Opposition Brief — Middleton v. Perales

l 2 FI 1 —

No. 91-52

| as a AUG 2 1991

panes ‘OCTOBER TERM, 1990 “ SPAT irre OF THE CLERK

—

In the Matter of the Application of

SHIRLEY MIDDLETON,

Petitioner,

-against-

CESAR PERALES, as Commissioner of the

New York State Department of Social

Services, WILLIAM J. GRINKER (as

successor to HARVEY ROBINS),

Commissioner of the New York City

Department of Social Services,

Respondents.

BRIEF OF RESPONDENT WILLIAM I.

GRINKER IN OPPOSITION TO A PETITION

FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS FOR THE STATE OF

NEW YORK

VICTOR A. KOVNER,

Corporation Counsel for the

City of New York,

Attorney for Respondent

William J. Grinker,

100 Church Street,

New York, New York 10007.

(212) 788-1028 or 1067

LEONARD J. KOERNER, *

LARRY A. SONNENSHEIN,

JULIAN L. KALKSTEIN,

of Counsel.

*Attorney of Record

COUNTER-STATEMENT OF

QUESTION PRESENTED

Does petitioner's allegation that the New

York City Department of Social Services

failed to comply with a "Decision After Fair

Hearing" by the State Department of Social

Services, ordering the City Agency to

provide petitioner and only petitioner with

food stamp benefits, standing alone without

any claim or showing that the City Agency

had a policy or practice of failing to timely

comply with State Fair Hearing Decisions,

raise a substantial federal claim warranting

an award of attorneys’ fees under 42 U.S.C.

819887

TABLE OF CONTENTS

Page

COUNTER-STATEMENT OF QUESTION

Eee XX i

TABLE OF AUTHORITIES Ss. ili

STATEMENT OF THE CASE ............ 1

1. The Supreme Court's Opinion 7

2. The Appellate Division's Opinion 8

3. Applications For Leave to Appeal .. 9

REASONS FOR DENYING THE WRIT ... 10

PETITIONER'S ALLEGATION THAT

THE CITY AGENCY FAILED TO

COMPLY WITH A STATE FAIR

HEARING DECISION DIRECTING

THE AGENCY TO PROVIDE

PETITIONER WITH FOOD STAMP

BENEFITS, WITHOUT A CLAIM

THAT THE CITY AGENCY had A

PRACTICE OR POLICY OF NOT

TIMELY COMPLYING WITH STATE

FAIR HEARING DECISIONS DOES

NOT RAISE A SUBSTANTIAL

FEDERAL CLAIM WARRANTING AN

AWARD OF ATTORNEYS' FEES. ....... 12

r ̃ ̃ «˙ mꝙĩÜꝙD U PPP“P“P“)“))e cese ses 23

TABLE OF AUTHORITIES

Cases

Batista v. Rodriguez,

702 F.2d 393

(2d. Cir. 1983) ives

Cruz v. Perales, 158

Page

„eee 13

A. D. 2d 597, 551 N. V. S. 2d 568

(2d Dept. 1990 )

Friedman v. Perales,

616 F.Supp 1363

(S.D.N.Y. 1985)

Gelin v. Perales,

149 A.D.2d 593,

540 N.Y.S.2d 275

(2d Dept. 1989) _.........

Hagans v. Levine,

415 U.S. 528 (1974)

Kentucky v. Graham,

473 U.S. 159 (1985) a

Maine v. Thiboutot,

448 U.S. 1 (198)

Matter of Beaudoin v.

Tola (Jorczak),

45 N.Y.2d 347,

408 N.Y.S.2d 417,

380 N.E.2d 246 (1978)

Matter of Johnson v. Blum,

„6% „6 „0 0 22

„6 „ „0 19

„eee 20

„as 21

„„ „3ꝛä „ 15

58 N.Y. 454, 461 N. v. S. 2d 782,

448 N. E. 2d 449 (1983)

„„ „6 21

Matter of Miscura v. Perales,

120 A.D. 592, 501 N.Y.S.

J ) ee 21

Middleton v. Perales,

160 A.D.2d 800,

554 N.Y.S.2d 71

(2d Dept. 1990),

appeal denied,

76 N.Y.2d 714, 564

N.Y.S.2d 718,

565 N.E.2d 1269 (1990) 8, 9

Monell v. Department of

Social Services

of the City of New York,

436 U.S. 658 (1970) 12

Mont. v. Heinz,

849 F.2d 704

en ts oe te eeeeces 19

Moore v. Perales,

85 Civ. 1638 (1908660 16

Oklahoma City v. Tuttle,

5 = Se Ff). ll Eee 14, 15

Oberlander v. Perales,

740 F.2d 116

(3a Clip. 1064) jj —— cvvceves 18, 19,

22

Rashid v. Perales,

156 A.D.2d 692,

549 N.Y.S.2d 166

... . . 22

-iv-

Rozier Xx. Perales,

149 A.D.2d 710,

510 N.Y.S.2d 504

(2d Dept. 1987),

appeal denied,

74 N. v. ad 993,

550 N. v. S. 2d 274,

549 N. E. 2d 476 (198970õ70)0ͥ)))

Simpson v. New York City

Transit Authority,

112 A.D.2d 89,

491 N.Y.S.2d 645

(Ist Dept. 1985), aff'd,

66 N.Y.2d 1010,

499 N.Y.S.2d 396,

489 N.E.2d 1298 (198590)

Thomasel v. Perales,

161 A.D.2d 646,

555 N.Y.S.2d 423

(ad Dept. 1990) = ——§ .uuseeee

United Mine Workers

of America v. Gibbs,

OS)

U.S. v. Wheadon, 794 F.2d

Dee

Statutes

e ee

New York State Social Services Law,

, ]ʃ „

New York State Social Services Law,

, ea Ne

13

22

20

16

Ree — N — * — —

Regulations

18 N.Y.C.R.R. former

358.18 and 358.22

(amended to 358-6.4)

— — NS

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990 ¥

In the Matter of the Application of

SHIRLEY MIDDLETON,

Petitioner,

For a Judgment Pursuant to Article 78 of the

8...

-against-

CESAR PERALES, as Commissioner of the

New York State Department of Social

Services, WILLIAM J. GRINKER (as

successor to HARVEY ROBINS),

Commissioner of the New York City

Department of Social Services,

Respondents.

BRIEF OF RESPONDENT WILLIAM J.

GRINKER IN OPPOSITION TO A PETITION

FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS FOR THE STATE OF

NEW YORK

STATEMENT OF THE CASE

Petitioner, Shirley Middleton (hereafter

referred to as "petitioner") was a recipient

of public assistance in the Aid to Dependent

Children category. She had two children of

her own and three foster children. She was

also authorized to participate in the Food

Stamp Program. In December, 1985,

petitioner received $148 in food stamps.

After December, 1985, petitioner

received no further food stamps. She

alleged that she received no notice from New

York City's Department of Social Services

("Agency") that her food stamps were to be

discontinued. On June 24, 1986, at

petitioner's request, a "fair hearing" was

held to review "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 Dependent Children." On August

18, 1986, the Commissioner of the State

Department of Social Services issued a

"Decision After Fair Hearing." App.

— ——— —

10a-12a. 1

The Commissioner found that the

Agency's determination to discontinue

petitioner's authorization to participate in the

Food Stamp Program vas based on

petitioner's failure to provide paystubs of

her 20-year-old daughter and social security

numbers for her three foster children.

App. 10a. Finding that the Agency had not

requested the information, the Commissioner

directed it to restore Food Stamp benefits to

petitioner retroactive to the date of

discontinuance in accordance with the

verified degree of need." App. lla.

On September 5, 1986, petitioner's

attorney wrote to the Compliance Section of

the State Department of Social Services

stating that the Agency had not implemented

1 Numbers preceded by the letters "App."

refer to the pages of the appendix to the

Petition For a Writ of Certiorari.

the decision of the Commissioner. The

Compliance Unit responded on September 12,

1986 indicating that the matter would be

reviewed by the local agency.

On November 8, 1986, the Agency, by

way of a memorandum to the Fair Hearing

Monitoring Section, stated that it was not

providing food stamps because petitioner had

been sent two notices apprising her of the

discontinuance of food stamps on January 9,

1986 and March 13, 1986. These notices

stated that the necessary documentation"

had not been provided by petitioner. App.

13a. In addition, the Agency, as per the

Commissioner's decision of August 18, 1986,

had verified petitioner's degree of need and

found "that [the] family is not eligible for

Food Stamp benefits." App. 13a.

On November 14, 1986, petitioner

brought a proceeding pursuant to Article 78

of the New York Civil Practice Law and

Rules seeking an order directing the Agency

to comply with the Commissioner's Fair

Hearing Decision of August 18, 1986.

The Agency did not interpose an

answer. According to petitioner, however,

it did inform her counsel on January 6, 1987

that "the agency intended to comply with the

hearing decision by issuing petitioner's

retroactive food stamps to her, and

providing her with ongoing food stamp

benefits for as long as she was entitled

thereto." The same date petitioner informed

her attorney that she received over $900 in

retroactive food stamps. On February 3,

1986, petitioner withdrew her Article 78

proceeding from the court calendar.

However, on December 24, 1986, the

Agency issued petitioner a notice of intent to

discontinue food stamps because you failed

to verify your household's foster care and

SSI income..." Thereafter, petitioner

requested another administrative hearing.

The hearing was held on March 9, 1987 and

on April 15, 1987. Thereafter, the

Commissioner issued a Decision After a Fair

Hearing and reversed the Agency's notice of

December 24 to discontinue benefits because

it was not in compliance with the Decision of

August 18, 1986. App. 14a-17a. The

Agency was directed to provide Food Stamp

benefits to petitioner retroactive to the date

of the Agency's action. App. 17a.

On May 20, 1987, petitioner moved to

restore her Article 78 proceeding to the

calendar because the Agency apparently“

discontinued petitioner's food stamps without

notice. On June 1, 1987, the Agency issued

another notice of intent to discontinue food

stamps because of petitioner's failure to

submit verification of household income.

On July 7, 1987, the Agency submitted

an Affirmation in Opposition to petitioner's

motion to restore the Article 78 proceeding

to the calendar. It was the Agency's view

that pursuant to 18 NYCRR 387. 10(b) (2) (ii),

foster care payments must be included in

calculating a household's income for purpose

of determining eligibility for food stamps.

Petitioner receives $993.00 in income and

$91.00 in clothing allowance per month for

her three foster children, thereby rendering

her ineligible for food stamp assistance.

1. The Supreme Court's Opinion

By Order and Judgment dated August

6, 1987, the Supreme Court, New York

(Vaccaro, J.) ordered the Agency to comply

with the fair hearing decisions of August 18,

1986 and April 15, 1987. App. 19a.

Regarding petitioner's application for

attorney's fees, the trial court concluded

that she was the prevailing party in her

claim to an allotment of food stamps pursuant

to 7 U.S.C. Chapter 51, and as such, was

entitled to an award of reasonable fees

pursuant to 42 U.S.C. §1988.

The triai court awarded attorney's fees

in the amount of $3,662.50 as against the

State. The trial court found that while the

"intransigence of the local agency" was

responsible lor the repeated proceeding, it

felt-constrained to dismiss the application for

fees as against the Agency on the authority

of Matter of Beaudoin v. Toia (Jorczak), 45

N.Y¥.2d 343, 347, 408 N.Y.S.2d 417, 419,

380 N.E.2d 246, 247-248 (1978).

2. The Appellate Division's Opinion

The Appellate Division of the New York

State Supreme Court for the Second Judicial

Department rendered a unanimous decision

reversing, the Supreme Court's judgment

granting petitioner's application for

attorney's fees. App. 2a. Middleton v.

Perales, 160 A.D.2d 800, 554 N.Y.S.2d 71

(2d Dept. 1990), appeal denied, 76 N.Y.2d

Sea ptm, Eel agi a a —

714, 564 N.Y.S.2d 718, 565 N.E.2d 1269

(1990). The Appellate Division, noting that

the underlying proceeding sought to compel

the Agency to comply with a "Decision After

Fair Hearing" directing the restoration of

petitioner's food stamp benefits, ruled that

the "controversy dealt with the

administrative application of State statutes

and regulations (see, Social Services Law

§22[9]1; §34[3], 18 NYCRR _ former

358.18[8][1], 358.22)." App. 3a. Id. at

801. The Appellate Division held that

"(t)here was no showing by the petitioner of

a violation of any constitutional right, or the

violation of any right created by federal law

(citation omitted). App. 3a. Id. at 801.

3. Applications For Leave To Appeal

On May 25, 1990, petitioner moved in

the Appellate Division, Second Department

for leave to appeal to the Court of Appeals

of the State of New York. The application

was denied on July 3, 1990. App. Qa.

Thereafter, petitioner sought leave in

the Court of Appeals. This motion was

denied on December 20, 1990. App. la.

REASONS FOR DENYING THE WRIT

Petitioner originally was authorized to

receive food stamps. She alleges that after

December 1985, her food stamps were

discontinued without notice. She requested

and was given a hearing to review the

determination to discontinue her food stamps.

The State Commissioner issued a decision

directing the Agency to restore petitioner's

stamp benefits retroactive to the date of

their discontinuance. When the Agency

failed to comply with the directive, petitioner

brought her Article 78 proceeding for an

order directing the Agency to comply with

the decision of respondent Perales. Thus, if

-10-

the Agency had complied with the order of

the Commissioner, petitioner would have had

no basis for her Article 78 proceeding.

Petitioner was not aggrieved by a denial of

benefits, as the State's decision was in her

favor. Rather, petitioner brought an Article

78 proceeding in the nature of a mandamus

action to have the court order the Agency to

comply with the administrative decision of

the State to provide petitioner with food

stamp benefits. Petitioner does not allege a

conflict with any federal mandate regarding

food stamp allotments and state regulations.

Petitioner also does not allege an official

policy of the State or the Agency or a

failure to comply with Federal law or State

law or regulations. Rather, petitioner

brings her lawsuit predicated on isolated

acts of a City agency. Such a claim does

not provide the predicate for an attorney's

—11—

fee application as against the City Agency or

a case worthy of review by this Court.

PETITIONER'S ALLEGATION

THAT THE CITY AGENCY

FAILED TO COMPLY WITH A

STATE FAIR HEARING

DECISION DIRECTING ‘THE

AGENCY TO PROVIDE

PETITIONER WITH # FOOD

STAMP BENEFITS, WITHOUT

A CLAIM THAT THE CITY

AGENCY HAD A PRACTICE

OR POLICY OF NOT TIMELY

COMPLYING WITH STATE

FAIR HEARING DECISIONS

DOES NOT RAISE A

SUBSTANTIAL FEDERAL

CLAIM WARRANTING AN

AWARD OF #§ £=ATTORNEYS'

FEES.

(1)

In Monell v. Department of Social

Services of the City of New York, 436 U.S.

658, 690 (1978), this Court explained that

the touchstone of the §1983

action against a government

body is an allegation that

official policy is responsible

for a deprivation of

rights....

-13-

[A] local government may ...

be sued under §1983 ... when

lit is the] execution of a

government's policy or custom

.. . [that] inflicts the injury.

[That is when] the

government as an entity is

responsible under 81983.

Id at 690, 694. See also, Simpson v. New

York City Transit Authority, 112 A.D. 89,

91, 491 N.Y.S.2d 645, 647 (Ist Dept. 1985),

aff'd, 66 N.Y.2d 1010, 499 N.Y.S.2d 396,

489 N.E.2d 1298 (1985). Moreover, to

maintain an action under 42 USC §1983, an

individual is required to plead and prove

that the official policy or custom is what

caused the deprivation of that individual's

rights. Batista v. Rodriguez, 702 F.2d 393,

397 (2d. Cir 1983). "'[T]he mere invocation

of the pattern“ or plan! [will] not suffice

without this causal link. Id. at 397. "At

the very least there must be an affirmative

link between the policy and the particular

violation alleged. Oklahoma City v.

-]3-

— — — So

——

—

Tuttle, 471 U.S. 808, 823 (1985). To

establish a causal link, it must be shown

that an official policy "by its terms" violates

an individual's rights; or, in the case of a

"more nebulous" policy (i.e., a custom or

pattern and practice), it must be shown that

it was "a course of action consciously chosen

from among various alternatives" that caused

the deprivation. Id. at 822-823. While

Monell involved a violation of the Equal

Protection Clause, there is nothing in the

language of Monell or subsequent cases to

indicate that its broad holding, requiring

proof of official policy in cases brought for

"monetary, declaratory, or injunctive relief",

should be limited to constitutional questions,

and is not applicable to statutory claims.

This Court in Monell also explained that

a suit commenced against an individual in his

official capacity is "only another way of

pleading an action against [the] entity of

~14-

—

which an officer is an agent. Id. at 690,

n. 55. This Court elaborated on this point in

Kentucky v. Graham, 473 U.S. 159 (1985),

where it stated that

in an official-capacity action

... for a governmental entity

[to be] liable under §1983 ..

the entity itself [must be] a

"moving force“ behind the

deprivation [citing cases];

thus in an official- capacity

suit the entity's "policy or

custom" must have played a

part in the violation of

federal law.

Id. at 166; Oklahoma City, supra, 471 U.S.

at 820.

In the case at bar, i petitioner

commenced her Article 78 proceeding against

Cesar Perales as Commissioner of the New

York State Department of Social Services,

and William Grinker as Commissioner of the

New York City Department of Social

Services. This is clearly an official-capacity

suit, as each official has been sued in his

capacity as commissioner. In order to

-15-

maintain a §1983 claim, petitioner must do

more than merely allege federal statutory and

constitutional violations; she must make a

showing that the Agency had a policy of

failing to comply with State Fair Hearing

Decisions. Petitioner has not and cannot

establish that this was the Agency's policy

on the basis of the isolated incidents alleged

in her petition. 2

2 In Moore v. Perales, 85 Civ. 1638 (CPS),

memorandum opinion and order, (E. D. N. v.

June 27, 1988), on a motion for partial

summary judgement, the District Court

considered the New York City Department of

Social Service's compliance with Fair Hearing

Decisions in cases involving Aid to Families

with Dependent Children ("AFDC") and food

stamps. The Court found that from

February 1986 to February 1987, the Agency

complied in 95% of AFDC cases within 30

days as required by law, and in 90% of food

stamp cases within 10 days as required by

law. The Court also noted that the Agency

is taking steps to further improve its

performance. Slip op. at 9. Compare,

Haskins Xx. Stanton, 794 F.2d 1273, 1276

(7th Cir. 1986).

-16-

(2)

Undaunted, petitioner, under the veil

of a supremacy clause argument, asserts that

her claim was based on the violation of a

federal statute by respondents. This view

misconstrue the nature of the action at bar.

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

(1980), this Court held that the plain

language of §1983 embraces claims based on

violations of federal statute alone. Id. at 4.

This Court also held that attorney's fees may

be awarded to the prevailing party under 42

USC §1988 ("81988") in such §1983 actions

based on statutory violations. Id. at 9.

There, the respondents, who awe recipients

of AFDC benefits, challenged the State's

method of computing their benefits. Id. at

3. Attorney's fees were granted because the

State's regulations were in conflict with the

federal Social Security Act, and thus,

amounted to an official policy that operated

-17-

a 8 ek gee + —

i . . . a ae eS ~~ Oe

to deprive families of rights secured by

federal statute. Id. at 3; Oklahoma City,

supra, 471 U.S. at 822. Since this case

involves only a failure of compliance, it is

governed by State regulation, and there has

been no violation by the Agency of federal

law or regulation.

In Oberlander v. Perales, 740 F.2d 116

(2d Cir. 1984), the Court of Appeals for the

Second Circuit considered a 31983 action

based on an alleged federal statutory

violation. The plaintiff's claim was based on

a violation of a state regulation governing

Medicaid reimbursement promulgated in

e In this context, it is worth noting that

petitioner's prayer for relief only requests

judgment (1) directing the Agency

respondent to comply with the State

respondent's hearing decision; (2) directing

the Agency respondent to restore petitioner's

food stamp immediately; and 3) directing the

State respondent to "supervise and monitor

the agency to assure its compliance with the

said hearing decision."

-18-

conformity with the federal Medicaid statute

and regulations. The plaintiff argued that

this was "ipso facto a violation of federal

Medicaid laws and regulations." Id. at 119.

The Circuit Court "reject{ed] this tortuous

argument", and found that

there is no authority

anywhere supporting the

proposition that a state ...

regulation becomes a federal

law merely by virtue of its

inclusion in a state plan

required by federal law ....

Id. at 119. In dismissing the statutory claim

the Circuit Court held that to be the basis

of a 81983 action there must be "a specific

conflict between a state plan or practice on

the one hand and a federal mandate on the

other." Id. at 119, citing cases; Mont v.

Heintz, 849 F.2d 704, 709 (2d Cir. 1988);

Friedman v. Perales, 616 F.Supp 1363, 1369

(S.D.N.Y. 1985). There has been no

allegation in this case that the state

regulations in any way conflict with federal

-19-

ieee ce — ee

mandate, and it was shown that the Agency

has a specific policy of adhering to those

regulations. See, Gelin v. Perales, 149

A.D.2d 593, 595, 540 N.Y.S. 2d 275, 277

(2d Dept. 1989).

(3)

Lastly, we note that in certain cases

fees may be granted on State grounds if

petitioner seeks relief on both State grounds

and Federal grounds. United Mine Workers

of America vy. Gibbs, 383 U.S. 715, 725

(1966). The "two-pronged Gibbs test" is

the same as the test for pendent

jurisdiction. It permits an award of

attorney's fees if (1) the federal claim has

substance sufficient to confer subject matter

jurisdiction, and (2) the federal and

non-federal claims derive from a common

nucleus of operative fact. The determination

of the federal claim's substantiality is based

on whether it is "wholly insubstantial",

-20-

Bie etl net Se seat sitet to on

“obviously frivolous", or obviously without

merit." See, Matter of Johnson v. Blum,

supra, 58 N.Y.2d at 458 n. 2, 461 N.Y.S.

2d 782, 783, 448 N.E.2d 449, 450 (1983),

citing, Hagans v. Lavine, 415 U.S. 528,

537-538 (1974).

Here, although it appears that

petitioner's state and federal claims derive

from a common nucleus of operative facts,

petitioner's federal claims fail to meet the

substantiality requirement. In cases

involving cooperatively funded public welfare

programs, "failure to comply with State

regulations, without more, does not implicate

an interest secured by the laws of the

United States." Matter of Misuraca v.

Perales, 120 A.D.2d 592, 593-594, 501

N.Y.S.2d 907, 909 (2d Dept 1986). Instead,

a claim is stated under Section 1983 only

when a conflict between the state plan (or a

state practice) and federal law is alleged.

-21-

4

Oberlander v Perales, supra, 740 F.2d at

119.

The petition in this case alleges no

such conflict between state law or practice

and federal law. Similarly, in those cases

relied on by petitioner for her ominous

assertion that the Appellate Division, Second

Department of the State of New York "is

refusing to take cognizance of substantial

federal claims," the moving parties did not

allege that state laws or practices did not

comply or conflict with federal mandates;

rather, each case was based on an allegation

of an isolated incident concerning the

Agency's failure to abide by a state

regulation. See, Thomasel v. Perales, 161

A.D.2d 646, 647, 555 N.Y.S.2d 423 (2d

Dept. 1990); Cruz v. Perales, 158 A.D.2d

597, 551 N.Y.S.2d 568, 569 (2d Dept. 1990);

Rashid v. Perales, 156 A.D.2d 692, 549

N.Y.S.2d 166, 167 (2d Dept. 1989); Rozier

-22-

prea el te ea rig I le ME TEESE SE

v. Perales, 149 A.D.2d 710, 540 N.Y.S.2d

504, 505 (2d Dept. 1987), appeal denied, 74

N. v. ad 993, 550 N.Y.S.2d 274, 549 N.E.2d

476 (1989). Stringing these matters together

as petitioner has, neither raises a claim of

an unconstitutional Agency practice or

pattern, nor a substantial constitutional

question worthy of review by this Court.

CONCLUSION

THE PETITION FOR A WRIT

OF CERTIORARI SHOULD BE

DENIED.

Respectfully submitted,

VICTOR A. KOVNER,

Corporation Counsel of

the City of New York,

Attorney for Respondent

William Grinker.

LEONARD J. KOERNER, *

LARRY A. SONNENSHEIN,

JULIAN L. KALKSTEIN,

of Counsel.

July 30, 1991.

-23-