The opinion of the court was delivered by: Austin, District Judge.
At issue in this case is the Illinois statute relating to
hearings on appeal which states:
"A decision on appeal shall be given to the
interested parties within 60 days from the date of
the filing of the appeal, unless additional time is
required for a proper disposition of the appeal." 23
Ill.Rev.Stat. § 11-8.6 (1969 ed.) (emphasis added).
The Illinois regulation implementing the Illinois statute states:
"Final administrative action will be taken by the
Department within 60 days of the request for a fair
hearing, except in instances where the appellant
requests a delay in the hearing in order to prepare
his case or the hearing is postponed or continued or
for other reasons adjudged valid by the Hearing
Officer." Illinois Department of Public Aid
Categorical Assistance Manual, Section 6001.3.
The second amended complaint consists of three Counts. In Count
I, the plaintiff class alleges that the state statute, and state
administrative regulation, quoted above, and the practice of the
Illinois Department of Public Aid are in violation of the
sections of the Social Security Act and the implementing federal
regulation quoted above and the Supremacy Clause of the United
States Constitution. Count II alleges that the practice of
failing to render final judgments on categorical assistance
appeals within a reasonable time from the date of request for a
hearing violates the Due Process Clause of the 14th Amendment.
Count III alleges that there is a practice of scheduling hearing
dates and issuing final decisions without rational standards
which violates the Due Process Clause and Equal Protection Clause
of the 14th Amendment. Plaintiffs seek declaratory and injunctive
Defendants' Motion to Strike and Dismiss
Defendants' argument that the plaintiff class fails to state a
claim under 42 U.S.C. § 1983 is without merit. All well pleaded
allegations of the complaint must be taken by the court as true
in a motion to dismiss. Walker Process Equipment, Inc. v. Food
Machinery & Chemical Corp., 382 U.S. 172, 86 S.Ct. 347, 15
L.Ed.2d 247 (1965). There can be no doubt that the Illinois
Department of Public Aid acts under color of state law. In Count
I, plaintiffs allege that their rights under the Supremacy Clause
are being violated. The Social Security Act requires a hearing,
and the federal regulation implementing the statute requires a
hearing within 60 days. These requirements are binding on a state
receiving federal funds for its categorical assistance programs.
Plaintiffs claim they have not received a hearing within 60 days.
As to Count I, plaintiffs state a cause of action under 42 U.S.C. § 1983.
In Count II, plaintiffs allege that their rights to due process
under the 14th Amendment are violated by defendants' failure to
render final decisions in administrative hearings within a
reasonable period of time from the date of request for such a
hearing. In Count III, plaintiffs allege a capricious practice of
scheduling hearings and issuing decisions without rational
standards which violates their rights under the Due Process
Clause and Equal Protection Clause of the 14th Amendment. As to
each of Counts II and III, plaintiffs state a cause of action
under 42 U.S.C. § 1983.
Defendants argue that the state court ruling in People ex rel.
Nelson v. Swank (70 L 8588, Circuit Court of Cook County, March
22, 1971) bars plaintiffs from prosecuting this suit under the
doctrine of res judicata citing Thomas v. Consolidation Coal Co.,
380 F.2d 69 (4th Cir. 1967). However, despite the fact that there
is a final judgment in Nelson involving the same cause of action,
plaintiffs here were not parties, successors to, in privity with,
or represented by the parties in the state action. There was no
order in Nelson allowing a class action and no theory of an
implicit order could comply with the notice requirements of
Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940),
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70
S.Ct. 652, 94 L.Ed. 865 (1950) and Eisen v. Carlisle & Jacquelin,
391 F.2d 555 (2nd Cir. 1968). The doctrine of res judicata does
not apply here.
Defendants further argue that Metcalf et al. v. Swank et al.,
444 F.2d 1353 (7th Cir. 1971), which raised the issue of the
constitutionality of a state imposed maximum shelter allowance
for persons receiving welfare assistance, requires that
plaintiffs here exhaust their administrative remedies before
litigating their claims in the Federal courts.
The issue here bears little relation to that with which the 7th
Circuit was concerned in Metcalf. Plaintiffs are presenting to
this court the question of whether those very administrative
remedies (which were not challenged in Metcalf) comply with
Federal statutory and constitutional standards. To require
exhaustion of the very state administrative remedy which
plaintiffs assert to be illegal and unconstitutional in order to
challenge their validity would be futile.
Defendants' motion to strike and dismiss is denied.
Plaintiffs' Motion for Summary Judgment on Count I
Count I seeks a declaratory judgment and injunctive relief on
the ground that the Illinois Department of Public Aid's failure
to render final administrative decisions within 60 days of the
request for an administrative hearing violates the Supremacy
Clause, the Social Security Act and the HEW regulations
No genuine issue as to any material fact exists in Count I. In
support of their motion, plaintiffs offer exhibits which show
that defendants fail as a general practice to grant hearings
within 60 days of the request. Defendants do not deny the truth
of these facts.
The Social Security Act, 42 U.S.C. § 302(a)(4), 602(a)(4),
1202(a)(4) and 1352(a)(4) requires an opportunity for a fair
hearing, and pursuant to authority granted in 42 U.S.C. § 1203,
the Secretary of HEW has promulgated a valid regulation,
45 C.F.R. § 205.10(a) (11) implementing these statutes, which requires
prompt final administrative action within 60 days from the date of the
request for a fair hearing. The wording of both the statute and
regulation is mandatory on its face. No evidence is offered to
indicate a contrary intention by the Secretary of HEW. The
regulation is clearly reasonable when one considers the
dependence of recipients on welfare assistance, the economic
hardship of delay in final determination of claims, and the clear
statutory intent to provide meaningful access to administrative
The State of Illinois receives federal funds for its
categorical assistance programs. The categorical assistance
programs are based on a scheme of cooperative federalism. They
are financed largely by the Federal Government on a matching fund
basis, and administered primarily by the states. States are not
required to participate in these programs, but those which decide
to take advantage of the federal funds available under each
program are required to submit a plan for the approval of the
Secretary of HEW which must conform with the requirements of the
Social Security Act and with the rules and regulations
promulgated by HEW. A participating state is bound by valid
federal regulations governing these programs. King v. Smith,
392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968); Thorpe v.
Housing Authority of City of Durham, 393 U.S. 268, 89 S.Ct. 518,
21 L.Ed.2d 474 (1969); Lewis v. Martin, 397 U.S. 552, 90 S.Ct.
1282, 25 L.Ed.2d 561 (1969); Rodriguez v. Swank, 318 F. Supp. 289
(N.D.Ill. 1970) aff'd 403 U.S. 901, 29 L.Ed.2d 677 (1971).
Defendants urge this court to follow two state court decisions:
Will v. Department of Health and Social Services of State of
Wisconsin, 44 Wis.2d 507, 171 N.W.2d 378 (Sup.Ct. 1970) and Duffy
v. Wyman, 58 Misc.2d 649, 297 N.Y.S.2d 77, (Sup.Ct. 1968). This
to do so. These cases are not consonant in their reasoning with
the historical movement of judicial thought in this field of the
The Illinois statute, 23 Ill.Rev.Stat. § 11-8.6, and Illinois
regulation, § 6001.3, as written and applied, are invalid to the
extent that they are inconsistent with the Social Security Act,
42 U.S.C. § 302(a)(4), 602(a)(4), 1202(a)(4), and 1352(a)
(4), and federal regulation 45 C.F.R. § 205.10(a) (11). In denying a
fair hearing and decision within 60 days from the date of request
for a fair hearing, Illinois has breached its federally imposed
obligation to "provide for granting an opportunity for a fair
hearing." This state statute and regulation are void and in
violation of the United States Constitution, Article VI, Clause
Plaintiffs' motion for summary judgment on Count I is granted.
Defendants' Motion to Stay Proceedings
This motion was premised on the then pending state court
proceeding, Nelson v. Swank, discussed above. Since that
litigation has been terminated, the issue of a stay is now moot.
Defendants' motion to stay proceedings is denied.
The Propriety of a Three-Judge Panel
Pursuant to the court's order, the parties submitted briefs on
the issue as to whether this is a proper case for the convening
of a three-judge court under 28 U.S.C. § 2281. After consideration
of the authorities in this murky area, the court determines that
this is not a proper case for the convening of a three-judge
The determination as to the propriety of a three-judge court
should be made when the complaint is filed. The court should
consider the complaint as a whole.
The second amended complaint here consists of three counts. In
Count I of this complaint, plaintiffs attack the enforcement of a
statewide statute and regulation solely on the ground that the
statute is inconsistent with federal law under the Supremacy
Clause. Alternatively, in Counts II and III plaintiffs solely
attack administrative practices of defendants.
Pursuant to § 2281, a three-judge district court must be
convened in all cases where injunctive relief is sought against a
statewide statute or regulation on the ground that the statute or
regulation is repugnant to the federal constitution, if the
constitutional questions alleged are not insubstantial. Ex Parte
Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152 (1933); Bailey v.
Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962).
Because of the heavy burden placed on the federal judiciary by
the three-judge court procedure, the Supreme Court has carefully
limited the cases to which § 2281 applies. In Swift and Co., Inc.
v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965) the
court narrowly construed the term "unconstitutionality" and held
that a § 2281 three-judge court is not required in cases
challenging state statutes solely on the ground of conflict with
the Supremacy Clause. Mr. Justice Harlan's statement in that
case, quoting Phillips v. United States, 312 U.S. 246, 251, 61
S.Ct. 480, 85 L.Ed. 800 (1941) reflects the court's present
understanding of § 2281:
". . . § 2281 is to be viewed `not as a measure
of broad social policy to be construed with great
liberality, but as an enactment technical in the
strict sense of the term and to be applied as such.'"
382 U.S. at 124, 86 S.Ct. at 265.
In Count I, plaintiffs have claimed that 23 Ill.Rev.Stat. §
11-8.6 and Illinois Department of Public Aid Categorical
Assistance Manual, § 6001.3, conflict with the Federal Social
Security Act and the regulations issued thereunder because this
statute and regulation on their faces conflict with the federal
regulation requiring final decisions in public aid administrative
hearings within 60 days. Since Count I involves only
the Supremacy Clause, Article VI, Clause 2, of the Constitution,
Count I does not require the convening of a § 2281 three-judge
Pursuant to its general position regarding the construction of
§ 2281 set forth in Swift, cited above, the Supreme Court has
also excluded from its purview those cases where it is possible
to enjoin state officials without holding a state statute or
administrative order unconstitutional, as where it is claimed
that the officials are administering a constitutional statute in
an unconstitutional manner, unless of course it is claimed that
the statute as applied to a particular plaintiff is
unconstitutional. Ex Parte Bransford, 310 U.S. 354, 60 S.Ct. 947,
84 L.Ed. 1249 (1940); Phillips v. United States, 312 U.S. 246, 61
S.Ct. 480, 85 L.Ed. 800 (1941); Wright, Federal Courts, Section
51 at p. 190 (1970 ed.); Metcalf v. Swank, 293 F. Supp. 268
Count II of this second amended complaint challenges the
administration of the Illinois statute and regulation and not the
statute or regulation themselves, in that plaintiffs contend that
defendants have failed to render final decisions in categorical
assistance hearings within a reasonable time from the date of a
request for such a hearing in violation of the Due Process Clause
of the 14th Amendment. On their faces, the statute and regulation
are not inconsistent with the reasonableness standard of the Due
Process Clause. They are neutral, neither commanding nor
forbidding defendants' practice. It is the administrative
practice of long delays alone which is alleged to be inconsistent
with the Due Process Clause. Metcalf v. Swank, supra.
Similarly, Count III challenges the arbitrary and capricious
pattern and practice of defendants in scheduling dates for
hearings and issuing final decisions as a violation of the Due
Process Clause and Equal Protection Clause of the Constitution.
On their faces the statute and regulation are similarly silent as
to defendants' practices in this regard. Weisberg v. Powell,
417 F.2d 388 at 393 (7th Cir. 1969). Since Counts II and III involve
only the alternative claims that the officials are administering
a constitutional state statute in an unconstitutional manner,
these counts do not require the convening of a § 2281 three-judge
This court is not presented here with issues which require
determination by a three-judge court under 28 U.S.C. § 2281.
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