Appendix — Gonzalez v. Young
Supreme Court brief1978
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“ Supreme Court, U. S
FILED |
} MAY @ 1977
APPENDIX |
MICHAEL ROSAK, JR, CLERK
Iu the Supreme Court of the United States
OCTOBER TERM, 1977
No. 77-5324
JULIA GONZALEZ, ETC.,
Petitioner,
—V—-.—
JAMES F. YOUNG, DirEcToR, HUDSON CouNTY
WELFARE BOARD, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE THIRD CIRCUIT
PETITION FOR CERTIORARI FILED AUGUST 24, 1977
CERTIORARI GRANTED FEBRUARY 21, 1978
Iu the Supreme Cont of the United States
OCTOBER TERM, 1977
No. 77-5324
JULIA GONZALEZ, ETC.,
Petitioner,
—
JAMES F. YOUNG, DIRECTOR, HUDSON COUNTY
WELFARE BOARD, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE THIRD CIRCUIT
INDEX
Page
EE 1
Verified Complaint - IIE hcestidiesbisbeennckcqusnntoicnsecss 2
Answer of James F. Young ........... Se a 11
pg BET SO LO 12
SELL EST 15
pe 17
Ce a cstirestecnencrnstoreecece 19
Order of Hon. Curtis Meanor, Judge, U.S. Dist. Ct............... 20
Opinion of Hon. Curtis Meanor, Judge, U.S. Dist. Ct. .......... 21
SE 32
Attorney’s Statement as To Record on Appeal ............000...... 34
Opinion & Judgment of the 3rd Circuit 2.2.02... 35
Order of Hon. Curtis Meanor pursuant to 3rd Circuit
EE DEEN SEES See 52
Order of the Supreme Court of the United States granting
motion for leave to proceed in forma pauperis and granting
Saleen Ser Were Ge Geeeerar ee ...... 53
1
DOCKET ENTRIES
Verified Complaint filed March 11, 1976
Answer of James F. Young filed April 2, 1976
Answer of G. Thomas Riti filed April 6, 1976
Affidavit of Nina Fondi filed April 6, 1976
Affidavit of G. Thomas Riti filed May 7, 1976
Affidavit of Julia Gonzalez filed June 8, 1976
Order of Hon. Curtis Meanor filed August 30, 1976
Opinion of Hon. Curtis Meanor filed August 30, 1976
Notice of Appeal filed September 13, 1976
Attorney’s Statement As to Record on Appeal October 15, 1976
Opinion and Order of the 3rd Circuit dated J uly 15, 1977
Order of Hon. Curtis Meanon pursuant to 3rd Circuit. Opinion
Order dated August 18, 1977
Order Granting Petition for Certiorari dated February 21,
1978.
2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil Action No. 76-455
JULIA GONZALEZ, INDIVIDUALLY AND AS GUARDIAN AD
LITEM FOR LUIS GONZALEZ, AGE 9, AND MANUEL Gon-
ZALEZ, AGE 10, AND FURTHER ON BEHALF OF ALL
PERSONS SIMILARLY SITUATED, PLAINTIFFS
v8.
JAMES F. YOUNG, DIRECTOR, HUDSON COUNTY WELFARE
BOARD, AND G. THOMAS RITTI, DIRECTOR, NEW JERSEY
DIVISION OF PUBLIC WELFARE, DEFENDANT
VERIFIED COMPLAINT—Filed March 11, 1976
PRELIMINARY STATEMENT
This is a 1983 suit wherein a class of welfare re-
cipients in Hudson County complain that the Hudson
County Welfare Board refuses to grant emergency as-
sistance payments even though obligated by Federal
Statutes and Federal Regulations to do so. The plaintiffs
further complain that the New Jersey Division of Public
Welfare persistently refuses to promulgate meaningful
administrative procedures directed to a good faith im-
plementation of said emergency assistance, federal stat-
utes and regulations.
JURISDICTION
This court has jurisdiction with respect to this matter
under and by virtue of the provisions of 42 U.S.C. 1983,
28 U.S.C. 1348, and 28 U.S.C. 1331.
CLASS ACTION
Plaintiffs are properly classed in this action because
they satisfy all of the requirements of F.R.C.P. 23.
PLAINTIFFS
%
The plaintiffs are Luis Gonzalez, an infant of 9 years,
Manuel Gonzalez, an infant of 10 years and Julia Gon-
zalez, their mother. The health, safety and welfare of
each of the Gonzalez’s is presently endangered because
the defendant James F. Young refuses to grant an emer-
gency assistance welfare payment to them. The plaintiff
class consists of all welfare recipients in Hudson County
whose emergency assistance requests have been, are now,
and will continue to be, until the resolution of this con-
troversy summarily denied by James Young.
DEFENDANTS
James F. Young is the director of the Hudsor County
Welfare Board. In such capacity he is charged with the
obligation of dispensing emergency assistance to needy
welfare recipients in Hudson County. On February 3,
1976 and again on February 26, 1976 James Young re-
fused to authorize an emergency assistance payment to
Julia Gonzalez.
The defendant G. Thomas Ritti is the director of the
Division of Public Welfare of the State of New Jersey.
In that capacity he is charged with the obligation of
providing administrative fair hearings to welfare re-
cipients who are denied emergency assistance. To this
date Mr. Ritti has failed to promulgate a meaningful
fair hearing appariti with respect to applicants who are
denied emergency assistance.
FACTUAL ALLEGATIONS AS TO THE
FIRST CAUSE OF ACTION
1. Julia Gonzalez lives in an apartment at 570 Jersey
Avenue, Jersey City, New Jersey with her two children,
Luis Gonzalez, age 9 and Manuel Gonzalez, age 10.
2. Julia Gonzalez receives a monthly aid to Dependent
Children grant from the Hudson County Welfare Board
in the sum of $235.00. In addition she receives a monthly
child’s disability grant from the Social Security Ad-
4
ministration in the sum of $157.00. (Her 9 year old son
Luis is retarded.) These grants are Julia Gonzalez’s sole
income.
3. On Monday, February 2, 1976 Julia Gonzalez re-
ceived the grant from the Hudson County Welfare Board
and from the Social Security Admiinistration. As was
her customs she went to the FINAST FOOD MARKET
on Jersey Avenue and cashed both checks. She received
the sum of $392.00; placed same in her wallet in her
purse and left the store. Immediately upon leaving the
store Julia Gonzalez was accosted by an assailant who
took her purse containing all the money and fled.
4. Immediately thereafter Julia Gonzalez proceeded to
Precint #5 of the Jersey City Police Department and
reported the incident. The police have however not been
able to recover any money to this date.
5. The next day Tuesday, February 3, 1976 Julia
Gonzalez went to the Hudson County Welfare Board and
requested of her caseworker, one Nina Fondi, emergency
assistance to enable her to pay her February rent ($65.00)
and her gas and electric bill ($98.00) (the gas and elec-
tric bill which was received by Julia Gonzalez in the
last week of January was for December, 1975 and Jan-
uary, 1976; this is because Public Service bills Julia
Gonzalez on a two month basis). Nina Fondi told Julia
Gonzalez that the Hudson County Welfare Board could
not provide any emergency assistance. (Nina Fondi did
however give her food stamps. )
6. Thereafter a representative from Public Service
advised Julia Gonzalez that her gas and electricity would
be shut off. In addition Julia Gonzalez’s landlord ad-
vised her that she would have to pay her February rent.
7. In this desperate situation Julia Gonzalez was re-
ferred to the attorney who represents her in this action.
Her attorney immediately forwarded a letter to James
F. Young and to the attorney for the Hudson County
Welfare Board requesting emergency assistance (see
letter of February 25, 1976 which is attached hereto and
made a part of hereof). To this date no meaningful
response has been forthcoming from the Welfare Board.
5
8. As a result of the aforesaid Julia Gonzalez is in
imminent danger of having her gas and electricity termi-
nated. She is further within the approximation of dis-
possession since she can’t pay her February rent. She
fears for the safety and well-being of her sons, one of
whom is retarded, and she fears for her own safety and
well-being.
9. Before concluding this statement of facts with re-
spect to Julia Gonzalez it must be pointed out that she
has been a recipient of Aid to Dependent Children As-
sistance for several years and she has never previously
applied for emergency assistance. Julia Gonzalez has also
been a customer of Public Service for several years and
she has never previously failed to timely pay her gas
and electricity bill.
10. Regarding the plaintiff class it is alleged that
James F. Young patently, pervasively and continually
refuses to meaningfully authorize emergency assistance
payments when members of the plaintiff class request
same.
FIRST CAUSE OF ACTION
1. By refusing to authorize emergency assistance in
the sum of $163.00 ($63.00 rent, $98.00 gas and elec-
tricity) to Julia Gonzalez even though same is desperately
needed and even though Julia Gonzalez is clearly entitled
to same under Federal Law the defendant James Young
has violated and continues to violate 42 U.S.C. A606 (e)
(1) and 45 C.F.R. 233.120 which provide for and man-
date emergency assistance payment to Aid to Dependent
Recipients such as Julia Gonzalez who find themselves
in necessitous circumstances. James Young’s refusal at
bar further violates the New Jersey Assistance Stand-
ards Manual (ASH) Section 530 which mandates James
Young to provide “emergency assistance payments” to
— To Dependent Children recipients such as Julia Gon-
zalez.
2. By refusing to meaningfully authorize emergency
assistance payments when needed by the plaintiff class
James Young has and continues to violate and offend
the aforesaid statutes and regulations.
bs a oe
6
FACTUAL ALLEGATIONS AS TO THE
SECOND CAUSE OF ACTION
1. The defendant G. Thomas Ritti, director of the
Division of Public Welfare of the State of New Jersey
is charged with the obligation of implementing meaning-
ful administrative procedures for welfare recipients who
are denied emergency assistance.
2. To this date Mr. Ritti has failed to implement any
meaningful procedures respecting emergency assistance
payments. As a result individuals such as the plaintiffs
are not only being denied benefits which are available
to them under Federal Law they are also being denied
access to meaningful administrative review respecting
their claims for emergency assistance.
3. In a letter dated February 25, 1976 (see letter
attached hereto and made a part hereof) the plaintiffs
have called this problem to the attention of Mr. Ritti
but to this date Mr. Ritti has done nothing to rectify
the problem.
SECOND CAUSE OF ACTION
1. By refusing to implement meaningful administra-
tive review procedures anent emergency assistance pay-
ments G. Thomas Ritti has and continues to infringe
upon, obstruct and effectively deny Aid to Dependent
Children recipients emergency assistance payments which
are available to them under the aforesaid federal statutes
and regulations.
PRAYER FOR RELIEF
WHEREFORE plaintiffs respectfully pray this Court
to:
(a) Assume jurisdiction of this cause; certify plaintiff
class; and set this case promptly for a hearing.
(b) Enter an interlocutory injunction mandating
James F, Young, Director of the Hudson County Welfare
Board to provide Julia Gonzalez an emergency assistance
payment in the sum of $163.00 so that Julia Gonzalez
T
may pay her February rent and gas and electric bill
and immunize herself and her children from an environ-
—_ which will be detrimental to their health and
safety.
enter a permanent injunction restraining and enjoining
ri from refusing emergency assistance payments in the
ure.
(e) Order such further relief as this court deems
just and equitable.
Respectfully submitted,
Hupson COUNTY LEGAL SERVICES
Timothy K. Madden
Director
BY: /s/ Theodore A. Gardner
THEODORE A, GARDNER
Attorney for Plaintiffs
OO
8
AFFIDAVIT
STATE OF NEW JERSEY )
) ss:
CouNTY OF HUDSON )
JULIA GONZALEZ, of full age, being duly sworn
according to law, upon her oath, deposes and says:
I have read the foregoing complaint and the facts
stated therein are true to the best of my knowledge,
information and belief and the above complaint is made
in truth and good faith for the purposes set forth herein.
/8/ Julia Gonzalez
JULIA GONZALEZ
[Jurat Omitted in Printing]
9
ATTACHMENT TO VERIFIED COMPLAINT
February 25, 1976
James F. Young, Director
Hudson County Welfare Board
100 Newkirk Street
Jersey City, New J ersey
Attn: William Surdoval, Attorney
for Hudson County Welfare Board
Re: Julia Gonzalez
HC-12547C
Dear Mr. Surdoval:
I am writing to you in your capacity as the attorney
for the Hudson County Welfare Board. I represent
Julia Gonzalez, HC-12547C, who resides at 570 Jersey
Avenue, Jersey City. On February 2, 1976 Julia Gon-
zalez received a check from the Hudson County Welfare
Board in the sum of $235.00. On that same day Julia
Gonzalez received a check in the sum of $157.00 from the
Social Security Administration for her son Luiz, (age 9)
who is disabled. These two checks represent Julia Gon-
zalez’s sole monthly income. Upon receiving the checks
Mrs. Gonzalez went to the Finast Food Market on Jersey
Avenue where she cashed both checks and received the
sum of $392.00. Immediately upon leaving the store
Mrs. Gonzalez was accosted by an assailant who took
her purse containing all the money and fled. Mrs. Gon-
zalez immediately went to Jersey City Police, Precinct
number 5 and reported the incident. The next day, Feb-
ruary 3, 1976, Mrs. Gonzalez went to the Hudson County
Welfare Board and requested emergency assistance from
her caseworker, Nina Fondi, so that she would be able
to pay her rent and her gas and electric bill. Ms. Fondi
gave Mrs. Gonzalez some food stamps but indicated that
no money could be given to Julia Gonzalez for her rent
and for her gas and electric bill. As a result Mrs. Gon-
zalez was unable to pay her February rent in the sum of
$65.00 and her December/January gas and electric bil]
10
in the sum of $98.00 (Public Service) bills Julia Gonzalez
every other month). Public Service has advised Julia
Gonzalez that her gas and electricity will be terminated
if she does not pay the bill. She has also been advised
by her landlord that she must pay her February rent.
Because she is unable to do so Julia Gonzalez now fears
for her safety and welfare and for the safety and wel-
fare of her two children, age 9 and 10.
It is my legal opinion pursuant to 42 U.S.C.A. 606(e)
(1), 45 C.F.R. 283.120 and ASH 530 that Julia Gonzalez
is entitled to an emergency assistance payment from the
Hudson County Welfare Board in the sum of $163.00.
Would you kindly advise me with respect to this request
and if payment will not be forthcoming would you kindly
advise as to whether or not any emergency administra-
tive procedures have been promulgated by the Hudson
County Welfare Board to implement the emergency as-
sistance provisions. If you have any questions with re-
spect to any of the above matters kindly telephone me.
Very truly yours,
Theodore A. Gardner
TAG:hh
cert. mail r/r/r/ #512051
CC: Ann Klein, Commissioner of
Dept. of Institutions and Agencies
Attn: G. Thomas Ritti, Director Division
of Pubic Welfare
cert mail 1/r/r/ #512052
PTE or penne
il
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil Action No. 76-455
[Title Omitted in Printing]
ANSWER OF JAMES F. YOUNG
Filed April 2, 1976
JAMES F. YOUNG, as Director of the Hudson County
Welfare Board, by way of answer, says:
1. As to the first cause of action, the defendant admits
denial of application for emergency assistance. However,
denies the remainder of the allegations contained in the
first paragraph.
2. Defendant denies allegations in the second para-
graph.
As to the second cause of action this defendant is
not named.
SEPARATE DEFENSE
1. Plaintiff is not entitled to emergency assistance
within the guidelines set by New Jersey Assistance Stand-
ards Handbook, (ASH, Section 530).
2. Defendant James F. Young denies that the Federal
District Court has jurisdiction to hear the subject matter
of this suit.
3. Defendant denies that there has been a deprivation
of any rights to the plaintiff.
4. Plaintiff has failed to exhaust her administrative
remedies. .
Hupson COUNTY WELFARE BoaRD
JAMES F. YOUNG
Director
/s/ William D. Surdovel
WILLIAM D. SURDOVEL, Esq.
Attorney for the Defendant
12
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil Action No. 76-455
[Title Omitted in Printing]
ANSWER OF G. THOMAS RITI
Filed April 6, 1976
The defendant, G. Thomas Riti, Director, New Jersey
Division of Public Welfare in answer to the complaint
of plaintiff says:
1. He denies the allegations contained in the prelimi-
nary statement portion of the complaint.
2. He admits the allegations in the Jurisdiction por-
tion of the complaint that this court has jurisdiction over
Civil Rights cases but deny its applicability in the in-
stant case.
8. He denies the allegation contained in the class
action portion of the complaint that the instant action is
properly a class action.
4. He is without knowledge or information sufficient to
form a belief as to the truth of the allegations in the
plaintiff’s portion of the complaint.
5. He admits the allegation in the first unnumbered
paragraph of the defendants’ portion of the complaint
that James Young is the Director of the Hudson County
Welfare Board but denies the remaining allegations in
that paragraph.
6. He admits the allegation of the second unnumbered
paragraph of the Defendants’ portion of the complaint
that he is the Director of the New Jersey Division of
Public Welfare, but denies the remaining allegations in
that paragraph.
7. He is without knowledge or information sufficient
to form a belief as to the truth of the allegations in the
numbered paragraphs one through ten of the Factual
Allegations As to the First Cause of Action portion of
the complaint.
13
8. He is without knowledge or information sufficient
to form a belief as to the truth of the allegations in
the numbered paragraphs one through two of the First
Cause of Action portion of the complaint.
9. He denies the allegaticns of the numbered para-
graphs one through three of the Factual Allegations As
to the Second Cause of Action portion of the complaint.
10. He denies the allegations of the numbered para-
graph one of the Second Cause of Action portion of the
complaint.
FIRST SEPARATE DEFENSE
This court lacks jurisdiction over the subject matter
of plaintiff’s complaint.
SECOND SEPARATE DEFENSE
The complaint fails to state a claim against defendant
upon which relief can be granted.
THIRD SEPARATE DEFENSE
_ Defendant has violated no fundamental rights of plain-
tiffs and at all times has acted in accordance with ap-
plicable laws and regulations.
FOURTH SEPARATE DEFENSE
This law suit may not properly be maintained as a
class action pursuant to Fed. R. Civ. P. 23.
FIFTH SEPARATE DEFENSE
aoe have failed to exhaust administrative reme-
SIXTH SEPARATE DEFENSE
This court should abstain from deciding this case since
plaintiffs have neglected to avail themselves of the legis-
latively mandated channels of relief in State courts.
14
SEVENTH SEPARATE DEFENSE
The complaint is sham and frivolous and states no sub-
stantial federal question.
EIGHTH SEPARATE DEFENSE
Plaintiffs have not been deprived of any right, privi-
lege or immunity accrued to him by the United States
Constitution or any Act of Congress.
RESERVATION OF RIGHT
The defendant reserves the right, at or before trial of
the cause, to move to dismiss the complaint and/or for
summary judgment upon the grounds that the complaint
fails to state a claim against defendant upon which re-
lief can be granted and defendant is entitled to judgment
as a matter of law.
WILLIAM F. HYLAND
Attorney General of New Jersey
Attorney for Defendant,
G. Thomas Ritti, Director,
New Jersey Division of
Public Welfare
By: /s/ Paul N. Watter
PAUL N. WATTER
Deputy Attorney General
15
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
AFFIDAVIT OF NINA FONDI
Filed April 6, 1976
STATE OF NEW JERSEY )}
) ss.
COUNTY OF HUDSON )
NINA FONDI, of full age upon her oath deposes and
says:
1.) I am Social Worker employed at the Hudson
County Welfare Board.
2.) On the first week of February, Julia Gonzalez
came to the Hudson County Welfare Board seeking
emergency assistance alleging she had lost the proceeds
of the February check.
3.) At that point in conversation, Mrs. Gonzalez in-
formed me that the rent for the month of February was
unpaid. She also informed me that there was an out-
standing bill from utility, P.S.E. & G. CO., but that bill
had not yet been received.
4.) At no time did she tell me that any dispossession
or eviction action had been taker, nor was there any
indication to me that the gas and electric had been shut
off at her apartment.
5.) She reported to the Food Stamp area where an
issuance was obtained for her and she was referred to
the Food Action Committee of Hudson County.
6.) I explained to her that the lost cash could not be
replaced, and since there was not an imminent state of
homelessness or imminent threat of the utilities being
shut off, it was determined that she was not qualified
for emergency assistance under the Provisions of ASH
530.3.
7.) This action on my behalf was reviewed by the
Administrative Supervisor, Katherine Bear, whom I un-
16
derstand thereafter made the final determination that
there was not a qualification for emergency assistance.
/s/ Nina Fondi
NINA FONDI
Social Worker
[Jurat Omitted in Printing]
u\
17
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civii Action No. 76-455
AFFIDAVIT OF G. THOMAS RITI
Filed May 7, 1976
[Title Omitted in Printing]
STATE OF NEW JERSEY )
) ss:
COUNTY OF MERCER )
G. THOMAS RITI, of full age, being duly sworn ac-
cording to law upon his oath deposes and says:
1. I am the Director of the New Jersey Division of
Public Welfare and am a defendant in the lawsuit known
as Gonzalez v. Young.
2. In my capacity as Director, I am responsible for
the administration of public assistance programs in New
Jersey. I do not, however, possess either the power or
authority to promulgate regulations in conjunction with
the Aid to Families with Dependent Children (AFDC)
program, of which the Emergency Assistance program
is a part. Pursuant to N.J.S.A. 44:10-8, the Legislature
has delegated such power and authority only to the Com-
missioner of Institutions and Agencies.
3. New Jersey has participated in the federally funded
Emergency Assistance program authorized by Title IV-
A of the Social Security Act since March 1969.
4. At all times since that date, New Jersey’s Emer-
gency Assistance regulation has been approved by the
Department of Health, Education and Welfare.
5. The current New Jersey Emergency Assistance reg-
ulation, contained in § 530 of the Assistance Standards
Handbook, was approved by Elmer Smith, Regional Com-
missioner of the Department of Health, Education and
Welfare, on August 4, 1975. A copy of the notice of
approval is attached to this affidavit.
/8/ G. Thomas Riti
G. THOMAS RITI
[Jurat Omitted in Printing]
ROciaL A110 AGHAILIT& TIOM SERVICE
SeasUAsiO5, 8) a 2: J1
TRANSMITTAL AND NOTICE OF
SOCIAL AND
Re, =. € ;
fet, i 1 ’ oe
“APPROVAL OF STATE PLAN MATERIAL
REHABILITATION SERVICE STATE PLAN PRCSRAMS
apprnayree. eS secianens
DATED: May 7, 1976.
TO: SESIONAL COMMISSIONER
SS Stat AMO RE EH ASILITATION SERVICE
= = PARTMENT OF REALTH, SO:'CATION, & WELFARE
TRANSMITTAL iiUM3éR
“WS-3
] eR SGRAM IDENTIFICATION ‘Sere sdenuhcanuon as tutle pege of preprinesd plac)
Stste Plas for Titl=: =A =
(iIncece Maintenance)
1 -7Y7= CF ACTION SUSMITTED FOR APPROVAL (Creck one and enter effective datz)
EFFECTIVE
OATS
P= SEW STATZ PLAN
AN:ENOMENT
lsy 1, 1975
r= REMAINDER CH PART HL IF THIS IS AN AMMENOMENT (Separate transmitral for 2ach amendmens)
PL eT
SERAL REGULATION CITATION
45 CPR, Chanter Ir
NUM32=ER CF THE PLAN SECTION OR ATTACHMENT
Assistance Stenéaras Benddoux
NUMBER OF THE SUPERSEDED PLAN SECTION OR ATTACHMENT
Financi3l Assistence Manval
SU3-ECT OF AMENOMENT
Ht GOVERNOA’S REVIEW (Cre one)
[] GOVERNOR'S OFFICE REPORTED NO COMMENT
!
(2 comments OF GOVERNOR'S OF FICE ENCLOSED
S¥2 TD cojecticn by Coverncr's Oz2ice to
forms! adcpticn following acrence mob
lication in conformity with New Jersey’
A2rinistrarive Procedure Act.
o ) REPLY RECEIVED WITHIN <5 OAYS GF SUBMITTAL TO GOVERNOR'S OF FICS
SIGNATURE STATE AGENCY OFFICIAL
.
s
REPORT OF SRS APPROVAL
TITLE
Irn Zlein, Commission:
N.c.Separtsent of Iestituticns & aAsencies
BA re RECEIVED 1N REGIONAL OFFICE 2S
DATE
SIGNAT
6/2/75
RETURN TO: (Name and Adaress of Srate Agency) TLe
Division of Peblic 8elfare ) . Pa A A ec ie i: Mi
129 2. Eanover Street Nt rip l Cnt S Stele feo GLAS
Trenten, tew Jemez 62525
REMARKS
19
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
AFFIDAVIT OF JULIA GONZALEZ
Filed June 8, 1976
STATE OF NEW JERSEY )
) ss:
COUNTY OF HUDSON )
JULIA GONZALEZ, of. full age, being duly sworn
according to law upon her oath deposes and says:
1. Since February I have received several letters
from Public Service Gas & Electric demanding payment
of my utility bill which came due in that month. Since
February I have also received many oral inquiries from
my landlord about the February rent.
2. I do not like to owe people money and accordingly
in April I began taking $20.00 from my monthly income
and applying it to the utility bill which became due in
February and I also began applying $20.00 to the Feb-
ruary rent.
8. As a result of this I have less money to buy food
and other items of necessity for myself and my children.
4. I am in desperate need of my full monthly grant.
Even this is not enough to buy all of the children’s neces-
sities, however, with the $40.00 deduction each month,
it is nearly impossible for me to get by.
/s/ Julia Gonzalez
JULIA GONZALEZ
[Jurat Omitted in Printing]
20
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil Action No. 76-455
JULIA GONZALEZ, etc., PLAINTIFF
v.
JAMES F’, YOUNG, et al., DEFENDANTS
ORDER—Filed August 30, 1976
This cause came on to be heard by the above-entitled
court on June 14, 1976 upon the motion of defendants
for summary judgment and upon the cross-motion of
plaintiff for summary judgment. This court, having
carefully considered the same, the affidavits, the plead-
ings and the briefs in support thereof and in opposition
thereto, with Theodore A. Gardner, Esq., appearing as
attorney for plaintiff, William D. Surdovel, Esq., ap-
pearing as attorney for defendant James Young, and
Richard M. Hluchan, Deputy Attorney General, appear-
ing as attorney for defendant G. Thomas Riti, and being
fully advised herein, finds that the motion of the plain-
tiff is not well taken and shall be, and it hereby is,
denied.
The court further finds as to the motion of defendants
that there is no genuine issue as to any material fact
and the defendants are entitled to judgment as a matter
of law.
Therefore, it is hereby
ORDERED, that defendants’ motion is granted, and
judgment is hereby entered for defendants.
Dated:
/s/ H. Curtis Meanor
H. CuRTIS MEANOR
U.S.D.J.
21
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil Action No. 76-455
JULIA GONZALEZ, etc., PLAINTIFF
v.
JAMES F’. YOUNG, etc., et al., DEFENDANTS
OPINION—Filed August 30, 1976
Appearances :
Hudson County Legal Services Corporation
Attorney for Plaintiff
BY: Theodore A. Gardner, Esq.
Hudson County Welfare Board
BY: William D. Surdovel, Esq.
Legal Assistant
Attorney for Defendant, Young
William F. Hyland, Esq.
Attorney General of New Jersey
Attorney for Defendant, Riti
BY: Richard M. Hluchan, Esq.
Deputy Attorney General
MEANOR, District Judge.
The parties have filed cross motions for summary judg-
ment. Following the filing of briefs directed to the issues
raised in these motions, as well as to the issue of this
court’s jurisdiction, arguments were heard and decision
was reserved. Due consideration having been given to
the arguments advanced ‘by the parties, the court has
concluded that the plaintiff’s motion for summary judg-
ment will be denied on the grounds that the state regula-
tion in question is not in conflict with the federal statute
22
and regulation. For the reasons that appear below, judg-
ment will be entered in favor of defendants Young and
Riti.
The facts material to decision are not in dispute. The
first named plaintiff, Julia Gonzalez, resides in Jersey
City, New Jersey with her two children, Luis and Manuel.
She and her children are impoverished. Each month
Julia Gonzalez receives a check from the Hudson County
Welfare Board in the amount of $235. This check is
issued pursuant to the Aid to Families with Dependent
Children program, hereinafter AFDC. 42 U.S.C. § 601
et seq. AFDC is funded in major part by the federal
government and to a lesser extent by state and local au-
thorities. The AFDC check lists Ms. Gonzalez and her son
Manuel, age 10, as beneficiaries. Luis Gonzalez, who is
retarded, is the recipient of $157 per month from the
Social Security Administration’s disability program. This
check is made payable to Ms. Gonzalez as the protective
payee for Luis. Thus, the Gonzalez family receives a
total of $392 per month.
On Monday, February 2, 1976, Ms. Gonzalez received
the two checks for the month of February. As was her
custom, she cashed both of these checks at a supermarket
near her home and placed the $392 inside her pocket-
book. On her way home from the store, she was ac-
costed, and her pocketbook was stolen. She was then
left without the funds needed to pay her rent and utility
bills which fell due in the month of February. Ms.
Gonzalez reported that theft to the Jersey City police,
but there has been no recovery of the stolen cash.
The following day, plaintiff went to the Hudson County
Welfare Board to request a grant of emergency assistance
in the amount of $168, $65 for rent and $98 for the
utility bill. The request was refused by the case worker,
Ninda Fondi. Ms. Gonzalez did, however, receive a
quantity of food stamps from Miss Fondi. The denial
of emergency assistance benefits was based upon a de-
termination by the case worker and her administrative
supervisor that Ms. Gonzalez did not qualify under the
provisions of § 4810 of the New Jersey Public Assistance
23
Manual for a grant of emergency assistance. Miss Fondi
made phone calla to Ms. Gonzalez’s landlord and to the
utility company and had received verbal assurances that
the utilities would not be turned off and that the landlord
would take no steps to evict the Gonzelez family.
Ms. Gonzalez then retained an attorney and made a
written request for an emergency grant to the Hudson
County Welfare Board on February 25, 1976. The Board
thereafter responded and denied the application. Subse-
quently, plaintiff’s attorney wrote to Mr. G. Thomas Riti,
the Director of the New Jersey Division of Public Wel-
fare, requesting an accelerated hearing in regard to the
County Board’s denial. Apparently, this letter was not
answered.
Plaintiff commenced this action on March 11, 1976. On
the same day, the court signed an order to show cause,
making it returnable April 12, 1976. This order directed
the defendants to answer within 20 days of service upon
them and to be prepared on April 12, 1976 to show cause
why the following orders should not issue:
(a) an interlocutory injunction mandating defendant
James F’. Young to pay Julia Gonzalez the sum of $163
immediately ;
hes an order certifying the proposed plaintiff class,
an
(c) an order permitting the named plaintiffs to pro-
ceed in forma pauperis.
The order to show cause additionally specified the
manner in which the defendants were to be served with
process.
The verified complaint is drawn in two counts. The
first count alleges that James F. Young’s denial of emer-
gency assistance benefits to Ms. Gonzalez unlawfully de-
priyed her of a right secured to her under federal statute
and regulation, 42 U.S.C. §606(e)(1) and 45 C.F.R.
§ 233.120. It further alleges that Young’s denial was also
a violation of state law. The second count is directed at
Mr. Riti and alleges that his failure to implement any
meaningful administrative review procedures in regard
to emergency assistance payments has and continues to
24
“infringe upon, obstruct and effectively deny” AFDC
recipients emergency assistance payments which are avail-
able to them under federal law.
By way of relief, the complaint seeks a preliminary
injunction compelling defendant Young to pay the plain-
tiff the $163 she seeks in emergency assistance, a declara-
tory judgment finding that defendant Young has violated
and continues to violate plaintiff's rights under federal
law and a permanent injunction restraining Young from
refusing emergency assistance benefits in the future.
Furthermore, the complaint seeks declaratory and injunc-
tive relief against defendant Riti.
Both of the defendants filed timely answers to the com-
plaint and a hearing was held on the return date of the
order to show cause. By letter opinion dated April 15,
1976, the court denied the application for preliminary
injunctive relief against defendant Young. The court
said at that time, “it is clear from the facts before the
court that neither Public Service nor the landlord has
undertaken steps to discontinue utility service or to evict.
Thus, plaintiff is not faced with immediate and irre-
parable harm.” The court also made a preliminary
determination that the New Jersey Administrative Code
provisions governing the issuance of emergency assistance
benefits do not conflict with federal law. The court de-
clined to consider the question of class certification at
that time, finding that the matter had not been adequately
presented and that there was not sufficient information
before the court “upon which to found a decision that a
properly defined class exists.” Finally, the court raised
serious question regarding the jurisdiction of the court to
hear the matter and ordered the parties to submit briefs
on the matter and to appear for oral argument on
June 14, 1976.
On May 12, 1976, defendant Riti, by counsel, moved
for summary judgment or in the alternative for an order
dismissing the complaint as to him for failure to state
a claim upon which relief can be granted. The basis for
this motion is the assertion contained in Riti’s affidavit
that he has no power or authority to promulgate regula-
25
tions in conjunction with the AFDC program, and, there-
fore, cannot be ordered to promulgate such regulations.
Plaintiff filed a counter motion for summary judgment
on June 10, 1976 which was made returnable on June 14,
1976 so as to be heard at the same time as the other
pending matters.
The hearing was held on June 14, 1976, following
which the decision of the matter was submitted to the
court on undisputed facts. At this hearing, it was brought
to the court’s attention that the New Jersey Commis-
sioner of Institutions and Agencies had issued a new set
of regulations providing for emergency fair hearings to
review denials of requests for emergency assistance.
Plaintiff's attorney conceded that, should this court re-
quire the plaintiff to exhaust her state administrative
procedures as a prerequisite to bringing this action in
the district court, the newly established state procedures
were adequate. Consequently, it would appear that the
relief sought under the second count of the complaint has
been mooted.
At the conclusion of the hearing, the court indicated
that it would await the decision by the Supreme Court in
a case then pending which concerned exhaustion require-
ments in § 1983 suits. Burrell v. McCray, —— U.S. ——,
No. 75-44, decision below reported at 516 F.2d 357 (4th
Cir. 1975). By order of June 14, 1976, the Supreme
Court dismissed the writ of certiorari as improvidently
granted, thereby letting stand the decision of the Court
of Appeals for the Fourth Circuit. In these circumstances,
it would appear that the plaintiff should not be required
to exhaust her state administrative remedies before com-
ing here.
JURISDICTION
The complaint states a claim under 42 U.S.C. § 1983,
which provides a cause of action for a deprivation, under
color of state law, of any “rights, privileges or im-
munities secured by the Constitution and laws” of the
United States. The plaintiff alleges that the New Jersey
regulations implementing the federal emergency assist-
ance program for AFDC recipients conflict with the ap-
26
plicable federal regulations and, thus, deprive her of the
right to receive the federally mandated benefits. Com-
pare, 42 U.S.C. § 606(e) (1) and 45 C.F.R. § 233.120 with
New Jersey Administrative Code 10:82-12.11. The plain-
tiff further alleges that as a result of the narrower
eligibility requirements established under the New Jersey
regulation, she has been deprived, under color of state
law, of rights secured by both the Constitution and laws
of the United States. The only constitutional claim the
plaintiff presents is that the alleged conflict between the
state and federal statutes and regulations violates rights
secured for her by the Supremacy Clause of the Constitu-
tion. The claim that she has been deprived of rights
secured by the laws of the United States is essentially
the same: that is, that she has a right under the federal
statutes and regulations to receive emergency assistance
benefits which are being denied her by state and local
officials acting under color of state law.
Plaintiff seeks to posit jurisdiction over these § 1983
claims upon 28 U.S.C. §§ 1331 and 1343. It is unques-
tionable that the plaintiff has stated a claim arising under
the Constitution or laws of the United States and that, if
the amount here in controversy exceeded $10,000, exclu-
sive of costs and interest, this court would have jurisdic-
tion under § 1331. However, it is apparent on the face
of the complaint that the plaintiff seeks only $163 in
damages together with declaratory and injunctive relief.
Even as a class action, the amount in controversy re-
quirement cannot be met because the individual claims
of the members of this class cannot be aggregated.
Snyder v. Harris, 394 U.S. 332 (1969). Therefore, this
court has no jurisdiction to entertain the complaint
under § 1331. St. Paul Mercury Indemnity Co. v. Red
Cab Co., 303 U.S. 283 (1938).
Plaintiff’s claim of jurisdiction under § 1343 is more
substantial. There is no doubt that when a complaint
states a non-frivolous constitutional claim under § 1983,
a district court has the power under 42 U.S.C. § 1843(3)
to decide other statutory claims based upon § 1983 even
though it has not determined that there is an independent
basis for district court jurisdiction over those claims.
27
Hagans v. Levine, 415 U.S. 528 (1974). Indeed, the court
in Hagans, and in Townsend v. Swank, 404 U.S. 282
(1971) and King v. Smith, 392 U.S. 309 (1968) held that
the case should be disposed of on the non-constitutional
grounds if at all possible. Consequently, the Supreme
Court has passed upon questions of federal statutory
rights under the Social Security Act without having to
decide whether, absent a non-frivolous constitutional claim
to which to pend these claims, there is an independent
basis for federal jurisdiction under § 1343(3) or (4).
Section 1923 creates a federal cause of action for 4
deprivation, under color of state law,
of any rights . . . secured by the Constitution and
laws of the United States.
Section 1343 invests the district courts with jurisdic-
tion, without regard to the amount in controversy, of any
civil action authorized to be commenced by any person:
(3) To redress the deprivation, under color of
state law... of any right ... secured by the Con-
stitution of the United States or by any Act of Con-
gress providing for equal rights of citizens... .
(4) ... under any Act of Congress providing for
the protection of civil rights, including the right to
vote. (Emphases supplied. )
On its face, the language employed by the Congress
in both (3) and (4) is narrower than that used in
§ 1983. The legislative history of the disparity between
§ 1983 and § 1343(3) does not explain the disparity with
certainty; however, some observers have concluded that
this disparity was simply accidental. Lynch v. Household
Finance Corp., 405 U.S. 538, at n.7 (1972); Note,
Federal Judicial Review of State Welfare Practices, 67
Col. L. Rev. 84 (1967) ; Hart and Weschler, The Federal
Courts and the Federal System, p. 961 (2d Ed. 1978).
Plaintiff urges several interpretations of § 13848(3) and
(4), any one of which would result in a finding of dis-
trict court jurisdiction over all non-constitutional claims
brought under § 1983 regardless of the amount in con-
troversy. Plaintiff argues that the underscored language
28
in (3) is superfluous; that § 1983 is itself an Act of
Congress “providing for equal rights of citizens” within
the meaning of (3); that § 1983 is itself an Act of Con-
gress “providing for the protection of civil rights” within
the meaning of (4); and, finally, that, taken as a whole,
§ 1343 was meant to confer jurisdiction over all claims
arising under § 1983. Plaintiff, of course, also contends
that the complaint states a non-frivolous constitutional
claim over which it is undisputed that this court must
exercise jurisdiction under (3).
All of these assertions are highly arguable, and, were
this a matter of first impression in this district, they
would require the most careful analysis. However, many
of these same questions have recently been resolved by
Judge Cohen of this district in a manner which compels
me to conclude that this court must exercise jurisdiction
over the plaintiff's statutory claims under both (3) and
(4). Vazquez v. Perre, 404 F.Supp. 815 (D.C. NJ.
1975). Thus, the court finds it unnecessary to decide
whether the “secured by the Constitution” language of
§ 1343(3) should be construed to include Supremacy
Clause issues and finds it unnecessary to decide inde-
pendently any of the other issues presented by the parties
on this question of jurisdiction.
MERITS OF PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT
New Jersey has elected to participate under that part
of the Social Security Act which provides federal match-
ing funds for state grants of emergency assistance to
needy families with children. 42 U.S.C. § 606(e) (1);
New Jersey Administrative Code 10:82-12.11. Plaintiff
contends that the standards of eligibility established by
the New Jersey regulations violate federal law in that
they are more restrictive than the standards of eligibility
mandated by the federal statute and regulations.
43 U.S.C. §606(e) (1) defines “emergency assistance to
needy families with children” as the payments of money,
among other payments, to a needy child under the age
of 21 meeting certain specification, “where such child is
29
without available resources” which payments “are neces-
sary to avoid destitution of such child or to provide living
arrangements in a home for such child.” This same sec-
tion provides that such emergency assistance shall not
exceed a period of 30 days in any 12 month period.
The regulations implementing 42 U.S.C. § 606(e) (1)
are contained at 45 C.F.R. § 233.120. These regulations
establish the minimum standards that proposed state
plans, under Title IV, Part A, of the Social Security Act
must meet. The proposed state plans must specify eligibil-
ity conditions imposed for the receipt of emergency as-
sistance, which conditions may be more liberal than those
applicable to other parts of the plan. The proposed state
plans must specify whether migrant workers with fami-
lies are to be included; which emergency needs are to be
met; and what services the state proposes to supply. The
proposed plan must also provide that emergency assistance
shall be given forthwith. 45 C.F.R. § 233.120(a). The
regulations also specify the extent of federa‘ financial
participation in the grants of emergency assistance. Sub-
ject to certain limitations not here relevant, the federal
government will contribute to emergency assistance pay-
ments made to a qualified child where such “child is
without resources immediately accessible to meet his
needs,” and “the emergency assistance is necessary to
avoid destitution of such child or to provide living ar-
rangements for him in a home.” 45 C.F.R. § 233.120(b)
(ii) and (iii).
New Jersey submitted a proposed plan to the Depart-
ment of Health, Education and Welfare which met with
the Secretary’s approval. The provisions of this plan are
now embodied in New Jersey Administrative Code 10:82-
12.11. These regulations define “emergency assistance” as
“any extra or additional payment(s) authorized in ac-
cordance with subsections (b) and (c) of this Section
during the period of 30 consecutive days immediately
following the occurrence of an emergency as defined in
subsection (c) of this Section.” § 10:83-12.11(a). Sub-
section (b) contains certain provisions not relevant to this
case. Subsection (c) provides, in pertinent part, that
emergency assistance payments may be made “when be-
30
cause of an emergent situation over which they had no
control or opportunity to plan in advance, the eligible
unit is in a state of homelessness.” Subsection (c) (1)
further provides that “[w]hen an actual state of home-
lessness exists or is manifestly imminent, the county wel-
fare board shall authorize payment... .”
The plaintiff contends that the New Jersey regulation
illegally deprives her of a right, secured by the federal
statute, to receive emergency assistance benefits in her
present circumstances. While it is established that the
standards of eligibility defined under the federal statute
and regulations imposed mandatory minimum standards
on the states, it is the conclusion of this court that
eligibility standards established by the New Jersey regu-
lations are not in conflict with the standards set out in
the federal statute or regulations.
Plaintiff relies upon Mandley v. Trainor, 523 F.2d 415
(7th Cir. 1975); Williams v. Wohigemuth, 400 F.Supp.
1309 (E.D. Pa.), affirmed —— F.2d ——, No. 74-3162
(8d Cir. July 20, 1976), and Purnell v. Edelman, 511
F.2d 1248 (7th Cir. 1974), all of which stand for the
proposition that states participating in the federal emer-
gency assistance program must at least meet the stand-
ards established under federal law.
‘In Mandley, supra, the court held that a state cannot
legally limit the availability of emergency benefits to
those persons who are otherwise qualified to receive
AFDC benefits. Rather, the court held the class of bene-
ficiaries must be as broad as that defined in 42 U.S.C.
§ 606(e) (1). In the present case, there is no allegation
that New Jersey has restricted the class of persons eligi-
ble to receive emergency benefits. The allegation here is
that New Jersey has illegally restricted the categories of
emergencies for which eligible persons are entitled to
receive benefits. Purnell, supra, and Williams, supra,
both involved challenges to the definition of “destitution”
contained in state plans. While neither of them is directly
on point, Purnell does closely approximate the factual
context of this case. In Purnell, the state of Illinois had
defined “destitution” to include being without public
utility service. However, the state would not provide
31
emergency assistance benefits on this basis unless the
eligible person was presently without utilities. The court
held that the state must also furnish emergency assist-
ance to prevent the discontinuance of the utility services
where such termination is shown to be imminent and
otherwise unavoidable.
Unlike the Illinois regulations in question in Purnell,
supra, the New Jersey regulations here in question do
provide for the grant of emergency assistance in order
to prevent the destitution of an eligible child. As is pro-
vided in § 10:82-12.11(c) (1) of the New Jersey Admin-
istrative Code, the county welfare board shall authorize
the payment of emergency assistance benefits “[w]hen
an actual state or homelessness exists or is manifestly
imminent... .” (Emphasis supplied.) Prior to denying
the plaintiff emergency assistance, the county board con-
tacted both the plaintiff’s landlord and the utility com-
pany and ascertained that no action was then planned
either to evict or to terminate utilities services. In these
circumstances, there was no “manifestly imminent” state
of homelessness as defined in subsection 10:82-12.11(c)
(1). To deny benefits in these circumstances comports
with the decision of the court in Purnell, and is in line
with the federal statute and regulations which aim to
prevent the destitution of eligible children. To require
New Jersey to grant assistance where there is only a
remote threat of eviction or discontinuation of utility
services would be to go beyond the scope and intent of the
federal law.
For the foregoing reasons, the plaintiff’s motion for
summary judgment will be denied. As this denial dis-
poses of all claims against the defendant Young, the
complaint shall be dismissed as to him. Inasmuch as the
complaint, as it relates to defendant Riti has been ren-
dered moot, see discussion above at page 5, the entire
complaint shall be dismissed.
Defendants to submit appropriate orders.
DATED: August 13, 1976.
32
U.S. COURT OF APPEALS
Docket No.
UNITED STATES DISTRICT COURT
Docket No. 76-455
Civil Action
NOTICE OF APPEAL—Filed September 13, 1976
JULIA GONZALEZ, etc., PLAINTIFF-APPELLANT,
Vv.
JAMES F.. YOUNG, et al., DEFENDANTS-RESPONDENTS.
TO: Chief Clerk,
United States District Court
District of New Jersey
Chief Clerk,
United States Court of Appeals
for the Third Circuit
Richard M. Hluchan,
Deputy Attorney General
Attorney for Respondent Riti
William Surdovel, Esq.
Attorney for Respondent Young.
SIRS and MADAM:
NOTICE is hereby given that Julia Gonzalez, individ-
ually and as Guardian Ad Litem for Luis Gonzalez, age 9,
and Manuel Gonzalez, age 10, and further on behalf of all
persons similarly situczted now appeals in the above cap-
tioned cause to the United States Court of Appeals for
the Third Circuit from an Order of the United States
District Court, per the Honorable Curtis Meanor dated
September 10, 1976. Said Order entered Summary Judg-
33
ment in favor of James F. Young, Director of the Hud-
son County Welfare Board, and G. Thomas Riti, Direc-
tor, New Jersey Division of Public Welfare, and held
that no conflict presently exists between 42 U.S.C. 606
(e) (1) and 45 C.F.R. 233.120 on the one hand and New
Jersey Administrative Code: 10:82-12.11, et seq., on the
other hand. The only other parties to this action are
respondents Young and Riti.
HuDSON COUNTY LEGAL SERVICES
TIMOTHY K. MADDEN, Director
Attorneys for Piaintiff-Appellant
By: /s/ Theodore A. Gardner
THEODORE A. GARDNER, Esq.
34
U.S. COURT OF APPEALS
Docket No.
UNITED STATES DISTRICT COURT
Docket No. 76-455
Civil Action
ATTORNEY’S STATEMENT REGARDING THE
RECORD ON APPEAL (PURSUANT TO
RULE 10(b) )—Filed Oct. 15, 1976
[Title Omitted in Printing]
To: Richard M. Hluchan,
Deputy Attorney General
Attorney for Respondent Riti
William Surdovel, Esq.
Attorney for Respondent Young
SIRS:
The issue on appeal is: Does a conflict exist between
42 U.S.C. 606(e) (1) and 45 C.F.R. 233.120 on the one
hand and N.J.A.C. 10:82-12.11, et seq., on the other hand.
I believe that the following contain all of the requisite
facts necessary for a resolution of the isgue on appeal:
(a) Opinion of Judge Meanor dated August 13, 1976;
(b) Affidavit of Julia Gonzalez dated June 10, 1976;
(c) Affidavit of G. Thomas Riti dated May 12, 1976;
(d) Affidavit of Nina Fondi dated April 6, 1976;
(e) Verified Complaint of Julia Gonzalez dated March
11, 1976.
If you disagree, kindly advise.
/s/ Theodore A. Gardner
THEODORE A. GARDNER, Esq.
Attorney for Plaintiff-Appellant
85
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 76-2410
GONZALEZ, JULIA, INDIVIDUALLY AND AS GUARDIAN AD
LITEM FOR LUIS GONZALEZ, AGE 9, AND MANUEL GON-
ZALEZ, AGE 10, AND FURTHER ON BEHALF OF ALL PER-
SONS SIMILARLY SITUATED, APPELLANT,
Vv.
YOUNG, JAMES F., DIRECTOR, HUDSON CoUNTY WELFARE
BOARD AND G. THOMAS RITTI, DIRECTOR, NEW JERSEY
DIVISION OF PUBLIC WELFARE
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 76-455)
Argued June 7, 1977
Before: ALDISERT, ROSENN and HUNTER, Circuit Judges.
Hudson County Legal Services
TIMOTHY K. MADDEN, Director
628 Newark Avenue
Jersey City, New Jersey 07306
On the Brief and
Oz Counsel:
THEODORE A. GARDNER, Esq.
COUNSEL FOR APPELLANT
36 ;
HAROLD J. RUVOLDT, JR., Esq.
Hudson County Counsel
Administration Building
595 Newark Avenue
Jersey City, New Jersey 07306
On the Brief and
Of Counsel:
WILLIAM D. SURDOVEL
Assistant County Counsel
COUNSEL FOR HUDSON COUNTY
WELFARE BOARD DIRECTOR AND
HupDSsoN CoUN7Y WELFARE BOARD
WILLIAM F. HYLAND
Attorney General of New Jersey
State House Annex >
Trenton, New Jersey 08625
Of Counsel:
STEPHEN SKILLMAN
Assistant Attorney General
On the Brief:
RICHARD M. HLUCHAN
Deputy Attorney General
COUNSEL FOR APPELLEE
G. THOMAS RITTI, DIRECTOR,
NEW JERSEY DIVISION OF
PUBLIC WELFARE
OPINION OF THE COURT
(Filed July 15, 1977)
ALDISERT, Circuit Judge.
This appeal requires us to resolve a question which
was left open by the Supreme Court in Hagans v. Lavine,
87.
415 U.S. 528 (1974), and which has divided the circuits.
We are to decide whether the district court had jurisdic-
tion in a claim for damages totalling less than $10,000
and alleging that a state regulation conflicts with a fed-
eral statute and therefore must fall because of the
Supremacy Clause.
The question is presented in an appeal by Julia Gon-
zalez from summary judgment in favor of appellees
James F. Young, Director of the Hudson County, New
Jersey Welfare Board, and G. Thomas Ritti, Director of
the New Jersey Division of Public Welfare. The district
court, presented with a challenge to New Jersey welfare
regulations which allegedly deprived Gonzalez of benefits
ensured by a federal statute, determined that no conflict
existed between the challenged state regulations and the
applicable provisions of the federal statute and accom-
panying regulations. Because we determine that the dis-
trict court did not have jurisdiction over this case in the
posture in which it was presented, we vacate the district
court’s order and remand for dismissal of the complaint
for want of jurisdiction.
I,
Appellant resides with her two children in Jersey City,
New Jersey. Each month, she receives $235.00 under the
Aid to Families with Dependent Children program
(AFDC), 42 U.S.C. § 601 et seg., as well as $157.00 under
the Social Security Administration’s disability program
for her one retarded son. On February 2, 1976, Gonzalez
received and cashed both checks at a neighborhood food
market. Upon leaving the store, she was accosted by a
robber who stole the cash. The following day she ex-
plained her situation to the Hudson County Welfare
Board, requesting $163.00 in emergency assistance funds
to cover her rent and utility bills.
States which elect voluntarily to participate in the
federal government’s AFDC program dispense the fed-
eral monies (“matching funds”) obtained under the pro-
gram according to federal eligibility criteria. Minimum
standards for emergency assistance eligibility are set out
in 42 U.S.C. § 606(e) (1) and its accompanying regula-
38
tion, 45 C.F.R. § 233.120. The statute provides that
emergency assistance to needy families with children em-
braces cases “where [an eligible] child is without avail-
able resources, 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, and 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... .”
42 U.S.C. § 606(e) (1).
45 C.F.R. 233.120(a) (1) provides that in order to re-
ceive funding, a participating state must specify in a
“state plan” the eligibility conditions to be imposed for
receipt of emergency assistance. After electing to par-
ticipate in the AFDC program, New Jersey promulgated
the following provision in regard to emergency assistance
payments:
When because of an emergent situation over which
they have had no control or opportunity to plan in
advance, the eligible unit is in a state of homeless-
ness; and the County Welfare Board determines that
the providing of shelter and/or food and/or emer-
gency clothing, and/or minimum essential house fur-
nishings are necessary for health and safety, such
needs may be recognized in accordance with the
regulations and limitations in the following sections.
N.J.A.C. 10:82-5.12. Pursuant to this state regulation,
on March 15, 1976, the Hudson County Welfare Board
formally denied Gonzalez’ request for emergency assist-
ance, stating that no assistance would be granted because
Gonzalez was not in an “imminent or actual state of
homelessness.”
In her complaint to the district court, Gonzalez alleged
that appellee Young violated 42 U.S.C. § 606(e) (1) and
45 C.F.R. 233.120 by refusing to authorize emergency
assistance in the amount of $163.00 “even though Julia
Gonzalez is clearly entitled to same under Federal Law
. . . -”’ She further alleged that appellee Ritti was
responsible for “refusing to promulgate meaningful ad-
ministrative procedures” for the emergency assistance
program, a claim which was mooted by subsequently
promulgated state regulations. Although not articulated,
the gravamen of the complaint, and what is pressed »n
appeal, is that the New Jersey standard violates federa!
law because it is more restrictive than the standards
mandated by federal statutes.
Il.
Gonzalez predicated jurisdiction in the district court
upon 42 U.S.C. § 1983 and 28 U.S.C. §§ 1831, 1343. Sec-
tion 1983 provides for a federal cause of action to redress
the deprivation, under color of state law, “of any rights,
privileges, or immunities secured by the Constitution and
laws. ...” We hold that it is not a jurisdictional statute;
' it only fashions a remedy. Thus, although Gonzalez may
have asserted a claim under section 1983, she had to look
to other authority to obtain jurisdiction.
At the onset, 28 U.S.C. § 1311 was properly rejected
by the district court because the amount in controversy
did not exceed $10,000.00. Gonzalez sought only $163.00
in damages, along with declaratory and injunctive relief.
Thus, it appears “to a legal certainty that the claim is
really for less than the jurisdictional amount.” St. Paul
Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283,
289 (1938). See Nelson v..Keefer, 451 F.2d 289 (3d
Cir. 1971).
The use of 28 U.S.C. § 1343 as a jurisdictional well-
spring for her section 1983 claim, however, is not as clear.
Whether it can be used as such is a question of lively and
current proportion, on which the circuits are split. The
statute provides, in relevant part:
The district courts shall have original jurisdiction
of any civil action authorized by law to be com-
menced by any person:
(3) To redress the deprivation, under color of any
State law, statute, ordinance, regulation, custom or
usage, of any right, privilege or immunity secured by
the Constitution of the United States or by any Act
40
of Congress providing for equal rights of citizens or
of all persons within the jurisdiction of the United
States;
(4) To recover damages or to secure equitable or
other relief under any Act of Congress providing
for the protection of civil rights, inclx”’ _ the right
to vote.
28 U.S.C. § 1843(3), (4) (emphasis added).
A.
Any inquiry into the scope of section 1343 must make
immediate reference to the Supreme Court case of Hagans
v. Lavine, supra. In Hagans, the Court decided that
when a constitutional claim is made under section 1983
which is of sufficient substance to support federal juris-
diction, a district court has the power under section
1343(3) to consider other claims based on section 1983
without determining that the latter claims, standing
alone, are sufficient to support jurisdiction. The current
inter-circuit disagreement is largely over whether a claim
that a state law conflicts with federal law is of “sufficient
substance” to confer jurisdiction, and when, absent a
clearly sufficient constitutional claim, there exists an in-
dependent basis for jurisdiction under section 1983. In-
deed, the questions have been specifically left open by the
Supreme Court on a number of occasions. In King v.
Smith, 392 U.S. 809 (1968), the Court stated: “We
intimate no views as to whether and under what circum-
stances suits challenging AFDC provisions only on the
ground that they are inconsistent with the federal statute
may be brought in federal courts.” Id. at 312 n.3. And in
Hagans, supra, the Court stated:
In view of our disposition of this case, we do not
reach the question whether, wholly aside from the
pendent-jurisdiction rationale relied upon by the Dis-
trict Court, other valid grounds existed for sustain-
ing its jurisdiction to entertain and decide the claim
of conflict between federal and state law. It has
been suggested, for example, that the conflict ques-
41
tion is itself a constitutional matter within the mean-
ing of § 1843(3). Connecticut Union of Welfare Em-
ployees Vv. White, 55 F. R. D. 481, 486 (Conn. 1972).
For purposes of interpreting and applying 28 U.S.C.
§ 2281, the three-judge-court provision, a claim of
conflict between federal and state law has been de-
nominated a claim not requiring a three-judge court.
Swift & Co. v. Wickham, 382 U.S. 111 (1965). But
Swift itself recognized that a suit to have a state
statute declared void and to secure the benefits of
the federal statute with which the state law is
allegedly in conflict cannot succeed without ultimate
resort to the Federal Constitution—‘“to be sure, any
determination that a state statute is void for obstruct-
ing a federal statute does rest on the Supremacy
Clause of the Federal Constitution.” Jd., at 125.
Moreover, when we have previously determined that
state AFDC laws do not conform to the Social
Security Act or HEW regulations, they have been
invalidated under the Supremacy Clause. See Town-
send v. Swank, 404 U.S. 282, 286 (1971). It is
therefore urged that the “secured by the Constitu-
tion” language of § 1343(3) should not be construed
to exclude Supremacy Clause issues. That question
we leave for another day.
Petitioners contend that § 1983 authorizes suits to
vindicate rights under the “laws” of the United
States as well as under the Constitution and that a
suit brought under § 1983 to vindicate a statutory
right under the Social Security Act, is a suit under
an Act of Congress “providing for the protection of
civil rights, including the right to vote” within the
meaning of § 1343(4). They further argue that in
any event, § 1343(3) in particular, and § 1348 in
general, should be construed to invest the district
courts with jurisdiction to hear any suit authorized
by § 1983. These issues we also do not reach... .
415 U.S. at 533-34 n.5. See also Lynch v. Household
Finance Corp., 405 U.S. 538, 543-44 n.7 (1972); Rosado
42
v. Wyman, 397 U.S. 397, 405 n.7 (1970). See generally
District of Columbia v. Carter, 409 U.S. 418 (1973).
B.
Appellant contended in the district court that her com-
plaint raised a nonfrivolous constitutional claim over
which the court was obliged to exercise jurisdiction. Our
reading of the complaint is that there was no independ-
ent constitutional claim sufficient to fall within the juris-
dictional language of § 1348(3). We begin by accepting
the district court’s characterization: “The only constitu-
tional claim the plaintiff presents is that the alleged con-
flict between the state and federal statutes and regula-
tions violates rights secured for her by the Supremacy
Clause of the Constitution.” 418 F. Supp. at 569. The
district court, however, found it unnecessary to reach
this claim, since it had already determined that jurisdic-
tion existed under both section 1343(3) and (4). Under
the current state of the law, we suggest that the proper
course would have been to determine initially whether
what was identified as the “constitutional claim” was of
“sufficient substance” to confer jurisdiction under sec-
tion 13843(3), 7.e., one to which Gonzalez’ statutory claim
could then be appended under Hagans, supra."
On the question whether a claim that state law conflicts
with federal law establishes a sufficient constitutional
claim, through the Supremacy Clause, to establish juris-
diction under section 1343(3), we find ourselves in com-
plete agreement with the Second Circuit’s resolution of
this same problem, In Andrews v. Maher, 525 F.2d 113
(2d Cir. 1975), that court was presented with a claim
that a Connecticut regulation violated various provisions
of the Social Security Act, as well as regulations of the
1In advocating this method, we are mindful of the Supreme
Court’s teaching that where pendent jurisdiction obtains, a court
should dispose of the case on the nonconstitutional grounds if
possible. E.g., Hagans y. Lavine, supra, 415 U.S. at 543; California
Human Resources Dep’t v. Java, 402 U.S. 121, 124 (1971); Dan-
dridge v. Williams, 397 U.S. 471, 475-76 (1970). We are merely
advising that in order to obtain jurisdiction, the constitutional
claim(s) should be examined first.
43
Department of Health, Education and Welfare (HEW),
which required that AFDC aid be furnished under certain
conditions. Addressing the contention that since this
claim required ultimate resort to the Supremacy Clause,
it was cognizable under section 1343(3) as a deprivation
of rights “secured by the Constitution,” the court stated:
We reject the contention because it transforms statu-
tory claims into constitutional claims by verbal
legerdemain. The Supremacy Clause does not secure
rights to individuals; it states a fundamental struc-
tural principle of federalism. While that clause is
the reason why a state law that conflicts with a
federal statute is invalid, it is the federal statute
that confers whatever rights the individual is seeking
to vindicate. Moreover, the language of section 1343
(3) clearly contemplates a distinction between rights
secured by the Constitution and rights secured by
“any Act of Congress.” If the latter were just one
variety of the former, it would be unnecessary to
mention it as a separate situation. The Supreme
Court has rejected a similar attempt to construe
statutory claims as Supremacy Clause (and there-
fore constitutional) claims in the context of 28 U.S.C.
§ 2281, Swift & Co. v. Wickham, 382 U.S. 111, 125-
28, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965), and we see
no reason to reach a different result here.
Id. at 118-19 (footnote omitted).
We are cognizant that other courts have held to the
contrary. In Blue v. Craig, 505 F.2d 830 (4th Cir. 1974),
the court cited with approval the Supreme Court’s state-
ment in Swift & Co. v. Wickham, 382 U.S. 111, 125
(1965), that “to be sure, any determination that a state
statute is void for obstructing a federal statue does rest
in the Supremacy Clause.” 505 F.2d at 844. With this
we agree. However, the Blue court concluded that “a
claim that a state statute or regulation is incensistent
with federal law poses a constitutional issue under
the Supremacy Clause, jurisdictionally cognizable under
§ 1843(3)” by relying on the Hagans footnote quoted
44
above. We fail to comprehend how the Hagans passage,
which specifically left the question unresolved, compels a
finding that sections 1983 and 1343(3) are coextensive.
A statement which specifically does not meet a question
cannot be cited as authority for answering it. We con-
clude that jurisdiction must rest on a constitutional claim
of sufficient substance, independent of statutory conflicts
under the Supremacy Clause.
C.
Having determined that Gonzalez’ complaint presented
no constitutional claim sufficient to confer jurisdiction
under section 1343(3), we must consider whether the
statutory claims had an independent basis for jurisdic-
tion under either section 1343(8) or (4). Jurisdictional
sections 1343(3) and (4) of Title 28 are cast in nar-
rower language than that of remedial section 1983 of
Title 42. For example, although section 1983 provides
for redress of “the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws,” sec-
tion 1343(3) covers only those secured by the Constitu-
tion or an “Act of Congress providing for equal rights of
citizens.” (Emphasis added.)* Appellant nevertheless
urged in the district court that the qualifying language
of section 1348(3) is superfluous and that, at any rate,
section 1983 should be viewed as an act “providing for
equal rights.” We cannot agree. Gonzalez claims depriva-
tion not of a right secured by the Constitution, but one
falling within the Social Security Act, which contains the
AFDC provisions. And provisions of the Social Security
Act simply were not designed to provide for the equal
rights of citizens for purposes of section 1343(3). Ac-
cord, Andrews v. Maher, supra, 525 F.2d at 118; Rosado
v. Wyman, 414 F.2d 170 (2d Cir. 1969), rev’d on other
grounds, 397 U.S. 397 (1970) ; Randall v. Goldmark, 495
2In Lynch v. Household Finance Corp., 405 U.S. 538 (1972), in
which the Supreme Court made repeated references to section 1983
“and its jurisdictional counterpart, 28 U.S.C. § 1343(3)”, id. at
540, 543, the Court itself characterized the “equal rights” language
as a “limitation”. Jd. at 544 n.7.
45
F.2d 356 (1st Cir.), cert. denied, 419 U.S. 879 (1974);
Dorak v. Shapp, 403 F. Supp. 863, 865 (M.D. Pa. 1975) ;
Mattingly v. Elias, 325 F. Supp. 1874, 1888 (E.D. Pa.
1971), rev’d on other grounds, 482 F.2d 526 (8d Cir.
1973). But see Blue v. Craig, supra; Vasquez v. Ferre,
404 F. Supp. 815 (D.N.J. 1975) ; Watters v. Parrish, 402
F. Supp. 696 (W.D. Va. 1975).*
The district court’s total reliance on the rationale of
Vasquez Vv. Ferre, supra, to support jurisdiction under
section 1343(3), was misplaced. In Vasquez, plaintiffs’
complaint set forth three causes of action. The section
1983 claim, in the court’s own words, was “based upon
the deprivation of statutory as well as constitutional
rights.” 404 F. Supp. at 823 (emphasis added). Thus,
under the holding of Hagans, the Vasquez court was free
to explore the statutory claims.
To the extent that Vasquez sought to bring all section
1983 claims—wholly or partially statutory—under sec-
tion 1343(3) automatically, we reject it. There is dis-
cussion to the effect that the legislative history of sec-
tion 1343(3) demonstrates that its language was not
intended to reduce the jurisdiction of federal district
courts over section 1983 actions. This was the tack
taken by the Fourth Circuit in Blue v. Craig, supra,
perhaps the foremost circuit court case in favor of
bringing wholly statutory section 1983 claims under sec-
tion 1343.
We cannot accept this approach. The term “equal
rights” first appeared in that part of the 1875 revision
of the Civil Rights Act of 1871 which addressed jurisdic-
tion of the circuit courts. Rev. Stat. § 629(16).* The
’ An early discussion of this, and many of the issues presented
by this case, is found in Note, Federal Jurisdiction Over Chal-
lenges to State Welfare Programs, 72 Cot. L. REv. 1404 (1972).
* By the Act of June 20, 1874, § 2, Congress charged Secretary
of State Hamilton with the duty of preparing for publica-
tion and distribution the Revised Statutes of the United
States. 18 Stat. 113-14. This work, according to its title page,
embraced the statute of the United States, general and perma-
nent in their nature, in force on Dec. 1, 1873, as revised and
consolidated by commissioners appointed under an act of Con-
46
Fourth Circuit contends, and the district court in Vasquez
agreed, that the term “equal rights” had a broader mean-
ing at that time than it does today. 505 F.2d at 839;
404 F. Supp. at 824. Under this view, the term is
merely a “ ‘short-hand’ reference back to all rights of
actions qualifying for enforcement under the various
remedial statutes enacted to give effect to the mandates
of the Fourteenth Amendment.” 505 F.2d at 839. .
Absent convincing evidence to the contrary, however,
we must believe that Congress intended to separate the
jurisdictional section from the section fashioning a rem-
edy, which it did, and that “equal rights” does have mean-
ing of its own. We note specifically, as did the Supreme
Court in Lynch v. Household Finance Corp., supra, 405
U.S. at 544 n.7, that when Congress finally abolished the
circuit courts’ original jurisdiction in 1911 by merging
the previously separate jurisdictional grants for the dis-
trict courts and circuit courts into what is now section
1343 (3), it retained the “equal rights” limitation.
Nor do we believe that the Social Security Act is one
“providing for the protection of civil rights,” as to bring
this action under section 1343(4). No claim was made
by Gonzalez of infringement of personal liberty, unlawful
classification, or discrimination. Again we make refer-
ence to the actions of Congress in enacting the jurisdic-
tional grant. Section 1343(4) was intended to ensure
jurisdiction over claims based upon the Civil Rights Act
of 1957. See H.R. Rep. No. 85-291, 1957 U.S. CopDE
Conc. & ADMIN. NEWS 1966, 1976 (1957). The Social
Security Act, which protects the rights Gonzalez asserts
here, is of a decidedly dissimilar purpose.
There is an ancillary argument that section 1983 itself
provides a jurisdictional basis under section 1343(4) by
virtue of its very existence as a statute protecting “rights,
privileges and immunities”. See, e.g., Gomez v. Florida
State Employment Service, 417 F.2d 569, 580 n.39 (5th
gress. Congress “enacted” the Revised Statutes on June 22,
1874; Secretary Fish affixed his seal to the finished work on
February 22, 1875.
Brawer V. Horowitz, 585 F.2d 830, 828 n. 16 (3d Cir. 1976). Brawer
provides a discussion of the Act of April 20, 1871.
47
Cir. 1969). This chicken-and-egg approach must be re-
jected for several reasons. We have already noted that
the language of the two statutes is not the same; one is
more restrictive than the other. Second, and more im-
portant, it is our view that section 1983 does not in and
of itself create or secure any substantive rights; it merely
authorizes a cause of action when rights secured by
other sources have been infringed. In the present case,
that “other” source is the Social Security Act. To say in
one instant that the Social Security Act is not sufficient
in itself to confer jurisdiction under section 1343(4) as
an act “providing for the protection of civil rights”, and
yet to permit the cloaking of that claim within section
1983 merely in order to confer jurisdiction, is a route
we cannot take. Moreover, as we have heretofore ob-
served, supra note 2, the Supreme Court has explicitly
rejected the notion that section 1983 is a jurisdictional
statute by express reference to 28 U.S.C. § 1348(3) as a
“jurisdictional counterpart” of section 1983. Lynch v.
Household Finance Corp., supra, 405 U.S. at 540, 543.
We recognize that the Supreme Court has applied sec-
tion 1343(4) in causes other than those brought solely
under the Civil Rights Act of 1957. Jones v. Alfred H.
Mayer Co., 392 U.S. 409, 412 n.1 (1968) (Civil Rights
Act of 1866) ; Allen v. Board of Education, 393 U.S. 544,
554 (1969) (Voting Rights Act of 1965). For the rea-
sons expressed by our brethren on the First and Second
Circuits, however, we do not go beyond these exceptions.
In Andrews Vv. Maher, supra, the Second Circuit observed
that “there is a difference between extending section
1343(4) to laws such as these, which protect specific
rights and engender comparatively little litigation, and
applying it to section 1988, which protects all rights
‘secured by the Constitution and laws.’” 525 F.2d at
120. And in Randall v. Goidmark, 495 F.2d 356, 360
(1st Cir.), cert. denied, 419 U.S. 879 (1974), the First
Circuit expressed similarly compelling reservations:
Although [Jones v. Mayer] might be taken as an
endorsement of a broad reading of the statute, apply-
ing section 1343(4) to section 1983 would in essence
48
eliminate the jurisdictional amount requirement for
any federal question case involving deprivations un-
der color of state law, a consequence arguably so
broad when measured in the light of the congres-
sional objectives in adding section 1343(4), that we
prefer not to make a positive commitment at this
time.
D.
We end our analysis as we began it, by suggesting
that the crucial polestar in examining the recent cases in
this area is Hagans, supra. The presence of a substantial
constitutional claim in a cause will afford a litigant the
opportunity to press statutory section 1983 claims in the
same action. Thus, in Almenares v. Wyman, 453 F.2d
1075 (2d Cir. 1971), cert. denied, 405 U.S. 944 (1972),
the Second Circuit. could, consistent with its usual posi-
tion of no jurisdiction over wholly statutory section 1983
claims (see, e.g., Andrews v. Maher, supra; McCall v.
Shapiro, 416 F.2d 246 (2d Cir. 1969)), find jurisdiction
in a case challenging as violative of HEW regulations
state procedures for terminating AFDC benefits where
the complaint also stated a substantial constitutional
claim that the actions of the city violated due process.
In Rosado v. Wyman, 414 F.2d 170 (2d Cir. 1970), rev’d
on other grounds, 397 U.S. 397 (1970), the same court
dismissed a challenge to a state statutory provision which
allegedly reduced the amount of AFDC benefits due under
the federal statute, since the district judge never had
jurisdiction over a constitutional claim to which the
statutory claim could have been pendent.
Indeed, the rule of Hagans harmonizes our determina-
tion in the present case with the decision reached in
Williams v. Wohlgemuth, 540 F.2d 163 (3d Cir. 1976).
In Williams, former Pennsylvania provisions of the same
emergency assistance program at issue here were chal-
lenged. At that time, the program limited assistance to
emergency needs caused by either civil disorder or na-
tional disaster. Unlike the complaint filed for Gonzalez,
which contained only the vaguest constitutional overtones
relating to the Supremacy Clause, the complaint filed in
49
Williams alleged that the former Pennsylvania provisions
violated the equal protection and due process clauses of
the Constitution. Determining that the constitutional
claims were neither “wholly insubstantial” nor “wholly
frivolous” under Hagans, supra, the court decided that
the district court had properly taken jurisdiction over
the case.
III.
We are not unmindful of the merits of the argument
that a federal forum is best suited for adjudicating a
claim that federal monies are not being allocated accord-
ing to a mandatory federal scheme. We have no choice,
however, but to act within our jurisdictional limits. It
may well be that a federal forum has the necessary
sensitivities to handle these claims, but it is for Congress
to so determine.
It has been noted that subsequent to enactment of the
1875 Judiciary Act, “the history of federal question
jurisdiction . . . [has revolved] largely around the crea-
tion by Congress of myriad new federal rights and its
provision for their enforcement in the national courts
without regard to jurisdictional amount.” Hart &
WECHSLER, THE FEDERAL COURTS AND THE FEDERAL
SYSTEM 729 (1953), quoted in McCall v. Shapiro, 416
F.2d 246, 249, 2d Cir. 1969). In 1969, the prestigious
American Law Institute Study issued its Study of the
Division of Jurisdiction Between State and Federal
Courts. The Study recommended amending § 1331(a) to
read: “Except as otherwise provided by Act of Congress,
the district courts shall have original jurisdiction with-
out regard to amount in controversy of all civil actions.
... In introducing S. 1876, the Federal Court Jurisdic-
. tion Act of 1973, which specifically incorporated this ALI
recommendation, Senator Quentin Burdick stated:
The most important change here is that Federal
question cases may be brought without any require-
ment that the amount in controversy exceed a fixed
dollar amount. The need for a Federal forum is no
less in small cases than in large cases. This will
clarify many troublesome problems that the district
courts have faced in attempting to determine the
value of a case, particularly when equitable relief is
requested. Furthermore, it is important that in a
case where parties seek to assert Federal rights, they
have full access to the district courts.
CONGRESSIONAL RECORD, Vol. 119 at 16679 (May 23,
1978).
Simply put, Congress has not provided for enforcement
of the AFDC program without regard to jurisdictional
amount. Claims such as that pressed by Gonzalez here
may continue to be adjudicated in federal court ‘when
they are pendent to a sufficient constitutional claim in
the same action, but until Congress acts we are not in a
position to adjudicate claims over which we could not
exercise independent jurisdiction. re
For the foregoing reasons, the judgment of the district
court will be vacated and the cause remanded with a
direction to dismiss for want of jurisdiction.
TO THE CLERK:
Please file the foregoing opinion.
Circuit Judge
51
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 76-2410
GONZALEZ, J ULIA, INDIVIDUALLY AND AS GUARDIAN AD
LITEM FoR LuIS GONZALEZ, AGE 9, AND MANUEL Gon-
ZALEZ, AGE 10, AND FURTHER ON BEHALF OF ALL PER-
SONS SIMILARLY SITUATED, APPELLANT,
v8.
YOUNG, JAMEs F., DIRECTOR, HUDSON CouUNTY WELFARE
BOARD AND G. THOMAS RITTI, DIRECTOR, NEW JERSEY
DIVISION OF PUBLIC WELFARE
(D.C. Civil Action No. 76-455)
ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF
NEW JERSEY
Present: ALDISERT, ROSENN and HUNTER, Circuit Judges.
JUDGMENT
This cause came on to be heard on the record from the
United States District Court for the District of New
Jersey and was argued by counsel on June 7, 1977.
On consideration whereof, it is now here ordered and
adjudged by this Court that the judgment of the said
District Court, filed September 8, 1976, be, and the same
is hereby vacated and the cause remanded with the direc-
tion to dismiss the complaint for want of jurisdiction.
- ATTEST:
/8/ Thomas F. Quinn
Clerk
July 15, 1977
52
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil Action
Docket No. 76-455
ORDER—Aug. 18, 1977
GONZALEZ, JULIA, INDIVIDUALLY AND AS GUARDIAN AD
LITEM FOR LUIS GONZALEZ, AGE 9, AND MANUEL GON-
ZALEZ, AGE 10, AND FURTHER ON BEHALF OF ALL PER-
SONS SIMILARLY SITUATED, APPELLANT,
v8.
YOUNG, JAMES F., DIRECTOR, HUDSON COUNTY WELFARE
BOARD AND G. THOMAS RITTI, DIRECTOR, NEW JERSEY
DIVISION OF PUBLIC WELFARE, RESPONDENTS.
For the reasons set forth in the Opinion of the United
States Court of Appeals for the Third Circuit No. 76-2410
dated July 15, 1977, .
It is on this 18 day of Aug. , 1977,
ORDERED that the Complaint of Julia Gonzalez, etc.,
et als. be and the same is hereby dismissed for want of
jurisdiction.
/8/ H. Curtis Meanor
U.S.D.C.
53
SUPREME COURT OF THE UNITED STATES
No. 77-5824
JULIA GONZALEZ, ETC., PETITIONER,
v.
JAMES F. YounG, DirEcToR, Hupson CouNTY
WELFARE Boarb, ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO the United
States Court of Appeals for the Third Circuit.
ON CONSIDERATION of the motion for leave to proceed
here in forma pauperis and of the petition for writ of
certiorari, it is ordered by this Court that the motion to
proceed in forma pauperis be, and the same is hereby,
granted; and that the petition for writ of certiorari be,
and the same is hereby, granted. The case is set for oral
argument in tandem with No. 77-719.
February 21, 1978
Gv. s. covennment prinrine orrice; 1978 264195 2
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