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ACOSTA v. SWANK

March 30, 1971

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.



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 this 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

Rights:

    "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

Franchise:

    "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
  States;
    (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, ยง 42, 68 Stat. 1241; ...

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