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August 28, 1973


Before Kiley, Circuit Judge and Austin and Decker, District Judges.

The opinion of the court was delivered by: Per Curiam.


I. Facts.

II. Jurisdiction.

Counsel have devoted considerable energy to the discussion of this court's jurisdiction. Clearly, a three-judge court is both appropriate and has the power to hear the claims against the state defendants because the amended complaint seeks to enjoin the operation of a state statute on the grounds of unconstitutionality. 28 U.S.C. § 2281, § 1343(3) and (4). Moreover, since the Illinois statute embodies the same eligibility standards as the Social Security Act, this case cannot be decided by a single judge on the basis of the supremacy clause alone, rendering it necessary for a three-judge panel to consider the due process and equal protection claims. Wyman v. Rothstein, 398 U.S. 275, 276, 90 S.Ct. 1582, 26 L.Ed.2d 218 (1970); Rosado v. Wyman, 397 U.S. 397, 403, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970); Dandridge v. Williams, 397 U.S. 471, 475-476, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). With respect to the federal defendant, however, we find jurisdiction to be lacking under any of the six statutes cited in support thereof.

First, although their amended complaint avers that the amount in controversy exceeds $10,000, the named plaintiffs concede that their individual maximum monetary recovery is $1,926.60. They, nevertheless, assert that federal question jurisdiction may be established under 28 U.S.C. § 1331 by aggregating the monetary claims of the individual members of the class they seek to represent. But, even if we were to allow this case to proceed as a class action, such aggregation is impermissible in order to establish federal question jurisdiction. Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969); Russo v. Kirby, 453 F.2d 548 (2d Cir. 1971); Gibson v. First Federal Savings & Loan Ass'n, 347 F. Supp. 560 (E.D.Mich. 1972); Booth v. Lemont Mfg. Corp., 304 F. Supp. 235 (N.D.Ill. 1969), aff'd on other grounds, 440 F.2d 385 (7th Cir.), cert. denied, 404 U.S. 916, 92 S.Ct. 231, 30 L.Ed.2d 190 (1971).

Second, since this action does not involve the validity, construction, or enforcement of a statute regulating commerce, jurisdiction over this case cannot be predicated upon 28 U.S.C. § 1337. Russo v. Kirby, supra, 453 F.2d at 551; Adams v. Int'l Brotherhood of Boilermakers, 262 F.2d 835 (10th Cir. 1959). Third, jurisdiction over the federal defendant cannot be sustained under 28 U.S.C. § 1343(3) and (4) "because that section provides a federal forum without regard to jurisdictional amount only when constitutional rights allegedly have been violated by those acting under color of State law." Stinson v. Finch, 317 F. Supp. 581 at 585 (N.D.Ga. 1970).

Next, jurisdiction over the federal defendant is lacking under 28 U.S.C. § 1346(a)(2) for two reasons, First, the jurisdiction of a district court under this section is concurrent with the Court of Claims, which has no equity power. Thus, it is impossible under § 1346(a)(2) to grant the equitable relief sought against the Secretary. Richardson v. Morris, 409 U.S. 464, 93 S.Ct. 629, 34 L.Ed.2d 647 (1973). Moreover, since plaintiffs' rights to receive benefits arises under the Illinois Public Aid Code, their claim for damages cannot be characterized as an action against the United States, as is required by § 1346(a)(2).

Fifth, jurisdiction over the federal defendant is predicated upon the mandamus provisions of 28 U.S.C. § 1361. Plaintiffs assert that the Secretary owes them a constitutional duty under the fifth amendment to approve only those state AFDC plans which entitle them to receive benefits until they reach the age of twenty-two. However, plaintiffs overlook the well-settled rule that the extraordinary remedy of mandamus is available only when (1) plaintiffs have a clear right to the relief sought; (2) defendant owes them a plainly defined and peremptory duty; and (3) no other adequate remedy is available. United States ex rel. Girard Trust Co. v. Helvering, 301 U.S. 540, 543-544, 57 S.Ct. 855, 81 L.Ed. 1272 (1937); Lovallo v. Froehlke, 468 F.2d 340, 343 (2d Cir. 1972); Carter v. Seamans, 411 F.2d 767 (5th Cir. 1969), cert. denied, 397 U.S. 941, 90 S.Ct. 953, 25 L.Ed.2d 121 (1970). Without even reaching the substantial problems of plaintiffs' standing to maintain a mandamus suit against the Secretary and of the doctrine of sovereign immunity, it is clear that plaintiffs' remedy against the state officials is adequate to determine the constitutionality of this statute and the propriety of the relief to be granted, if any.

Finally, it is well-established that an action for declaratory relief under 28 U.S.C. § 2201 cannot be entertained in the absence of independent federal jurisdictional grounds. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194 (1950); Fagan v. Schroeder, 284 F.2d 666 (7th Cir. 1960). Therefore, since plaintiffs have failed to demonstrate an independent basis for this court's jurisdiction, the Secretary of Health, Education and Welfare shall be dismissed from this case.

III. The Merits

This suit challenges the constitutionality of a legislative distinction contained in both federal and state social welfare statutes, which allegedly deny plaintiffs their rights to equal protection. In considering the merits of this claim, we must begin with the proposition that a statutory classification in the area of social welfare is constitutional if it bears a rational relationship to one of the purposes of the Social Security Act. Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971); Dandridge v. Williams, supra. Moreover, the purpose need not have been a principal objective of the statute or even one that the legislators had in mind when they passed it. Flemming v. Nestor, 363 U.S. 603, 612, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). Thus, even though the general objectives of both AFDC and OASDI may be the same, i.e., to enable children deprived of parental support to continue their education, the distinction must nevertheless be upheld if it serves some other, albeit secondary, purpose of the Social Security Act.

Defendants assert that the distinct and separate nature of each program adequately justifies the challenged age distinction. Thus, even though OASDI and AFDC are parts of the same statute and administered by the same agency, they are otherwise wholly independent from one another in all material respects. For example, OASDI is funded through the contributions of participating employers and employees, the latter of whom receive benefits based on the number of calendar quarters they have participated in the plan. Persons entitled to receive OASDI include the wage earner, his wife, children, and parents. 42 U.S.C. ยง 402. The Social Security Administration is entirely ...

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