compensation is similar to the waiting period established by
other states. See, e.g., Iowa Code Annotated § 96.4(4) (one week
waiting period); Burns Indiana Statutes Annotated § 52-1538 (one
week waiting period); California Code, Unemployment Insurance §
1253 and 1254 (one week waiting period); McKinney's Consolidated
Laws of New York Annotated, c. 31, Labor Law § 590(9) (4 day
The one-week waiting period serves as a permanent
disqualification for benefits for that week. Plaintiffs will
never receive any benefits for that seven day period. Therefore,
they claim that this disqualification for benefits for that week
constitutes a deprivation of property without due process of law
in violation of the Fourteenth Amendment. Plaintiffs allege that
they are deprived of "substantive due process", as the waiting
period deprives them of a right without having any rational basis
for doing so. Their claim that benefits for this first week are a
right is predicated upon 42 U.S.C. § 503(a)(1) which provides
that unemployment compensation shall be paid "when due".
The Supreme Court has noted, "A wide range of judgment is given
to the several states as to the particular type of [unemployment
compensation] statute to be spead upon their books." Steward
Machine Co. v. Davis, 301 U.S. 548, 593, 57 S.Ct. 883, 894, 81
L.Ed. 1279 (1936). By implication, the Supreme Court has approved
the establishment of a waiting period by saying that the state
should determine administratively when unemployment compensation
is due. That Court held, "We conclude that the word `due' [in §
503(a)(1)] . . ., when construed in light of the purposes of the
Act, means the time when payments are first administratively
allowed. . . ." California Department of Human Resources v. Java,
402 U.S. 121, 133, 91 S.Ct. 1347, 1355, 28 L.Ed.2d 666 (1971).
In the instant case, the payments for the first weeks have
never been authorized for the plaintiffs, so the payments have
not been reduced, or eliminated. Plaintiffs were never entitled
to receive these payments. The statutorily-required waiting
period is not a disqualification of benefits, as plaintiffs
contend, but rather it is a condition precedent to eligibility.
Plaintiffs were never entitled to receive these payments. Since
the plaintiffs were never entitled to receive any payments,
nothing has been taken from them.
The test of constitutionality of a statute under the due
process clause is whether the method of regulation embodied in
the statute bears rational relation to a constitutionally
permissible objective. Gold v. DiCarlo, 235 F. Supp. 817 (S.D.N Y
1964) affirmed 380 U.S. 520, 85 S.Ct. 1332, 14 L.Ed.2d 266. The
Court feels that there are permissible objectives that support
the establishment of a waiting period. The Illinois legislature
may have found the waiting period necessary to preserve the sound
financial basis for the fund. One of the reasons for enacting
waiting periods was to assist in maintaining the solvency of the
unemployment compensation fund so that the fund would become and
would remain actuarily sound. The defendants contend that the
abolition of the waiting period would cost the State of Illinois
Nine Million Dollars annually.
A three-judge court recently rejected a challenge to the
Vermont one-week waiting period on due process grounds, finding
"the one-week waiting period, in addition to its obvious need as
a grant of time within which to determine a claimant's
eligibility, is a reasonable device for conserving the fund's
resources and for preserving its integrity." Fenoff v. State of
Vermont, (D.Vt. Civil No. 73-264, September 26, 1974). This Court
finds that S.H.A., Ch. 48, § 420(D) does not violate the
In the first count, plaintiffs allege that the waiting period
is in contravention of 42 U.S.C. § 503(a)(1) which provides that
the unemployment compensation programs must be found "to be
reasonably calculated to insure full payment of unemployment
compensation when due." In Fenoff, the court also rejected a
challenge on the same basis as that alleged here. The state
unemployment compensation programs were never intended to produce
nor have they in fact produced a total replacement of lost wages.
In California Department of Human Resources Development v. Java,
402 U.S. 121, 91 S.Ct. 1347, 28 L.Ed.2d 666 (1971), the Supreme
Court found that the purpose of the Act was to give "partial
replacement of wages to the unemployed. . . ." (at 131, 91 S.Ct.
at 1354). Section 503(a)(1) does not compel the abolition of the
relatively brief waiting period and Count II should be dismissed.
In Count III, plaintiffs allege that the customs, practices,
acts, and regulations of the Bureau of Employment Security,
adopted pursuant to Sections 400 and 1701 of the Illinois
Unemployment Compensation Act, insofar as they relate to
processing initial intra-state claims for unemployment benefits
to be payable and making payment thereto, are arbitrary,
unreasonable and unduly time-consuming. The Court feels that
Count III also fails to state a claim upon which relief can be
granted and therefore, must be dismissed.
Count V alleges that there are long delays before eligible
applicants receive their payments and that these delays
constitute a deprivation of property without due process of law
in violation of the Fourteenth Amendment. These delays are not a
total deprivation of these benefits; they only constitute a
postponement of receipt of those benefits. There has been no
withdrawal of any benefit for which the state has certified an
applicant eligible. While any significant delay in the receipt of
unemployment compensation benefits is unfortunate, such delay
does not constitute a deprivation within the meaning of the
Fourteenth Amendment. Therefore, Count V also must be dismissed
for failure to state a claim.
In Count IV plaintiffs contend that such lengthy delays before
receipt of unemployment benefits are in violation of § 706 of the
Illinois Unemployment Compensation Act. Plaintiffs ask that the
Court exercise its pendent jurisdiction to decide Count IV.
Pendent jurisdiction need not be exercised in every case in which
it is found to exist. It is a doctrine of discretion, not of
plaintiff's right. United Mine Workers v. Gibbs, 383 U.S. 715,
726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Moynahan v. Pari
Mutuel Employees Guild, 317 F.2d 209, 211-212 (9th Cir. 1963);
Massachusetts Universalist Convention v. Hildreth and Rogers Co.,
183 F.2d 497 (1st Cir. 1950). Its justification lies in
considerations of judicial economy, convenience and fairness to
litigants; if these are not present a federal court should
hesitate to exercise jurisdiction over state claims even though
bound to apply state law to them. Gibbs, supra; Erie Railroad
Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
Because the other four counts are being dismissed at an early
stage of this litigation, the Court deems it advisable not to
exercise pendent jurisdiction over Count V.
Accordingly, defendants' Motion to Dismiss is hereby granted
and this action is hereby dismissed.
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