mandley.

This review would be exceedingly time-consuming

and would probably necessitate extensive meetings

between each state and HEW staff.

For the forty-five states having special cireum-

stance items in their AFDC plans, HEW would need

to determine whether those items, funded under the

more lintited eligibility requirements of the AFDO

plan, amounted to “an emergency assistance program”

which it is now barred from funding under any pro-

vision of the Act other than [the much broader cov-

erage of] §§406(e) and 403(a)(5).” It should he

noted that twenty-three of those states have chosen

For the purposes of this affidavit, the term “state” includes the

District of Columbia, Guam, Puerto Rico, and the Virgin Islands,

7

not to take advantage of the oma! program author-

ized by these two sections of et.

The HEW central and regional offices would there-

fore have to communicate with at least forty-six states

about the impact of the new regulation on their KA

programs or AFDC special circumstance provisions.

In the absence of a satisfactory response by the state,

three major courses of action would exist for the state,

two of which would entail a major expenditure of

time and effort by HEW as well as the state, and the

third of which would severely prejudice potential

recipients.

6. The first course would be for a state to acknow!l-

edge that its EA program or AFDC plan was

out of compliance with the new regulation. The state

would then proceed to negotiate with the regional of-

fice to establish what changes needed to be made to

come into compliance. It is unclear how much “lead

time” would be allowed the states to achieve this com-

pliance. Although it is customary for the Depart-

ment to allow 90 to 100 days after a regulation takes

effect, it appears that this might not be satisfactory

to the court, which allowed I}linois only seven days to

file amendments to its public assistance manual in

order to conform to the court order, Assuming that

the state was in fact allowed the time to make a good

faith effort to come into compliance, HEW would

have to monitor this process to make sure it was pro-

ceeding in good faith. It is likely that this would be

a fairly lengthy and complicated procedure in many

states, since changes in an EA plan authorized under

a specific statute would most likely require new leis-

lation, and might necessitate calling a special session

of the state legislature. Changes in other state KA

programa, or in most AFDC plans, might require only

ROA

administrative action, but this could be a souree of

further delay, particularly in states operating under

an Administrative Procedures Act.

An additional difficulty results for States whose

AFDC Plans have incorporated emergencytype spe-

cial eireumstances into a consolidated standard of

need based on statistical averages, as opposed to indi-

vidual grants. See Rosada v. Wyman, 397 U.S. 420

(1970), which approved of this method, Unless there

is a clear train of documentation which permits trac-

ing back to preconsolidation amounts of emergency-

type special needs, it will be extraordinarily diffieult

to extricate them.

7. The second situation would arise if the state was

not allowed the needed time, or if it communicated

its intention to continue under a plan which HEW

found to be out of compliance with the new court

ordered regulation. HEW would have to consider

initiating lengthy and costly compliance hearings to

determine continued eligibility for federal financial

participation. These proceedings would be condueted

pursuant to 42 U.S.C, 604, and judicial review thereof

would be in the appropriate Court of Appeals pur-

suant to 42 U.S.C. 1316(a), There is no

that either the hearing examiner or the

Appeals will agree with the Mandley view

statute. The result might well be a ju

mination that a state in violation of

opinion and resistant to HEW's efforts

with Mandley is nevertheless in compliance

statute, HEW and the Seventh Cireuit

powerless to affect that outcome,

Therefore, should even a few of the above

sequences occur during the period following a

gation of final regulations, but before a

85

1

id

7 F

dismantling or evisceration of the state programs,

and ironically result in pressure not to provide aid

to needy families, subverting the clear i

intent which the Department has been delegated to

carry out.

This could happen because the States’ third course

of action would be to eliminate emergency aid entirely

im the face of either lengthy struggles to bring their

programs into compliance, or -lengthy compliance

hearings. This would be especially true of the poorer

states, since in addition to the costs of amendment or

of presenting a case at a hearing, the amended plans

would almost certainly have to cover more benefici-

aries, and a greater number of emergencies, leading to

greater cost if meaningful assistance is to continue to

be provided. The Court of Appeals pointed out that a

state could maintain the same level of expenditure by

helping each person “more moderately,” but if the

numbers of beneficiaries increased considerably, each

individual grant could end up being reduced to a

token payment that in fact did not meet the emergency

need. At present, under existing plans, benefit levels

in many states are less than the amount which could

fairly be characterized as “moderate.” The EA pro-

gram is entirely optional with the states, and there is

likewise nothing in the AFDC statute which requires

a state to provide for special circumstance items. A

dilemma results. If a state chooses to have an EA

program, it is required to give emergency aid to each

and every person made eligible by § 406(e), and if it is

unwilling or unable to initiate such a program, the

incentive is toward providing fewer special circum-

stance items so as to avoid having them characterized

as an “‘emergency assistance program.“

This type of reaction to the new regulation would

cause irreparable harm to the EA program by essen-

tially ending it in some states, and depriving poten-

tial recipients of the emergency aid seen as impor-

tant by Congress. Illinois and Wisconsin have

already ended their EA programs in response to

such a choice, and Arkansas has suspended its pro-

gram due to “severe financial difficulties.” The chil-

dren who are the ultimate concern of both the EA

and AFDC programs would suffer unnecessary harm

if even one state terminates or dilutes its EA pro-

gram or eliminates any AFDC special circumstance

items in response to the new regulation ordered by

the court in Mandley. This harm can be avoided by

a stay of the order of the District Court so that these

children’s recourse to emergency aid is not jeop-

* However, the Supreme Court has held, in the context of «

amounts. Rosado v. Wyman, supra. Conceivably a state could

83a

ardized in the interim period prior to decision by

the Supreme Court.

9. Furthermore, HEW is charged with the or-

derly administration of a large and varied program

for ewergeney assistance. In the absence of a stay,

serious harm to HEW will be caused by disruption

of the program even prior to promulgation of the

court ordered regulation. States that presently desire

to amend their EA programs, or initiate new ones,

or plan for future changes, will be faced with the

uncertainty of a situation in which the standards

they must meet will be in a continuous state of flux

until a final decision by the Supreme Court.

NICHOLAS NoRTON,

Commissioner, Assistance Payments

Administration, Department of Health,

Education, and Welfare.

Crry or WasHINeTon,

District of Columbia, ss.

Subseribed to and sworn to before me this 18th

day of January, 1977.

Frances D. Curtis.

Notar 7.

My Commission Expires April 14, 1979.

[Seal]

APPENDIX J

Opinion By Judge Cummings

Unrrep Srares Court or APPEALS FOR THE SEVENTH

Circuit

November 23, 1976

Before:

Hon. Walter J. Cummings, Circuit Judge

Hon. Philip W. Tone, Circuit Judge

Hon. William J. Campbell, Senfor District Judge

Venus MANDLEY, Er AL. PLAINTIFFS-APPELLANTS

No. 76-1865 v.

James L. TRAINOR, ET AL. DEFENDANTS-APPELLEES

APPEAL FROM THE UNITED STATES DIS-

TRICT COURT FOR THE NORTHERN DIS-

TRICT OF ILLINOIS EASTERN DIVISION

No. 73-C-2453

THOMAS R. McMILLAN, Judge.

This case came on to be heard on the transcript

of the record from the United States District Court

for the Northern District of Illinois, Eastern Divi-

Hon. William J. Campbell, Senior Judge, United States Dis-

trict Court for the Northern District of Illinois sitting by

designation. -

(844)

85a

sion, and was argued by counsel. On consideration

whereof, it is ordered and adjudged by this court that

the judgment of the said District Court in this case

appealed from be, and the same is hereby, reversed

and remanded, in accordance with the opinion of this

court filed this date.

US COVERNEENT PRINTING OFFice terT