Petition — Johnston v. Silva

Supreme Court, U.S.

80-821 FILED

NOV 18 1980

MICHAEL RODAK, JR,, CLERK

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

SEPTEMBER TERM, 1980

MARLIN W. JOHNSTON, et al.,

Petitioners

VS.

DELFINO SILVA, et al.,

Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

MARK WHITE PAUL R. GAVIA

Attorney General of Texas. Chief, State & County Affairs

JOHN W. FAINTER, JR. DAVID H. YOUNG

First Assistant Attorney Assistant Attorney General

General

KATHRYN A. REED

RICHARD E. GRAY, III Assistant Attorney General

Executive Assistant

P.O. Box 12548, Capitol Station

Austin, Texas 78711

AC 512—475-3131

ATTORNEYS FOR

PETITIONERS

a

QUESTIONS PRESENTED

1. Does the Supreme Court case of Chapman v. HWRO

mean that jurisdiction will be assumed by federal courts

whenever a constitutional claim is alleged, regardless of

the actual substance of that claim? .

2. Does a federal court have power to grant relief once

the claim on which relief is based v@comes moot?

3. Does the discretionary power of pendent jurisdiction

extend to a claim unrelated to the primary constitutional

challenge?

4. Does the Eleventh Amendment preclude an order of

class notice where the State objects to the expense and

where the expense is not merely ancillary to compliance

with the injunction?

me

INTERESTED PARTIES

1. Marlin W. Johnston, individually and in his capacity as

acting Commissioner of Human Resources, and the Texas

Department of Public Welfare (currently the Texas De-

partment of Human Resources), by and through their At-

torney General, the Honorable Mark White and Kathryn

A. Reed, Assistant Attorney General, P.O. Box 12548,

Capitol Station, Austin, Texas, 78711.

2. Delfino Silva and Jose Miranda, by and through their

attorney of record, Gerald A. Garcia, Texas Rural Legal

Aid, Inc., 305 E. Jackson, Suite 206, Harlingen, Texas,

78550.

-iii-

TABLE OF CONTENTS

Page

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REASONS FOR GRANTING THE WRIT ................. 5

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-jv-

INDEX OF AUTHORITIES

Cases Pages

Aetna Life Insurance Company v. Haworth, 300 U.S.

og Re ny reer Per rT eee ee ere eT ee eee 9

Chapman v. Houston Welfare Rights Organization,

Se I PT, be nb ha kden ss bvdusopeccnccdreneses 5,7,10

Clark v. Paul Gray, Inc., 306 U.S. 583 (1939) ................ 7

Dandridge v. Williams, 297 U.S. 471 (1970) ..............6.- 7

Edelman v. Jordan, 415 U.S. 651 (1974) ........e cece eee ee 12

Piast v. Cohen, 308 U.S. SB (TGGS) .... ccc cccccsccccccccccess 9

Gonzalez v. Young, 560 F.2d 160 (3rd Cir. 1977)

affirmed sub. nom., Chapman v. Houston Welfare

Rights Organization, 441 U.S. 600 (1979) ................ 6,7

Hagans v. Lavine, 415 U.S. 528 (1974) .............eeeee. 7,11

ee i. ca wes ecenvectennentencsews 8

SES W.- Fe, GE Cl BER CLP EED ccd ecweccscccvccccses 12

Jarrett v. Jarrett, 400 NE2d 421 (1979) cert. denied

ee Uae bkpeesdrentbeeassebncee 11

Jefferson v. Hackney, 406 U.S. 535 (1978) ...............000. 7

Lindsley v. National Carbonic Gas Company, 220 U.S.

eet eee arena ae Sas binbwe s¥easuocn nde 7

Maine v. Thiboutot, __. U.S. ____ , 100 S.C.

ee ak ca apis 66 ewes neue Ke 11

McGowan v. Maryland, 366 U.S. 420 (1961) ................ 6,7

McNutt v. General Motors Acceptance Corporation of

sc whek Cheamtebeteeseus 6

Milliken v. Bradley, 433 U.S. 267 (1977) .........ccceeceees 12

Quern v. Jordan, 460 U.S. SEB (ISTE)... cc cscccccccvccccces 12

-V-

Richardson v. Belcher, 404 U.S. 78 (1971) .................. 10

Rosado v. Wyman, 397 U.S. 397 (1970) ........ecceeeeeeeeees 9

San Antonio School District v. Rodriguez, 411 U.S. 1

ERRORS epaany cnet RQ RGA Ne. boring NSIT xo temere: yey A 6

Bonnin w. Bown, 4ED UD. SER CGT onc deve s cencvvcecceseveses 9

Super Tire Engineering Company v. McCorkle, 416

Rak STEEN » suo eh one buna eee eeeee eid eueeseRe kee 8

United Mine Workers of America v. Gibbs, 383 U.S.

PE .s wakd oumcids chaos eiebatnde sae eeu, 5

Weinstein v. Bradford, 423 U.S. 147 (1975) ................. 9

Statutes and Regulations

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NO.

IN THE

SUPREME COURT OF THE UNITED STATES

SEPTEMBER TERM, 1980

MARLIN W. JOHNSTON, et al.,

Petitioners

vs.

DELFINO SILVA, et al.,

Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATE COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioners respectfully pray that a writ of certiorari

issue to review the judgment and opinion of the United

States Court of Appeals for the Fifth Circuit entered on

June 26, 1980, with rehearing denied August 20, 1980.

OPINION BELOW

The opinion of the Court of Appeals is reported at 621

F.2d 640, sub. nom. Silva v. Vowell. The opinion is at-

tached as Appendix A hereto. Also attached are the Final

Judgment (Appendix B); Memorandum regarding final

judgment (Appendix C); and Memorandum and Order re-

garding Plaintiffs’ Motion for Summary Judgment (Appen-

dix D) that were appealed by Petitioners to the Court of

Appeals; and notice of denial of Petitioners’ Motion for Re-

hearing (Appendix E).

-2.

JURISDICTION

The opinion of the Court of Appeals was entered on June

26, 1980. A timely petition for rehearing with a suggestion

for rehearing en bane was denied August 20, 1980. The ju-

risdiction of this Court is invoked pursuant to 28 U.S.C.

§ 1254(1) upon the basis that the opinion of the Court of

Appeals conflicts with prior decisions of this Court and in-

trudes into an area of state discretion previously explicitly

recognized by this Court.

STATUTES INVOLVED

28 U.S.C. § 1343(3):

The district courts shall have original jurisdic-

tion of any civil action authorized by law to be

commenced by any person:

(3) to redress the deprivation, under color of

any State law, statute, ordinance, regulation, cus-

tom or usage, of any right, privilege or immunity

secured by the Constitution of the United States

or by any Act of Congress providing for equal

rights of citizens or of all persons within the juris-

diction of the United States;

STATEMENT OF THE CASE

This application is the result of a judgment of the Court

of Appeals affirming a portion of the District Court’s de-

cision holding invalid one of Texas’ eligibility standards

for receipt of Aid to Families with Dependent Children

(AFDC).

On December 10, 1975, Respondents Delfino Silva and

Jose Miranda, applicants for AFDC benefits, filed suit

against Raymond W. Vowell, individually and in his capac-

ity as Commissioner of Public Welfare? and the Texas De-

1Marlin W. Johnston is currently the acting Commissioner of Human

Resources.

-3-

partment of Public Welfare? on behalf of all Texas resi-

dents who had been denied or terminated from AFDC

benefits on the basis that they were “capable of light work.”®

Jurisdiction was alleged pursuant to 28 U.S.C. §§ 1343,

1331, and 1337, and injunctive and declaratory relief and

retroactive benefits were sought on the basis that the chal-

lenged regulation conflicted with federal law and denied

Respondents equal protection. Due process violations were

also alleged, but these were not pursued and were not con-

sidered by the Court of Appeals. On May 1, 1978, Respon-

dents filed an Amended Motion for Preliminary Injunction

stating that Texas’ “capable of light work standard” was in

conflict with the Social Security Act, and, additionally, that

Texas’ 60-day eligibility period for incapacity benefits was

in contravention of the federal 30-day standard.* At the

same time, Respondents filed a Motion for Summary Judg-

ment based on the contention that both the “capable of

light work standard” and the 60-day incapacity standard

violated the Equal Protection, Due Process, and Su-

premacy Clauses. Respondents’ accompanying Memoran-

2The Texas Department of Public Welfare is currently the Texas De-

partment of Human Resources.

3The relevant portion of Section 2833 of the Texas AFDC Handbook

stated:

Eligibility may be established if a father has a partial inca-

pacity of a permanent nature precluding him from substan-

tial gainful employment during a major portion of the time

as evidenced by a significant decrease in income. . . . For

eligibility purposes, the test of incapacity is whether the ap-

plicant is capable of substantial gainful employment and not

whether he can find a job in the area of his residence.

The federal regulation defined incapacity as any physical or mental

defect, illness or disability. 42 C.F.R. § 233.90(c)(1)(iv).

‘The relevant portion of Section 2830 of the Texas AFDC Handbook

stated:

The incapacity . . . must be expected to last for a period of

at least 60 days.

Section 2832 also provided that parental incapacity must last for two

months to qualify the family for AFDC benefits.

The federal regulation stated that the incapacity must “be expected

to last for a period of at least thirty (30) days.”

-4-

dum was based entirely on perceived violations of the Su-

premacy Clause. By stipulations filed May 11, 1978, both

parties recognized that the chailenge to the “capable of

light work standard” had been mooted by a regulation

change, and only the issue of the 60-day incapaeity stan-

dard remained for determination. The District Court

granted summary judgment for Respondents on the 60-day

incapacity challenge, declaring it to be in violation of federal

regulations. At a hearing on April 26, 1979, Petitioners

presented a Motion to Dismiss based on the argument that

jurisdiction could not be assumed under 28 U.S.C. § 13843(3)

because Respondents’ cause of action was actually based

on the Supremacy Clause and therefore did not constitute

a substantial constitutional question. Petitioners also op-

posed class certification, pointing out that the “capable of

light work standard” under which the named plaintiffs had

been evaluated had been changed and that the challenged

60-day standard was a completely different regulation and

had never been applied to Respondents. Finally, Petition-

ers objected to the cost of preparing and mailing class

notice of change in regulations. The District Court subse-

quently denied Petitioners’ Motion to Dismiss, certified a

class composed of those who had been subjected to the “ca-

pable of light work standard” and the 60-day incapacity

standard, and ordered that class notice be sent to those

groups. The District Court’s memorandum of July 3, 1979,

recognized that at the time of the judgment the “only issue

which clearly remained . . . was the issue of inconsistency

with federal law,” but found that a substantial constitu-

tional violation had been alleged which conferred jurisdic-

tion over the statutory claim.

Petitioners perfected their appeal to the Court of Ap-

peals for the Fifth Circuit. A panel of that Court held that

_ (1) the initial allegation of violation of equal protection with

regard to the “capable of light work standard” raised a suf-

ficiently substantial constitutional question to give the

Court jurisdiction pursuant to 28 U.S.C. § 1348(3), (2) that

mootness of the challenge to the “capable of light work

standard” did not deprive the District Court of jurisdiction

-5-

over either statutory claim, (3) that the issue of the 60-day

incapacity standard should be remanded for intervention of

a proper class representative, and (4) that the award of

class notice at Defendants’ expense did not abridge Elev-

enth Amendment principles. The dissent disagreed with

the affirmance of the award of notice to class members who

were denied benefits under the “capable of light work stan-

dard” on the basis that that issue had been mooted without

a judicial determination of liability and without findings

which might allow such relief under Rule 23(d)(2), Federal

Rules of Civil Procedure. On August 20, 1980, Petitioners’

Motion for Rehearing was denied.

Petitioners now file this Petition for Writ of Certiorari.

REASONS FOR GRANTING THE WRIT

Although it is now clear that an allegation of conflict be-

tween state and federal regulations is not sufficient to raise

a substantial constitutional challenge for the purpose of

conferring jurisdiction pursuant to 28 U.S.C. § 1348(8),

Chapman v. Houston Welfare Rights Organization, 441

U.S. 600 (1979), a more difficult question arises in individ-

ual cases as to whether such a challenge is raised. In the

instant case, the majority panel held that Respondents’

challenge to Texas’ capable of light work standard for

AFDC eligibility raised an issue of sufficient constitution-

al dimension to allow the District Court to assume juris-

diction over the case because the standard distinguished

between “children who were needy because their fathers

were totally disabled and children who were needy because

their fathers were . . . unable to obtain work because of a

lack of skill and the realities of the job market” (emphasis

omitted). If such an assumption of jurisdiction were cor-

rect, it would allow the Court to determine any related

statutory claims without deciding the equal protection

question. United Mine Workers of America v. Gibbs, 383

U.S. 715 (1966). However, since jurisdiction may not be

“maintained by mere averment,” if a plaintiff’s “allega-

tions of jurisdictional facts are challenged by his adversary

in any appropriate manner, he must support them by com-

£-

petent proof.” McNutt v. General Motors Acceptance Cor-

poration of Indiana, 298 U.S. 178, 189 (1936). Likewise,

“in order to obtain jurisdiction, the constitutional claim(s)

should be examined first.” Gonzalez v. Young, 560 F.2d

160, 165 n. 1 (8rd Cir. 1977), affirmed sub. nom., Chapman

v. Houston Welfare Rights Organization, supra.

In the instant case, an examination of the complaint and

subsequent pleadings by Respondents shows that consid-

erably more emphasis was placed on the Supremacy Clause

claim than the alleged Equal Protection violation.5 Al-

though “the claimant who challenges the statute bears the

burden of affirmative demonstration that . . . its classifica-

tions lack rationality.” McGowan v. Maryland, 366 U.S.

420, 535 (1961) (Frankfurther, J., in separate opinion), the

majority panel correctly pointed out that Plaintiffs’ Equal

Protection challenge “was not fleshed out in the complaint”

and was not even explained until questioned in the Court of

Appeals.

However, the majority panel held that Respondents’

bare allegation of Equal Protection was sufficient to confer

federal jurisdiction. In this case, as in McGowan.,,

[t]he record is barren of any indication that [an]

apparently reasonable basis does not exist, that

the statutory distinctions are invidious, that local

tradition and custom might not rationally call for

this legislative treatment.

McGowan at 426-427. In light of the judiciary’s reluctance

to subject local fiscal schemes to widespread Equal Protec-

tion challenges, San Antonio School District v. Rodriquez,

Plaintiffs’ Original Complaint alleges an Equal Protection violation

without explanation, Plaintiffs’ Amended Motion for Preliminary In-

junction fails to even mention the “substantial” Equal Protection claim,

and Plaintiffs’ Memorandum in Support of Motion for Summary Judg-

ment requests only that the District Court find the challenged provi-

sions invalid under the Supremacy Clause.

-7-

411 U.S. 1, 41 (1973),® the presumed constitutionality of

questioned state legislation, McGowan, supra at 425-426,

and the Respondents’ total failure to demonstrate any in-

vidious or irrational basis for the challenged regulation, ju-

risdiction should not have been assumed by the District

Court without further inquiry into the facts of this case.”

Because Respondents failed to prove irrationality when

challenged or even explain the basis of their challenge until

reaching the Court of Appeals, the District Court erred in

holding that a substantial constitutional question existed

for purposes of 28 U.S.C. § 1343(8). Such a holding is pre-

cluded by the policy behind notice pleadings and this

Court’s holding in Chapman v. Houston Welfare Rights

Organization. At some point the court must decide wheth-

er a plaintiff’s complaint is substantial and supports juris-

diction or is insubstantial and merely employs the proper

® Federal Courts have traditionally refused to strike down state reg-

ulations in the social and economic field where the challenge does not

involve a suspect class or fundamental right. See, e.g., Jefferson v.

Hackney, supra at 546-547; Dandridge v. Williams, 397 U.S. 471, 487

(1970); McGowan v. Maryland, supra at 425-426; Clark v. Paul Gray,

Inc., 306 U.S. 583, 596 (1939); Lindsley v. National Carbonic Gas

Company, 220 U.S 61, 78-79 (1911). Assuming arguendo that Hagans

v. Lavine, 415 U.S. 528 (1974), remains unaffected by the Supreme

Court decision in Chapman v. Houston Welfare Rights Organization,

supra, this principle is so well settled that a mere allegation of “irra-

tionality” without explanation or proof requires dismissal as “fore-

closed by prior decisions of [the Supreme] Court.” Hagans at 542.

7A holding that a plaintiff need only plead a substantial constitu-

tional question without demanding proof that such a question actually

exists, even after the defendant raises the issue, would mean that any

plaintiff dissatisfied with a state program could obtain jurisdiction for a

broad-based attack merely by alleging violation of a clearly protected

constitutional right, e.g., freedom from racial discrimination, right to

travel, even if such a violation did not exist. If such “jurisdiction by

pleading” were permissible, it could be assumed that the Supreme

Court would have remanded Gonzales v. Young, supra, so the plain-

tiffs there could attempt to formulate a sufficiently substantial consti-

tutional allegation rather than affirming the Third Circuit’s dismissal.

Chapman v. Houston Welfare Rights Organization, supra.

ys

words to get into federal court even though the facts al-

leged constitute no real constitutional violation.

II.

When Respondents’ Original Complaint was filed, it dealt

with only one issue—their challenge to Texas’ “capable of

light work” standard. The amended motion for summary

judgment filed on May 1, 1978, raised the new contention

that Texas’ sixty-day incapacity standard was in conflict

with federal regulations. As was indicated by the parties’

stipulations filed on May 11, 1978, and by Petitioners’ Op-

position to Respondents’ Motion for Summary Judgment

filed on May 26, 1978, the regulation regarding the capable

of light work standard had been changed and that issue

was therefore moot. In spite of the mootness of that issue,

the District Court on July 3, 1979, ordered that class notice

be sent to those denied AFDC benefits under the original

capable of light work standard; no finding of invalidity had

ever been made regarding the regulation.

The dissent in the Court of Appeals disagreed with the

majority panel’s approval of the order requiring Defen-

dants to bear the expense of mailing notice to class mem-

bers denied benefits under the capable of light work stan-

dard because “{o]rdinarily, a court has no power to grant

relief, even equitable relief, once the claim for relief has

become moot.” Absent findings by the District Court as to

why such an unusual order was appropriate, the dissent

concluded that the order should be reversed and remanded.

A case ceases to be a live controversy if the possibility of

recurrence of the alleged violation is only a “speculative

contingency.” Hall v. Beals, 396 U.S. 45, 49 (1969); see

Super Tire Engineering Company v. McCorkle, 416 U.S.

115, 122 (1974). In the instant case, Respondents received

all requested relief as to the capable of light work standard

more than a year before the class notice order was entered.

It is well-settled that

[i]n cases in which the alleged harm would not dis-

sipate during the normal time required for resolu-

-9-

tion of the controversy, the general principles of

Article III jurisdiction require that the plaintiff’s

personal stake in the litigation continue through-

out the entirety of the litigation.

Sosna v. Iowa, 419 U.S. 3938, 402 (1975). Thus, when the

challenged action in the instant case ceased to exist, the

District Court was no longer faced with “questions pre-

sented in an adversary context and in a form historically

viewed as capable of resolution through the judicial pro-

cess,” Flast v. Cohen, 392 U.S. 83, 95 (1968), and the order

of class notice regarding the mooted issue was improper.

See Weinstein v. Bradford, 423 U.S. 147 (1975).

ITI.

As previously noted, the United States Constitution re-

stricts federal courts to determination of cases or contro-

versies. U.S. CONST. art. III § 2. In order to be consid-

ered a “case or controversy” a cause of action must raise a

real and substantial controversy. Aetna Life Insurance

Company v. Haworth, 300 U.S. 227, 240-241 (1937). In the

instant case, not only was no named plaintiff ever sub-

jected to the challenged sixty-day incapacity stendard, but

the constitutional claim through which the District Court

assumed jurisdiction—the invalidity of the capable of light

work standard—was mooted prior to the Court of Appeal’s

consideration of the durational incapacity standard. The

majority panel relied on the case of Rosado v. Wyman, 397

U.S. 397 (1970), for the proposition that the mooting of a

primary constitutional claim through which a federal court

assumes jurisdiction does not eliminate the Court’s pendent

jurisdiction over a related statutory claim arising from a

common nucleus of operative fact.

Assuming arguendo that the Rosado rationale continues

in full force and effect,® the facts in the instant case do not

8Two issues should be noted with regard to the Rosado decision.

First, unlike the instant case, “there was no intimation that the consti-

tutional claim was a weak one pleaded for the purpose of securing fed-

eral jurisdiction over a stronger claim.” Hagans v. Levine, 415 U.S.

-10-

sufficiently fulfill the criteria for pendent jurisdiction in

order to have allowed the District Court to consider the

sixty-day incapacity issue in the first instance, or to recon-

sider it on remand. In Rosado, as correctly pointed out by

the majority panel, “the mooted constitutional claim con-

cerned the identical statutory provision attacked on both

constitutional and pended Supremacy Clause grounds”

(emphasis added). The statuto. y issue in Rosado remained

alive after a regulation change only because the amend-

ed standard allowed for discretionary, rather than the re-

quested mandatory, distribution of benefits.

In the case at hand, both the primary constitutional chal-

lenge to the capable of light work standard and the identi-

cal statutory contest were mooted by the same regulation

change. The majority panel dismissed this distinction by

stating that the mooted capable of light work standard and

the remaining sixty-day incapacity standard were “very

closely related,” and therefore the District Court could as-

sume pendent jurisdiction over the latter. While it is true

that application of either standard could “prevent initial el-

igibility or else . . . terminate benefits once commenced,”

the same could be said of any AFDC eligibility standard. A

challenge to one eligibility criterion does not constitute a

challenge to all eligibility standards. Nor can the fact that

all eligibility requirements are applied to all applicants and

recipients make independent challenges to different reg-

ulations arise out of the same “nucleus of operative fact.”

See Richardson v. Belcher, 404 U.S. 78, 83 (1971). This ab-

sence of a sufficient nucleus of operative fact between the

constitutional challenge to the capable of light work stan-

dard and the “pendent” attack on the sixty-day incapacity

standard is demonstrated by the majority panel’s refusal

to allow the initial named plaintiffs to challenge not only

the capable of light work standard but also the sixty-day

incapacity standard to which they had never been subjected.

528, 560 (1974) (Powell, J., dissenting). Second, Rosado is one of the

cases which the dissent in Chapman v. Houston Welfare Rights Orga-

nization points out could no longer be heard in federal court. Chap-

man, supra at 1945.

a.

Finally, the majority panel rested its decision that the

challenge to the sixty-day incapacity standard could have

been appended to Respondents’ constitutional attack on

the capable of light work standard on language from Ha-

gans v. Levine, 415 U.S. 528, 548 (1974), which states that

. . . Where the pendent claim is federal but is it-

self beyond the jurisdiction of the District Court.

. . . L,] the federal court’s rendition of federal law

will be at least as sure-footed and lasting as any

judgment from the state courts.

While the federal court’s expertise in examining and deter-

mining issues involving federal statutes is beyond dispute,

it is now clear that there are questions of federal law over

which federal courts have no jurisdiction. “(T]here are

statutory rights which Congress has decided cannot be en-

forced in the federal courts unless 28 U.S.C. § 1331(a)’s

$10,000 jurisdictional amount is satisfied.” Maine v. Thi-

boutot, U.S. , 100 S.Ct. 2502, n. 6 (1980); see

also Jarrett v. Jarrett, 400 NE2d 421 (1979), cert. denied,

49 U.S.L.W. 3283 (1980). In light of the absence of either

an initial substantial constitutional claim or of a common

nucleus of operative fact—by similarity of statutes or by

application of those statutes to Respondents—this is such

a case. The District Court’s order regarding the sixty-day

incapacity standard was in error, and remand for further

consideration of that issue is inappropriate.

IV.

The majority panel held that although the class notice

need not be mailed to those class members affected by the

sixty-day incapacity standard until after that issue is con-

sidered on remand, the order requiring that notice be sent

at Petitioners’ expense to those denied benefits under the

capable of light work standard should be upheld as not vio-

lating the Eleventh Amendment prohibition on awarding

payment of funds from the State Treasury. The panel’s de-

cision rests first on the Supreme Court’s approval of class

-12-

notice to be mailed by the defendants in Quern v. Jordan,

440 U.S. 332 (1979) and attorneys’ fees to be paid by the

defendants in Hutto v. Finney, 437 U.S. 678 (1978). These

cases are distinguishable, however, in that there the defen-

dants “raised no objection to the expense of mailing and

sending” the notice, Quern at 349, the cost of identifying

class members and mailing notice was merely the expense

of running the defendants’ computer and including the no-

tice in regular monthly mailings, Quern at 335, n. 3, and

the defendants did not argue that the “award was so large

or so unexpected that it interfered with the State’s budget-

ing process,” Hutto at 692, n. 18. In the instant case, Peti-

tioners contested the award, and in conjunction with that

contest supplied the trial court with a break-down and ex-

planation of the cost.

The third case on which the majority relied, Milliken v.

Bradley, 433 U.S. 267 (1977), is likewise distinguishable

from the case at bar. In Milliken, where the defendants

were orderd to bear the cost of complying with a desegre-

gation order, the Court pointed out that state officials may

be ordered to “conform their conduct to requirements

of federal law, notwithstanding a direct and substantial

impact on the state treasury.” Milliken at 289 (emphasis

added). Thus, the Milliken order merely required the de-

fendants to bear the ancillary cost of complying with the

injunction itself and did not deal with the imposition of

an independent liability. The award in the instant case

therefore meets neither of the two exceptions to Eleventh

Amendment immunity; it is not an uncontested, incidental

expense as in Quern and Hutto, nor is it the ancillary ex-

pense Petitioners have already borne in complying with

the injunction itself as in Milliken. An award of class no-

tice in this case is comparable to the award of retroactive

benefits rejected by the Supreme Court in Edelman v. Jor-

dan, 415 U.S. 651 (1974).

. . . Where the State has a definable allocation to

be used in the payment of public aid benefits, -and

pursues a certain course of action such as the pro-

-13-

cessing of applications within certain time periods

. . ., the subsequent ordering by a federal court of

retroactive payments to correct delays in such

processing will invariably mean there is less money

available for payments for the continuing obliga-

tions of the public aid system.

Edelman at 666, n. 11.

CONCLUSION

The decision of the Court of Appeals for the Fifth Circuit

conflicts with prior decisions of this Court and intrudes into

an area of state discretion explicitly recognized by this

Court. In addition, that decision decides an important ques-

tion of federal law in a way in conflict with applicable deci-

sions of this Court. Accordingly, a writ of certiorari should

issue to review the judgment and opinion of the Fifth Cir-

cuit Court of Appeals herein.

Respectfully submitted,

MARK WHITE

Attorney General of Texas

JOHN W. FAINTER, JR.

First Assistant Attorney General

RICHARD E. GRAY, III

Executive Assistant

PAUL R. GAVIA

Chief, State & County Affairs

DAVID H. YOUNG

Assistant Attorney General

KATHRYN A. REED

Assistant Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711

AC 512—475-3131

ATTORNEYS FOR

PETITIONERS

are

CERTIFICATE OF SERVICE

I, David H. Young, Assistant Attorney General, do here-

by certify that 3 true and correct copies of the foregoing

Petition for Writ of Certiorari to the United States Court

of Appeals for the Fifth Circuit has been sent to Mr. Ger-

ald A. Garcia, Texas Rural Legal Aid, Inc., 305 E. Jack-

son, Suite 206, Harlingen, Texas, 77550, by United States

Postal Service, Certified, Return Receipt Requested, this

day of November, 1980.

APPENDIX A

A-l

Delfino Silva and Jose Miranda, Jr., Individually and on

behalf of all others similarly situated, Plaintiffs-

Appellees,

V.

Raymond W. VOWELL, Individually and in his capac-

ity as Commissioner of the Texas Department of Pub-

lic Welfare, and the State Department of Public Wel-

fare, Defendants-Appellants.

No. 79-2905.

United States Court of Appeals,

Fth Circuit.

June 26, 1980.

Rehearing and Rehearing En Banc

Denied Aug. 20, 1980.

Class action was brought challenging Texas incapacity

eligibility standard for AFDC benefits. The United States

District Court for the Southern District of Texas, Reynaldo

G. Garza, J., rendered summary judgment for plaintiffs on

the only substantive claim that had not been mooted by re-

vision of the regulations and appeal was taken. The Court

of Appeals, Tate, Circuit Judge, held that: (1) there was a

substantial constitutional equal protection claim cogniza-

ble under Civil Rights Act and related jurisdiction statute

and, hence, court had pendent jurisdiction over supremacy

clause claim, i.e., that state standards conflicted with So-

cial Security Act and regulations; (2) mootness of constitu-

tional challenge to the “capable of light work” facet, under

which named plaintiffs had been denied benefits, did not

deprive court of discretion as to whether to exercise juris-

diction over 60-day disability requirement which had not

been applied to named plaintiffs; (3) in view of combination

of standing and mootness problems created by mooting of

“capable of light work” challenge prior to certification, the

court should not have exercised jurisdiction over the 60-

A-2

day challenge without presence of a named plaintiff who

had been directly injured by such facet; and (4) there was

no Eleventh Amendment bar to having defendants bear

cost of mailing explanatory notice to the class.

Affirmed and modified in part, and vacated and remand-

ed in part.

Tjoflat, Circuit Judge, filed concurring and dissenting

opinion.

1. Federal Courts—244

Civil Rights Act of 1871 and related jurisdiction statute

did not give district court jurisdiction over class actions

suit challenging Texas incapacity eligibility standards for

AFDC program unless plaintiffs presented a substantial

constitutional claim, and absent such a claim the court did

not have independent federal jurisdiction over supremacy

clause claim, i.e., that state regulations conflicted with So-

cial Security Act and regulations. 28 U.S.C.A. §§ 1331,

1343; 42 U.S.C.A. § 1983; Social Security Act, § 401 et seq.,

42 U.S.C.A. § 601 et seq.; U.S.C.A. Const. Art. 6, cl. 2;

Amends. 5, 14.

2. Federal Courts—14

A federal court has discretion to exercise pendent juris-

diction over a claim not otherwise cognizable in federal

court as long as the court has jurisdiction over one claim

and the pendent claim derives from the same common nu-

cleus of operative fact. U.S.C.A. Const. Art. 3, § 1 et seq.

3. Federal Courts—244

Although equal protection challenge to “capable of light

work” facet of Texas incapacity eligibility standard for

AFDC benefits was not fleshed out in the complaint, a sub-

stantial constitutional question, for purpose of jurisdiction

under Civil Rights Act and related jurisdiction statute,

was presented in view of argument that standard irration-

ally discriminated between children who were needy be-

cause their fathers were totally disabled and children who

were needy because their fathers were completely unable

to obtain work because of lack of skills and job market real-

A-3

ities even though “capable of light work.” Social Security

Act, § 401 et seq., 42 U.S.C.A § 601 et seq.; 28 U.S.C.A.

§§ 1331, 1843; 42 U.S.C.A. § 1983; U.S.C.A. Const. Art. 6,

cl. 2; Amends. 5, 14.

4. Federal Courts—18

Equal protection challenge to “capable of light work” and

60-day disability facets of Texas incapacity eligibility stan-

dard for AFDC benefits were not merely claims that such

facets conflicted with federal law, thereby depriving district

court of the substantial constitutional challenge necessary

to entertain pendent claim of conflict between such stan-

dards and Social Security Act and regulations, on ground

that plaintiffs relied on rights originating from federal reg-

ulations as “origin of the right” theory has no relevance to

equal protection analysis and only issue was whether the

state had a rational basis for its different treatment of

persons arguably similarly situated. 28 U.S.C.A. §§ 1331,

1343; 42 U.S.C.A. § 1983; Social Security Act, § 401 et seq.,

42 U.S.C.A. § 601 et seq.; U.S.C.A. Const. Art. 6, cl. 2;

Amends. 5, 14.

5. Constitutional Law—213.1(2)

A state violates the equal protection clause when it irra-

tionally treats differently those similarly situated or when

it irrationally treats similarly those people situated dif-

ferently. U.S.C.A. Const. Amends. 5, 14.

6. Constitutional Law—211(1)

Aside from determining the levels of scrutiny to be ap-

plied there is no issue in equal protection claim concerning

the right of anyone to anything other than similar treat-

ment of similar individuals. U.S.C.A. Const. Amends. 5,

14.

7. Federal Courts—18

Although a claim may be stronger statutorily than con-

stitutionally, federal courts have discretion to hear a pen-

dent statutory question involving federal law and federal

policy, rather than perforce to dismiss the claim and rele-

gate it to a state forum. 28 U.S.C.A. § 1343.

A-4

8. Federal Courts—18

A federal court has jurisdiction unless a constitutional

claim is wholly unsubstantial. 28 U.S.C.A. § 1348.

9. Federal Courts—18

Fact that a substantial constitutional claim becomes moot

during the litigation does not deprive the federal court

of pendent jurisdiction over a related statutory claim. 28

U.S.C.A. § 1843.

10. Federal Courts—18

Mootness of equal protection attack on “capable of light

work” facet of Texas incapacity eligibility standard for

AFDC benefits did not deprive district court of all discre-

tion to exercise pendent jurisdiction over claim that 60-day

disability requirement violated Social Security Act and

regulations as both facets were attacked on equal protec-

tion grounds as irrationally creating two classes of needy

children, there was a sufficient common nucleus of opera-

tive facts and constitutional and statutory claims were four

intertwined strands of “the same ball of wax.” 28 U.S.C.A.

§ 1848; 42 U.S.C.A. § 1983; Social Security Act, § 401 et

seq., 42 U.S.C.A. § 601 et seq.; U.S.C.A. Const. Amends.

4, 14.

11. Federal Courts—18

Finding that mootness of original constitutional claim

did not deprive district court of discretion as to whether to

exercise jurisdiction over pendent statutory claim did not

necessarily mean that court’s discretion, i.e., consideration

of pendent claim, was properly exercised.

12. Federal Courts—18

Although decision to exercise pendent jurisdiction over

statutory attack on 60-day disability requirement of Texas

incapacity eligibility standard of AFDC benefits was dis-

cretionary notwithstanding mooting of constitutional chal-

lenge to the “capable of light work” facet under which

named plaintiffs had been denied benefits, the court should

not have considered merits of the former without a named

plaintiff who had been directly injured by the 60-day re-

A-5

quirement, in view of combination of standing and moot-

ness problems created by mooting of the “capable of light

work” challenge prior to certification of class. Fed. Rules

Civ. Proc. Rule 23(¢)(1, 4), 28 U.S.C.A.; 28 U.S.C.A. § 1343;

42 U.S.C.A. § 1983; Social Security Act, § 401 et seq., 42

U.S.C.A. § 601 et seq.; U.S.C.A. Const. Amends. 5, 14.

13. Federal Courts—937

Social Security and Public Welfare—194.21

If the class, i.e., Texas residents whose applications for

AFDC benefits were affected because of “capable of light

work” and 60-day disability requirement of incapacity eli-

gibility standard, had been properly certified before moot-

ing of constitutional challenge to the “capable of light work”

facet under which named plaintiffs had been denied bene-

fits the challenge to the 60-day requirement would not nec-

essarily have been mooted; however, mooting brought

named plaintiffs’ standing into question and remand for in-

tervention by someone affected by the challenged standard

was appropriate, notwithstanding that defendants’ con-

duct was largely responsible for class action treatment up

to the very final moments. Fed. Rules Civ. Proc. Rule

23(c)(1, 4), 28 U.S.C.A.; 28 U.S.C.A. § 1843; 42 U.S.C.A.

§ 1983; Social Security Act, § 401 et seq., 42 U.S.C.A.

§ 601 et seq.; U.S.C.A. Const. Amends. 5, 14.

14. Federal Civil Procedure—177

Although in view of vacation of ruling that 60-day dis-

ability requirement of Texas AFDC eligibility standard

was unconstitutional the defendants were entitled not to

send a notice to anyone injured by such facet of the stan-

dard, plaintiffs were still entitled to have appropriate notice

to all class members who had been denied benefits because

of “capable of light work” facet of the eligibility standard,

as named plaintiffs at all times were proper representa-

tives of such subclass and were entitled to such notice. So-

cial Security Act, § 401 et seq., 42 U.S.C.A. § 601 et seq.

15. Federal Courts—268

Notice to those class members who had been denied ben-

A-6

efits under the “capable of light work” facet of Texas inca-

pacity eligibility standard for AFDC was merely ancillary

relief in action challenging validity of standards, with notice

explaining that the regulations had been changed and that

class members had a right to reapply for benefits, and as-

sertion that it would cost too much, i.e., almost $80,000,

was insufficient to invoke proscriptions of the Eleventh

Amendment. Social Security Act, § 401 et seq., 42 U.S.C.A.

§ 601 et seq.; U.S.C.A. Const. Amend. 11.

16. Federal Courts—268

Cost of notice to class members explaining that chal-

lenged incapacity eligibility standard for AFDC had been

changed and that members had a right to reapply for bene-

fits was not dispositive of Eleventh Amendment issue as it

is the character of expense, whether “ancillary” or not,

rather than the amount that was determinative of the Elev-

enth Amendment claims and, in any event, financial impact

is on a state’s budget, not that of a single administrative

agency. Social Security Act, § 401 et seq., 42 U.S.C.A.

§ 601 et seq.; U.S.C.A. Const. Amend. 11.

Kathryn A. Reed, Asst. Atty. Gen., Austin, Texas., for

defendants-appellants.

Gerald A. Garcia, Texas Rural Legal Aid, Inc., Harlin-

gen, Tex., Jose Antonio Gomez, Oficina Legal Del Pueblo

Unido, San Juan, Tex., for plaintiffs-appellees.

Appeal from the United States District Court for the

Southern District of Texas.

Before TJOFLAT, RUBIN and TATE, Circuit Judges.

TATE, Circuit Judge:

This class action suit challenges the Texas incapacity eli-

gibility standard for receipt of benefits under the Aid to

Families with Dependent Children (AFDC) program. The

plaintiffs, Delfino Silva and Jose Miranda, are AFDC appli-

cants, and they filed a class action in December of 1975 at-

tacking the Texas incapacity standard. Without detailing

the specifics of their complaint, it is sufficient for the mo-

A-7

ment to say that the district judge granted summary judg-

ment for the plaintiffs on the only substantive claim that

had not been mooted by a subsequent revision of the Texas

regulations. Further, although retroactive benefits were

denied, the court certified the class and ordered the defen-

dants to pay for preparing and mailing an explanatory no-

tice to the class members, explaining that the regulations

had been changed and that the class members had a right

to reapply for benefits. The defendants, the Texas Depart-

ment of Public Welfare (currently the Texas Department of

Human Resources) and its Commissioner, Raymond W.

Vowell, now appeal from the district court’s ruling on the

following grounds: 1) that the district court lacked juris-

diction over the subject matter of this litigation; 2) that

the named plaintiffs do not have standing to represent the

class; and 3) that requiring the defendants to bear the ex-

pense of preparing and mailing the notice to the class vio-

lates the Eleventh Amendment. For the reasons discussed

below, we affirm in part and remand in part.

Context of the Issues

As will be more particularly shown in an appendix to this

opinion (History of the Litigation), the attack by the defen-

dants on the trial court’s jurisdiction and the plaintiffs’

standing to continue this class action arises in the following

context.

The class action suit, .as initially brought in 1975, con-

tested primarily the eligibility requirement for aid to depen-

dent children that disqualified the families of dependent

children from such aid if the father was “capable of light

work.” There is no doubt that both plaintiffs had standing

to assert such claim as class representatives. In May, 1978,

the suit was broadened to attack other facets of the dis-

ability requirements, including pertinently the require-

ment that prevented the families of dependent children

from receiving welfare payments unless their fathers would

be (or would continue to be) disabled for sixty days or

more. At this time, the defendants stated (admittedly in

equivocal terms, see note 12, infra) that they had no objec-

tion to certification of the class. At the same time, a show-

A-8

ing was made that administrative revision of the other dis-

ability requirements in the Texas AFDC Handbook would

moot all of the plaintiffs’ substantive contentions except

that pertaining to the sixty-day disability requirement. In

December, 1978, the district court granted summary judg-

ment for the plaintiffs invalidating the sixty-day require-

ment.

In April, 1979, the defendants for the first time filed a

motion to dismiss for want of jurisdiction. The defendants

also objected for the first time that the plaintiffs were not

adequate class representatives because they themselves

had not been denied benefits because of the sixty-day eligi-

bility period but rather because they were “capable of light

work.” As the district court noted, the invalid “capable of

light work” requirement had been revised as a result of

this class action; one consequence of the judgment below is

that the defendants must send out notices to all applicants

who were denied, improperly, eligibility for welfare bene-

fits by reason of this requirement. However, the certifica-

tion of the class—to which no objection by the defendants

had been urged in May, 1978 and the description of which

the defendants had approved when it was formalized in

June, 1979—included all Texas residents who since Octo-

ber, 1976 had had applications for AFDC welfare payments

rejected or benefits terminated because of the improper

Texas disability standard (including both the “capable of

light work” and the sixty-day disability requirements).

The record also shows that the plaintiff Silva, although

now receiving AFDC payments because of the elimination

of the “capable of light work” requirement, is subject to

termination of his benefits by reason of the sixty-day dis-

ability requirement should his disability lessen into one of

this temporary duration.

I.

[1] The first issue that must be resolved is whether the

district court had jurisdiction. The defendants rely on the

Supreme Court’s holding in Chapman v. Houston Wel-

fare Rights Organization, 441 U.S. 600, 99 S.Ct. 1905, 60

A-9

L.Ed.2d 508 (1979), that a federal court has no jurisdiction

under 28 U.S.C § 1848! and 42 U.S.C. § 1983? to hear a

claim that is wholly based on a conflict between state and

federal law.? In view of Chapman, it is not disputed that

1. 28 U.S.C. § 1343 provides:

The district courts shall have original jurisdiction of any

civil action authorized by law to be commenced by any

person:

(1) To recover damages for injury to his person or prop-

erty, or because of the deprivation of any right or privilege

of a citzen of the United States, by any act done in fur-

therance of any conspiracy mentioned in section 1985 of Ti-

tle 42;

(2) To recover damages from any person who fails to pre-

vent or to aid in preventing any wrongs mentioned in sec-

tion 1985 of Title 42 which he had knowledge were about to

occur and power to prevent;

(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 of Congress providing for

equal rights of citizens or of all persons within the jurisdic-

tion of the United States;

(4) To recover damages or to secure equitable or other re-

lief under any Act of Congress providing for the protection

of civil rights, including the right to vote.

2. 42 U.S.C. § 1983 provides:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory, sub-

jects, or causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable to the party in-

jured in any action at law, suit in equity, or other proper

proceeding for redress.

3. In Chapman, the Supreme Court held that there is no jurisdiction

under 28 U.S.C. § 1343 and 42 U.S.C. § 1983 to hear a case claiming

that a state law conflicts with the Social Security Act because: 1) an

alleged violation of the Supremacy Clause “does not, in itself, give rise

to a claim ‘secured by the Constitution’ within the meaning of [28

U.S.C.] § 1843(3),” 99 S.Ct. at 1915; and 2) the Social Security Act

is not a statute providing for “equal rights” within the meaning of

§ 1343(3) or “civil rights” within the meaning of § 1343(4), id. 99 S.Ct.

at 1917-18.

A-10

the district court did not have jurisdiction unless the plain-

tiffs presented the court with a substantial constitutional

claim.* |

The plaintiffs argue that the district court correctly ruled

that there was a substantial constitutional claim and that

consequently the court had pendent jurisdiction over the

statutory claim concerning a conflict between state and

federal law.5 The defendants, on the other hand, contend:

a) that there never was a substantial constitutional claim;

and b) that the plaintiffs’ allegedly substantial constitu-

tional claims are really nothing more than an attempt to

circumvent the ruling in Chapman.

(a) Was There a Substantial Constitutional Claim?

[2] Chapman makes it clear that the court in the instant

case did not have independent federal jurisdiction over the

Supremacy Clause claim. However, the district court had

the power to exercise pendent jurisdiction over the statu-

tory conflict claim if it had jurisdiction over a related and

substantial constitutional claim. A federal court has discre-

tion to exercise pendent jurisdiction over a claim not other-

wise cognizable in federal court as long as the court has

jurisdiction over one claim and the pendent claim derives

from the same “common nucleus of operative fact.” United

Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86

S.Ct. 11380, 1138, 16 L.Ed.2d 218 (1966); Kimbrough v.

Arkansas Activities Association, 574 F.2d 423, 427 (8th

Cir. 1978). Although pendent jurisdiction is often exercised

4. There was no federal question jurisdiction under 28 U.S.C. § 1331

over the Supremacy Clause claim because the plaintiffs lacked the req-

uisite $10,000 jurisdictional amount. Although there were several al-

leged bases for jurisdiction in the complaint, plaintiffs now rely solely

on 28 U.S.C. § 1343 and 42 U.S.C. § 1983 and pendent jurisdiction.

5. The issue of pending a statutory claim with a substantial constitu-

tional claim was not considered in Chapman because no constitutional

claim, aside from the Supremacy Clause claim, was at issue. However,

such an exercise of pendent jurisdiction has been used in several other

cases, e. g., Hagans v. Lavine, 415 U.S. 528, 948.Ct. 13872, 39 L.Ed.2d

577 (1974); Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L. Ed.2d

442 (1970).

A-1l

when a related state claim is pended to a federal claim, in

the instant case, the plaintiffs attempted to pend one fed-

eral claim (their Supremacy Clause claim or statutory

claim) to another federal claim (their Due Process and Equal

Protection Clause claims). The question with respect to ju-

risdiction is whether the plaintiffs presented the court with

a substantial federal constitutional (Equal Protection or

Due Process) claim such that the court had the power to

exercise pendent jurisdiction over the statutory conflict

(Supremacy Clause) claim.

[3] Pretermitting any discussion of the plaintiffs’ Due

Process claim, which was not diligently pursued in the

lower court, it is clear that the plaintiffs’ initial complaint

raised a substantial Equal Protection claim. Although, the

argument was not fleshed out in the complaint, the plain-

tiffs argue on appeal that the Texas “capable of light work”

standard unlawfully and irrationally discriminated between

children who were needy because their fathers were totally

disabled and children who were needy because their fa-

thers were completely unable to obtain work even though

only partially disabled and “capable of light work.” The

plaintiffs contend that the Texas “capable of light work”

standard irrationally ignored the fact that children of par-

tially incapacitated fathers are just as needy as children

of totally incapacitated fathers, when the partially inca-

pacitated fathers, although theoretically “capable of light

work,” are unable to obtain work because of a lack of skill

and the realities of the job market. This presenved a sub-

stantial constitutional question, for purposes of a federal

district court’s power to determine a related pendent claim

not based on constitutional deprivation.

In Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39

L.Ed.2d 577 (1974) the Supreme Court considered almost

the exact question that we face today—was there a suffi-

ciently substantial constitutional claim to support the lower

court’s exercise of pendent jurisdiction over a related stat-

utory claim? Both Hagans and the instant case must be

distinguished from Chapman, because in Chapman there

was no constitutional claim at all. In Hagans, however,

A-12

AFDC recipients in New York attacked a New York reg-

ulation (requiring recoupment of certain benefits) on two

grounds: 1) that the New York regulation violated the Equal

Protection Clause; and 2) that this same regulation was in-

consistent with the Social Security Act and the regulations

promulgated thereunder. The district court found the con-

stitutional claim to be substantial and exercised pendent

jurisdiction over the “statutory” claim. In order to avoid

an unnecessary constitutional decision if possible, the dis-

trict court examined the statutory claim first and enjoined

the enforcement of the New York regulation on the ground

that it conflicted with the federal regulations under the So-

cial Security Act. On appeal, the court of appeals reversed

the district court on the ground that the failure to present

a substantial constitutional claim prevented the court from

having jurisdiction over the statutory claim. After grant-

ing certiorari to consider the jurisdictional question, the

Supreme Court held that the plaintiffs had presented a

substantial constitutional claim, for purposes of federal ju-

risdiction, and that therefore the district court had juris-

diction to decide the statutory claim.

In Hagans the Supreme Court began by acknowledging

the principle that a “substantial” federal question is neces-

sary to support federal jurisdiction. “Over the yee"s this

Court has repeatedly held that the federal courts are with-

out power to entertain claims otherwise within their juris-

diction if they are ‘so attenuated and unsubstantial as to be

absolutely devoid of merit,’. . . ‘wholly insubstantial,’. . .

‘obviously frivolous,’ . . . ‘plainly unsubstantial,’. . . or ‘no

longer open to discussion.’” 415 U.S. at 586-37, 948.Ct. at

1378-79 (citations omitted). However, the Court reversed

the holding of the court of appeals, because, “[a]s was the

case in Bell v. Hood [827 U.S. 678, 66 S.Ct. 773, 90 L.Ed.

939], we cannot ‘say that the cause of action alleged is so

patently without merit as to justify ... the court’s dis-

missal for want of jurisdiction.’ ... Nor can we say that

petitioners’ claim is ‘so insubstantial, implausible, fore-

closed by prior decisions of this Court or otherwise com-

pletely devoid of merit as not to involve a federal contro-

A-13

versy within the jurisdiction of the District Court, whatever

may be the ultimate resolution of the federal issues on the

merits.’” Jd. at 542-48, 94 S.Ct. at 1382 (citations omitted).

In light of the Hagans test, we are convinced that the

plaintiffs’ Equal Protection claim in their original com-

plaint was a substantial constitutional claim sufficient to

support the district court’s exercise of pendent jurisdiction

over the related statutory attack on the disability require-

ments. Texas’s decision to deny AFDC benefits to needy

children whose fathers’ partial incapacity prevented them

from obtaining an income sufficient to support their chil-

dren, despite their being “capable of light work,” is un-

questionably not “so patently rational as to require no

meaningful consideration.” Hagans v. Lavine, 415 U.S. at

541, 94 S.Ct. at 1881. We therefore hold that the plaintiffs’

original complaint presented a substantial constitutional

question for purposes of permitting consideration by the

federal district court of related pendent claims. See, e. g.,

Hagans v. Lavine, supra; Rosado v. Wyman, 397 U.S.

397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970).

(b) Were the Plaintiffs’ Constitutional Claims No More

Than Alleged Conflicts Between State and Federal Law?

[4] The defendants contend that the plaintiffs can only

claim that they have a right to AFDC benefits (even though

they are “capable of light work” and even though their dis-

ability is expected to last for more than thirty days but less

than sixty) by relying on rights originating from federal

regulations. The defendants thus argue that the court had

no jurisdiction over the plaintiffs’ Equal Protection claims

because these claims, allegedly based solely on rights aris-

ing from federal regulations, are in fact nothing more than

claims that the Texas “capable of light work” and sixty-day

eligibility requirements are in conflict with federal law.

The defendants’ analysis, however, evidences a misunder-

standing of the nature of the protection afforded by the

Equal Protection Clause of the Fourteenth Amendment.

This “origin of the right” theory might be helpful in deter-

mining whether plaintiffs have been deprived of a “prop-

erty” right without due process of law, but it has no rel-

A-14

evance to the analysis of the plaintiffs’ Equal Protection

claims.

[5, 6) A state violates the Equal Protection Clause when

it irrationally treats differently those similarly situated or

when it irrationally treats similarly those people Sfttated

differently. See, e. g., Hagans, 415 U.S. at 588-39, 94 S.Ct.

at 1380-81. See gemerally J. Nowak, R. Rotunda & J.

Young, Constitutional Law 519-22 (1978). Aside from de-

termining the level of scrutiny to be applied, id. at 522-27,

there is no issue in an Equal Protection claim concerning

the right of anyone to anything other than similar treat-

ment of similar individuals. For purposes of Equal Protec-

tion, it is immaterial whether anyone had a federal right to

AFDC benefits despite being “capable of light work” and

despjte having a disability with an anticipated duration of

less than sixty days but more than thirty; the only issue is

whether the state of Texas had a rational basis for its dif-

ferent treatment of those persons arguably similarly situ-

ated. Consequently, neither of the plaintiffs’ Equal Pro-

tection claims was based on a conflict between state and

federal law.®

[7] We recognize that, as the defendants argue, the Ha-

gans test may sometimes allow a plaintiff to sue in federal

court on a claim that is stronger statutorily than constitu-

tionally. The use of pendent jurisdiction in these cases may

thus allow the federal courts to decide a statutory question

instead of a constitutional one. However, we view Hagans

and Rosado as permitting the federal courts in such in-

stances to have the discretion to hear a pendent statutory

question involving federal law and federal policy, rather

than perforce to dismiss the claim and relegate it to a state

forum.

[8] In Hagans the Court said, “In none of these cases did

the Court think that with jurisdiction fairly established, a

federal court under Gibbs, must nevertheless decide the

6. We do not dispute that the plaintiffs may have obtained some of

their ideas about rationality from the approach taken by federal law.

However, this does not deprive them of the right to try to prove that

Texas law irrationally treats persons unequally.

A-15

constitutional issue and avoid the statutory claim if, upon

weighing the two claims, the statutory claim is strong and

the constitutional claim weak. On the contrary, Mr. Justice

Harlan, writing for the Court in Rosado v. Wyman, and

with the principles of Gibbs well in mind, noted that the

pendent statutory question was essentially one of federal

policy and that the argument for the exercise of pendent

jurisdiction was ‘particularly strong.’” Hagans v. Lavine,

415 U.S. at 549-50, 94 S.Ct. at 1885 (citations omitted).

We do not interpret Chapman as modifying either the

principle of pendent jurisdiction or the principle that a

federal court has jurisdiction unless a constitutional claim

is wholly unsubstantial.

Il.

The defendants argue that even if the trial court had ju-

risdiction, the court lost jurisdiction when the challenge to

the “capable of light work” requirement became moot.

Furthermore, the defendants argue that since the plain-

tiffs had not been denied benefits as a result of the sixty-

day eligibility requirement, they did not have standing to

represent the class attack on said requirement.

(a) Did the Mootness of the Original Constitutional

Claim Require a Dismissal of the Remaining Sub-

stantive Claim for Lack of Jurisdiction?

The plaintiffs’ attack on the constitutionality of the Texas

“capable of light work” requirement presented a substan-

tial constitutional question, but, as noted previously, the

revision of the Texas AFDC Handbook mooted the plain-

tiffs’ attack on this requirement. By December 19, 1978,

the date of the partial summary judgment for the plaintiffs,

the only substantive attack that was not moot was the at-

tack on the sixty-day eligibility requirement. We must con-

sider whether the mootness of the plaintiffs’ original con-

stitutional claim deprived the court of all discretion as to

whether to exercise jurisdiction over the remaining claim.

[9] The fact that a substantial constitutional claim be-

comes moot during the litigation does not deprive the court

A-16

of pendent jurisdiction over a related statutory claim. Rosa-

do v. Wyman, 897 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442

(1970). In Rosado the plaintiffs’ Equal Protection attack

against a New York AFDC regulation was rendered moot

by an amendment to the regulation. However, after the

three-judge court remanded to the single district judge,

the district judge held that the regulation conflicted with

the federal provisions, and he enjoined the use of the New

York regulation. The court of appeals reversed this ruling;

the district court was held to have lost jurisdiction to de-

cide the statutory claim when the constitutional claim was

rendered moot.

The Supreme Court granted certiorari and reversed the

court of appeals on the ground that the district judge had

properly exercised his discretion by proceeding to the mer-

its. “We are not willing to defeat the commonsense policy

of pendent jurisdiction—the conservation of judicial en-

ergy and the avoidance of multiplicity of litigation—by a

conceptual approach that would require jurisdiction over

the primary claim at all stages as a prerequisite to resolu-

tion of the pendent claim.” 397 U.S. at 405, 90 S.Ct. at 1214

(footnote omitted).

In Rosado, the mooted constitutional claim concerned

the identical statutory provision attacked on both constitu-

tional and pended Supremacy Clause grounds. Here, dis-

tinguishably, the pended claim presently before us involves

an attack on another facet of the disability standard that is

very closely related to the mooted constitutional and statu-

tory attack on the “capable of light work” facet. Both fac-

ets of the standard were attacked on Equal Protection

grounds, as irrationally creating two classes of needy chil-

dren. Both were likewise attacked on Supremacy Clause

grounds, as inconsistent with federal regulation. There

was a sufficient common nucleus of operative fact between

the constitutional challenge to the light work requirement

(as well as to the sixty-day eligibility requirement) on Equal

Protection grounds and the pended Supremacy Clause at-

tacks on the two facets of the disability standard. Either

or both of these disability tests might apply to a welfare

A-17

claimant so as either to prevent initial eligibility or else to

terminate benefits once commenced.

Pendent jurisdiction exists, under the Gibbs test, when

the jurisdictional and the pendent claim “derive from a

common nucleus of operative fact” and the plaintiffs’ claims,

if considered without regard to their jurisdictional charac-

ter, “are such that he would ordinarily be expected to try

them all in one judicial proceeding.” 383 U.S. at 725, 86

S.Ct. at 1138. The constitutional claims relating to the in-

validity of the light work requirement and to the invalidity

of the sixty-day duration requirement as a basis for deny-

ing or terminating AF DC benefits, and the statutory claims

(based on the Supremacy Clause) relating to the invalidity

of these same two facets, were (to mix a metaphor) four

intertwined strands of the same ball of wax. Further, as

noted by Hagans (concerning similar constitutional and

pended Supremacy Clause attacks on a state’s AFDC reg-

ulation), another consideration militates against relegating

the pendent claim to state court litigation: “{W]here the

pendent claim is federal but is itself beyond the jurisdiction

of the District Court . . .[,] the federal court’s rendition of

federal law will be at least as surefooted and lasting as any

judgment from the state courts.” 415 U.S. at 550, 94 S.Ct.

at 1385 (emphasis in original).

[10, 11] Accordingly, the mootness of the original consti-

tutional claim did not deprive the judge of all discretion as

to whether to exercise jurisdiction over the pendent claim

and proceed to the merits.7 See Rosado v. Wyman, 397

U.S. at 401, 90 S.Ct. at 1212.

(b) Did the Judge Properly Exercise His Discretion by

Proceeding to the Merits After the “Capable of Light

Work” Challenge Had Become Moot?

[12] Although the decision to exercise pendent jurisdic-

tion over the statutory attack on the sixty-day eligibility

requirement was discretionary, under the peculiar facts of

7. Our finding that the judge had discretion does not necessarily

mean that this discretion was properly exercised. See Part II(b), infra.

A-18

this case, we are convinced that the judge should not have

proceeded to the merits. In view of the combination of

standing and mootness problems created by the mooting of

the “capable of light work” challenge prior to certification

of the class, the judge should not have exercised jurisdic-

tion over the sixty-day eligibility challenge without the

presence of a named plaintiff who had been directly injured

by the challenged requirement.

Initially, the plaintiffs unquestionably had standing to at-

tack the “capable of light work” standard; each plaintiff

had been denied AFDC benefits when they were found to

be “capable of light work.” They attacked the disability

standard as invalid in its entirety, however, and they sought

to represent all persons who had been injured by this stan-

dard. Although they had been directly injured by only one

facet of the challenged standard, they were subject to the

entire standard and attacked the standard as a whole.

Given the facts of this case and the intertwined nature of

the facets of the challenged standard, see Part II(a), su-

pra, the plaintiffs’ suit presented a “case or controversy”

within the meaning of Article III.

Nevertheless, despite the plaintiffs’ initial standing to

challenge the disability standard in its entirety, once their

attack on the “capable of light work” requirement became

moot, the judge should have reconsidered whether the

named plaintiffs were still appropriate representatives of

the class. The judge should have considered dividing the

class into sub-classes under Rule 23(c)(4), Fed. R.Civ. Proc. ,®

and allowing intervention by another named plaintiff if

necessary.

Had the court found that there was no named plaintiff

who could represent the sub-class challenging the sixty-day

eligibility period, the court could have considered “whether

‘it [was] in the interest of justice and judicial economy to

8. Rule 23(c)(4), Fed. R.Civ.Proc., provides, “When appropriate. . .

a class may be divided into sub-classes and each sub-class treated as a

class, and the provisions of this rule shall then be construed and ap-

plied accordingly.”

A-19

postpone dismissal as to the subclass for a specified period

in which members of the subclass could become plaintiffs

by amendment of the Complaint or by intervention and

thereby save the subclass action.” Johnson v. American

Credit Company of Georgia, 581 F.2d 526, 533 n.13 (5th

Cir. 1978). See Sullivan v. Winn-Dixie Greenville, Inc. , 62

F.R.D. 370, 375-76 (D.S.C. 1974).®

[13] If the class had been properly certified before the

“capable of light work” challenge become moot, the class

action would not necessarily have become moot.!® How-

9. In Sullivan the defendants objected to the class and argued that,

if anything, there were discernible sub-classes. The district court

agreed that the class was too broad, but it allowed sixty days for other

individuals to intervene to represent the sub-class that the named

plaintiffs were found inadequate to represent. Cf. Class Action-Moot-

ness of Claim, 33 A.L.R. Fed. 484, 519-20 (1977), discussing cases that

have allowed other class members to intervene when the named plain-

tiff’s claim became moot.

10. In particular types of class actions [the Supreme Court]

has held that the presence of a properly certified class may

provide an added dimension to [the] Art{icle] III analysis,

and that the mootness of the named plaintiffs’ claims does

not “inexorably” require dismissal of the action.

Kremens v. Bartley, 481 U.S. 119, 129-30, 97 S.Ct. 1709, 1715, 52

L.Ed.2d 184 (1977), citing Sosna v. Iowa, 419 U.S. 393, 399-401, 95

S.Ct. 553, 557-58, 42 L.Ed.2d 532 (1975), and also citing Franks v.

Bowman Transportation Co., Inc., 424 U.S. 747, 752-57, 96 S.Ct.

1251, 1258-60, 47 L.Ed.2d 444 (1976), and Gerstein v. Pugh, 420 U.S.

103, 110-11 n.11, 95 S.Ct. 854, 861 n.11, 43 L.Ed.2d 54 (1975).

Kremens distinguished these prior cases and remanded for substitu-

tion of class representatives with live claims; the intervening legisla-

tion that had mooted the named plaintiffs’ claims had left the class so

extremely fragmented “that the claims of the unnamed class members

[were] not properly presented for review.” 431 U.S. at 127, 97 S.Ct. at

1714. Although there are many similarities between the instant case

and Kremens, there are also several differences. (For example, al-

though one whole portion of the class action in the instant case was

mooted by a revision of the regulations, the remaining claims were not

fragmented and the challenge to the sixty-day requirement was argua-

bly one that was “capable of repetition, yet evading review.” See Kre-

mens v. Bartley, supra, 431 U.S. at 1383, 97 S.Ct. at 1717). Conse-

quently, although the combination of the questions concerning both

standing and mootness in the instant case requires us to remand, we

: A-20

ever, no class certification hearing had as yet been held."

Furthermore, no such hearing was held until after every

other issue in this litigation had been settled. !?

Once the “capable of light work” challenge became moot

and put the named plaintiffs’ standing in question, the

plaintiffs and the judge should have realized that interven-

tion by another named plaintiff was appropriate. Neverthe-

less, it was the defendants’ conduct that was largely re-

sponsible for this case being treated, without question, as a

class action up until the very final moments. See note 12,

supra. If the defendants had raised their objections to cer-

tification at the appropriate time, it would have been an

easy matter for the judge to allow some time for another

note that were the problem one of mootness only, the rationale of Kre-

mens might require a different result.

11. Under Rule 23(c)(1), Fed.R.Civ.Proc., “{a]s soon as practicable

after the commencement of an action brought as a class action, the

court shall determine by order whether it is to be so maintained.”

However, although the plaintiffs immediately moved for class certifica-

tion, their motion was held in abeyance, apparently pending settle-

ment negotiations. See Appendix (History of the Litigation). Even:

tually, plaintiffs again moved for certification of the class, but the

“capable of light work” challenge became moot soon thereafter. Nev-

ertheless, even after this challenge had become moot it might have

been possible to salvage this litigation had it not been for the question-

able conduct of the defendants. See note 12, infra. For a discussion of

the problems created by the failure to immediately hold a certification

hearing, see Satterwhite v. City of Greenville, 578 F.2d 987, 998-99

(5th Cir. 1978) (en banc), vacated and remanded ,—U.S.—, 100 S.Ct.

1334, 63 L. Ed.2d 773 (1980).

12. As can be seen from the Appendix (History of the Litigation),

the defendants made no objection to certification of the class until al-

most three and one-half years after suit was filed and almost one year

after the “capable of light work” challenge became moot. In fact, after

this challenge had become moot and the plaintiffs had again moved for

certification, the defendants responded: “Assuming Plaintiffs’) Class

Certification Motion is in proper order, Defendants have no objection

to such certification, following an appropriate brief hearing before the

Court.” Although this statement was somewhat equivocal, it certainly

did not alert either the plaintiffs or the judge to the possibility that the

defendants would vigorously oppose certification almost one year later.

A-21

named plaintiff to intervene. See Johnson v. American

Credit Company of Georgia, supra, 581 F.2d at 533 n.13.

This case must be remanded so that an appropriate named

plaintiff may intervene. We do so reluctantly, in view of the

defendants’ culpability, see note 12, supra, but the peculiar

circumstances of this case have convinced us that the judge

exceeded his discretion by proceeding to the merits of the

sixty-day cl:allenge without the presence of a named plain-

tiff who had suffered direct injury from the application of

that specific facet of the Texas disability standard.

Ill.

The final issue in this case concerns the expense involved

in preparing and mailing the proposed explanatory notice

to the class. According to defendants’ counsel, defendants

intend to mail this notice by the end of July, 1980.

The description of the class as certified by the district

court essentially tracked the description that had been pro-

posed by plaintiffs throughout the litigation, and it con-

formed to the class description that had been approved by

all parties on June 28, 1979. In the district court’s final

judgment on July 3, 1979, the class was certified and de-

scribed as follows:

All Texas residents who on or after October 3,

1976, for reasons of physical or mental incapacity

are or were unable to support their minor chil-

dren, and who have received, or are receiving, or

may receive monthly AFDC-I benefits and who

have had benefits terminated or have had applica-

tions for AFDC -I benefits rejected as a result of

having their claims evaluated under the improper

disability standard of §§ 2830, 2832 and 2833 of the

AFDC Handbook, Texas Department of Human

Resources.

The district court also ordered the defendants to mail

the following explanatory notice, which had also been ap-

proved by all parties on June 28, 1979:

The United States District Court for the South-

ern District of Texas, Brownsville Division, has

A-22

ruled that the disability standard under which

your application or claim for AFDC-I benefits

may have been evaluated, did not conform to fed-

eral standards. The Texas AFDC-I standard has

now been changed. If you desire, you may file a

new application for AFDC-I benefits. Your eval-

uation will be evaluated under the new standard.

To file your application or to obtain further infor-

mation, please contact your local office of the Texas

Department of Human Resources.

The defendants now contend that since they objected to

the cost of preparing and mailing this explanatory notice,

the Eleventh Amendment immunizes them from being

forced to incur such expense. We disagree.

[14] Preliminarily, we note that by virtue of our decision

to remand this case and to vacate the judge’s ruling that

the sixty-day eligibility requirement is unconstitutional,

the defendants are entitled not to send a notice to anyone

who was injured by this facet of the Texas disability stan-

dard. However, the plaintiffs are still entitled to have an

appropriate notice sent to all class members who have been

denied benefits because they were capable of light work;?*

13. Our brother TJOFLAT is concerned that the district judge as-

signed no reasons for his conclusion that it was appropriate to require

the defendants to pay for an explanatory notice concerning the elim-

ination of the “capable of light work” requirement. However, at the

time, the district judge was ruling on the appropriateness of a notice to

the entire class. It is only in view of our remand with respect to the

sixty-day disability requirement that the defendants are entitled to a

more limited notice. Nevertheless, it is appropriate to order a more

narrow notice concerning only the “capable of light work” require-

ment, first requested in the plaintiffs’ original petition. The plaintiffs’

claim for a notice to the class was not mooted by the revision of the

regulations, any more than a claim for pre-revision damages would

have been. Furthermore, the defendants have never raised this issue.

This case has been pending over four and one-half years, and, as the

opinion points out, even those class action issues presently before us

were injected belatedly; a remand for reasons would almost inevitably

entail another appeal. In view of these circumstances, we act on the

record as presented to us.

A-23

the plaintiffs have at all times remained proper representa-

tives of this sub-class. Since the plaintiffs are entitled to

this notice, we must rule on the defendants’ objection to

the cost involved.

In arguing that the Eleventh Amendment?‘ prohibits a

federal court frorn ordering a state to pay for an explana-

tory notice when the state objects to the cost of such notice,

the defendants principally rely on the Supreme Court’s

qualification in Quern v. Jordan, 440 U.S. 332, 99 S.Ct.

1139, 59 L.Ed.2d 358 (1979), that the defendants had not

objected to the cost of a similar explanatory notice. In ad-

dition, defendants rely on a similar caveat in Hutto v. Fin-

ney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), to

the effect that there had been no objection by the defen-

dants that the award of attorney’s fees was “so large or un-

expected that it interfered with the State’s budgeting pro-

cess.” 98 S.Ct. at 2574 n.18. We think that the defendants

misunderstand the import of these caveats, and, in any

event, the defendants failed to present an adequate factual

basis for their objection.

(15, 16] In Quern v. Jordan, the Seventh Circuit Court of

Appeals authorized an explanatory notice to class mem-

bers that was very similar to that ordered in the present

case. At issue in Quern was whether “the modified notice

contemplated by the Seventh Circuit constitute[d] permis-

sible prospective relief or a ‘retroactive award which re-

quires the payment of funds from the state treasury.’” 99

S.Ct. at 1147-48. The Court answered the question by

saying:

We think this relief falls on the Ex parte Young

[209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714] side of

the Eleventh Amendment line rather than on the

Edelman [v. Jordan, 415 U.S. 651, 94 S.Ct. 1347,

14. The Eleventh Amendment states:

The Judicial power of the United States shall not be con-

strued to extend to any suit in law or equitv, commenced or

prosecuted against one of the United States by Citizens of

another State, or by Citizens or Subjects of any Foreign

State.

A-24

39 L.Ed.2d 662] side... .

The notice approved by the Court of Appeals,

unlike that ordered by the District Court, is more

properly viewed as ancillary to the prospective

relief already ordered by the court. See Milliken

v. Bradley, 433 U.S. [267] at 290, 97 S.Ct. [2749]

at 2762 [53 L.Ed.2d 745]. The notice in effect sim-

ply informs class members that their federal suit

is at an end, that the federal court can provide

them with no further relief, and that there are ex-

isting state administrative remedies which they

may wish to pursue. 99 S.Ct. at 1148, 1149.

Quern makes it clear that the type of notice ordered in the

instant case is only ancillary relief. Therefore, the only is-

sue is whether the defendants’ objection to the cost of the

notice is sufficient to distinguish this case from Quern.

The defendants rely on the following statements in Quern:

“Petitioners make no issue of the incidental administrative

expense connected with preparing and mailing the notice,”

99 S.Ct. at 1148; and in Hutto v. Finney: “The Attorney

General has not argued that this award was so large or so

unexpected that it interfered with the State’s budgeting

process. Although the Eleventh Amendment does not pro-

hibit attorney’s fees awards for bad faith, it may counsel

moderation in determining the size of the award or in giv-

ing the State time to adjust its budget before paying the

full amount of the fee,” 98 S.Ct. at 2574 n.18. The defen-

dants argue on appeal that the cost of the notice in the in-

stant case would be almost $80,000, and they thus argue

that Quern and Hutto do not authorize the district court to

make them pay for the notice.

An examination of one of the cases cited in both these

opinions wiil illustrate that the amount of the cost of the

notice is not dispositive. In Quern the Court cited Milliken

v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 538 L.Ed.2d 745

(1977), in connection with its determination that the ex-

planatory notice in Quern was only “ancillary to the pro-

spective relief already ordered by the district court.” In

Milliken the petitioners had argued that “the requirement

that the state defendants pay one-half the additional costs

A-25

attributable to the four educational components is, ‘in

practical effect, indistinguishable from an award of money

damages against the state based upon the asserted prior

misconduct of state officials.’” 433 U.S. at 288-89, 97 S.Ct.

at 2761. However, the Court responded:

The decree to share the future costs of educa-

tional components in this case fits squarely within

the prospective-compliance exception reaffirmed

by Edelman. That exception, which had its gene-

sis in Ex parte Young, permits federal courts to

enjoin state officials to conform their conduct to

requirements of federal law, notwithstanding a

direct and substantial impact on the state trea-

sury. Id. at 289, 97 S.Ct. at 2762 (citations omit-

ted) (emphasis added).

The Court also referred to Milliken in Hutto v. Finney.

“Ancillary’ costs may be very large indeed. Last Term, for

example, this Court rejected an Eleventh Amendment de-

fense and approved an injunction ordering a State to pay

almost $6 million to help defray the costs of desegregating

the Detroit school system. Milliken v. Bradley, 433 U.S.

267, 298, 97 S.Ct. 2749, 2763, 58 L.Ed.2d 745 (Powell, J.,

dissenting).” Hutto v. Finney, 98 S.Ct. at 2573-74 n.15.

The Court’s citation of Milliken in both Quern and Hutto

illustrates that it is the character of an expense, whether

“ancillary” or not, rather than the amount, that is deter-

minative as to whether there is an Eleventh Amendment

issue. +5

15. Even if cost were a relevant factor, there has been no indication

by the defendants that the cost of the notice will, in the words of Hutto,

interfere with “the State’s budgeting process,” 98 S.Ct. at 2574 n.18,

except for an unsupported assertion in the defendants’ brief that “pay-

ment for class notice from the budget of the Texas Department of

Human Resources would add an additional burden to an administrative

agency struggling to cope with the demands of needy welfare recip-

ients.” Defendants-Appellants’ Brief at 16. Pretermitting for the mo-

ment the defendants’ lack of proof of any significantly detrimental

impact on either the budget of Texas as a whole or the budget of the

Texas Department of Human Resources, we note that Hutto speaks of

an impact on a state’s budget, not the budget of a single administrative

agency.

A-26

Quern, Hutto, and Milliken indicate that the defendants

in this case can be required to pay for the notice to this

class. The notice to this class is well within the prospective-

compliance exception referred to in Milliken, and the bald

assertion that it will cost too much is insufficient to invoke

the proscriptions of the Eleventh Amendment.

We have been informed by defendants’ counsel that the

original proposed notice to the class was to be mailed by

the end of July 1980.1® Since the defendants now have the

right to modify the proposed notice, the district court may

allow the defendants until September 30, 1980 to have a re-

vised notice, concerning only the “capable of light work”

requirement, sent to the members of the class. If by that

time no decision has been reached concerning the uncon-

stitutionality of the sixty-day eligibility requirement, then

the revised notice must be sent. A second notice, concern-

ing the sixty-day requirement, may be sent later if neces-

sary.

In view of the possibility of a second explanatory notice,

we will address the defendants’ contention that the diffi-

culties involved in notifying the class members outweigh

any benefits that the class members might receive. This ar-

gument is premised on the contention that no one who was

denied benefits under the sixty-day eligibility requirement

is now likely to be able to qualify under the thirty-day eligi-

bility requirement. We find this argument to be utterly

without merit. If the defendants had timely raised their

objections to certification, then these objections could have

been resolved by allowing another named plaintiff to inter-

vene. If that had happened, then a single notice, as origi-

nally anticipated, could now be mailed, not only to those

denied benefits under the sixty-day eligibility requirement,

but also to those denied benefits because they were “capa-

ble of light work.” Numbers of these latter persons would

presumably be able to qualify under the new incapacity

16. We have not been informed as to why the notice was not mailed

sooner in view of the fact that the defendants’ motion for a stay pend-

ing appeal was denied by this court on November 1, 1979.

A-27

standard.!? The defendants’ failure to object has necessi-

tated a remand in this case, and they cannot now contend

that they should be relieved of the possible obligation to

notify those persons aggrieved by the sixty-day eligibility

requirement as a result of their own questionable litigation

tactics. See note 12, supra.

The defendants have contested this litigation at every

stage over the past five years without ever raising any sub-

stantive defense to the plaintiffs’ contention that the dis-

ability standard is both unconstitutional and inconsistent

with federal law. We find no merit to their contentions that

the Eleventh Amendment protects them from paying for

an explanatory notice to the class or that the administra-

tive costs of preparing and mailing such a notice outweigh

the possible benefits to the class.

Conclusion

The district judge had jurisdiction, but once the chal-

lenge to the “capable of light work” requirement became

moot, he should have created sub-classes and allowed time

for the intervention of a named plaintiff with standing to

represent the sub-class challenging the sixty-day eligibility

requirement. Consequently, we vacate that portion of the

judge’s decision holding the sixty-day eligibility require-

ment unconstitutional and remand for further proceedings

consistent with this opinion. We affirm that portion of the

judge’s ruling that requires the defendants to bear the ex-

pense of preparing and mailing an explanatory notice to

the class, but we remand for a modification of this notice.

17. Although the revised disability definition has done away with the

“capable of light work standard,” the revised version did not go into

effect until the latter part of 1978, and the notice was to be sent to all

welfare applicants who have been denied benefits since October 3,

1976. Consequently, all applicants who were denied benefits between

October of 1976 and the latter part of 1978 on the ground that they

were “capable of light work” will receive notice that they can now re-

apply under the new standard.

A-28

Late)

In the event that the district court orders any additional

notice concerning the sixty-day eligibility requirement, the

defendants must bear the expense of preparing and mailing

that notice as well.

AFFIRMED AND MODIFIED IN PART, AND VA-

CATED AND REMANDED IN PART.

APPENDIX

History of the Litigation

On December 10, 1975, the plaintiffs filed their complaint and a mo-

tion for a preliminary injunction. Although there was some language in

the complaint that generally attacked the Texas incapacity standard as

being inconsistent with the Social Security Act, 42 U.S.C. §§ 601 et

seq., and as being in violation of the Due Process and Equal Protection

Clauses of the Fourteenth Amendment, there were basically two spe-

cific contentions: 1) that the incapacity standard of sections 2832 and

2833 of the Texas AFDC Handbook, Texas Department of Public Wel-

fare, conflicted with the Social Security Act (and the regulations there-

under) and violated Due Process and Equal Protection because these

sections required an applicant to be incapable “of light work”; and 2)

that the failure to provide an adequate hearing when either rejecting

or terminating applications also conflicted with the Social Security Act

(and the regulations thereunder) and violated the Due Process Clause

of the Fourteenth Amendment. In their complaint, both plaintiffs al-

leged that they had had AFDC benefits denied or terminated because

they had been found to be “capable of light work.” The complaint al-

leged that the plaintiffs represented the class of people who had been

improperly denied benefits under the illegal standard, and jurisdiction

was said to be based, inter alia,’ on 42 U.S.C. § 1983 and 28 U.S.C.

§ 1343.

During the two and one-half years following the filing of the com-

plaint, the litigation failed to move forward. The defendants filed an

answer and the plaintiffs filed a motion to have the action declared a

class action, but on August 23, 1976, all motions were held in abeyance

by consent of all parties pending settlement negotiations. The deadline

for the agreement to hold everything in abeyance, December 1, 1976,

came and went, and the court heard nothing from the parties. On Sep-

1. The complaint also alleged jurisdiction under 28 U.S.C. §§ 1331

(general federal question) and 1337 (laws regulating trade or com-

merce), but the plaintiffs no longer contend that these statutes pro-

vided the court with jurisdiction.

A-29

tember 26, 1977, the court ordered the plaintiffs to inform it of the sta-

tus of the case or else the case would be dismissed for want of prosecu-

tion. When no response was received, the court dismissed the case

without prejudice, but the plaintiffs filed a motion to reinstate the case,

and on January 30, 1978, the case was reinstated.

Once the case was reinstated, the litigation began to move more

rapidly. On May 1, 1978, the plaintiffs filed an amended motion for pre-

liminary injunction and a motion for summary judgment. In the amended

motion for a preliminary injunction, the plaintiffs directly attacked the

Texas standard of eligibility as a whole. Along with challenging the

“capable of light work” standard, this amended motion also attacked

the Texas requirement that in order for an applicant to be eligible for

benefits, the incapacity must be expected to last for two months. This

requirement was attacked as being in direct conflict with the Social Se-

curity regulation that only required the incapacity to last thirty days,

45 C.F.R. §§ 233.90(b)(6) and (c)(l)(iv). In the motion for summary

judgment, the plaintiffs renewed their attack on the “capable of light

work” standard, and they also requested the court to rule that the two

month incapacity requirement was in violation of the Due Process and

Equal Protection Clauses of the Fourteenth Amendment as well as in

conflict with the Social Security Act (and its accompanying regula-

tions). The request that their action be maintained as a class action

was also renewed.

On May 11, 1978, the plaintiffs filed a memorandum in support of

their motion for summary judgment. In this memorandum they pri-

marily argued that the Texas regulations were inconsistent with the

Social Security Act (and the pertinent regulations) and, therefore, that

the Texas regulations violated the Supremacy Clause of the United

States Constitution. On the same day that this memorandum was filed,

the parties filed certain stipulations that acknowledged the anticipated

revision of the Texas AFDC Handbook and the fact that this revision

would satisfy all but one of the plaintiffs’ objections. Therefore, the

only substantive issue remaining for the court to decide was whether

either the two month standard of section 2832 or the sixty-day stan-

dard of the proposed revised section 2830 was in conflict with the So-

cial Security Act or its regulations.

On May 26, 1978, the defendants filed their opposition to the plain-

tiffs’ motions for summary judgment and preliminary injunction. The

defendants stated that the only issue left was whether Texas’ sixty-

day eligibility period was invalid, and they filed a motion to stay the

proceedings based on their desire to pursue conformity proceedings

with the Department of Health, Education and Welfare. The defen-

dants also stated, “Assuming Plaintiffls’) Class Certification Motion is

in proper order, Defendants have no objection to such certification, fol-

lowing an appropriate brief hearing before the Court.” On July 5, 1978,

the plaintiffs filed an opposition to the motion to stay in which they ar-

A-30

gued that several of their claims were not moot because the issues of

injunctive relief and retroactive benefits remained viable along with

their attack on the sixty-day eligibility standard.

On December 19, 1978, three years after suit had been filed, the trial

judge granted partial summary judgment for the plaintiffs. The plain-

tiffs’ request for retroactive benefits was denied, but the court held

that the sixty-day standard was inconsistent with the Social Security

Act (and its regulations) and enjoined Texas from using the invalid

standard. The trial judge denied the defendants’ motion to stay, but he

deferred his ruling on, inter alia, the existence of a class.

Following an unopposed motion for continuance by the defendants,

an oral hearing on all pending motions was scheduled for April 26,

1979. At this hearing, the defendants for the first time filed a motion to

dismiss the case for lack of jurisdiction. The defendants contended that

42 U.S.C. § 1983 and 28 U.S.C. § 1343 were an insufficient basis for

jurisdiction where the only substantial claim was that a state law was

inconsistent with a federal law and therefore was invalid under the Su-

premacy Clause. The defendants pointed out that the Supreme Court

had just heard argument on the precise point, but the trial court de-

nied the motion to dismiss.

With respect to class certification, the defendants for the first time

objected that the plaintiffs were not adequate representatives of the

class because they had not been denied benefits because of the sixty-

day eligibility period but rather because they were “capable of light

work.” However, the judge felt that this argument lacked merit, and

he certified the case as a class action. With respect to notice to the

class, the court ordered the defendants to send out an explanatory

notice consistent with Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59

L.Ed.2d 358 (1979), but the defendants objected for the first time to

the cost of preparing and mailing such a notice. Defense counsel stated

that she expected to receive information on how many people the de-

fendants would be able to notify and on how much it would cost, and

the court set a hearing for June 22, 1979 to determine the wording of

the description of the class, the number of people in the class, and the

wording and cost of an explanatory notice.

On June 1, 1979, plaintiffs filed a proposed class description for class

certification and a proposed notice. On the same day, defendants filed a

motion for a rehearing on their motion to dismiss on the basis of the

Supreme Court’s decision in Chapman v. Houston Welfare Rights Or-

ganization, 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979). The

court agreed to hear the defendants’ motion for rehearing at the up-

coming hearing.

On June 22, 1979, more than three and one-half years after the filing

of the complaint, the final hearing in this case was held. After exten-

sive argument concerning the effect of Chapman v. Houston Welfare

Rights Organization on the motion to dismiss for lack of jurisdiction,

A-31

the trial judge ruled that Chapman did not mean that he was deprived

of jurisdiction. He stated that he would write a supplemental memo-

randum opinion fully outlining his reasoning. Further, at a conference

in the judge’s chambers, the parties apparently agreed on the notice

that was to be sent to the class, and the judge ordered them to submit

the agreed-upon notice to the court as soon as possible.

On June 28, 1979, the parties submitted a class description and a

proposed notice that had been agreed upon by both sides. On July 3,

1979, this class description and notice were incorporated in the trial

court’s final judgment. On the same day, the judge filed a memoran-

dum opinion explaining that the motion to dismiss would be denied be-

cause Chapman had not overruled the principle that a purely statutory

claim could be pended to a substantial constitutional claim. Since the

trial judge felt that the plaintiffs’ constitutional claims had been sub-

stantial, he held that he had pendent jurisdiction to decide the statu-

tory claims, despite the fact that some of the constitutional claims had

become moot during the pendency of the litigation.

TJOFLAT, Circuit Judge, concurring and dissenting:

The majority opinion struggles valiantly to make sense

out of a muddled record of proceedings in the district court.

I agree with the majority that the challenge to the “capa-

ble of light work” requirement is moot and that the case

must be remanded to the district court “so that an appro-

priate named plaintiff may intervene,” ante at page 650, to

pursue the attack on the sixty-duy disability standard. If a

plaintiff with proper standing should appear, the district

court will then have the task of reassessing its jurisdiction.

The court may properly find that it has jurisdiction pen-

dent to its jurisdiction over the now moot challenge to the

“capable of light work” standard only if the new plaintiff

can show that his claims and the claims that have been

mooted derive from a “common nucleus of operative fact.” —

Of course, it will also be open to the new named plaintiff to

argue that equal protection and due process objections to

the sixty-day disability standard are sufficiently substan-

tial to give the court pendent jurisdiction to entertain the

claim that the disability standard offends the supremacy

clause. !

1. The majority mentions the equal protection and due process chal-

lenges to the sixty day disability standard, ante at page 648 and 654,

but apparently assumes that these claims were not “substantial.” It

A-32

I cannot concur with the majority’s approval of the dis-

trict court’s order requiring the defendants to bear the ex-

pense of preparing and mailing the explanatory notice to

all class plaintiffs who have been denied AFDC benefits

under the “capable of light work” standard. Ordinarily, a

court has no power to grant relief, even equitable relief,

once the claim for relief has become moot. The obvious rea-

son is that an order granting relief may only follow a deter-

mination of liability; there can be no such determination

where the claim is mooted.

Rule 23 of the Federal Ruies of Civil Procedure gives a

court extraordinary powers that may sometimes qualify

the general rule, however. Rule 23(d)(2) provides that a

court conducting a class action may make “appropriate or-

ders. . . requiring for the protection of the members of the

class or otherwise for the fair conduct of the action, that

notice be given in such manner as the court may direct to

some or all of the members of any step in the action. . .”

Arguably, this rule empow. ‘ed the district court to order

the defendants to bear the expense of the explanatory

notice concerning the elimination of the “capable of light

work” standard. The court’s discretion under the rule is

limited by the requirement that the order be “appropri-

ate.” ."or meaningful appellate review of an exercise of dis-

cretion pursuant to the rule to be possible, the district

court must explain why it has found such action “appropri-

ate.” Moreover, the explanation must be based on findings

of fact. Since the district court did not explain the basis of

its order in the present case, the order should be reversed

and remanded to give the court an opportunity to do so.

does not appear, however, that the district court ever ruled on the sub-

stantiality of the claims. The court should consider itself free to do so

on remand.

APPENDIX B

B-1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

DELFINO SILVA and JOSE MI-

RANDA, JR., individually and on

behalf of all others similarly

situated CIVIL ACTION NUMBER

vs.

RAYMOND W. VOWELA, indi- 75-B-224

vidually and in his capacity as

Commissioner of the Texas De-

partment of Public Welfare, and

the STATE DEPARTMENT OF

PUBLIC WELFARE

FINAL JUDGMENT

In accordance with the Memorandum and Order of De-

cember 19, 1978, the Memorandum entered this same date,

and the Court’s rulings at the oral hearings conducted on

April 26, 1979, and June 22, 1979, it is hereby

ORDERED, ADJUDGED AND DECREED that the

Defendants’ Motion to Dismiss is in all respects DENIED.

It is further ORDERED, ADJUDGED AND DECREED

that the Plaintiffs’ class as delineated below is certified as a

class action under Fed. R. Civ. P. 23(b)(2). The class shall

be described as follows:

All Texas residents who on or after October 3,

1976, for reasons of physical or mental incapacity

are or were unable to support their minor chil-

dren, and who have received, are receiving, or

may receive monthly AFDC-I benefits and who

have had benefits terminated or have had applica-

tions for AFDC-I benefits rejected as a result of

having their claims evaluated under the improper

disability standard of §§ 2830, 2832 and 2833 of

the AFDC Handbook, Texas Department of Hu-

man Resources.

It is further ORDERED, ADJUDGED AND DECREED

that the Defendants shall mail notice at the Defendants’

expense to members of the above certified class in the fol-

B-2

lowing manner:

The United States District Court for the South-

ern District of Texas, Brownsville Division, has

ruled that the disability standard under which

your application or claim for AFDC-I benefits

may have been evaluated, did not conform to

federal standards. The Texas AFDC -I disability

standard has now been changed. If you desire,

you may file a new application for AFDC-I bene-

fits. Your application will be evaluated under the

new standard. To file your application or to obtain

further information, please contact your local Of-

fice of the Texas Department of Human Resources.

It is further ORDERED, ADJUDGED AND DECREED

that the Defendants’ regulation concerning the 60 day

waiting period on expected minimum incapacitation as

found in § 2830 of the Texas AFDC Handbook is in conflict

with the corresponding 30 day waiting period in 45 C.F.R.

§ 233.90(c)(1)(iv).

It is further ORDERED, ADJUDGED AND DECREED

that a permanent injunction shall immediately issue en-

joining the Defendants from the use of the 60 day waiting

period provided in § 2830 of the Texas AFDC Handbook

and requiring the Defendants to conform the said regula-

tion with the 30 day waiting period mandated by 45 C.F.R.

§ 233.90(c)(1)(iv).

It is further ORDERED, ADJUDGED AND DECREED

that the Plaintiffs shall recover from the Defendants, the

sum of $7500 as attorneys’ fees.

It is further ORDERED, ADJUDGED AND DECREED

that the costs in the abovestyled cause shall be assessed

against the Defendants.

The Clerk shall remove the abovestyled cause from the

docket of this Court.

The Clerk shall send a copy of this Final Judgment and

the accompanying Memorandum to all counsel.

DONE at Brownsville, Texas, on this the 3rd day of July,

1979.

Reynaldo G. Garza

UNITED STATES DISTRICT JUDGE

APPENDIX C

C-1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

- BROWNSVILLE DIVISION

DELFINO SILVA and JOSE MI-

RANDA, JR., individually and on

behalf of all others similarly

situated CIVIL ACTION NUMBER

vs.

RAYMOND W. VOWELL, indi- 75-B-224

vidually and in his capacity as

Commissioner of the Texas De-

partment of Public Welfare, and

the STATE DEPARTMENT OF

PUBLIC WELFARE

Texas Rural Legal Aid, Inc. (Gerald A. Garcia)

of Harlingen, Texas, for Plaintiffs.

Oficina Legal del Pueblo Unido (Jose Antonio

Gomez) of San Juan, Texas, for Plaintiffs.

Honorable Mark White, Attorney General of Texas

(Kathryn A. Reed, Assistant Attorney General)

of Austin, Texas, for Defendants.

MEMORANDUM

This is a civil action brought against the Texas Depart-

ment of Public Welfare and its Commissioner, originally

contending that certain provisions of the Texas AFDC

Handbook deprived the Plaintiffs, applicants and recip-

ients of AFDC benefits, of their due process and equal pro-

tection guarantees under the Fourteenth Amendment. The

Plaintiffs also alleged that those provisions conflicted with

corresponding provisions found in the Social Security Act,

42 U.S.C. §§ 301-1397f, and the regulations promulgated

thereto. This Memorandum supplements an earlier Memo-

randum and Order of December 19, 1978, in order to clarify

the issue of the Court’s jurisdiction in this case. The pres-

ent action was initiated pursuant to 42 U.S.C. §§ 1983, and

jurisdiction was alleged under 28 U.S.C. § 1331, 1337 and

1343.

C-2

A detailed recitation of the facts in this case may be

found in the Court’s previous Memorandum and Order.

Basically, though, the Plaintiffs contended that the actions

of the Defendants in terminating AFDC -I benefits and re-

jecting applications for such benefits under a standard of

“capable of light work” were unconstitutional in that they

deprived the Plaintiffs of due process and equal protection.

The Plaintiffs also claimed that the actions of the Defen-

dants in terminating benefits and rejecting applications

without affording individuals an opportunity for a fair and

adequate hearing amounted to a deprivation of due pro-

cess. Finally, the Plaintiffs contended that the state regula-

tions conflicted with their federal counterparts.

However, prior to the Court’s consideration of the is-

sues, the Defendant Texas Department of Public Welfare

had amended its regulations, removing the constitutionally

offensive provisions. The only issue which clearly remained

for the Court’s examination was the issue of the inconsis-

tency with federal law. Specifically, there was a variance of

thirty days between the Texas and federal regulations con-

cerning the expected minimum incapacitation period of a

parent with a dependent child. It was unclear at the time

whether the Plaintiffs were still urging their attack upon

the alleged lack of fair and adequate hearings.

In that Memorandum and Order, the Court rendered a

decision as to the conflict in the regulations, ruling that the

State must change its regulation to comport with federal

law. Certain issues such as the maintenance of a class ac-

tion and attorneys’ fees were reserved for argument at a

subsequent hearing. At a hearing held on April 26, 1979,

the Defendants submitted a Motion to Dismiss based upon

the ground that the Court lacked jurisdiction. The Court

denied the Motion to Dismiss, certified the class and con-

tinued the hearing until June 22, 1979.

In the interim, the United States Supreme Court ren-

dered its decision in Chapman v. Houston Welfare Rights

Organization, 47 U.S.L.W. 4528 (May 15, 1979). Briefly,

the Court in Chapman held that a federal court has no ju-

risdiction over a case brought by a welfare recipient which

is predicated solely upon a conflict between state and fed-

C-3

eral regulations under the Supremacy Clause. Jd. at 4532.

The Court also held that such a plaintiff could not assert a

claim under 42 U.S.C. § 1983 without a reference to a con-

stitutional provision or a congressional act which provides

for equal rights, as required by 28 U.S.C. § 1348(3), or civil

rights, as mandated by 28 U.S.C. § 1343(4). Id. at 4533.

The Court ruled that a reliance upon the Social Security

Act as an avenue to jurisdiction under § 1343(3) or (4) is

unfounded since that act provides for neither equal rights

nor civil rights. Jd. at 4534.

Based upon this decision, the Defendants in the instant

case sought a rehearing on their Motion to Dismiss. The

Court granted the Defendants Motion for Rehearing, and

argument was heard at the hearing on June 22, 1979. The

Defendants contended that the original constitutional claims

had become moot, and, additionally, those claims had not

been of sufficient constitutional substance. The Plaintiffs

countered that their constitutional claims had been sub-

stantial and that the subsequent mootness was immaterial.

The Plaintiffs also raised an equal protection argument

that the thirty day difference between the state and federal

regulations created two classes of citizens without a ra-

tional basis for the distinction.

In Hagans v. Lavine, 415 U.S.’ 528 (1974), recipients of

AFDC benefits instituted a § 1983 action, alleging a viola-

tion of equal protection and a conflict between New York

and federal AFDC regulations. The Court in Hagans held

that 28 U.S.C. § 13438(8) does confer jurisdiction upon a

federal district court if there is a constitutional claim of suf-

ficient substance. Jd. at 536. A district court may not en-

tertain a claim which is wholly insubstantial, obviously

frivolous or no longer open to discussion. Jd. at 587. The

Court also held that if the constitutional claim is of suffi-

cient substance, a district court may hear the claim con-

cerning the conflict between federal and state law as a mat-

ter of pendent jurisdiction. Jd. at 586. The exercise of

pendent jurisdiction is proper whenever the state and fed-

eral claims derive from “a common nucleus of operative

fact.” United Mine Workers of America v. Gibbs, 383 U.S.

715, 725 (1966). See also Kimbrough v. Arkansas Activi-

Rikey

C-4

ties Association, 574 F.2d 423, 427 (5th Cir. 1978). Once

a court has determined that a substantial constitutional

claim has been alleged and that it has pendent jurisdiction

over the statutory claim, it should deal first with the latter

and not reach the former if the statutory claim is disposi-

tive. Hagans v. Lavine, 415 U.S. at 546.

Additionally, if the district court has determined that a

substantial constitutional claim was raised by the allega-

tions in the complaint, it retains jurisdiction over the pen-

dent claim even if the constitutional claim becomes moot.

See Rosado v. Wyman, 397 U.S. 397, 405 (1970). The Court

in Rosado stated that mootness is a factor in a district

court’s overall discretion in determining the pendent juris-

diction issue. Jd. at 403. Nonetheless, the issue of moot-

ness in no way affects a district court’s power to hear the

pendent claim. /d.

The decision in Chapman did not overrule or alter the

decisions in Hagans or Rosado. In Chapman, no substan-

tial constitutional claim had been raised. The Court in

Chapman merely ruled that without such a substantial

constitutional claim, federal jurisdiction is lacking when a

complaint alleges only a violation of 42 U.S.C. § 1983 due

to a conflict in federal and state regulations.

In the present case, the Court is of the opinion that the

constitutional claims alleged in the Plaintiffs’ Original Com-

plaint were indeed of a substantial nature. They were not

wholly insubstantial, obviously frivolous or no longer open

to discussion. The Plaintiffs have stated a claim under 42

U.S.C. § 1983 for violations of equal protection and due

process, and jurisdiction is extant pursuant to 28 U.S.C.

§ 1343.

Having determined that the allegations of the Complaint

raised substantial constitutional claims, the Court has the

power to hear the pendent claim provided that it and the

constitutional claims derived from a common nucleus of op-

erative fact. In the present case, it cannot reasonably be

argued that the constitutional and the statutory claims

were grounded upon the same challenges and were thor-

oughly interwoven. Since there were substantial constitu-

C-5

tional claims in the Complaint, their subsequent mootness

becomes irrelevant. The Court retained jurisdiction to de-

cide the pendent claim.

On December 19, 1978, the Court rendered a determina-

tion concerning the statutory claim in this case. Since the

Complaint contained substantial constitutional claims and

since the Court’s ruling on the statutory ground was dis-

positive, there was at that time, and there is now, no rea-

son to decide the federal constitutional issues. The Court

must, therefore, reject the Defendants’ argument concern-

ing their Motion to Dismiss.

The Clerk shall send a copy of this Memorandum and the

accompanying Final Judgment to all counsel.

DONE at Brownsville, Texas, on this the 3rd day of July,

1979.

Reynaldo G. Garza

UNITED STATES DISTRICT JUDGE

APPENDIX D

D-1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

DELFINO SILVA and JOSE MI-

RANDA, JR., individually and on

behalf of all others similarly

situated, CIVIL ACTION NUMBER

vs.

RAYMOND W. VOWELL, indi- 15-B-224

vidually and in his capacity as

Commissioner of the Texas De-

partment of Public Welfare, and

THE STATE DEPARTMENT OF

PUBLIC WELFARE

Texas Rural Legal Aid, Inc. (Gerald A. Garcia, of

Brownsville, Texas and George Powell, of Edin-

burg, Texas) for the Plaintiffs.

Honorable John L. Hill, Attorney General of Texas

(Frank C. Cooksey and C. J. Carl, Assistant Attor-

neys General) of Austin, Texas, for the Defendants.

MEMORANDUM AND ORDER

This is a civil action seeking declaratory and injunctive

relief to enforce certain provisions of the Social Security

Act of 1935, 49 Stat. 620, as amended, 42 U.S.C. §§ 301-

1397f, and the regulations promulgated thereto. Specifi-

cally, the Plaintiffs contended in their Original Complaint

that certain provisions of the Aid to Families with Depen-

dent Children Handbook published by the Texas Depart-

ment of Human Resources are in conflict with the cor-

responding provisions of the Social Security Act and the

pursuant regulations. The Plaintiffs ground their suit upon

42 U.S.C. § 1983. Jurisdic ‘ion is alleged under 28 U.S.C.

§§ 1331, 1837 and 1343. The Plaintiffs are attempting to lit-

igate this action on their own behalfs and on behalf of all

other persons similarly situated.

The present lawsuit, which began on December 10, 1975,

D-2

arose out of certain discrepancies between the state and

federal Aid to Families with Dependent Children [AFDC]

guidelines concerning the physical or mental incapacity of

parents who are seeking aid for their dependent children.

The Plaintiffs contended in their Original Complaint that

the failure of the state to follow the federal guidelines and

the Defendants’ practice of denying applications or termi-

nating benefits prior to a hearing amounted to a depriva-

tion of due process while acting under color of state law.

For reasons that will shortly be apparent, the Court need

not discuss the great bulk of the Plaintiffs’ original chal-

lenges.

Over eight months after the filing of the Complaint, the

parties agreed that all motions could be held in abeyance

until December 1, 1976. Due to the inactivity of both par-

ties, however, this cause was dismissed without prejudice

for want of prosecution on October 19, 1977. Upon motion

by the Plaintiffs, this Court reinstated the case on January

30, 1978.

On May 1, 1978, the Plaintiffs filed an Amended Motion

for Preliminary Injunction asking this Court to enjoin the

Defendants from failing to implement state AFDC regula-

tions which would comply with the federal requirements.

On the same day, the Plaintiffs filed their Motion for Sum-

mary Judgment requesting this Court to declare that such

Defendants’ failure to comply be declared unconstitutional

pursuant to the Due Process and Equal Protection Clauses

and that the Defendants be enjoined from not complying

with the federal regulations. The Plaintiffs renewed their

request that the case be certified as a class action. The Plain-

tiffs further requested that they be awarded those AFDC

benefits which were wrongfully denied them and, in addi-

tion, that they be awarded reasonable attorney’s fees.

The Plaintiffs’ supporting memorandum to the Motion

for Summary Judgment was filed on May 11, 1978, in which

the Plaintiffs claimed that the Defendants’ guidelines were

also unconstitutional under the Supremacy Clause. On the

same date the parties filed stipulations detailing the sub-

stantive issues remaining for decision. Included in the

stipulations were certain letters from the Department of

D-3

Health, Education and Welfare (HEW) and the number of

people whose applications were denied or benefits termi-

nated on the basis of lack of parental incapacity as defined

by the state regulations.

On May 17, 1978, the Texas Board of Human Resources

convened to consider a proposed revision to the state AFDC

Handbook concerning the definition of incapacity and the

procedure for such determination. This proposal was draft-

ed in response to the instant litigation. On that date, the

Board of Human Resources adopted the proposal, and it

was subsequently filed with the Secretary of State of Texas.

Section 2830 of the Revised Handbook which deals with

the definition of physical or mental incapacity now complies

with the corresponding federal regulation, 45 C.F.R.

§ 233.90 (c)(1)(iv), in all but one respect. This single con-

flict deals with the expected minimum duration period of

the incapacity. All other challenges made by the Plaintiffs

against the state AFDC guidelines have thus been ren-

dered moot by the adoption of the revised Texas Hand-

book. As to the mooted contentions, the need to discuss

them and render a decision thereupon is obviated.

On May 26, 1978, the Defendants filed their response in

opposition to Plaintiffs’ Motion for Summary Judgment and

Plaintiffs’ Amended Motion for Preliminary Injunction. The

Defendants do not object to the certification of the class fol-

lowing an appropriate hearing. The Defendants ground

their opposition upon the fact that the state’s guidelines

concerning the necessary waiting period to determine inca-

pacity had existed for almost twenty years with consistent

authorization and approval prior to written notification to

the contrary by the regional office of HE W on January 20,

1978. The Defendants state that before receipt of the above

letter, they had received letters of approval from HEW.

Because of these circumstances, the Defendants, believing

that all issues save for the time period discrepancy have

been mooted, filed an accompanying Motion to Stay Pro-

ceedings to allow HEW to institute and conclude confor-

mity proceedings pursuant to 45 C.F.R. §§ 201.4, 201.6

and 213. In the alternative, the Defendants request that

the Secretary of HEW, Mr. Joseph Califano, be made a

D-4

defendant pursuant to Rule 19(a) or 20(a) of the Federal

Rules of Civil Procedure or be allowed to intervene pur-

suant to Rule 24(a) or (b). Lastly, the Defendants request

that, upon denial of their motions to stay or to join or to

allow intervention of the Secretary of HEW, this Court

seek an amicus curiae statement from HEW in order to

clarify the issue of the expected duration period of the in-

capacity.

The Plaintiffs responded to the above pleadings on July

5, 1978. The Plaintiffs contend that the motions to stay and

in the alternative to join or allow intervention should be

denied since the Defendants have already been informed of

HEW’s position and the granting of -aid motion would re-

sult in an unnecessary delay. The Plaintiffs also contend

that other issues do remain besides the thirty day-sixty

day discrepancy. The Plaintiffs claim that this Court still

needs to decide the appropriateness of an injunction to al-

low the Plaintiffs’ cases to be reconsidered and the issues

of retroactive payments and attorney’s fees.

Based upon a consideration of the various pleadings filed

in this cause, this Court is of the opinion that the Plaintiffs

are entitled to a partial summary judgment concerning the

interpretation of the state AFDC Guidelines and an accom-

panying permanent injunction enjoining the Defendants

from operating under state guidelines which conflict with

the latter’s federal counterparts. Summary Judgment shall

be denied as far as any award of retroactive payments is

concerned. The Court will defer its ruling on the award of

attorney’s fees pending the submission of certain affidavits

as specified in the accompanying Order. It is the further

opinion of this Court that the Defendants’ Motions to Stay

Proceedings, to Join the Secretary of HEW and to Allow

Intervention of the Secretary of HEW and the request to

seek an amicus curiae statement from HEW should in all

respects be denied. The resolution of the remaining issues,

to wit, the existence vel non of a class, the necessity of the

issuance of injunctive relief enjoining the Defendants from

refusing to allow Plaintiffs to reapply and the issue of wheth-

er any Plaintiffs were denied their procedural due process

D-5

rights, can best be determined following an appropriate

oral hearing before the Court.

I, CONFLICT BETWEEN STATE AND FEDERAL

REGULATIONS

The only factual challenge remaining in this case revolves

around the sixty day expected incapacitation period found

in § 2830 of the Texas AFDC Revised Handbook and the

correlative thirty day period found in 45 C.F.R. § 233.90(c)

(1){iv). Section 233.90(c)(1)(iv) reads as follows:

(c) Federal financial participation.

(1) Federal financial participation under title IV-A

of the Social Security Act in payments with re-

spect to a “dependent child,” as defined in Section

406(a) of the Act, is available within the following

interpretations:

* * &

(iv) “Physical or mental incapacity.”

“Physical or mental incapacity” of a parent shall

be deemed to exist when one parent has a physi-

cal or mental defect, illness or impairment. The

incapacity shall be supported by competent medi-

cal testimony and must be of such a debilitating

nature as to reduce substantially or eliminate the

parent’s ability to support or care for the other-

wise eligible child and be expected to last for a pe-

riod of at least 30 days. In making the determina-

tion of ability to support, the agency shall take

into account the limited employment opportuni-

ties of handicapped individuals.

A finding of eligibility for OASDI or SSI benefits,

based on disability or blindness is acceptable proof

of incapacity for AFDC purposes.

Bn

D-6

The wording of § 2830 of the Texas AFDC Revised Hand-

book is identical with minor word changes except that the

expected minimum duration of the incapacity is set at sixty

days rather than thirty. The Plaintiffs contend that the

federal regulations are controlling on this issue and that any

conflict in wording between state and federal guidelines

must result in the former complying with the latter. The

Plaintiffs further contend that this conflict not only violates

the Social Security Act but the Due Process, Equal Protec-

tion and Supremacy Clauses as well. The Defendants in re-

sponse merely state that these guidelines have been used

for nearly twenty years and had never faced any form of

disapproval until the January 20, 1978 letter received from

HEW.

The purpose of the AFDC program is to provide aid and

services to needy families with dependent children. The

AFDC program is financed largely by the federal govern-

ment on a matching fund basis and is administered by the

states. A state is under no obligation to participate in the

program. If a state chooses to obtain the federal funds

available for distribution to needy children, however, it is

required to submit an AFDC plan for the approval of the

Secretary of HEW. The plan must conform with several re-

quirements of the Social Security Act and with the rules

and regulations promulgated by HEW. See King v. Smith,

392 U.S. 309, 316-19 (1968).

Each state has wide latitude in allocating its AFDC re-

sources. It is free to set its own criteria for measuring need

and to determine a level of benefits by the amount of funds

it directs to the program. See Lopez v. Vowell, 471 F. 2d

690, 693 (5th Cir. 1973), cert. denied, 411 U.S. 939 (1973).

Nonetheless, a state which seeks to qualify for federal AFDC

funding must operate a program which is not in conflict

with the Social Security Act. See Van Lare v. Hurley, 421

U.S. 338, 340 (1975). The Act itself provides in § 602(a)(10)

that “aid to families with dependent children shall . . . be

furnished with reasonable promptness to all eligible indi-

viduals. . . .” The term “eligible individuals” connotates a

federal standard of eligibility precluding a state from in-

D-7

truding upon that determination. See Carleson v. Remil-

lard, 406 U.S. 598, 600 (1972); Parks v. Harden, 504 F.2d

861, 868 (5th Cir. 1974); Lopez v. Vowell, supra, at 693.

The Supreme Court has held that a state may not deny aid

to persons who come within that federal standard of eligi-

bility in ‘he absence of a clear indication that Congress

meant the coverage to be optional. See Philbrook v. Glod-

gett, 421 U.S. 707, 719 (1975). No such indication is appar-

ent in the present action.

In this case, the pertinent federal standard is not in-

corporated in the statute itself. The section dealing with

physical and mental incapacity is found in the regulations

promulgated by the HEW. This fact has no effect in the de-

cision, however. The draftsmen of a congressional act can

not possibly foresee every possible contingency that might

arise. For this reason, Congress has provided the Secre-

tary of HEW with the power to “make and publish such

rules and regulations, not inconsistent with this chapter

[the Social Security Act], as may be necessary to the effi-

cient administration of the functions with which each is

charged under this chapter.” 42 U.S.C. § 1302. Section

1302 is an express delegation by Congress to the Secretary

to prescribe standards and interpret the statute. Those

regulations formulated and adopted by the Secretary are

to be given the full force and effect as the statute itself. See

Batterton v. Francis, 482 U.S. 416, 425 (1977); Smith v.

Vowell, 379 F. Supp. 139, 152 (W.D. Tex. 1974), aff’d, 504

F.2d 759 (5th Cir. 1974). The only situation which would al-

low a federal court to disregard federal regulations exists

when the Secretary’s interpretation is clearly erroneous or

unreasonable. See State oj Florida v. Mathews, 526 F.2d

319, 323 n. 10 (5th Cir. 1976). There is no such contention in

this case nor could there be under the present circumstances.

In the instant case, the State of Texas has seen fit to re-

quire an expected period of incapacity to be at least sixty

days. The corresponding federal regulations which provide

for thirty days did not become effective until 1974. In early

1974, HEW had apparently felt that the term “incapacity”

was vague, and it was stated that there was a need for

D-8

“greater clarity to achieve uniformly equitable administra-

tion.” 39 Fed. Reg. 4114 (1974). At the time the rule became

effective, HEW reiterated the purpose of the regulation as

establishing “a uniform Federal definition « ‘ncapacity of a

parent.” 39 Fed. Reg. 34,037 (1974). During the pendency

of the above proposed rule, the thirty day requirement was

criticized by welfare agencies. The majority of those agen-

cies recommended elimination of the time period, and a mi-

nority suggested increasing the time period to sixty or

ninety days. Id. By the retention of the thirty day rule, it

is clear that the Secretary found the thirty days to be a

necessary ingredient in the determination of incapacity.

Obviously, a sixty day time period was proposed and re-

jected in favor of the thirty days.

The Secretary has determined that thirty days is to be

the guiding time period. The State of Texas by requiring ©

an additional thirty days makes those applicants ineligible

who otherwise would qualify under the federal regulations.

It has been held that such a situation violates the Social Se-

curity Act and is therefore invalid under the Supremacy

Clause of the Constitution. See Townsend v. Shank, 404

U.S. 282, 286 (1971). See also Philbrook v. Glodgett, su-

pra, at 868. Having determined that the Defendants have

violated the Supremacy Clause of the Constitution, this

Court need not reach the issues of due process and equal

protection proffered by the Plaintiffs.

The fact that the Texas Board of Human Resources had

received prior approval from the HEW is irrelevant in this

Court’s decision concerning the state regulations. Clearly,

there can be little dispute as to HE W’s position after Janu-

ary 20, 1978 when it informed the Defendants of the error

in its prior approval. Even during the period preceding

January 20, 1978, the Court would have had difficulty in ac-

cording any weight to those earlier approval letters consid-

ering the fact that the pertinent federal regulation was

quite clear as to its meaning and its uniform purpose. Ad-

ministrative practice is only given deference by the courts

where the relevant statutory language is unclear or sus-

ceptible of different interpretation. See Shea vs. Vialpando,

D-9

416 U.S. 251, 262 n.11 (1974). Here § 233.90(c)(1)(iv), which

has the effect of a statute, is abundantly clearcut, and this

Court is of the opinion that even in the absence of the Janu-

ary 20th letter, it need not take cognizance of letters from

the regional office of HEW which are in direct conflict with

the statute and regulations promulgated thereto.

Il. THE DEFENDANTS’ MOTIONS

The Defendants cite this Court to certain regulations

promulgated by the Secretary of HEW which they contend

require this Court to defer judgment until various admin-

istrative proceedings are conducted. Specifically, the De-

fendants refer this Court to 45 C.F.R. §§ 201.4 and 201.6

and § 213, the latter merely providing the procedural mech-

anism for implementing the actions allowed in §§ 201.4 and

201.6.

Briefly, Section 201.4 allows a dissatisfied state, within

sixty days after an undesirable ruling by HEW on a pro-

posed state plan, to file a petition asking for reconsidera-

tion. Section 201.6 allows HEW to withhold or reduce fur-

ther payments to a state on the grounds that the state plan

does not comply with federal regulations.

This Court considers both of these regulations to be in-

apposite to the present problem. The State of Texas is ap-

parently not unsatisfied with the decision of the Depart-

ment since the state’s overall AFDC plan had received

approval in 1976. Even if it had been disapproved, the

sixty day time period allowed in § 201.4 has passed. Addi-

tionally, the Court does not see a great amount of merit to

an argument that the Court should wait for a proceeding

that must be instigated by the Defendants who may never

in fact do so.

Likewise, the Court sees little merit in the Defendants’

request as to § 201.6. Again, the Court is asked to wait for

a proceeding that may or may not ever materialize. The

question in this case is one for the Court to decide. There

exists an obvious conflict between a state and a federal reg-

ulation. In such instances the Supremacy Clause of the

United States allows this Court to prohibit such a situa-

D-10

tion. See, e.g., Townsend v. Shank, supra, at 286.

The Defendants also request in the alternative that the

Secretary of HEW be joined pursuant to Federal Rule of

Civil Procedure 19(a) or 20(a). In the present case, the Sec-

retary of HEW is a totally unnecessary party. Complete

relief can be accorded among the parties without his pres-

ence, and further, any interest the Secretary of HEW has

in the subject of this action would not impair or impede his

ability to protect that interest due to his absence. There is

no possibility that any of the parties in his absence will be

subject to a substantial risk of incurring double, multiple

or other inconsistent obligations by reason of his claimed

interest. The only interest that Mr. Califano might have is

that of requiring the states to comply with federal regula-

tions. This Court can make that decision without his pres-

ence. This Court believes that even allowing a permissive

joinder of the Secretary under Rule 20(a) would be a super-

fluous exercise which would needlessly delay the decision

of this case.

The Defendants further request that the Secretary be

allowed to intervene pursuant to Rule 24(a) or (b). Both

Rules 24(a) and (b) are completely inapplicable in the pres-

ent case. The purpose of intervention is to allow an out-

sider with an interest in a lawsuit to come in as a party al-

though he or she has not been named as a party by the

existing litigants. See 7A C. WRIGHT & A. MILLER,

FEDERAL PRACTICE AND PROCEDURE § 1901

(1972). Rule 24 can not be construed to allow a party al-

ready involved in a legal proceeding to bring in other par-

ties. Nor does the rule allow a court to grant intervention

sua sponte. Intervention can only occur upon a timely ap-

plication by one seeking to become a party in an action. Be-

cause of the Deiendants’ apparent misreading of the pur-

pose of Rule 24, this Court perceives no need to discuss it

further.

Lastly, the Defendants have asked that this Court seek

an amicus curiae statement from HEW. The United States

Supreme Court has stated that the district courts should

obtain the views of HE W in those situations where the lat-

D-11

ter has not set forth its views in a regulation or where

there is real doubt as to how the department standards ap-

ply to the particular state regulation or program. See Rosa-

do v. Wyman, 397 U.S. 397, 406-07 (1970). In the present

case, the Court is faced with a federal regulation that is

clear on its face in addition to a written notification by the

HEW that the Defendants’ program does not comply with

the federally mandated guidelines. There is no ambiguity

of interpretation or application of the federal regulations

and thus there is no need for the Court to seek any further

comment from HEW.

Ill. RETROACTIVE BENEFITS

Although prospective injunctive relief against state of-

ficers who violate citizens’ constitutional rights while act-

ing under color of state law has been allowed for seventy

years, see Ex Parte Young, 209 U.S. 128, 155-56 (1908),

the Eleventh Amendment remains a bar to plaintiffs seek-

ing monetary awards against such officials, which awards

will in actuality be paid from state treasuries. See Edel-

man v. Jordan, 415 U.S. 651, 677 (1974), rehearing denied,

416 U.S. 1000 (1974). The specific issue of payment of retro-

active AFDC benefits has been discussed and decided in a

number of cases. The bottom line of these decisions is that

claims for recovery of retroactive AFDC benefits are fore-

closed by the Eleventh Amendment. See Edelman v. Jor-

dan, supra, at 677; Houston Welfare Rights Organization,

Inc. v. Vowell, 555 F.2d 1219, 1227 (5th Cir. 1977), cert.

granted sub nom., Chapman v. Houston Welfare Rights

Organization, 434 U.S. 1061 (1978). In light of these deci-

sions, this Court is prohibited from granting any award of

retroactive AFDC benefits. Although the Plaintiffs may be

entitled to reapply for future benefits, they will not be al-

lowed to receive any past payments.

IV. ATTORNEY’S FEES

Unless there is applicable statutory or contractual au-

thorization for attorney’s fees, the general American rule

is that the prevailing party may not recover such fees. See

D-12

Alyeska Pipeline Service Company v. Wilderness Society,

421 U.S. 240, 257 (1975). At one time, awards of attorney’s

fees in cases against state agencies and their individual

members were barred under the Eleventh Amendment.

See Named Individual Members of the San Antonio Con-

servation Society v. Texas Highway Department, 496 F.2d

1017, 1026 (5th Cir. 1975), cert. denied, 420 U.S. 926 (1975).

The passage of the Civil Rights Attorney’s Fees Award of

1976, now codified in 42 U.S.C. § 1988, removed the Elev-

enth Amendment barrier against awarding attorney’s fees

for prevailing parties who bring actions under 42 U.S.C.

§§ 1981, 1982, 1983, 1985 and 1986. Since this Court has

granted a partial summary judgment for Plaintiffs, they

can be considered the prevailing party to the extent of that

judgment.

Nonetheless, a district court is not empowered to grant

an award of attorney’s fees to the prevailing party without

some showing by that party that it is entitled to such fees.

To aid a court in determining the reasonableness of attor-

ney’s fees in a § 1983 action, a number of factors need to be

considered. These include: 1) the time and labor required;

2) the skill requisite to properly perform the legal services;

3) the preclusion of other employment by the attorney due

to acceptance of the case; 4) the novelty and difficulty of

the case; 5) the customary fee; 6) whether the fee is fixed or

contingent; 7) the time limitation imposed by the client;

8) the amount of money involved and the results obtained; 9)

the experience, reputation and ability of the attorney; 10)

the undesirability of the case; 11) the nature and length

of the professional relationship with the client; and 12)

awards in similar cases. See Rainey v. Jackson State Col-

lege, 551 F.2d 672, 676 (5th Cir. 1977). The Fifth Circuit

has stated that it is mandatory for a district court when fix-

ing attorney’s fees to consider all of the above factors. See

Norwood vy. Harr.son, 581 F.2d 518, 520 (5th Cir. 1978).

This Court is aware that a prevailing party should or-

dinarily recover an attorney’s fees in a § 1983 case unless

special circumstances would render such an award unjust,

see Morrow vy. Dillard, 580 F.2d 1284, 1300 (5th Cir. 1978),

but it must first receive affidavits from counsel for the pre-

D-13

vailing party attesting to the above facts. Therefore, this

Court will require the submission of such affidavits in ac-

cordance with the specifications and restrictions delineated

in the accompanying Order.

V. DUE PROCESS RIGHT TO A HEARING

The Plaintiffs claimed in their Original Complaint that

the Defendants had denied applications and terminated

benefits without the opportunity of a pretermination hear-

ing. Although the other allegations in the Original Com-

plaint were constantly renewed in subsequent pleadings,

Plaintiffs made no further claim concerning the lack of pre-

termination hearings. The only rementioning of this issue

occurred in the stipulations which merely listed the num-

ber of applicants and/or recipients whose applications had

been denied or grants terminated. Since it was not men-

tioned in the Motion for Summary Judgment or the Amend-

ed Motion for Preliminary Injunction, this Court is unsure

whether the Plaintiffs are still maintaining such a claim.

In the possibility that it is still a viable contention, the

Court will give brief attention to the matter. Goldberg v.

Kelly, 397 U.S. 254 (1970), concerned an action brought by

recipients of AFDC payments. The Supreme Court in that

case held that welfare benefits are a matter of statutory

entitlement for persons qualified to receive them, id. at

262, and any discontinuation of those benefits must be pre-

ceded by a termination hearing which provides the recip-

ient with procedural due process. /d. at 264. Therefore, if

the Texas Department of Human Resources has termi-

nated any benefits without such a pretermination hearing

there has been a violation of due process. Those Plaintiffs

who have merely been denied applications for aid are not

entitled to a predenial hearing although 45 C.F.R. § 205.10

(a)(8) and (5) grant to such plaintiffs the opportunity for a

‘hearing subsequent to the denial. This particular issue,

however, cannot be determined upon the presently avail-

able pleadings and would need to be reserved for deter-

mination after a hearing.

D-14

Based upon the above it is hereby

ORDERED that the Plaintiffs’ Motion for Summary

Judgment is GRANTED in part insofar as concerns the

conflict between the Texas AFDC regulations and the fed-

eral regulations, specifically the use of the number “60” in

§ 2830 of the state regulations in opposition to the number

“30” in 45 C.F.R. § 233.90(c)(1)(iv).

It is further ORDERED that in light of the above partial

summary judgment, a permanent injunction shall imme-

diately issue enjoining the Defendants from the use of the

sixty day waiting period which is in direct contravention of

the federal regulations in 45 C.F.R. § 233.90(c)(1)(iv) which -

provides for only a thirty day expected duration of inca-

pacity.

It is further ORDERED that the Plaintiffs’ Motion for

Summary Judgment insofar as concerns the award of

retroactive AFDC benefits to any and all Plaintiffs is in all

respects DENIED.

It is further ORDERED that the Defendants’ Motion to

Stay Proceedings and in the Alternative to Join or to Allow

Intervention of Joseph Califano, Secretary of HEW, is in

all respects DENIED.

It is further ORDERED that the Defendants’ request

that this Court seek an amicus curiae statement from

HEW is in all respects DENIED.

It is further ORDERED that counsel for Plaintiffs sub-

mit within thirty days from the date of this Memorandum

and Order a sworn affidavit attesting to the following fac-

tors which were present in this case, all of which shall in-

clude no information as to any legal services rendered or

activities occuring after the date of this Memorandum and

Order:

1) time and labor required;

2) the skill requisite to properly perform the legal

services;

3) the preclusion of other employment by the at-

torney due to acceptance of the case;

4) the novelty and difficulty of the case;

5) the customary fee;

D-15

6) whether the fee is fixed or contingent;

7) the time limitation imposed by the client;

8) the amount of money involved and the results

obtained;

9) the experience, reputation and ability of the at-

torney;

10) the undesirability of the case;

11) the nature and length of the professional rela-

tionship with the client; and

12) awards in similar cases.

It is further ORDERED that counsel for the Plaintiffs

also submit within thirty days from the date of this Memo-

randum and Order an affidavit completed by an impartial

attorney who has knowledge of similar actions attesting to

the same factors as above, all of which shall include no in-

formation as to legal services rendered or activities occur-

ring after the date of this Memorandum and Order.

It is further ORDERED that in the interest of justice

and to facilitate a fair and orderly disposition of this case,

an oral hearing be scheduled at 9 o’clock on February 9th,

1979, for the purposes of .

1) determining the necessity vel non of a class ac-

tion; and

2) if the class is certified, determining whether an

injunction should issue requiring the Defendants to al-

low some or all of the members of such class to reapply

under state regulations that comply with their federal

counterparts in order to have their cases reconsidered;

and

3) if the class is certified, determining whether the

Defendants have deprived some or all of the members

of such class of their rights to procedural due process

regarding the denial of applications or the termination

of benefits.

If counsel for the Plaintiffs is successful at the above

hearing, the Court will at that time receive for considera-

tion any further affidavits concerning the award of attor-

ney’s fees covering the time period between the date of

this Memorandum and Order and the date of the above

hearing.

D-16

The Clerk shall send a copy of this Memorandum and

Order to all counsel.

DONE at Brownsville, Texas, on this the 19th day of De-

cember, 1978.

APPENDIX E

E-1

Reynaldo G. Garza

UNITED STATES DISTRICT JUDGE

United States Court of Appeals

FIFTH CIRCUIT

OFFICE OF THE CLERK

August 20, 1980

TO ALL PARTIES LISTED BELOW:

NO. 79-2905—DELFINO SILVA ANDJOSE MIRANDA,

JR., ETC. vs. RAYMOND W. VOWELL, ETC.

Dear Counsel:

This is to advise that an order has this day been entered

denying the petition ( ) for rehearing, and no member of

the panel nor Judge in regular active service on the Court

having requested that the Court be polled on rehearing en

banc (Rule 35, Federal Rules of Appellate Procedure; Lo-

eal Fifth Circuit Rule 16) the petition ( ) for rehearing en

banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for is-

suance and stay of the mandate.

Very truly yours,

GILBERT F. GANUCHEAJU, Clerk

By Sally Hayward

Deputy Clerk

ec: Ms. Kathryn A. Reed

Mr. Gerald A. Garcia

Mr. Jose Antonio Gomez