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ACOSTA v. SWANK

May 11, 1970

IGNACIO ACOSTA, VIRGINIA BOWERS, BERNICE ROBINSON, AND DOVIE THURMAN, INDIVIDUALLY AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED, PLAINTIFFS,
v.
HAROLD O. SWANK, DIRECTOR, ILLINOIS DEPARTMENT OF PUBLIC AID, DAVID DANIEL, DIRECTOR, COOK COUNTY DEPARTMENT OF PUBLIC AID, DEFENDANTS.



Before Kiley, Circuit Judge, and Perry and Napoli, District Judges.

The opinion of the court was delivered by: Perry, District Judge.

MEMORANDUM OPINION AND ORDER

This two-count civil rights suit is brought under 28 U.S.C. § 1343(3) and (4) and § 2201 as a class action by certain public welfare recipients and challenges the constitutional validity of the Illinois Department of Public Aid's "duplicate assistance" policy. Pursuant to plaintiffs' request, a three-judge court was convened to hear the case (28 U.S.C. § 2281, 2284).

Plaintiffs seek declaratory, injunctive and other appropriate relief as authorized by 42 U.S.C. § 1983 to secure alleged rights, privileges and immunities they claim are established by the Fifth and Fourteenth Amendments to the United States Constitution and the Social Security Act and administrative regulations thereunder. Defendants Swank and Daniel moved to dismiss.

In Count I of their Amended Complaint, plaintiffs contend the Illinois Public Aid Code, Sections 11-7 and 11-16, and certain regulations of the Illinois Department of Public Aid, which authorize the taking of deductions from welfare checks "without a prior hearing" being given recipient, violate due process of law. They ask this Court (1) to declare unconstitutional the failure of the Illinois and Cook County Departments of Public Aid to hold a "formal hearing" prior to reduction of benefits to repay previously furnished emergency disbursals for food and clothing and (2) to enjoin defendants and their agents from withholding from plaintiffs, public aid recipients, benefits retroactive to the date of "unlawful ex parte reduction".

At the time of argument before this Court, plaintiffs' counsel conceded that plaintiffs' charge of violation of the due process clause of the Constitution was not tenable and he abandoned the claim then and there in open court. It, therefore, needs no further comment since the charge is no longer an issue in this case.

In Count II, plaintiffs allege that the regulations of the Illinois Department of Public Aid which authorize deductions from welfare checks for the amount of the previously furnished emergency disbursals violate equal protection and are inconsistent with the Federal Social Security Act, 42 U.S.C. § 601-609, and Part IV, Section 3120, H.E.W. Handbook of Public Assistance Administration. The pertinent regulations in the Illinois Public Aid Manual are Chapter 1000, Section 1004.7, Emergency Need for Food; Section 1005.3, Need for Clothing Above the Monthly Clothing Allowance; Section 1005.3.1, Need for Clothing Occasioned by Disaster or At Time of Initial Grant; Section 1005.3.2, Need for Clothing When Clothing Allowance Has Not Been Used to Meet Clothing Needs; Chapter 1500, Section 1501.1, Duplicate Assistance.

In the prayer of Count II, plaintiffs ask this Court (1) to declare unconstitutional the Illinois Department of Public Aid "duplicate assistance" policy and regulations and (2) to enjoin the defendants and their agents from withholding past deductions and continuing to reduce the monthly benefits of public aid recipients through deductions from future welfare checks for the amount of previously furnished emergency disbursals for food, made at any time, and for clothing, made more than 90 days after the initial grant of assistance.

This action was instituted on December 4, 1969 by plaintiffs Ignacio Acosta, Virginia Bowers, Bernice Robinson and Dovie Thurman, individually and on behalf of all other persons similarly situated. Plaintiffs are recipients of public aid administered by David Daniel, Director, Cook County Department of Public Aid, as part of the public aid program under the direction of Harold O. Swank, Director, Illinois Department of Public Aid. Both David Daniel and Harold O. Swank were made defendants in their official capacities. On January 1, 1970, plaintiffs filed an Amended Complaint. Sundry motions memoranda and responsive pleadings have been filed herein by the parties and the Court has heard oral argument of counsel for the parties.

Prior to November 1968, each of the plaintiffs had been found qualified for and entitled to receive monthly disbursals of public aid under the Illinois public aid law as administered by said Director of the Cook County Department of Public Aid and each had been receiving a monthly assistance disbursal under the supervision and control of said Director of the Illinois Department of Public Aid.

Plaintiff Acosta had been a public aid recipient since November 1968 and had received $243.78 monthly up through September 1969. In that month he requested an emergency clothing disbursal. This disbursal was not one made within 90 days of his initial grant and was not one made to replace clothes damaged or destroyed by flood or fire or other disaster as provided by Section 1005.3.1. The emergency disbursal was granted because he had not used his prior budgeted allowance for clothes for that purpose, and he was then in need of clothing. However, because of a regulation of the Illinois Department of Public Aid which prohibits duplicate assistance, the amount of the emergency disbursal to Ignacio Acosta was deducted from the total amount he was to receive over the next 12 months. The deduction was not all taken from the succeeding month's disbursal but the deduction was directed by the Director of the Cook County Department of Public Aid to be distributed over a 12 month period in 12 equal installments, pursuant to the regulations of the Illinois Department of Public Aid.

In October 1969 plaintiff Acosta had the sum of $11.44 deducted from his monthly disbursal of $243.78. This $11.44 deduction has continued to be made from his $243.78 disbursal so that the net amount he has received monthly has been and continues to be $232.34 in stead of $243.78.

The other plaintiffs have each been public aid recipients since prior to 1968 and each have requested and received emergency disbursals during the year 1969 for clothing or food or both. The emergencies arose not because of the loss, damage or destruction of their food or clothing by flood, fire or other disaster, in which event no deductions would have been made, but because they had not used the disbursals they received for that purpose.

Each recipient has a monthly budget determined for him or her. The budget is given to the recipient and discussed with and explained to the recipient. It allows a certain amount for food, an amount for clothing, an amount for rent, an amount for transportation and sums for other items approved for said recipient. However, recipient does not receive a disbursal check for each item but one monthly check for the total amount. It is the recipient's responsibility to spend the funds granted in accordance with ...


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