Opposition Brief — Montez v. Lavine (Nos. 1037-74, 1088-74)

tiutintiaat d States

MICHAEL «Jt

Ocroser Term, 1974 =

No. 74- 1 088 \

Fermina Montez, on her own behalf and on behalf of

her infant children, Jose Mirtvo Montez and ARMANDO

Montez, on behalf of themselves and all others simi-

larly situated,

Petitioners,

—against—

Greorce K. Wyman, individually and as Commissioner of |

the Department of Social Services of the State of New

York and Jack R. Goupsere, individually and as Com-

missioner of the Department of Social Services of the

City of New York,

Respondents.

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BRIEF IN OPPOSITION TO PETITION

FOR CERTIORARI

W. Bernarp RicH.anp,

Corporation Counsel of the

City of New York,

Attorney for Municipal Respondents,

Municipal Building,

‘New York, N. Y. 10007.

212—566-3324

L. Kevin SHErman,

Susan S. Berkin

of Counsel.

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INDEX

PAGE .

Question Presented 1

New York Statute Involved 2 :

Statement of the Case 2 i

ARGUMENT: E

The Court of Appeals for the Second Circuit

properly affirmed the order of the District Court 1

for the Southern District of New York, which fe

granted thé Municipal Defendant’s motion for dis-

missal, treated as a motion for summary judgment 9 :

ConcLusion 13

TaBLE OF AUTHORITIES

Cases:

Cancel v. Wyman, 321 F. Supp. 528 (S.D.N.Y. 1970) ;

441 F.2d 553 (2nd Cir., 1971) 5

General Tire and Rubber Co. v. Jefferson Chem. Co.,

46 F.R.D. 607 (S.D.N.Y., 1969) 11

Larsen v. American Airlines Inc., 313 F.2d 599 (2nd

Cir., 1962) 11

Madeirense DO Brasil S/A v. Stulman-Emrick Lum-

ber Co., 147 F.2d 399 (2nd Cir., 1945), cert. den. 325

U.S. 861 (1945) 11

: COLNE NODE PE BOE ELE ADELE SGP ONL PONG IESE ER mem csegenrscne mee

PAGE

Rothstein v. Wyman, 467 F.2d 266 (2nd Cir., 1972),

cert. den. 411 U.S. 921 (1975) ... 11

Thompson v. New York Central R.R. Co., 361 F.2d

137 (2nc. Cir., 1966) 11

Constitutional Provision:

United States Constitution

Eleventh Amendment 6, 10, 12

Regulation:

New York State Department of Social Services

18 N.Y.C.R.R. 353.3(a) (2) 3

Rules:

Federal Rules of Civil Procedure

Rule 12 6

Rule 12(b) (1) 6

Rule 12(b) (6) 6, 10, 11

Rule 15

PRURAAE Tea ANIA NYP ORTON TT

PAGE

Federal Statutes: ; 4

28 U.S.C. §1343(3) 4s

28 U.S.C. §1343(4) 4 ¢§

28 U.S.C. §2202 .... 4 oF

28 U.S.C. §2281 4 §

28 U.S.C. §2284 4 &

42 U.S.C. §601 e¢ seq. 3 oF

42 U.S.C. §1983 3 &§

State Statutes: :

§101 (1966) 210° &

§131-a 11 §

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In THE

Supreme Court of the United States

Ocrosper TERM, 1974

No. 74-

a cdiien

Fermixna Monvrez, on her own behalf and on behalf of

her infant children, Jose Mirino Montez and ARMANDO

Montez, on behalf of themselves and all others simi-

larly situated,

Petitioners,

—against—

Grorce K. Wyman, individually and as Commissioner of

the Department of Social Services of the State of New

York and Jack R. Gouppers, individually and as Com-

missioner of the Department of Social Services of the

City of New York,

Respondents.

——

BRIEF IN OPPOSITION TO PETITION

FOR CERTIORARI

Question Presented

Did the District Court, in the exercise of its equity

powers, abuse its discretion in holding that it would not

order the municipal defendant, Goldberg, to pay to peti-

tioner retroactive public assistance benefits allegedly

wrongfully withheld?

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New York Statute Involved

Social Services Law

“$101. Liability of relatives to support

1. The spouse or parent of a recipient of public as-

sistance or care or of a person liable to become in

need thereof shall, if of sufficient ability, be responsible

for the support of such person, provided that a parent

shall be responsible only for the support of a minor

child. Step-parents shall in like manner be responsible

for the support of minor step-children.

2. The liability imposed by this section shall be for

the benefit of the public welfare district concerned or

any legally incorporated non-profit institution which

receives payments from any governmental agency for

the care of medically indigent persons, and such lia-

bility may be enforced by appropriate proceedings and

actions in a court of competent jurisdiction. Such pro-

ceedings and actions may be brought by such an in-

stitution in any court wherein a similar proceeding or

action could be brought by a public welfare official.”

Statement of the Case

Since in our view the petition does not adequately pre-

sent the procedural history of this case, we are submitting

a summary of this history.

(1)

Petitioner, Fermina Montez, on her own behalf, and on

behalf of her infant children, Jose and Armando Montez,

and on behalf of all others similarly situated, instituted

IR ET PIRI eae AAI

this civil action for declaratory and injunctive relief pur-

suant to 42 U.S.C. Section 1983, on October 31, 1969.

Named as defendants were George K. Wyman, individually

and as Commissioner of the Department of Social Services

of the State of New York, and Jack R. Goldberg, individu-

ally and as Commissioner of the Department of Social Ser-

vices of the City of New York. Petitioner sought relief

from the enforcement of §353.3(a)(2) of the Regulations

of the New York State Department of Social Services

(18 N.Y.C.R.R. 353.3(a)(2)), which regulation (since re-

pealed) required that the income of a stepparent in excess

of his own needs as defined by the State be applied against

the needs of his stepchildren in their application for as-

sistance. Petitioner in her complaint contended that this

regulation arbitrarily assumed that the income of the step-

parent was available for the support of his stepchildren

and that the enforcement of the regulation constituted a

violation of the Due Process and Equal Protection clauses

of the Fourteenth Amendment, the right to privacy, and

the Social Security Act (42 U.S.C. 601 et seq.).

The complaint alleges the following: Petitioner Fer-

mina Montez is the mother of Jose and Armando Montez,

12 and 11 years of age, respectively. The children’s father,

Jose Montez, stopped all support of the children in June

1968. Petitioner was forced to leave her employment in

June 1968 to look after her children, who had dropped

out of school. Petitioner divorced Jose Montez in October

1968. Montez’s present “whereabouts” was not known. In

January of 1969 petitioner married Luis Perdomo. He was

unable to contribute to the children’s support other than

the cost of shelter. Petitioner received public assistance

under the Aid to Families with Dependent Children (AF

DC) program on behalf of the two Montez children. In

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Februury of 1969, she received a “Notice of Intent to Sus-

pend Public Assistance”. Aid was cut off as of February

1, 1969.* At a hearing held on March 11, 1969, petitioner

was required to report her husband’s income, to be figured

into the calculation of her aid. On April 2, 1969, petitioner

requested a hearing to review her treatment. Petitioner

claimed that there was no response to this request.

The petitioner in her complaint requested the issuance of

temporary and permanent injunctions, the convening of a

3-Judge Court under 28 U.S.C. §§ 2281 and 2284, a declara-

tory judgment pursuant to 28 U.S.C. § 2202, and retroactive

payments. Jurisdiction was alleged under 28 U.S.C. $§ 1343

(3) and 1343(4).

On December 11, 1969, Judge Franke denied the plain-

tiff’s application for a temporary restraining order and

the convening of a 3-Judge Court. He endorsed the moving

papers:

“Plaintiff concedes there is no dispute as to her present

or future entitlement, but only an open question as to

past allowances. The basis for this motion being con-

cededly absent, it is denied. So ordered.”

(2)

On May 27, 1970, Judge Metzner denied an application

by one Delia Cancel to intervene in the action, suggesting

*It should be noted that petitioner’s aid was terminated on

February 11, 1969 because of her marriage. Assistance was re-

sumed on February 19, 1969. A pre-termination review was held

on March 11, 1969 because Mrs. Perdomo refused to allow the

Department of Social Services to complete its investigation. As

a result of this review aid was again terminated on March 24,

1969. Petitioner reapplied for assistance on March 25, 1969, and,

since her husband had signed an application for public assistance,

the aid was restored on April 1, 1969.

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that she commence an entirely new action. An action was

subsequently instituted challenging the aforementioned

state regulation. Cancel v. Wyman, 321 I. Supp. 528 (S.D.

N.Y., 1970). On August 24, 1970, Judge Cooper denied Can-

cel’s application for the convening of a 3-Judge Court on

the basis that no substantial constitutional question was

raised. Judge Cooper permitted maintenance of a class

action, and left for trial the issue as to the existence of

a conflict between state and federal regulations. An appeal

of this decision was subsequently dismissed. Cancel v.

Wyman, 441 F.. 2d 553 (2d Cir., 1971).

(3)

In the present case, on February 25, 1971, petitioner

moved for summary judgment to recover retroactive pay-

ments allegedly due her for the period from February 1,

1969, through December 31, 1969, in the amount of $809.20.

On May 5, 1971, Judge Metzner denied the motion, stating:

“In view of Judge Frankel’s decision, this action

has been limited to recovery by plaintiff of allegedly

past due deficiencies during a specified period... .

I agree with Judge Cooper that the asserted con-

stitutional bases of plaintiff’s claim are insubstantial.

On the contention that the regulations (18 N.Y.C.R.R.

§353.3(a) (2) (i) and 45 C.F.R. $203.1) are inconsistent,

I would deny summary judgment since the resolution

of the issue is not clear. In fact it would appear that

the result would be contrary to plaintiff’s contention.

Finally, there is serious doubt, as gleaned from the

affidavits, as to whether any sum is due this plaintiff.”

On September 20, 1972, an order was entered by the

District Court for the Southern District of New York, dis-

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missing the action for lack of prosecution. However, on

motion of the petitioner, this order was vacated on Janu-

ary 18, 1973. On February 14, 1973, defendant Wyman

moved pursuant to Rule 12, Fed. R. Civ. Pr., to dismiss

the complaint as to him for lack of jurisdiction, and, pur-

suant to Rule 15, Fed. R. Civ. Pr., to amend his answer to

include the Eleventh Amendment as a bar to retroactive

payments as sought by plaintiff. On May 7, 1973, defen-

dant Wyman’s motion to dismiss the complaint was granted.

Judge Bonsau wrote:

“In view of Judge Metzner’s decision, the only re-

maining issue is whether plaintiff is entitled to retro-

active payments for alleged past deficiencies in her

A.F.D.C. payments.

... Under the Eleventh Amendment this court does

not have jurisdiction to direct that the State of New

York make retroactive payments out of State funds for

alleged past deficiencies in A.F.D.C. payments (citing

cases).”

(4)

Un December 17, 1973, defendant Goldberg moved pur-

suant to Rule 12(b)(1) and (6) Fed. R. Civ. Pr., for an

order dismissing the complaint as to him on the grounds

that the Court lacked jurisdiction over the subject matter

and that the complaint failed to state a claim upon which

relief might be granted.

Petitioner had originally contended, on the basis of the

affidavits filed with respect to her earlier motion for sum-

mary judgment, in 1972, that she was entitled to a total

of $2,384.70 in public assistance from February 1, 1969

through December 31, 1969, of which amount she claims to

LESLIE EP

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have received $1,575.50, leaving a balance of $809.20. At

the time of defendants’ motion to dismiss, petitioner

claimed that she was entitled to a total of $3,370.82 for the

year 1969, with a balance allegedly still due of $1,795.32.

In an affidavit in support of defendant Goldberg’s motion

to dismiss, Guyle Redford, an Assistant Corporation Coun-

sel, contended that petitioner’s calculations are inaccurate

in that they do not take into account the fact that her hus-

hand, Mr. Perdomo was placed on petitioner’s welfare

budget in April 1969 and that his income was included in

the computation of petitioner’s need for the following nine

month period of 1969. Moreover, the calculations do not

accurately reflect the extent to which Perdomo’s income

should have been applied in determining his and petitioner’s

welfare benefits. -

The cancelled welfare checks submitted by defendant

Goldberg indicate that from April 1, 1969, through Decem-

ber 31, 1969, virtually every check under case number

2769360 was issued to Luis Perdomo; only two, totalling

$46.00, were issued to plaintiff. The checks issued to Luis

Perdomo supplemented his monthly income of $278.00.

This income should have been applied in calculating the

benefits due Perdomo and, at the very least, plaintiff (and

their son Luis), during the 9 months in which they were

on the same welfare budget. These earnings totalled

$2,502.00 ($278.00 « 9) from April 1, 1969 through Decem-

ber 31, 1969. Despite this income, petitioner claimed that

her husband was giving her only about $100 a month.

The affidavit in support of defendant Goldberg’s motion

showed that no money was owed to the petitioner. While

petitioner claimed that, from February 1, 1969 through

Lt I COVOG ILS LEG Sp CEILS ALE LIT EPI PEELE F EY

December $1, 1969, she received only $1,575.59 in assistance,

the cancelled checks submitted by defendant Goldberg

clearly indicated that petitioner and her husband were

actually paid $2,051.45 during that period under case num-

ber 2769360. :

In addition, payments totalling $1,203.44 were paid by

the Department of Social Services under the medicaid pro-

gram for hospitalization of petitioner in connection with

her pregnancy and the birth of Luis Perdomo in November, ©

1969. This child is the son of petitioner and Luis Perdomo.

Even if Perdomo’s salary had not been applied in calculat-

ing welfare benefits due petitioner and her husband, then

it should have been applied to the hospital bills incurred by

petitioner. This was not done.

Judge Bonsat granted defendant Goldberg’s motion to

dismiss the complaint, treated as a motion for summary

judgment. In a decision dated March 25, 1974, Judge

Bonsau wrote (Appendix to Petition, pp. A5-A6) : .

“... Under New York Social Welfare Law §101 (1966)

Mr. Perdomo was responsible for the support of the

two Montez children from January, 1969, when he

became the husband of Fermina Montez. If Mr. Per-

domo is included in the calculations, plaintiff would

have been entitled-to a total of $2,025.18 in public as-

sistance benefits for the year 1969. The affidavits, hew-

ever, show that plaintiff and her husband received

$2,051.45, which is of course more than this amount.

In any event, the award of retroactive benefits for

alleged past deficiencies in AFDC payments lies within

the federal courts’ equity powers. See Rothstein v.

Wyman, 467 F. 2d 226 (2d Cir. 1972), cert. denied, 411

U.S. 921 (1973). On. the basis of the record herein,

the Court finds no basis for the exercise of its equity |

powers to grant the claimed retroactive payments. “

The Court of Appeals for the Second Cireuit ‘affirmed,

without opinion, on December 5, 1974.

ARGUMENT

‘

The Court of Appeals for the Second Circuit pr>perly

affirmed the order of the District Court for the Southern

District of New York, which granted the Municipal De-

fendant’s motion for dismissal, treated as a mot!on for

summary judgment.

| (1)

The only issue before the District Court was whether

petitioner is entitled to retroactive payments for alleged

past deficiencies in her AFDC payments. Petitioner had

originally contended, on the basis of’ the affidavits filed with

respect to her earlier motion for summary judgment, that

she was entitled to a total of $2,384.70 in public assistance

from February 1, 1969,,. through December 31, 1969, of

which amount she claimed that she received $1,575.50,

leaving a balance due of $809.20. Subsequently, petitioner

claimed that she was entitled to a total of $3,370.82 for the

_ year 1969, with a balance allegedly due of $1, 795. 32.

The Municipal Defendant Goldberg made a motion to

dismiss the complaint as to him on the ground that the

Court lacked jurisdiction over the subject matter and, that

the complaint failed to state a claim upon which relief

might be granted. Defendant Goldberg's motion was ac-

PEREIRA LOC LIA GIT ICL RS OEP TELE NR Ce Mae ent

LEO LE PAREN

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companied by an affidavit by Assistant Corporation Coun-

sel, Gayle Redford, and photocopies of cancelled welfare

checks issued to the petitioner and her husband for 1969.

The affidavit snd the checks conclusively proved that, while

petitioner claimed in her complaint that she received only

$1,575.50 in assistance from February 1, 1969 through

December 31, 1969, petitioner and her husband were actu-

ally paid $2,051.45 during that period under case number

2769360. It was also affirmed that petitioner's figures for

amounts allegedly due were incorrect in that they did not

take into account the fact that Mr. Perdomo was placed

_ on petitioner’s welfare budget in April 1969 and that his

income was included in the computation of plaintiff’s need

during this period. S

The decision of the District Court stated that under

New York Social Welfare Law §101 (1966), Mr. Perdomo

was responsible for the support of the two Montez children

from January, 1969, when he became the husband of Fer-

mina Montez. Judge Bonsav’s opinion indicated that the

petitioner was very likely overpaid for the year 1969. How-

‘ever, the decision did not expressly rest on this ground.

The Court instead concluded that: “On the basis of the

record hefein, the Court finds no basis for the exercise

of its equity powers to grant the claimed retroactive pay-

ments.” The, Court did not discuss defendant Goldberg’s

asserted Eleventh Amendment defense.

(2)

Under the Federal Rules of Civil Procedure a Rule 12

(b)(6) motion to dismiss for failure to state a claim upon

which relief can be granted is to be converted into motion

for summary judgment whenever matters outside the plead-

ings are presented to and accepted by the Court.

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In the instant case municipal defendant Goldberg’s mo-

tion to dismiss was accompanied by an affidavit and can-

celled checks which, we believe, conclusively showed that

the petitioner was not, in fact, owed any additional money,

since she was paid $2,051.45 from February 1, 1969 through

December 31, 1969 under case number 2769360.* The Dis-

trict Court’s opinion does not purport to rest on this

ground. However, the Court did appear to accept the de-

fendant Goldberg’s figures as accurate. Based upon this

showing by the defendant Goldberg, and the failure of

plaintiff, in the court below as well as in this petition, to

present any convincing contrary figures, we submit that

this was an a fortiori case for the trial court’s declining

to exercise its discretion to refuse equitable relief.

It is accepted that under Rothstein v. Wyman, 467 F. 2d

266 (2nd Cir., 1972), cert. denied, 411 U.S. 921 (1973), the

Court’s equity jurisdiction may be used to determine if

retroactive benefits are recoverable in cases involving cate-

gorical aid under the Social Security Act. In Rothstein, a

case brought by recipients of Aid to the Aged Blind and

Disabled from the seven counties surrounding New York

City challenging Social Services Law §131-a, the District

Court enjoined the defendants from enforcement of that

statute and awarded retroactive benefits. On appeal, the

Court of Appeals for the Second Circuit held that the award

*In the Second Circuit affidavits and exhibits have been ac-

cepted on Rule 12(b)(6) motions, and when so accepted the mo-

tion becomes one for summary judgment. See, e.g., Thompson

v. New York Central R.R. Co., 361 F. 2d 137 (2nd Cir., 1966)

(affidavits) ; Larsen v. American Airlines Inc., 313 F. 24 599 (2nd

Cir., 1962) (affidavit) ; General Tire and Rubber Co. v. Jefferson

Chem. Co., 46 F.R.D. 607 (S.D.N.Y., 1969) (exhibits) ; Madeirense

DO Brasil 8/A vy. Stulman-Emrick Lumber Co., 147 F. 2d 399

(2nd Cir., 1945), cert. den. 325 U.S. 861 (1945) (exhibits—letter).

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of retroactive payments by the District Court was not a

proper exercise of the District Court’s equitable powers.

The Court said that in wielding equity power the Court

must weigh competing claims and determine where a pre-

ponderance of the equities lies.

In this case, petitioner has not demonstrated on what

basis the Court had any discretion to exercise its equitable

power. The defendant Goldberg’s calculations as shown by

the affidavit and cancelled checks were not successfully chal-

lenged by petitioner. Since there was apparently no money

owed to the petitioner, under any construction of the equi-

ties involved in this case, the District Court properly found

that there was no basis upon which to exercise its equity

jurisdiction.

(3)

Petitioner contends (Pet., p. ix) that on March 25, 1974,

the District Court for the Southern District of New York

(Bonsat, J.) granted the municipal defendant’s motion to

dismiss on the grounds of the Eleventh Amendment sov-

ereign immunity. We respectfully submit that Judge Bon-

saL dismissed the case because on the basis of the record,

including aflidavits of the Municipal Defendant indicating

that petitioner is not entitled to any money from the Mu-

nicipal Defendant, the Court found “no basis for the exer-

cise of its equity powers to grant the claimed retroactive

payments.” The District Court and the Circuit Court, then,

did not base their respective determinations on the applica-

tion of the Eleventh Amendment to the City of New York.

This is, then, not a proper case for the United States Su-

preme Court to determine whether the Eleventh Amend-

ment immunity extends to municipalities alleged to owe

retroactive benefits to welfare recipients.

TIRES I Paty at EOE De “ates $ OS ee

CONCLUSION

The petition for writ of certiorari should be denied.

April 7, 1975.

Respectfully submitted,

W. Bernarp RIcHLAND,

Corporation Counsel of

the City of New York,

Attorney for Respondent.

L. Kevin SHERIDAN, i

Susan S. Beixiy,

of Counsel.

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