United States District Court, Northern District of Illinois, E.D
March 30, 1971
IGNACIO ACOSTA, VIRGINIA BOWERS, BERNICE ROBINSON AND DOVIE THURMAN, INDIVIDUALLY AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED, PLAINTIFFS,
HAROLD O. SWANK, DIRECTOR, ILLINOIS DEPARTMENT OF PUBLIC AID, DAVID DANIEL, DIRECTOR, COOK COUNTY DEPARTMENT OF PUBLIC AID, DEFENDANTS.
The opinion of the court was delivered by: Perry, District Judge.
MEMORANDUM OPINION AND ORDER
This case is before this single-judge court pursuant to an
order, 318 F. Supp. 1348, entered on October 22, 1970 by a
three-judge court constituted by Kiley, Circuit Judge, and Perry
and Napoli, District Judges. In said order the three-judge court
withdrew its opinion, 312 F. Supp. 765, heretofore entered on May
11, 1970 and found the three-judge court bereft of jurisdiction
under 28 U.S.C. § 2281, in the absence of a sufficient
constitutional question and, accordingly, dissolved the
three-judge court. The three-judge panel remanded the case to
single judge "for an early determination of the questions whether
the district court has jurisdiction over plaintiffs' claim for
`retroactive benefits' because of the deductions made from their
allowances, and if so, whether and to what extent plaintiffs are
entitled to the `retroactive benefits' they seek, under
42 U.S.C. § 1983."
Jurisdiction being a threshold question and in response to the
mandate of the three-judge court, this court will consider the
issue of jurisdiction first.
Plaintiffs' complaint asserts jurisdiction solely under
28 U.S.C. § 1343(3) and (4) and alleges that they have an action by
virtue of 42 U.S.C. § 1983. These statutes of the United States
read as follows:
42 U.S.C. § 1983. Civil Action for Deprivation of
"Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory, subjects, or causes to be subjected,
any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress."
28 U.S.C. § 1343. Civil Rights and Elective
"The district courts shall have original
jurisdiction of any civil action authorized by law to
be commenced by any person:
(1) To recover damages for injury to his person or
property, or because of the deprivation of any right
or privilege of a citizen of the United States, by
any act done in furtherance of any conspiracy
mentioned in section 1985 of Title 42;
(2) To recover damages from any person who fails to
prevent or to aid in preventing any wrongs mentioned
in section 1985 of Title 42 which he had knowledge
were about to occur and power to prevent;
(3) To redress the deprivation, under color of any
State law, statute, ordinance, regulation, custom or
usage, of any right, privilege or immunity secured by
the Constitution of the United States or by any Act
of Congress providing for equal rights of citizens or
of all persons within the jurisdiction of the United
(4) To recover damages or to secure equitable or
other relief under any Act of Congress providing for
the protection of civil rights, including the right
to vote. June 25, 1948, c. 646, 62 Stat. 932; Sept.
3, 1954, c. 1263, § 42, 68 Stat. 1241; Sept. 9, 1957,
Pub.L. 85-315, Part III, § 121, 71 Stat. 637."
Thus, the case is in the general category of a civil rights
action to redress a deprivation of right under color of law.
The essential facts concisely stated are: Plaintiffs are
recipients of public aid (A.F.D.C.) in Illinois under the "scheme
of cooperative federalism" emanating from the Federal Social
Security Act. King v. Smith, 392 U.S. 309, 316, 88 S.Ct. 2128, 20
L.Ed.2d 1118. Plaintiffs each, heretofore and prior to May 11,
1970, had occasion to voluntarily resort to the state department
for "duplicate assistance," i.e. the payment by the state of sums
over and above applicable schedules due to an emergency need for
food or clothing. The plaintiffs received such emergency
over-payments with full knowledge that repayment was required by
department policy and secured by means of prorated deductions
from future payments over a period of six months (for emergency
food allowances) or a period of twelve months (for emergency
clothing allowances). The emergency payments so made to the
several named plaintiffs were minimal in regard to food
allowances relative to clothing allowances. The total figures
appear to be $1,227.62 for clothing as compared to $220.56 for
food and it further appears that total repayment has been made.
Plaintiffs take the position that the described "duplicate
assistance policy" of the Illinois Department of Public Aid
is invalid and that in consequence the benefits deducted are
recoverable herein. The invalidity is based upon the alleged
repugnance of the state policy to an administrative regulation of
the Federal Department of Health, Education and Welfare. The
regulation is set forth in 45 C.F.R. § 233.20(a)(3) (ii), which,
in its most pertinent part, directs that "current payments of
assistance will not be reduced because of prior over-payments
unless the recipient has income or resources currently available
in the amount by which the agency proposes to reduce payment."
The court has the benefit of a brief on the subject filed by the
Department of Health, Education and Welfare. That brief gives the
gloss of the Federal department on the said regulation, general
in its terms, ultimately concluding in support of plaintiffs'
position, that "the `duplicate assistance' policy is clearly
inconsistent with * * * the requirements of H.E.W. regulation."
After a protracted course of "correspondence and negotiations" by
and between the state agency and H.E.W., the state agency agreed
to the interpretations urged by H.E.W. and on May 23, 1970,
voluntarily revoked its "duplicate assistance" policy.
Lastly, and most relevant to the present jurisdiction issue, is
this concession and factual admission made in its brief by H.E.W.
(filed July 7, 1970) at page 11:
"As stated earlier, Federal regulations do not
explicitly address themselves to the `duplicate
assistance' policy, although the policy is clearly
covered by the rationale of 42 U.S.C. § 602(a)(7) and
45 C.F.R. § 233.20(a)(3) (ii) (c) * * *"
In its brief filed January 21, 1971, H.E.W. endorses the
principle of retroactive payments but admits that any retroactive
relief for plaintiffs from the State in the present case must
come from the State itself or from the court, and, further, in
its brief H.E.W. states that it expresses no views as to the
power of the court to grant retroactive relief and as to whether
such relief is appropriate in the present case.
After due consideration of all facts and circumstances set out
above and of the several briefs of the parties submitted on the
issues defined by the remand order, this court holds that
plaintiffs have failed to state an action under
42 U.S.C. § 1983, and that simultaneously there is no jurisdiction under
28 U.S.C. § 1343.
42 U.S.C. § 1983, requires that plaintiffs not only allege a
deprivation of right, privilege or immunity secured by federal
law, but also that there be substance to the allegation. In the
absence of an express federal regulation and during the pendency
of correspondence and negotiations on the subject of the thrust
of general terms of the Social Security Act and regulations
pursuant thereto, this court cannot see that any right, privilege
or immunity secured by Federal law accrued to these plaintiffs.
To do so, would in this court's opinion give the force of law to
the ex-parte reasoning of employees of the federal department to
an extent that even they did not insist upon by the simple
expedient of enacting their underlying rationale into an explicit
determinative regulation. Nor by the same token can this court
see that the action of the state agency was pretentious, i.e.
under "color of law," in enforcing its former policy to the date
of negotiated abandonment. This court notes that the brief of
H.E.W. does not urge sanctions against the state agency in favor
of the plaintiffs grounded on the deprivation of a federally
Plaintiffs urge numerous cases on the court wherein it appears
that original jurisdiction in similar situations was found "ipse
dixit" under 28 U.S.C. § 1343. Such cases do not dissuade this
court from the view that its jurisdiction is defined only by
statutes of the Congress which out of proper deference to that
coordinated branch and in the true spirit of judicial restraint
should be reasonably construed.
This court doubts that anyone would quarrel with the premise
that original jurisdiction in civil rights and elective franchise
conferred by 28 U.S.C. § 1343, is unique, special and limited and
made available for the expeditious vindication of persons which
are subject to deprivation on pretenses of lawful conduct by
The task assigned to district courts by Congress is the prompt
vindication of fundamental rights to equality which are federally
secured. When this court digresses from that vitally important
task, it dissipates its energies, and confuses its purposes, by
giving such breadth to this special jurisdiction as to admit any
and all claims which allege deprivations of subordinate and
inchoate privileges on the expectation that definition and
security may be pronounced in the course of the litigation which
ensues. In this court's view, district courts are substantially
overburdened by such litigation pending by virtue of civil rights
jurisdictional over-breadth and the burden carries directly over
to the United States Supreme Court by virtue of the direct right
appeal from three-judge district courts. An unavoidable effect of
such burdens is that vindication of vital civil rights fails to
receive full and most deliberate attention. In short, the court
lays waste its judicial powers.
This court holds that plaintiffs' complaint herein is
jurisdictionally inadequate for the following reasons:
1. It fails to state a civil action authorized by
2. It fails to present as subject matter a secured
right, privilege or immunity.
3. There is no state action under color of law
alleged in fact, as opposed to conclusion.
While it is not necessary to the court's determination of the
jurisdictional issue, it is this court's view that the Social
Security Act is not in the category of "any Act of Congress
providing for equal rights of citizens or of all persons."
This court has also considered plaintiffs' contention that the
policy of pendent jurisdiction as most recently given exposition
in Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 353,
is relevant to the present jurisdictional issue. This court
rejects that contention. Suffice it to say that Rosado is
distinguishable on the ground that in that case "the sole basis
for respondents' contention that pendent jurisdiction is not
present in this case flows from the action of the three-judge
court in remanding the case to the single district judge `for
further proceedings as are appropriate.'" (90 S.Ct. 1207 at page
1224, concurring opinion of Mr. Justice Douglas) Here, the
contentions of defendants are not related to the action of the
three-judge court, rather they go directly to the issue of
jurisdiction on the pendent claim itself.
In addition to the foregoing reasons, jurisdiction is otherwise
lacking. There is no diversity of citizenship and the amount in
question here is not alleged to be in excess of $10,000.
Plaintiffs are citizens of the State of Illinois. They cannot sue
the State of Illinois for a money judgment and a suit against
defendants in their official capacities for a money judgment is
indirectly but in fact a suit against the State of Illinois.
Furthermore, plaintiffs have a complete remedy under the law of
the State of Illinois and in fact are pursuing such a remedy. The
constitutional claim herein is res judicata. Since defendants
have voluntarily discontinued the previous policy of duplicate
assistance, the question of future deductions and injunctive
relief is moot.
This court cites, as in the original Memorandum Opinion in this
case, the language of the Supreme Court in Dandridge v. Williams,
et al., 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491:
"* * * The Fourteenth Amendment gives the federal
courts no power to impose upon the States their views
of wise economic or social policy.
"* * * The Constitution does not empower this Court
to second-guess state officials charged with the
difficult responsibility of allocating limited public
welfare funds among the myriad of potential
recipients. * * *"
This district court having determined that it does not have
jurisdiction over plaintiffs' claim for "retroactive benefits"
because of deductions made from their allowances, it is ordered
that this cause be and it is hereby dismissed for want of
jurisdiction with prejudice and without costs. Since this ruling
is dispositive, this court has no occasion to reach the merits of
the subordinate issue of entitlement to "retroactive benefits."
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