Petition for Writ of Certiorari — Middleton v. Perales

Supreme Court, U.S,

91-5 FILED

No. “"T MAR 29 1991

“OFFICE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

SHIRLEY MIDDLETON,

Petitione

vs.

CESAR PERALES as Commissioner of the New York State

Department of Social Services, and WILLIAM GRINKER (as

successor to HARVEY ROBBINS), as Commissioner of the New

York City Department of Social Services,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE APPELLATE DIVISION

SUPREME COURT OF NEW YORK

SECOND JUDICIAL DEPARTMENT

*PAUL E. KERSON

118-35 Queens Blvd. Suite 1000

Forest Hills, NY 11375

(718) 798-8822

MARTIN S. NEEDELMAN, ESQ.

BY: PAUL J. ACINAPURA, ESQ.

TERRY HERMAN and

RICHARD J. WAGNER, Of Counsel

Brooklyn Legal Services Corp. "A"

80 Jamaica Avenv

Brooklyn, NY 11207

(718) 345-6200

* Counsel of Record

QUESTIONS PRESENTED

Whether the Court below violatea the Supremacy Clause

of the United States Constitution by repudiating the

federal standards for awarding attorneys fees under 42

U.S.C. §1988.

Whether the Petitioner alleged a substantial federal

claim warranting an award of attorneys’ fees under 42

U.S.C, $1988.

TABLE OF CONTENTS

Page:

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ES Sh abs :e 600-40 00.04.48 oS eee 2

DT, cc cvevececcesverevssseaeene 2

DPPC UIPGMOD ccctccceeceueeeseupuns 6

es bdséenes ceendecsaeee beeen ee 9

sa ba en okt he dns a oe 23

Appendix A (Court of Appeals Order) ........... la

Appendix B (Appellate Division, Second Dept.

DP ceceeretvotkvevcereseeseseduas 3a

Appendix C (Supreme Court,

Res COUiy TRPUEMEGE) 0 ww ccc rc cceses 6a

Appendix D (Appellate Division,

I EE eee ee 12a

Appendix E (Respondent Perales’

decision after Fair Hearing,

I EE vc tcc cceesensewus l4a

A an A I i nasa

Appendix F (Linden Center

Memorandum RE: Non-compliance

ccc ee tees 17a

Appendix G (Respondent Perales’

decision after Fair Hearing )

ct ccc te ee eee 18a

Appendix H (Supreme Court,

Kings County, Order, dated

EES 6a 5 6 5 be pb +s 00 ee oe. 23a

Appendix I (Supreme Court,

Kings County, Order, dated

EEE eee 25a

TABLE OF AUTHORITIES

Cases: Page:

Alexander v. Polk, 750 F.2d 250,

ES ee eee wee ee 19

Allen v. District of Columbia, 503

od 00 eo Ce OU eels ee 15

Atkins v. Parker, 472 U.S. 115, 105

eh BF E.R 22

Sete Nh a RES, enema ethane map edetiols

Brown v. City of Newark, 202 N.J.

Super. Ct. 1493 A.2d 1255 (Sup. Ct.

N.J. App. Div. 1985) aff. in part,

rev in part, 113 N.J. 565, 552 A.2d

pe ee 15

County Executive of Prince George’s

County v. Doe, 300 Md.445 479 A.2d

RE 15

Cruz v. Perales, 158 A.D.2d 597,

551 N.Y.S.2d 569 (2d Dept. 1990) ......... 11, 14, 15

Davis v. Everrett, 443 So.2d 1232

i ee ee Cb eter ew ee eee 15

Felder v. Casey, 487 U.S. 131, 108

fom: Ee Be & Sect). \ 12, 19

Fusari v. Steinberg, 419 U.S.379,

ee RE he re 22

A NOON it 2

iv

Cases: Page:

Garrett v. Moore-McCormack Co., 317

U.S. 239, 63 S.Ct.246, 87 L.E. 239 (1942) ......... 12

Golden Gate Transit Corp., 493 U.S.

__, 110 S.Ct. 444, 107 L.E.2d 420

ie Fe Bore abe ob seek ec ee ee 19, 20, 24

Hagens v. Levine, 415 U.S. 528, 94

S.Ct. 1342, 39 L.E.2d 577 (1974) ....... 11, 13, 21, 24

Haskins v. Stanton, 794 F.2d 1273

I ea 21

Hensley v. Eckerhart, 461 U.S. 424,

103 S.Ct. 1935, 76 L.E.2d 40 (1963) ..........2.. 18

Howlett v. Rose, 496 U.S.__, 110

S.Ct. 2430, 110 L.E.2d 332 (1990) ......... 12, 15-17

International Association of |

Machinists and Aerospace Workers v.

Affieck, 504 A.2d 468 (R.I. 1986) ............... 15

Johnson v. Blum, 58 N.Y.2d 449, 461

N.Y.S.2d 782, 448 N.E.2d 449 (1983) ............ 15

Loft v. State Board of Higher

Education, 89 Or. App. 614, 750 P.2d

I Sab k's ou oie so 440-0 0.0.0d0 6b e-oh 15

i —

Cases: Page:

Maher v. Gagne, 448 U.S. 122, 100

S.Ct. 2570, 65 L.E.2d 653 (1980). . 12, 13, 15, 18, 21, 24

Maine v. Thiboutot, 448 U.S. 1,

100 S.Ct. 2502, 65 L.E.2d 555 (1980) ....... 10, 18, 14

Martinez v. California, 444 U.S. 277,

100 S.Ct. 553, 62 L.E.2d 481 (1980) ............. 12

McKnett v. St. Louis and San Francisco

Railroad Co. , 292 U.S. 230, 54 S.Ct.

EE hr 16, 17

Middleton v. Perales, __A.D.2d__.,

554 N.Y.S.2d 71 (2d Dept. 1990) ..... ee

Minneapolis and St. Louis Railroad Co.

v. Bomboles, 241 U.S. 211, 36 S.Ct.595,

RR ee 18

Mandous v. New York, N.H. & H.R. Co.,

223 U.S. 1 32 S.Ct. 169, 56 L.E. 327

EE ee a ee 16

Monell v. New York City Department of

Social Services, 56 L.E 2d 611 (1978) ............ 16

Monessen Southwestern Railroad Co. v.

Morgan, 486 U.S. 330, 108 S.Ct. 1837,

I pk cece eee eeeeer 16

vi

Cases: Page:

Nelson v. Sugarman, 361 F.Supp, 457 U.S.

ee us A Ee EEE Ck ee oc cc cc ee 22-23

Rashid v. Perales, 149 A.D.2d 692, 549

N.Y.S.2d 166 (2d Dept. 1989) ............ 11, 13, 14

Rozier v. Perales, 149 A.D.2d 710, 540

__N.Y.S.2d 504 (2d Dept. 1989), appeal

denied 74 N. Y.2d 933, 550 N. Y.S.2d 274

we er eee 11, 13, 14

Samuels v. District of Columbia, 770

em PN ee ED es ccc tcc cweccee 19

Shands v. Tull, 602 F.2d 1156 (3rd Cir.

ee ea aia 5 oe be es ee oO 23

Testa v. Katt, 330 U.S. 386, 67 S.Ct.

re 16-18

Thomasel v. Perales, __A.D.2d_,

555 N.Y.S.2d 423 (2d Dept. 1990) ...... 11, 14, 23, 24

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

715, 86 S.Ct. 1130, 16 L.E.2d 218 (1966) ......... 13

United States v. Price, 383 U.S. 787,

3o5.Ce. 1152 16 L.E.26 267 (1966) ..........2-- 19

Cases: Page:

Will v. Michigan Department of State

Police, 491 U.S.___, 109 §.Ct. 2304,

i eee e eka es vee cere cee 16

Zellweger v. New York State Department

of Social Services, 74 N.Y.2d 404, 547

N.Y.S.2d 824, 547 N.E.2d 79 (1989) ........... 23-24

Constituti

United States Constitution, Article VI,

Te aig Bie pig 2, 10-12, 15-18, 24

SS ak a a ae hers ea a i Se ale ate 17

United States Constitution, Fourteenth

I a 0 ee ee aaa 3, 13, 14, 22, 23

Statutes

SS 50h Sat eS eas ewe a 4

42 U.S.C. §1983 .. 3,9, 10, 11, 15, 16, 18, 19, 21, 23, 24

5 ae 3,9, 10, 11, 12, 15, 19, 24

ELE EEN ASAT RE TS TS 17

50 U.S.C. App. 925(e); terminated .............. 17

viii

Cases: Page

Statutes

New York State Social Services Law

OGRE eo 6 hee soe cece ee 8 5

New York State Social Services Law

Gy a 5-6

Regulations

pee 8 By BO” | 4-5, 13, 19-20, 22

EE gn ob cb eve Wwe ee 5, 13, 20, 22

Ce eM 14

18 N.Y.C.R.R. former 358.18(a)(1)

and 358.22 (amended to 358-6.4) ............. 6, 13

Other Authorities

ey ae 10

Bees Bs HU, DPESSMAISIO) 2 wc ccc ewes 12, 18

H.R. Rep. No. 464, 95th Cong. Ist

Session 398, reprinted in 1977, U.S.

Code Cong. & Admin. News 1978, 2327. .......... 21

ix

Cases: Page:

U.S. Code Cong. & Admin. News 1976 at 5913. ..... 10

—eEO~w Oo —“<;S...S:”:”:é<‘< ‘ CSC ;SSTSS,S,STLmhl ee

a Oe Se er ey

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM ,1990

NO.

SHIRLEY MIDDLETON

Petitioner,

VS.

CESAR PERALES, as Commissioner of the New York State

Department of Social Services, and WILLIAM GRINKER (as

successor to HARVEY ROBBINS), as Commissioner of the New

York City Department of Social Services

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE APPELLATE DIVISION

SUPREME COURT OF NEW YORK

SECOND JUDICIAL DEPARTMENT

The petitioner, Shirley Middleton, by and through her

counsel, petitions for a Writ of Certiori to review the judgment of

the Appellate Division of the Supreme Court of the State of New

York, Second Judicial Department in this case.

OPINIONS BELOW

The order of the Court of Appeals of New York, denying

petitioner’s motion for leave to appeal from an order of the

1

Supreme Court of the State of New York, Appellate Division,

Second Department is not reported (App.,infra, 1a). The opinion of

the Appellate Division, Second Department is reported at 160

A.D.2d 800, 554 N. Y.S.2d 71 (App., infra 2a-Sa). The opinion of

the Supreme Court, Kings County, is not reported (App., infra, 4a-

8a).

JURISDICTION

The judgment of the Appellate Division of the Supreme

Court of the State of New York, Second Department, was entered

on April 9, 1990 (App., infra, 2a). A motion to the Second

Department for leave to appeal to the Court of Appeals was denied

on July 3, 1990 (App., infra, 9a). A motion to the Court of

Appeals for leave to appeal was denied on December 20, 1990

(App., infra, 1a). The jurisdiction of this Court is invoked under

28 U.S.C. Section 1257(a).

APPLICABLE LAW

FEDERAL LAW

Article VI, Clause 2 of the United States Constitution

provides: ;

This Constitution and the laws of the United States

which shall be made in Pursuance thereof; and all

Treaties made, or which shall be made, under the

Authority of the United States, shall be the Supreme

Law of the Land; and the Judges in every State shall

be bound thereby, anything in the Constitution or

Laws of any State to the Contrary notwithstanding.

- 2

AA te sr nc ets Sil

The Fourteenth Amendment to the United States

Constitution provides in relevant part:

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of

the United States, nor shall any State deprive any

person of life, iiberty or property without due

process of law...

The Civil Rights Attorney’s Fees Awards Act of 1976, 42

U.S.C. §1988, provides in relevant part:

...In any action or proceeding to enforce a provision

of Sections 1981, 1982, 1983, 1985 and 1986 of this

Title, ...the court in its discretion, may allow the

prevailing party, other than the United States, a

reasonable attorney’s fee as part of the costs.

42 U.S.C. Section 1983 provides:

Every person who, under color of any statute,

ordinance, regulation, custom or usage, of any State

or territory or the District of Columbia, _ subjects

or causes to be subjected, any citizen of the United

States or any other person within the jurisdiction

thereof to the deprivation of any rights, privileges,

or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at

law, suit in equity, or other proper proceeding for

redress.

7 U.S.C. Section 2020(e) of the Food Stamp Act provides

in relevant part:

The State plan of operation required under

subsection (d) of this section shall provide, among

such other provisions as may be required by

regulation:

(10) for the granting of a fair

hearing and a prompt determination

thereafter to any household

aggrieved by the action of the State

agency under any provision of its

plan of operation as it affects the

participation of such household in

the food stamp program...

7 C.F.R. Section 273.15 of the regulations of the Food and

Nutrition Service of the United State Department of Agriculture

provides in relevant part:

(a) Availability of hearings. Except as provided in

Section 271.7(f), each State agency shall provide a

fair hearing to any household aggrieved by any

action of the State agency which affects the

participation of the household in the Program.

(c) Timely action on hearings-(1) State level

hearings. Within 60 days of the receipt of a request

for a fair hearing, the State agency shall assure that

the hearing is conducted, a decision is reached, and

the household and local agency are notified of the

decision. Decisions which result in an increase in

household benefits shall be reflected in the coupon

allotment within 10 days of the receipt of the

hearing decision even if the State agency must

4

ee a

ol:

SOR a ah lr NE ANE ne ae Ml i a iil at el al a a! Cs a al at

ae gee

provide a supplementary ATP or otherwise provide

the household with an opportunity to obtain the

allotment outside of the normal issuance cycle.

However, the State agency may take longer than 10

days if it elects to make the decision effective in the

household’s normal issuance cycle, provided that

the issuance will occur within 60 days from the

household’s request for the hearing...

(s) Implementation of final State agency decisions.

The State agency is responsible for insuring that all

final hearing decisions are reflected in the

household’s coupon allotment within the time limits

specified in paragraph (c) of this section.

STATE LAW

Section 22(9)(a) of the New York State Social Services Law

provides:

All decisions of the Commissioner pursuant to this

section shall be binding upon the social services

districts involved and shall be complied with by the

social services officials thereof.

Section 34(3)(e) of the New York State Social Services Law

provides: }

The commissioner shall enforce this chapter and the

regulations of the department within the State and in

the local government units.

18 N. Y.C.R.R. Section 358-6.4 [formerly 358.18(a)(1)]

provides in relevant part:

(b)(1) For all cases involving food stamp issues

only the decision must be issued and the parties

notified of the decision within 60 days of receipt of

the request for the fair hearing by the department.

(2) If the decision will result in an increase in

household food stamp benefits, social services

agencies must reflect such increase in the coupon

allotment within 10 days of the receipt of the

hearing decision: however, the increase may occur

later than 10 days after the decision if the social

services agency decides to make the decision

effective in the household’s normal issuance cycle

and the issuance will occur within 60 days from the

household’s request for a hearing...

STATEMENT OF THE CASE

Petitioner commenced this proceeding in the Supreme Court

of the State of New York, County of Kings, on or about November

18, 1986, to compel the New York City Department of Social

Services (city agency) to restore her food stamp benefits pursuant

to respondent Perales’ decision after a fair hearing, dated August

18, 1986 (App., infra, 10a-12a).

The city agency discontinued petitioner’s food stamp

aliotment in January, 1986, without written notice to her, for

6

allegedly failing to verify her household income. Prior to the

discontinuance, petitioner had been receiving food stamps for

herself, two daughters, ages 20 and 14, her 6 year-old grandchild,

and three foster children, ages 12, 11 and 5.

Petitioner challenged the termination of her food stamps at

a fair hearing befor. the New York State Department of Social

Services (state agency). On August 18, 1986, respondent Perales

rendered a decision holding that the discontinuance was incorrect

and directing the city agency to restore petitioner’s food stamps

retroactive to the date they were terminated (App., infra, 10a-12a).

Petitioner attempted to obtain compliance with the decision

but the city agency was determined to disobey the State agency’s

directive. On August 26, 1986, petitioner’s attorney sent a letter to

the city agency’s Linden Income Maintenance Center requesting

that her food stamps be restored pursuant to the decision. About

ten days later, an employee of the Center told petitioner that the

decision would not be implemented because the discontinuance of

her food stamps was correct. This led petitioner’s attorney to write

another letter to the Center and to make a written complaint to the

State agency’s fair hearing compliance unit.

Despite petitioner’s efforts to gain compliance with

respondent Perales’ directive, the Linden Center refused to restore

petitioner’s food stamps. It even went so far as to send the city

agency’s Fair Hearing Monitoring Section a memorandum stating

that it would not comply with the hearing decision because it

believed petitioner was not entitled to any food stamps. This

memorandum was received by the state agency but it took no action

to demand compliance.

Due to the lawlessness of the city agency and the inaction of

the state agency, petitioner was compelled to bring this proceeding

-

to obtain compliance with the hearing decision. The respondents

did not oppose the petition, and on January 6, 1987, the city agency

issued petitioner more than $900 in retroactive food stamps.

Consequently, petitioner withdrew the proceeding.

The Linden Center, however, continued to engage in further

unlawful action, discontinuing petitioner’s food stamps the very

next month. This time it sent her a notice, dated December 24,

1986, stating that it intended to terminate her food stamps for

failing to verify the household’s foster care and Supplemental

Security Income. The notice stated that this action was being taken

in compliance with the August, 1986 hearing decision. This

statement reflected a total distortion of that decision, which

emphasized that petitioner was never requested to verify her

household income (App., infra, 11a).

As a result of the discontinuance, petitioner was forced to

attend another hearing on the same issue previously decided in her

favor. On April 15, 1987, respondent Perales rendered a decision

reversing the city agency and ordering it to restore her benefit

(App., infra, 13a-16a)

Although the city agency provided petitioner with food

stamps for February, 1987 through May, 1987, it discontinued

them, without notice, for a third time in May, 1987, prompting

petitioner to restore this proceeding to the calendar. In July, 1987,

the city agency agreed to enter into a Consent Order to comply with

both hearing decisions, and on August 6, 1987, the lower court

signed the order (App., infra, 17a-18a)

On November 25, 1987, petitioner moved for attorney’s

fees pursuant to 42 U.S.C Section 1988, alleging that she was a

prevailing party in a proceeding pursuant to 42 U.S.C. Section

1983. In a decision issued on April 14, 1988, the lower court held

etait tha tte eae

that petitioner was entitled to an award of attorney’s fees and that

respondent Perales was solely responsible for payment (App.., infra,

4a-8a).

An order and judgment was entered on June 28, 1988

requiring respondent Perales to pay $3,662.50 in attorney’s fees

(App., infra, 19a-20a). Respondent Perales took an appeal from this

order.

On April 9, 1990, the Appellate Division of the New York

State Supreme Court for the Second Judicial Department, rendered

a unanimous decision reversing the lower court’s order (App.,

infra, 2a-3a). The Second Department maintained that attorney’s

fees were not warranted because a proceeding to compel

compliance with a fair hearing decision deals with the

administrative application of state statutes and regulations, and

petitioner failed to show a violation of any rights created by federal

law.

On May 25, 1990, petitioner made a motion to the Second

Department requesting permission to appeal to the Court of

Appeals. The motion was denied on July 3, 1990 (App., infra, 9a).

Petitioner then asked the Court of Appeals for leave to appeal but

this request was denied in a decision issued on December 20, 1990

(App., infra, 1a).

I. ARGUMENT

The New York State Court of Appeals and New York State

Supreme Court, Appellate Division, Second Department are failing

and refusing to apply Federal Decisional Law and Principles

interpreting 42 U.S.C. §§1983 and 1988 in violation of the

Supremacy Clause of the United States Constitution.

In Maine v. Thibitout, 448 U.S. 1,11, 100 S.Ct. 2502,

2508, 65 L.E.2d 555 (1980), this Court stated that Congress

considered the attorney’s fees authorized by 42 U.S.C. Section

1988 to be an “integral part of the remedies necessary to obtain"

compliance with 42 U.S.C Section 1983. See S.R. No. 94-1011,

p.5 (1976); U.S Code Cong. and Admin. News 1976 at 5913.

Consistent with this purpose, and by virtue of the Supremacy

Clause, the Court held that attorney’s fees are part of the Section

1983 remedy in state, as well as federal court. It was noted that if

fees were not available in state courts, federalism concerns would

be raised because plaintiffs would be compelled to bring complaints

regarding state actions in federal court. 448 U.S. at 11, n.12, 100

S.Ct. at 2508, n.12.

The decision which this Court is being asked to review

reflects an ominous pattern in which the Appellate Division, Second

Department of the Supreme Court of the State of New York is

severely limiting the ability of recipients of government benefits to

obtain attorney’s fees under 42 U.S.C. Section 1988.' In violation

of its obligation under the Supremacy Clause, the Appellate

Division often has refused to take cognizance of substantial federal

Claims asserted by petitioners who prevail in proceedings brought

under Section 1983, and/has misstated the test regarding entitlement

' Thomasel v. Perales, 161 A.D.2d 646, 555 N.Y.S.2d 423

(2d Dept. 1990); Cruz v. Perales, 158 A.D.2d 597, 551 N. Y.S.2d

569 (2d Dept. 1990); Rashid v. Perales, 156 A.D.2d 692, 549

N.Y.S.2d 166 (2d Dept. 1989); Rozier v. Perales, 149 A.D.2d

710, 540 N. Y.S.2d 504 (2d Dept. 1989) appeal denied. 74 N. Y.2d

993, 550 N.Y.S.2d 274, 549 N.Y.S.2d 476 (1989).

10

7

to attorney’s fees. In this case, the Appellate Division, stated the

case as follows:

There was no showing by the petitioner of a

violation of any constitutional right, or the violation

by the state of any right created by Federal Law....

There was therefore no bonafide civil rights claim

pursuant to 42 U.S.C. §1983 which would warrant

an award of attorney’s fees. Middleton v. Perales,

160 A.D.2d 800, 801, 554 N.Y.S.2d 71, 72 (2d

Dept 1990). [emphasis added]

The above test clearly violates the standards established by

this Court for determining whether a cognizable Section 1983 claim

has been asserted which would entitle a person to attorney’s fees.

See, Maher v. Gagne 448 U.S. 122, 133, n. 15, 100 S.Ct. 2570,

2576, n. 15, 65 L.E.1 2d 653 (1980); Hagans v. Lavine, 415 U.S.

528, 94 S.Ct. 1342, 39 L.Ed.2d 577 (1974). By requiring an actual

showing of a violation of federal law in cases where the petitioner

obtained relief through a settlement or consent order, the Appellate

Division has distorted the "substantiality” test set forth in Hagens

y. Lavinia, supra (See infra. 21).

It is beyond dispute that when an action is brought in state

court to enforce rights under federal law, the Supremacy Clause

requires that federal law and policy be enforced. Howlett v. Rose,

496 U.S.__, 110 S.Ct. 2430, 2438, 110 L.E.2d 332 (1990); Felder

v. Casey, 487 U.S. 131, 143, 108 S.Ct. 2302, 2309 101 L.E.2d

123 (1988); Martinez v. California, 444 U.S. 277, 284, 100 S.Ct.

553, 558, 62 L.E.2d 481 (1980). The Supremacy Clause makes

federal laws the Supreme Law of the Land and "...charges state

courts with a coordinate responsibility to enforce..." them. Howlett

v. Rose, 496 U.S. at__, 110 S.Ct. at 2438. When a state court

action seeks to enforce federal law, the state court is "...bound to

11

proceed in such manner that all the substantial rights of the parties

under controlling federal law [are] protected." Felder v. Casey,

487 U.S. at i51, 108 S.Ct. at 2313, quoting from Garrett v.

Moore-McCormack Co., 317 U.S. 239, 245, 63 S.Ct. 246, 251, 87

L.E.2d 239 (1942).

In cases’such as the this one, plaintiffs who request

attorney’s fees under Section 1988 frequently seek relief on both

federal and state grounds. It is well-established that if the plaintiff

prevailed on state law grounds, and the federal claim was not

addressed in either the judgment or settlement, the court must

assess the federal claim to determine if attorney’s fees are

warranted. In Maher v. Gagne, 448 U.S. at 133, n. 15, 100 S.Ct.

at 2576, n.15, 65 L.E.1 2d 653 (1980), quoting H.R. Rep. No. 94-

1558, p.4, n.7 (1976), this Court observed:

To the extent a plaintiff joins a claim under one of

the statutes enumerated in H.R. 15460 with a claim

that does not allow attorney’s fees, that plaintiff, if

it prevails on the non-fee claim is entitled toa

determination on the other claim for purposes of

awarding counsel fees... In such cases, if the claim

for which fees may be awarded meets the

substantiality test, see Hagens v. Lavine, 415 U.S.

528, 94 S.Ct. 1342, 39 L.E.2d 577 (1974); United

Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct.

1130, 16 L.E. 2d 218 (1966), attorneys’ fees may

RK be allowed even though the court declines to enter

judgment for the plaintiff on that claim, so long as

the plaintiff prevails on the non-fee claim arising out

of a common nucieus of operative fact.

In the instant case, as well as in many others, the Appellate

Division, Second Department in New York has failed to apply the

12

above standard in determining whether attorney’s fees should be

awarded. The petitioner herein alleged that the failure of the city

agency to restore her food stamps pursuant to a fair hearing

decision violated her rights under both state and federal laws. In

particular, she alleged that the city agency violated both state and

federal regulations regarding compliance with hearing decisions

involving food stamps 7 C.F.R. Sec 273.15 (c)(1) and (s); 18

N.Y.C.R.R. Sec. 358. 18(a)(1) and 358.22. She also contended that

the refusal to comply with the decision violated her due process

rights under the United States Constitution. The Appellate

Division, however, failed to make any reference to the federal

claims and held that petitioner was not entitled to attorney’s fees

because the proceeding merely involved the application of state

statutes and regulations. Middleton v. Perales, 160 A.D.2d at, 801,

554 N.Y.S.2d at, 72 (2d Dept. 1990).

In Rashid v. Perales, 156 A.D.2d 692, 549 N.Y.S. 2d 166

(2d Dept. 1989) and Rozier v. Perales, 149 A.D.2d 710, 540

N. Y.S.2d 504 (2d Dept. 1989), appeal denied 74 N. Y.2d 933, 550

N. Y.S.2d 274, 549 N.E.2d 476 (1989) , the petitioners also alleged

that the local agency’s failure to comply with a fair hearing

decision, violated their rights under federal regulations and the due

process clause of the United States Constitution. In Rozier, 156

A.D.2d at 692, 540 N. Y.S.2d at 541, the court failed even to

acknowledge the federal claims, holding that the underlying

proceeding involved only state law. The court, in denying fees in

Rashid, 549 N.Y.S.2d at 167, addressed only one of the federal

claims alleged. It completely ignored the federal regulation

governing compliance with hearing decisions concerning food

stamps, and the due process claim.

In Thomasel v. Perales, 161 A.D.2d 646, 555 N.Y.S.2d

423 (2d Dept. 1990), the petitioner alleged that her due process

rights were violated by the city agency’s failure to provide her with

13

her public assistance benefits pending the outcome of her fair

hearing. Once again, the court denied fees on the ground that the

proceeding concerned the application of state law only, disregarding

the federal due process claim alleged (161 A.D.2d 646, 555

N.Y.S.2d at 424).

Finally, in Cruz v. Perales, 158 A.D.2d 597, 551

N.Y.S.2D 569 (2d Dept. 1990), the petitioner alleged that the state

agency violated her federal rights by issuing a decision affirming

the city agency’s discontinuance of her public assistance benefits

due to her alleged possession of resources in excess of the allowable

limitations. In particular, she alleged that the respondents

considered a bank account available to her in violation of the

regulations of the United States Department of Health and Human

Services (45 C.F.R. Sec. 233(20)(a)(3)(11)(D). She also contended

that the state agency violated her due process rights by not

sufficiently developing her testimony during the hearing at which

she was not represented by counsel.

In holding that petitioner was not entitled to attorney’s fees,

the court maintained that she neither alleged nor presented evidence

of a claim pursuant to Section 1983. As in the instant case, the

court completely ignored the federal claims asserted. (158 A.D.2d

at 597, 551 N.Y.S.2d at 569)

It should be noted that the courts in other states properly

apply the federal standard set forth in Maher v. Gagne, 448 U.S.

122, 100 S.Ct. 2570, 65 L.E.2d 653 (1980), and determine whether

a plaintiff who prevails on state law grounds asserted a substantial

federal claim arising from a common nucleus of facts. See e.g.:

Loft v. State Board of Higher Education, 89 Or. App. 614, 750

P.2d 515, 517 (Or., 1988); International Association of Machinists

and Aerospace Workers v. Affieck, 504 A.2d 468, 470-71 (R.I.

1986); Allen v. District of Columbia, 503 A.2d 1233, 1237 (D.C.

14

1986); Brown v. City of Newark, 202 N.J. Super. Ct., 493 A.2d

1255, 1260 (N.J. Super. Ct. App. Div. 1985), aff. in part, rev. in

‘part, 113 N.J. 565, 552 A.2d 125 (N.J. 1989); County Executive of

Prince George’s County v. Doe, 300 Md. 445, 479 A.2d 352, 358

(Md. 1984); Davis v. Everrett, 443 So.2d 1232, 1235-36 (Ala.

1983). Ironically, the New York courts previously followed the

correct federal standards, and their failure to do so in the recent

past is inexplicable. Johnson v. Blum, 58 N.Y. 2d 454, 458, N.2,

461 N.Y.S.2d 782, 783, n.2, 448 N.E.2d 449 (1983).

By failing even to acknowledge the existence of all or some

of the federal claims asserted in the above cases, the Appellate

Division, Second Department has displayed a strong antagonism

against Section 1983 actions and applications for attorney’s fees

pursuant to Section 1988. The United States Supreme Court has

repeatedly held that such discrimination against a federal cause of

action and a remedy to enforce it is clearly unacceptable under the

Supremacy Clause. Howlett v. Rose, 496 U.S. at__, 110 S.Ct. at

2437 and 2445; Testa v. Katt, 330 U.S. 386, 393-94, 67 S.Ct. 810,

814-15, 91 L.E. 967 (1947); McKnett v. St. Louis and San

Francisco Railroad Co. , 292 U.S. 230, 234 54 S.Ct. 690, 692, 78

L.E. 1227 (1934); Mondou v. New York, N.H. & H.R. Co. , 223

U.S. 1, 32 S.Ct. 169, 56 L.E. 327 (1912).

In Howlett, 496 U.S. at __, 110 S.Ct. at 2434, the Florida

District Court of Appeal held that a municipal school board was

immune from liability in state court under Section 1983 because

Florida’s statutory waiver of sovereign immunity did not extend to

Section 1983 cases. 496 U.S. at_ 110 S.Ct. at 2434. This Court

reversed, holding that the Florida court’s refusal to entertain

Section 1983 claims violated the Supremacy clause. 496 U.S. at _

- 110 S.Ct. at 2442.

15

OP ee Oa Rape

In reaching its conclusion, this Court emphasized that

Florida constituted its lower courts as courts of general jurisdiction,

exercising authority over tort claims against state and municipal

entities. It also noted that these courts entertain Section 1983

claims against individual officers.496 U.S. at__, 110 S.Ct. at

2444.

This Court also considered the controlling federal law with

respect to Section 1983 liability for government entities since the

elements of a federal cause of action are defined by federal law.

496 U.S. at__, 110 S.Ct. at 2442, citing Magnesian Southwestern

Railroad Co. v. Morgan, 486 U.S. 330, 335, 108 S.Ct. 1837,

1842, 100 L.E.2d 349 (1988). In doing so, it noted that although

the word "person" in Section 1983 does not include the State by

virtue of Will v. Michigan Department of State Police, 491 U.S. _

_, 109 S.Ct. 2304, 105 L.E.2d 45 (1989), municipal entities are

considered persons subject to Section 1983 liability. Monell v.

N.Y.C. Dept. of Social Services, 436 U.S. 658, 663, 98 S.Ct. 2018,

2021-22, 56 L.E.2d 611 (1978) Under the Supremacy clause, a

state court must adhere to this interpretation. Howlett v. Rose, _

U.S.__, 110 S.Ct. at 2443.

Regarding Florida’s immunity policy, this Court reasoned

that a state policy that allows actions against state agencies for the

negligence of its employees in a wide array of areas, but declines

jurisdiction over federal actions for constitutional violations by the

same persons, must reflect a rationale that such persons should not

be liable under Section 1983 in state court. This Court concluded

that such a rationale violated the Supremacy clause in that it

reflected a disagreement with federal law or a "...refusal to take

cognizance of the federal cause of action..." Jd at 2445.

The Howlett decision reaffirmed Supremacy Clause

principles long established by this Court. In McKnett v. St. Louis

16

ta Cale

and San Francisco Railroad Co., supra, the state court refused to

exercise jurisdiction over a claim under the Federal Employer’s

Liability Act (FELA) against an out-of-state corporation for an

injury sustained in another state. This Court held that since the

state court had general jurisdiction over this type of action and

similarly situated litigants, the refusal to hear the FELA action

violated the Supremacy Clause by discriminating against rights

arising under federal law. 292 U.S. at 234, 54 S.Ct. at 692.

In Testa v. Katt, supra, the plaintiff sued in state court to

recover treble damages for an overcharge in the sale of a car in

violation of the federal Emergency Price Control Act (EPCA). The

Rhode Island Supreme Court declined jurisdiction, asserting that

EPCA was a penal statute that would not be enforceable under the

Full Faith and Credit Clause of the United States Constitution if

passed by another state.

In reversing, this Court observed that courts in Rhode Island

entertain the same type of claim under state law and claims for

double damages under the federal law. It was, therefore, held that

a state court may not decline jurisdiction over a federal claim

"...because of conceptions of impolicy or want of wisdom on the

part of Congress..." 330 U.S. at 394, 67 S.Ct. at 814-15, quoting

from Minneapolis and St. Louis Railroad Co. v. Bombolis, 241

U.S. 211, 222, 36 S.Ct. 595, 598, 69 L.E. 247 (1924).

In view of the above authority, the Appellate Division in

New York clearly is violating the Supremacy Clause by not

applying the federal standard of Maher v. Gagne, supra, for

determining whether a prevailing party is entitled to attorney’s fees

when state and federal claims are alleged. By refusing to take

cognizance of some or all of the federal claims asserted in the series

of cases discussed above, and by insisting that only state law is

involved, the Appellate Division is discriminating against the

17

Rontretemen-*-t

federal rights of recipients of government benefits. The effect of

such discrimination is the repeated and, systematic denial of

attorney’s fees, frustrating the congressional goal of "...ensuring

effective access to the judicial process for persons with civil rights

grievances." Hensley v. Eckerhart, 461 U.S. 424, 430, 103 S.Ct.

1933, 1937, 76 L.E.2d 40 (1983), quoting from H.R. Rep. No. 94-

1558, p. 1 (1976). Additionally, the decisions of the Appellate

Division will, if they have not already done so, encourage recipients

to bring their Section 1983 actions in federal court, an undesirable

consequence this Court sought to avoid in Maine v. Thiboutot, 448

U.S. at 11, n. 12, 100 S.Ct. at 2508, n. 12.

II. Petitioner alleged a substantial federal claim

warranting an award of attorney’s fees under 42

U.S.C, Section 1988,

This Court has held that 42 U.S.C. Section 1983 provides

a unique federal remedy and "...is to be accorded a sweep as broad

as its language." Felder v. Casey, 487 U.S. at 139, 108 S.Ct.

2302, 2307. 101 L.E.2d 123 (1988); quoting from United States v.

Price, 388 U.S. 787, 801, 86 S.Ct. 1152, 1160, 16 L.E.2d 267

(1966). Consistent with this approach, the Court in Maine v.

Thiboutot, 448 U.S. at 4. 100 S.Ct. at 2504, held that Section 1983

includes claims based on statutory violations as well as the United

States Constitution. Additionally, the federal courts of appeals have

ruled that this section encompasses alleged violations of federal

regulations. Samuels v. District of Columbia, 770 F.2d 184, 199

(D.C. Cir. 1985); Alexander v. Polk, 750 F.2d 250, 259 (3rd Cir.,

1984).

In determining whether an alleged violation of a federal

right is embraced by Section 1983, a two-step inquiry is to be

undertaken. Golden Gate Transit Corporation v. City of Los

Angeles, 493 U.S. _, 110 S.Ct. 444, 448, 107 L.E.2d 420 (1989).

First, plaintiff must assert the violation of a federal right. This

requires a showing that the regulation in question creates

obligations on the government unit rather than merely expresses a

preference for a certain type of action. The regulation must also

have been intended for the benefit of persons such as the plaintiff.

493 U.S. at____, 110 S.Ct. at 448.

There can be no doubt that the federal regulations cited by

petitioner confer rights upon recipients of food stamps who receive

favorable fair-hearing decisions. 7 C.F.R. Section 273.15(c)(1)

provides in relevant part:

Decisions which result in an increase

in household benefits shall be

reflected in the coupon allotment

within 10 days of the receipt of the

hearing decision... The state agency

may take longer than 10 days if it

elects to make the decision effective

in the household’s normal issuance

cycle, provided that the issuance will

occur within 60 days from the

household’s request for the hearing.

The above regulation clearly imposes an obligation on state

agencies to ensure compliance with favorable fair hearing decisions

within specified time periods. This is evidenced by the language

Stating that decisions resulting in an increase in benefits "...shall be

reflected in the coupon allotment...” within a certain time [emphasis

added]. An obligation also can be found in 7 C.F.R. Section

19

273.15(s), which provides that "...the state agency is responsible

for ensuring that all final hearing decisions are reflected in the

household’s coupon allotment..." within the designated time limits

of 7 C.F.R. Section 273.15(c)(1). Moreover, these regulations

were obviously intended to benefit petitioner as she was a food

stamp recipient who received a favorable fair hearing decision.

Once the plaintiff has met the requirements for asserting a

violation of a federal right, the defendant has the burden of showing

that Congress specifically foreclosed a remedy under Section 1983.

Golden Gate Transit Corporation v. City of Los Angeles _U.S. at

_, 110 S.Ct. at 448. The respondents in this case cannot make such

a showing since the federal courts of appeals have held that

recipients have a right of action under Section 1983 to enforce state

compliance with the Food Stamp Act. Victorian v. Miller, 813

F.2d 718, 721 (Sth Cir. 1987); Haskins v. Stanton, 794 F.2d 1273,

1275 (7th Cir. 1986). See also: H.R. Rep. No. 464, 95th Cong.

ist Session 398, reprinted in 1977, U.S. Code Cong. and Admin.

News 1978, 2327. In reaching its decision in Victorian, supra, the

Court noted that the Food Stamp Act does not provide separate

judicial remedies and that the existence of a state administrative

remedy does not foreclose resort to Section 1983. 813 F.2d at 723;

See also, Patsy v. Board of Regents of Florida, 457 U.S. 496, 516,

102 S:Ct. 2557, 2567 (1982).

Having satisfied the above two-pronged test, petitioner must

show that her federal claims meet the substantiality requirement set

forth in Hagens v. Lavine, 415 U.S. 528, 94 S.Ct. 1342, 39 L.E.2d

577 (1974), in order to be entitled to attorney’s fees under 42

U.S.C. Section 1988. (See Maher v. Gagne, 448 U.S. at 133, n.15;

100 S.Ct. at 2576, n.15.) In Hagens, supra, this Court held that a

claim is of sufficient substance to support federal jurisdiction if it

is not “absolutely devoid of merit", “obviously frivolous", “wholly

insubstantial” or "no longer open to discussion.” 415 U.S. at 536-

20

537, 94S.Ct. at 1379. "Previous decisions that merely render

claims of doubtful or questionable merit do not render them

insubstantial..." 415 U.S. at 538, 94 S.Ct. at 1379.

Petitioner’s claim that the city agency violated her rights

under federal law by not complying with respondent Perales’

hearing decision within the time limits required by the federal food

stamp regulations clearly satisfies the substantiality test. For

several months, the city agency wilfully refused to comply with the

decision, depriving petitioner of benefits she needed to feed her

large family. Additionally, the state agency, which was on notice

of such non-compliance, did absolutely nothing to ensure that its

directives were implemented within the specified time period, as the

federal regulations explicitly require it to do. 7 C.F.R. Sec.

273.15(c)(1) and (s). When the city agency finally restored

petitioner’s food stamps in January, 1987, it was more than four

and one-half months after the decision was issued and ten months

after the hearing was requested. Accordingly, there was a very

substantial violation of petitioner’s federal rights, warranting an

award of attorney’s fees.

Petitioner also contended that she was entitled to attorney’s

fees because the respondents’ inexcusable delay in complying with

her hearing decision violated her due process rights under the

United States Constitution. In Atkins v. Parker, 472 U.S. 115, 128,

105 S.Ct. 2520, 2528, 86 L.E.2d 81 (1985), this Court held that

food stamps, like public assistance benefits, are entitlements for

qualified persons and, therefore, are protected by the due process

Clause. Accordingly, since the city agency in this case was directed

to restore petitioner’s food stamps, it had to do so in a manner that

comported with due process requirements.

In Fusari v. Steinberg, 419 U.S. 379, 95 S.Ct. 533, 42

L.E.2d 521 (1975), this Court suggested that significant delays in

21

issuing federal benefits may constitute a denial of due process. In

assessing the procedures for reviewing initial denials of

unemployment insurance benefits, the Court emphasized that the

rapidity of administrative review and the length of wrongful

deprivation is an important factor in determining the due process

that is required. 419 U.S. at 389, 95 S.Ct. at 540.

In cases very analogous to the instant one, the courts have

maintained that excessive delays in complying with hearing

decisions may result in a denial of due process. In Nelson v.

Sugarman, 361 F.Supp 1132, 1136 (S.D.N.Y. 1972), the court held

that the alleged failure of the city agency to comply with hearing

decisions in a timely manner stated a "...colorable issue of denial

of due process safeguards...and, therefore, state a cause of action

under 42 U.S.C. Section 1983." The Third Circuit, presented with

a similar claim in Shands v. Tull, 602 F.2d 1156, 1159 (3rd Cir.

1979), observed that a delay in complying with hearing decisions

"...could at some point constitute a denial of due process.”

In view of the above cases, petitioner’s due process claim

is cognizable under 42 U.S.C. §1983, providing another basis for

an award of attorney’s fees. As the facts set forth above

demonstrate, there was not merely a negligent delay in compliance

with petitioner’s hearing decision, but rather a determined effort by

the city agency not to comply with it atall. This was clearly

manifested in the Linden Income Maintenance Center’s

memorandum to the city agency’s fair hearing compliance unit

Stating that it would not comply with the decision. Such

intransigent conduct could certainly have led to a finding that

petitioner’s due process rights were violated as it rendered the fair

hearing process meaningless, and caused petitioner to be without

food stamps for four and one-half months after the decision was

rendered.

As previously mentioned, the Appellate Division, Second

Department in New York has distorted the substantiality test. In the

instant case and in one of the cases discussed in Point I, supra, the

Appellate Division denied fees on the ground that "...there was no

showing by petitioner of a violation of any constitutional right, or

the violation by the State of any right created by federal law.”

Middleton v. Perales,_i160 AD2d at 801, 554 N. Y.S.2d at 72;

Thomasel v. Perales, 161 A.D.2d 646, 555 N. Y.S.2d at 425.

[emphais added] Additionally, the Court of Appeals in New York

in Zellweger v. New York State Department of Social Services, 74

N.Y.2d 404, 409, 547 N.Y.S.2d 824, 826-27, 547 N.E.2d 79

(1989), held that the petitioner was not eligible for attorney’s fees

because "...the record does not indicate a violation of 42 U.S.C.

Section 1988..."

It is not necessary for a plaintiff to make an actual showing

of a violation of rights created by federal law to state a cognizable

Section 1983 claim, which warrants an award of attorney’s fees

under §1983. All that is required is that the plaintiff assert a

federal claim that meets the substantiality test. Maher v. Gagne,

448 U.S. at 133, n.15, 100 S.Ct. at 2576, n.15. See also, Golden

Gate Transit Corporation v. City of Los Angeles, 493 U.S. at _,

110 S.Ct. at 448. Hagens vs. Lavine, 415 U.S. at 542, 94 S.Ct. at

1381-82.

CONCLUSION

The pattern reflected not only in the instant case, but also in

such cases as Middleton v. Perales, supra, Thomasel v. Perales,

supra, and Zellweger v. New York State Department of Social

Services, supra, suggests a movement toward repudiation of the

federal substantiality test. Indeed, these cases explicitly require that

23

a violation of §1983 must actually be shown in order to entitle the

prevailing party to an award of attorney’s fees under §1988.

This enlargement of the burden to qualify for attorney’s fees

is, in itself, a violation of the well established federal standard in

Hagens v. Lavine, supra, and, therefore, violates the Supremacy

Clause of the United States Constitution. Moreover, it is a standard

that becomes unmeetable whenever state courts refuse to reach,

much less decide, the federal claims which have been asserted.

Thus, claimants in state court, such as the petitioner herein, will

find themselves trapped in a dilemma in which they are required to

prove federal causes of action which the state courts are not

obligated even to decide.

For all of the foregoing reasors, this Court should grant a

writ of certiorari to review and reverse the decision of the New

York State Supreme Court, Appellate Division, Second

Department.

Respectfully Submitted,

*PAUL E. KERSON

118-35 Queens Blvd. Suite 1000

Forest Hills, NY 11375

(718) 798-8822

MARTIN S. NEEDELMAN, ESQ.

BY: PAUL J. ACINAPURA, ESQ.

TERRY HERMAN and

RICHARD J. WAGNER, Of Counsel

Brooklyn Legal Services Corporation "A"

80 Jamaica Avenue

Brooklyn, New York 11207

(718) 345-6200

*Counsel of Record

-la-

APPENDIX A

STATE OF NEW YORK

COURT OF APPEALS

Ata session of the Court, held at

Court of Appeals Hall in the City of

Albany on the ____ twentieth day

of December A.D. 1990

Present, HON. SOL WACHTLER, Chief Judge, presiding

2-13 Mo. No. 1064

In the Matter of Shirley Middleton,

Appellant,

V.

Cesar Perales, &c., et al.,

Respondents.

A motion for leave to appeal to the Court of Appeals and for

poor person relief in the above cause having been heretofore made

upon the part of the appellant herein and papers having been

submitted thereon and due deliberation having been thereupon had,

it is

ORDERED, that the said motion for leave to appeal be and

the same hereby is denied; and it is

-2a-

ORDERED, that the said motion for poor person relief be

and the same hereby is dismissed as academic.

Donald M. Sheraw

Clerk of the Court

-3a-

APPENDIX B

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

4801S

z/HU

—- wn Argued-March 20, 1990

RICHARD A. BROWN, J.P.

GERALDINE T. EIBER

THOMAS R. SULLIVAN

STANLEY HARWOOD, JJ.

3560E

In the Matter of Shirley Middleton, DECISION & ORDER

petitioner-respondent,

v. Cesar Perales, etc.,

appellant,

William J. Grinker, etc., respondent.

Robert Abrams, Attorney-General, New York, N.Y.

(Robert J. Schack and Eugene E. Zegarowicz of counsel),

for appellant.

Martin S. Needelman, Brooklyn Legal Services Corp. A,

Brooklyn, N.Y. (Terry Herman and Paul Acinapura of

counsel), for petitioner-respondent.

-4a-

Victor A. Kovner, Corporation Counsel, New York, N.Y.

(Fred Kolikoff and Julian L. Kalkstein of counsel), for

respondent.

In a proceeding pursuant to CPLR article 78, inter alia, to

compel the respondent Commissioner of the New York City

Department of Social Services to comply with the respondent State

Commissioner’s "Decision After Fair Hearing" dated December 29,

1987, the State Commissioner appeals, as limited by his brief, from

so much of an order and judgment (the one paper) of the Supreme

Court, Kings County (Vaccaro, J.), dated May 16, 1988, as granted

that branch of the petitioner’s application which was for an award

of attorney’s fees assessed against the appellant, and is in favor of

the petitioner and against the appellant in the sum of $3,662.50.

ORDERED that the order and judgment is reversed insofar

as appealed from, on the law, without costs or disbursements, and

that branch of the application which was for an award of attorney’s

fees assessed against the appellant is denied.

The court erred when it granted the petitioner an award of

attorney’s fees payable to the appellant pursuant to the Civil Rights

Attorney’s Fees Award Act of 1976 (42 USC §1988). The

underlying proceeding sought, inter alia, to compel the respondent

Commissioner of the New York City Department of Social Services

to comply with a "Decision After Fair Hearing" directing him to

restore the petitioner’s food stamp benefits. That controversy dealt

with the administrative application of State statues and regulations

(see, Social Services Law §22[9]1 §34[3]; 18 NYCRR former

358.18[8][1], 358.22). There was no showing by the petitioner of

a violation of any constitutional right, or the violation by the State

of any right created by Federal law (see, Matter of Williams v

D’Elia, 119 AD2d 678). There was therefore no bona fide civil

rights claim pursuant to 42 USC §1983 which would warrant an

-Sa-

award of attorney’s fees (see, Matter of Rozier v Perales, 149

AD2d 710; Matter of Williams v D’Elia, supra; Matter of Patterson

v Blum, 86 AD2d 893).

BROWN, J.P., EIBER, SULLIVAN and HARWOOD, JJ., concur.

ENTER:

Martin H. Brownstein

Clerk

April 9, 1990

,™

APPENDIX C

MEMORANDUM

SUPREME COURT KINGS COUNTY = (IAS PART 4)

In the Matter of the Application of By: VACCARO, J.

SHIRLEY MIDDLETON,

Petitioner Dated: April 14, 1988

vs.

CESAR PERALES, as Commissioner, etc. Index No. 32434/86

et ano

Petitioner in this Article 78 proceeding, a recipient of public

assistance whose food stamp allotment had been improperly

terminated by the local agency, moves for the award of an

attorney’s fee pursuant to 42 USC 1988, the Civil Rights Attorney’s

Fees Awards Act. She contends she was the prevailing party in a

42 USC 1983 action to secure federally provided rights and is

therefore entitled to the award of an attorney’s fee.

Petitioner’s troubles fall into three distinct episodes. In

brief outline, the local agency, without notice of its intention to do

so, discontinued her food stamps on January 9, 1986. After a fair

hearing the respondent State Commissioner issued his determination

on August 18, 1986. He found (1) the local agency had

discontinued petitioner’s food stamps because of her failure to

provide certain information and (2) she had never been asked for

any such information, and he concluded she had not failed to

comply with the relevant requirements of the food stamp program.

-7a-

The local agency was therefore directed to restore petitioner’s food

stamps retroactively, the relevant part of the decision providing:

The agency’s determination to

discontinue Food Stamps is not

correct and is reversed. The agency

must immediately comply with the

directives set forth above as required

by section 358.22 of the

Department’s Regulations.

On August 26, 1986 petitioner’s attorney sent a copy of the

State Commissioner’s determination to the local agency and

requested its implementation, i.e., issuance of petitioner’s food

Stamps. It appears that on September 5, 1986, petitioner was told

the local agency considered the discontinuance of her food stamps

to be correct and that it would not comply with the state

commissioner’s directive. On the same day her attorney wrote to

the local agency again as well as to the state agency’s compliance

section regarding the local agency’s refusal to comply and

requesting its assistance. For its part, the state agency wrote to the

attorney stating the matter would “be reviewed with the local

agency to insure that appropriate action is taken." There being

nothing forthcoming from the local agency, this proceeding was

instituted on November 18, 1986, and petitioner finally received her

food stamps in early 1987. This proceeding was then withdrawn.

The next phase began on December 24, 1986, when the

local agency notified petitioner it intended to, and did, discontinue

her food stamps because of (1) her failure to verify her income and

(2) "This action is being taken in compliance with your Fair

Hearing Decision.” Another fair hearing was held on March 9,

1987 and the court notes that, on the same day, the State

Commissioner directed the local agency to restore petitioner’s food

-8a-

stamps immediately. After the second fair hearing the State

Commissioner issued his determination on April 15, 1987, which

pointed out there had been no change in petitioner’s situation since

the prior determination and the only basis for the second

termination was the local agency’s attempted compliance with the

prior decision. It concluded the second discontinuance did not

constitute a compliance and, accordingly,

The agency’s determination of

December 24, 1986 to discontinue

appellant’s Food Stamp benefits is

not correct and is reversed.

The agency is directed to restore all

lost Food Stamp benefits retroactive

to the date of the agency’s action,

and the agency was directed to

comply immediately.

It appears petitioner’s attorney was engaged in a never-

ending struggle to have the local agency issue petitioner’s food

stamps. As noted, this second phase began with the Christmas Eve

1986 termination which preceded the eventual issuance of the food

stamps for 1986. The attorney continued to try to get the food

stamps issued both before and after the March 9, 1987 directive

ordering immediate provision of assistance to petitioner. The local

agency continued recalcitrant. Finally, after the second

determination (April 15, 1987) and the efforts of the attorney, both

directly and through the state agency, the local agency, on or about

April 27, 1987, finally issued petitioner’s food stamps. So ended

the second phase.

The local agency was nothing if not determined, and

proceeded to lay the groundwork for another termination. On April

-Ja-

23, 1987, it asked petitioner to come in and provide documentation

to support her eligibility for food stamps. The requested

information was already in the local agency’s possession and it did

not in any way affect petitioner’s eligibility. On June 10, 1987,

petitioner moved to restore this proceeding to the calendar and on

July 8, 1987, counsel for the local agency agreed to comply with

both fair hearing determinations and a judgment to that effect was

made and entered on August 8, 1987.

The record of what took place thereafter is not as complete

as it could be but it cannot affect the court’s decision on this fee

application. It appears the local agency, undaunted as ever, again

terminated on June 1, 1987, and the State Commissioner’s

determination of December 29, 1987, directed the retroactive

restoration of petitioner’s benefits.

Simply stated, section 1983 allows a recovery to one who,

under color of state or local law, is deprived of a right conferred by

federal constitution, statute or regulation. As summarized in

Triplett v Azordegan (570 F2d 819, 822),

To establish a claim under 42

U.S.C. §1983 two elements must

exist. First, the plaintiff must have

suffered the deprivation of federally

protected rights, privileges or

immunities as the result of action

taken. (citations omitted). Second,

such deprivation must have been

caused by a person acting under

color of state law (citations omitted).

-10a-

If one so deprived should prevail in an action or proceeding to

enforce such a right, plaintiff is ordinarily entitled to the award of

a reasonable attorney’s fee pursuant to section 1988.

Petitioner sought in this proceeding to recover her allotment

of food stamps, a right granted pursuant to 7 USC Chapter 51

("Food Stamp Program") and applicable federal regulations. The

food stamp program in New York is administered pursuant to

Social Services Law 95 and 95a, applicable state regulations and the

New York State Food Stamp Manual. Her food stamps were

eventually restored to her only as a result of this proceeding. The

court therefore concludes she was the prevailing party herein and,

as such, entitled to the award of a reasonable attorney’s fee

pursuant to section 1988. No special circumstances have been

shown which might militate against the award of a fee herein

(Rahmey v. Blum, 95 AD2d 294).

In setting the fee, the court must consider the time

reasonably expended multiplied by a reasonable hourly rate

(Hensley v. Eckerhart, 461 US 424).

Petitioner’s attorney has submitted her affirmation setting

forth the services rendered and the time spent on each aspect of

petitioner’s problem. The court has carefully scrutinized the time

records submitted and it appears they accurately set forth the time

required to handle this matter. It concludes the 29.3 hours recorded

were reasonably required for the representation of this petitioner.

The court takes note of the fact that 1.5 hours were devoted to the

preparation of this application, which compares most favorably with

the times reported in some other fee applications it has considered.

In setting the fee, the court must refer to the prevailing

hourly market rate in the community. The attorney has set forth

her experience in litigation of this type of matter and has requested

-lla-

a fee of $150 per hour as the prevailing hourly market rate (Blum

v. Stenson, 465 US 886). This is comparable to the fees awarded

in much recent litigation. The court concludes that, $125 per hour

is a reasonable fee under the circumstances. Accordingly, the court

concludes a fee of $3,662.50 representing 29.3 hours at $125 per

hour would be appropriate in this matter.

The court notes that while the ineptitude and intransigence

of the local agency were responsible for the repeated proceedings

had herein, it must, on the authority of Matter of Beaudoin v. Toia

[Jorczak] (45 NY2d 343, 347), grant judgment only as against the

State Commissioner. See also Martinez v. Perales - AD2d -.

Settle judgment in the amount of $3,662.50 against the

respondent State Commissioner and dismissing as to the respondent

City Commissioner.

_Frank Vaccaro

J.S.C.

-12a-

APPENDIX D

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

7430W

B/NL

RICHARD A. BROWN, J.P.

GERALDINE T. EIBER

THOMAS R. SULLIVAN

STANLEY HARWOOD, JJ.

Motion No. 90-01393

In the Matter of Shirley Middleton, DECISION & ORDER

petitioner-respondent,

v Cesar Perales, etc.,

appellant,

William J. Grinker, etc., respondent.

Motion by the respondent for leave to appeal to the Court of

Appeals from an order of this court dated April 9, 1990, which

reversed an order and judgment of the Supreme Court, Kings

County, dated May 16, 1988.

Upon the papers filed in support of the motion and no

papers having been filed in opposition thereto, it is

ORDERED that the motion is denied.

BROWN, J.P., EIBER, SULLIVAN and HARWOOD, JJ., concur.

a en

-13a-

ENTER:

Martin H. Brownstein

Clerk

July 3, 1990

-14a-

APPENDIX E

DSS-3399(9/81) CASE # 3871691

STATE OF NEW YORK CENTER # 067

DEPARTMENT OF SOCIAL SERVICES FH # 0870088R

In the Matter of the Appeal of

SHIRLEY MIDDLETON DECISION

AFTER

FAIR

HEARING

from a determination by the NEW YORK

CITY Department of Social Services

(hereinafter called the agency)

A fair hearing was held at 80 Centre Street, New York,

New York, on June 24, 19%6, before Daniel J. Duncan,

Administrative Law Judge, at which the appellant, the appellant’s

representative and a representative of the agency appeared. The

appeal is from a determination by the agency relating to the

discontinuance of an Authorization to Participate in the Food Stamp

Program and the adequacy of a grant of Aid to Dependant Children.

An opportunity to be heard having been accorded all interested

parties and the evidence having been taken and due deliberation

having been had, it is hereby found:

(1) The appellant is currently in receipt of a grant of Aid to

Dependent Children. She was in receipt of an Authorization to

Participate in the Food Stamp Program.

-15a-

(2) On January 9, 1986, the agency determined to

discontinue appellant’s Authorization to Participate in the Food

Stamp Program on the grounds that the appellant failed to comply

with the agency’s request to submit:

a. her twenty year old daughter’s paystubs and

b. the social security numbers for her three foster

children. .

(3) On March 19, 1986, the appellant requested this fair

hearing to review the agency’s determination to remove the shelter

allowance from appellant’s Public Assistance grant on or about

January, 1986.

(4) The appellant’s rent was restored to the grant as of the

date of its removal and there is no issue remaining with respect to

same.

(5) Appellant did not verify her daughter’s income and tie

children’s Social Security numbers prior to the agency’s

determination to discontinue her Authorization to Participate in the

Food Stamp Program but had good reason for doing so in that the

agency did not request that she provide same.

Section II (A) of the New York State Food Stamp Manual

requires parents and children to be considered in the same Food

Stamp household, unless one or more are elderly or disabled.

Pursuant to Section III (C)(8)(b) of the New York State

Food Stamp Manual, the household has the primary responsibility

to provide required documentary evidence. Section IV (C)(3) of the

New York State Food Stamp Manual provides that if the local

district determines that a household member(s) has refused to

provide or apply for a Social Security number, the individual

-16a-

without the Social Security number shall be ineligible to participate

in the Food Stamp Program.

The record, in this case, establishes that the agency

determined to discontinue appellant’s Authorization to Participate

in the Food Stamp Program on the grounds that she failed to |

comply with the Food Stamp application process by not verifying

(1) household income particularly that of her daughter and (2) the

Social Security number of three foster children. The credible

evidence establishes however that the appellant did not provide said

information because she was not requested to provide it. Thus,

appellant has, to date, not failed to comply with Section III

(C)(8)(b) of the New York State Food Stamp Manual, nor has

refused to supply Social Security numbers of household members

to the agency. Accordingly, the determination of the agency to

discontinue appellant’s Food Stamp Authorization was not proper.

The agency is directed to restore Food Stamp benefits to the

appellant retroactive to the date of discontinuance in accordance

with the verified degree of need.

DECISION: There is no issue to be decided with respect to the

respect to the removal of rent from the budget. The agency’s

determination to discontinue Food Stamps is not correct and is

reversed. The agency must immediately comply with the directives

set forth above as required by Section 358.22 of the Department’s

Regulations.

DATED: Albany, New York CESAR A. PERALES,

COMMISSIONER

BY/S/ Henry L. Peter, Jr.

-17a-

APPENDIX F

MEMORANDUM The City of New York

Human Resources Administration

DATE: 11/6/86

TO: Richard Canberry RE: Middleton, Shirley

Fair Hearing Monitoring Section DC-3871691-1

250 Church Street - Room 822 FH-6/24/86

Decision -8/18/86

From: S. Spray-Suprv I FH# -0870088R

Linden Center

L&A Section

Subject: Non-Compliance

We are not complying with Food Stamp issue due to the

following:

l. The notices were indeed sent to the client

a. dated -1/9/86 - discontinuance of FS

b. dated -3/13/86 - discontinuance of FS

As per State regulations requests were beyond statue of

limitations and was notified twice of requests for necessary

documentation.

2. The children, as per decision it was determined as

per verified degree of need (page 2 - paragraph 3) that family is not

eligible for Food Stamp benefits.

See attached computations which were presented at hearing.

-18a-

APPENDIX G

DSS-3399(9/81) CASE # 3871691

STATE OF NEW YORK CENTER # 067

DEPARTMENT OF SOCIAL SERVICES FH # 1001045Z

In the Matter of the Appeal of

SHIRLEY MIDDLETON DECISION

AFTER

FAIR

HEARING

from a determination by the NEW YORK

CITY Department of Social Services

(hereinafter called the agency)

JURISDICTION

This appeal is from a determination by the local Social

Services Agency relating to the discontinuance of Appellant’s

Public Assistance, Medical Assistance and Authorization to

Participate in the Food Stamp Program on the grounds that the

appellant failed to verify all household income.

Pursuant to Section 22 of the New York State Social Services

Law (hereinafter Social Services Law), and Part 358 of the

Regulations of the New York State Department of Social Services

(Title 18 NYCRR, hereinafter Regulations), a fair hearing was held

on March 9, 1987, at 80 Centre Street, New York, New York,

before Francois Rivera, Administrative Law Judge. The following

persons appeared at the hearing:

-19a-

For the Appell or the Local Social Services Distri

(Agency)

Shirley Middleton, Martin Fass, Agency Representative

Appellant

Martha Copleman,

Appellant’s Representative

FACT FINDINGS

An opportunity to be heard having been afforded to all

interested parties and evidence having been taken and due

deliberation having been had, it is hereby found that:

1. The appellant is in receipt of a grant of Aid to Dependent

Children and Medical Assistance and was in receipt of an

Authorization to Participate in the Food Stamp Program.

2. On December 24, 1986, the agency determined to

discontinue appellant’s Food Stamp benefits based on her failure to

verify her Supplemental Security Income and Foster Care Income.

The discontinuance was an attempt to be in compliance with the

Commissioner’s directive of August 18, 1986.

3. On January 9, 1986, the agency determined to

discontinue appellant’s Food Stamp benefits based on her failure to

verify her twenty year old daughter’s income and on her failure to

submit Social Security number of her foster children.

4. On June 24, 1986, a fair hearing was held, number

0970088R, to appeal the agency’s determination of January 9,

1986, to discontinue appellant’s Food Stamp benefits.

5. The Commissioners of the New York State Department

of Social Services in a decision dated August 18, 1986, reversed the

-20a-

agency’s determination to discontinue the appellant’s Food Stamp

benefits and directed the restoration of all lost Food Stamp benefits

retroactive to the date of the agency action.

6. The Commissioner’s decision was based in part in the

finding that the appellant was not requested to submit proof of

household income or Social Security number for her foster children.

7. The agency-restored all lost Food Stamp benefits

retroactive to the date of its action and then determined to

discontinue the Food Stamp benefits again.

8. On January 12, 1987, the appellant requested this hearing

to review the agency’s determination.

ISSUE

Is the agency’s determination of December 24, 1986, to

discontinue appellant’s Food Stamp benefits based on her failure to

verify all household income correct?

APPLICABLE LAW

Section 358.22 of the Regulations provides that:

When a decision of the Commissioner (whether

made after or without a hearing) directs a Social

Services official to perform specific actions, such

Official shall comply promptly with such direction

and the department shall ascertain compliance with

such direction by inquiry addressed to the applicant

or recipient for those whose benefit such direction

was given, and by such other means as the

-2la-

department may deem necessary and appropriate

under the circumstances of this case.

Section 387.8 (a) of the Regulations provides in pertinent

part that Food Stamp application or recipients must verify all

nonexempt household income.

DISCUSSION

The uncontroverted evidence establishes that the agency

issued a notice of discontinuance of Food Stamp benefits dated

December 24, 1986, in an attempt of the Commissioner of the New

York State Department of Social Services in his decision dated

August 18, 1986, for fair hearing number 0870088R. The agency

conceded that no independent facts subsequent to the fair hearing

decision initiated the notice of discontinuance and that the only

bases for the notice was compliance with the fair hearing decision

number 0870088R. Thus, there is no evidence that the appellant

failed to submit proof of her income. The commissioner’s

directive, however, reversed the agency’s determination of January

9, 1986, to discontinue appellant’s Food Stamp benefits and

directed the restoration of all lost Food Stamp benefits retroactive

to the date of its action. The Commissioner did not direct the

agency to issue another notice of proposed discontinuance of Food

Stamp benefits. The agency’s determination of December 24,

1986, is not in compliance with the Commissioner’s directive dated

August 18, 1986, and has no other independent basis.

DECISION AND ORDER

The agency’s determination of December 24, 1986, to

discontinue appellant’s Food Stamp benefits is not correct and is

reversed.

-22a-

The agency is directed to restore all lost Food Stamp benefits

retroactive to the date of the agency’s action.

As required by Department Regulations at 18 NYCRR

358.22, the Agency must comply immediately with the directives

set forth above.

DATED: Albany, New York CESAR A. PERALES,

April 15, 1987 COMMISSIONER

BY

Commissioner’s Designee

-23a-

APPENDIX H

At an IAS Trial Term Part 4 of the

Supreme Court of the State of New

York, in and for the County of

Kings, located at 360 Adams Street,

Brooklyn, New York, on the 6th day

of August, 1987.

In the Matter of the Application of ORDER and

JUDGMENT

SHIRLEY MIDDLETON,

Petitioner, Index NO.

32434/86

For a Judgment Pursuant to Article 78

of the C.P.L.R.,

-against-

CESAR PERALES, as Commissioner of the

New York State Department of Social

Services and HARVEY ROBINS, as Acting

Commissioner of Social Services,

Respondents.

The petitioner having petitioned this Court for an Order and

Judgment directing respondent Robins to comply with respondent

Perales’ hearing decision with respect to petitioner and dated

-24a

August 18, 1986, and for other relief, and said petition having

come before the undersigned on July 8, 1987.

NOW upon reading the Notice of Motion and Petition of

November 14, 1986, the Verified Answer of respondent Perales,

verified on February 2, 1987, the Memorandum of Law on Behalf

of State Respondent of February 3, 1987, Petitioner’s Notice of

Motion to Restore to Calendar, dated May 20, 1987, Petitioner’s

Counsel’s Affirmation in Support of Motion, dated June 23, 1987,

and respondent Robins’ affirmation in Opposition of July 1987;

AND upon hearing MARTHA COPLEMAN, ESQ., in

support of the petition and John Jokl, Esq., attorney for respondent

Robins’ successor, in opposition thereto, IT IS HEREBY

ORDERED that the petition is granted and respondent

Robins’ successor, WILLIAM GRINKER, and his agency, the New

York City Department of Social Services, are mandated to comply

immediately with the prior fair hearing decisions of respondent

Perales with respect to petitioner, dated August 18, 1986, and April

15, 1987, to provide petitioner with aid-continuing pending her new

fair hearing (which is not part of this proceeding), and to provide

food stamps to petitioner, within three days of receipt of notice of

entry of this Order, in the amount of $81 per month from May 1,

1987, and thenceforth until such time as she is legally determined

not to be eligible therefor pursuant to an administrative hearing

decision of respondent Perales.

ENTER:

- Bo Re

-25a-

APPENDIX I

AtanI.A.S. Trial Part 4 of the

Supreme Court of the State of New

York, in and for the County of

Kings, located at 360 Adams Street,

Brooklyn, New York, on the 16th

day of May, 1988.

PRESENT:

HON: FRANK VACCARO

JUSTICE OF THE SUPREME COURT

YY

>

In the Matter of the Application of

SHIRLEY MIDDLETON, ORDER and

JUDGMENT

Petitioner,

For a Judgment Pursuant to Article 78

of the C.P.L.R.,

-against-

CESAR PERALES, as Commissioner of the

New York State Department of Social

Services and HARVEY ROBINS, as Acting

Commissioner of Social Services,

Respondents.

~

-26a-

The petitioner having moved this Court for an award of an

attorney’s fee pursuant to the Civil Rights Attorney’s Fee Awards

Act, 42 U.S.C. Section 1988, and said motion having come before

the undersigned on January 6, 1988,

NOW, upon reading petitioner’s Notice of Motion and

accompanying Affirmation, dated November 25, 1987, respondent

Perales’ Answering Affirmation, dated December 10, 1987, and

Respondent State Commissioner’s Memorandum of Law in

Opposition to Petitioner’s Request for Attorney’s Fees, dated

December 10, 1987; respondent Grinker’s (undated) Memorandum

of Law in Opposition to Petitioner’s Request for Attorney’s Fees;

the Memorandum of Law in Support of Petitioner’s Motion for

Attorney’s Fees, dated January 7, 1988; and petitioner’s

Supplemental Affirmation, dated January 12, 1988; and upon the

papers and proceedings previously had herein;

AND upon hearing Martha Copleman, Esq., in support of

the motion, and Eugene Zegarowicz, Esq., counsel for respondent

Perales, and John Joki, Esq., counsel for respondent Grinker, in

opposition thereto, IT IS HEREBY

ORDERED that the motion be and hereby is granted as

against respondent Perales and denied as against respondent

Grinker, and petitioner is awarded and respondent Perales is

directed to pay the amount of $3,662.50, as petitioner’s attorney’s

fees, pursuant to 42 U.S.C. Section 1988, within sixty days of said

respondent’s receipt of notice of entry of this Order and Judgment.

J.S.C.

Anthony N. Durso

Clerk