The opinion of the court was delivered by: Foreman, District Judge:
Plaintiffs have filed this action seeking to enjoin enforcement
of certain sections of the Illinois Unemployment Compensation
In Count I, plaintiffs claim that the one (1) week waiting
period prescribed by S.H.A. Ch. 48, § 420(D) is in violation of
Sec. 303(a)(1) of the Social Security Act, 42 U.S.C. § 503(a)(1).
In Count II, plaintiffs claim that they have a right to
unemployment compensation benefits and that S.H.A., Ch. 48, §
420(D), in its complete and total disqualification for benefits
for one week, deprives them of property without Due Process in
violation of the Fourteenth Amendment to the United States
In Count III, plaintiffs claim that the processing of
intra-state claims for unemployment compensation is arbitrary,
unreasonable, and unduly time-consuming. As a result, plaintiffs'
right to receive unemployment compensation when due, as provided
in 42 U.S.C. § 503(a)(1), is being violated.
In Count IV, plaintiffs again allege long delays in receiving
benefits and contend that such delays are in violation of § 706
of the Illinois Unemployment Compensation Act. Plaintiffs ask
that the Court invoke its pendent jurisdiction to decide Count
In Count V plaintiffs allege the same delays and claim that
such delays constitute a deprivation of property without due
process of law in violation of the Due Process Clause of the
Fourteenth Amendment to the United States Constitution.
Plaintiffs also request that a three-judge court be convened,
pursuant to 28 U.S.C. § 2281. They concede, however, that only
the second count's allegation that S.H.A., Ch. 48, § 420(D) is
violative of the Fourteenth Amendment to the United States
Constitution could compel the convening of the three-judge court.
They do seek to have all the issues decided by a three-judge
court contending that if it is found appropriate to convene a
three-judge court, then all of the questions could be considered
by the court, and a decision made on any or all of the issues.
Before a three-judge court may be convened, the constitutional
questions raised must be substantial. California Water Service
Co. v. City of Redding, 304 U.S. 252, 58 S.Ct. 865, 82 L.Ed. 1323
(1938); German v. South Carolina State Ports Authority,
295 F.2d 491 (4th Cir. 1961). If the constitutional claim is wholly
insubstantial, the district judge need not convene a three-judge
court. Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d
512 (1962); Powell v. Workmen's Compensation
Board of New York, 327 F.2d 131 (2d Cir. 1964). For the reasons
noted more fully herein, the Court determines that the claims of
this second count are not sufficiently substantial to warrant the
convening of a three-judge court and, accordingly, plaintiffs'
motion to convene a three-judge court is hereby denied.
The Court next considers the defendants' Motion to Dismiss the
Complaint. In considering a Motion to Dismiss, the allegations of
the Complaint must be viewed in the light most favorable to the
plaintiffs, and all facts well pleaded must be admitted and
accepted as true. California Motor Transport v. Trucking,
Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972);
Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957);
Sinclair v. Atkinson, 290 F.2d 312 (7th Cir. 1961). Accordingly,
the facts as alleged in the complaint follow.
Plaintiff Nevills was last employed by the Kas Potato Chip
Company of Centralia, Illinois. On or about December 17, 1973 he
went into the district unemployment compensation office in East
St. Louis, Illinois to register for work and apply for
unemployment benefits from the Illinois Division of Unemployment
Compensation. Pursuant to S.H.A., Ch. 48, § 420(D), Plaintiff
Nevills had to serve a one (1) week waiting period for the week
ending December 21, 1973, which is a week for which Plaintiff
Nevills will never receive unemployment compensation. At the time
of his application, Plaintiff Nevills was not subject to any
disqualification period under the Illinois Unemployment
Compensation Act and he was so informed by the district office.
On February 8, 1974, Plaintiff Nevills finally received his first
unemployment check. This check arrived over seven (7) weeks after
the date on which his claim for benefits was filed. At no time
during this period were there any questions as to his eligibility
to receive benefits.
Plaintiff Tyler was last employed by General Motors Corporation
of St. Louis, Missouri. On or about February 4, 1974 he went into
his district unemployment compensation office in Belleville,
Illinois to register for work and apply for unemployment benefits
from the Illinois Division of Unemployment Compensation. Pursuant
to S.H.A., Ch. 48, § 420(D), Plaintiff Tyler had to serve a one
(1) week waiting period for the week ending February 8, 1974,
which is a week for which he will never receive unemployment
compensation. On February 11, 1974 Plaintiff Tyler received a
written notice from the Illinois Bureau of Employment Security
stating that he had been found ineligible for benefit payments.
Upon receiving this notice he immediately contacted his local
office and was told by an employee of Defendants that a clerical
error had been made and would be corrected. He was again told
that there was no question as to his eligibility. Over three
months after the filing of his claim, Plaintiff Tyler had not
received any benefit checks.
Defendants have filed a Motion to Dismiss the instant Complaint
for failure to state a claim upon which relief can be granted.
The Illinois unemployment compensation program, like those in
the other 50 states, is a joint federal-state co-operative effort
financed in part by grants from the federal government pursuant
to the Social Security Act, 42 U.S.C. § 501 et seq. Funds are
raised by a tax imposed upon employers under the Federal
Unemployment Tax Act, 26 U.S.C. § 3301 et seq., and that Act
provides that a credit of up to 90% can be given to an employer
who pays taxes under state laws. The Secretary of Labor must find
that the state program conforms to various federal requirements
before any federal grants are made to the state ...