Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 75 C 4150 - Frank J. McGarr, Judge.
Cummings and Pell, Circuit Judges, and East, Senior District Judge.*fn*
This is an appeal from a district court order granting plaintiffs' motion for summary judgment and denying that of defendant. The plaintiffs*fn1 initially filed their complaint on December 8, 1975 challenging regulations of the Illinois Department of Public Aid (IDPA) which restricted provision of chore and housekeeping services*fn2 to recipients of Aid to Families with Dependent Children (AFDC), Supplemental Security Income (SSI), and the Illinois State Supplement Program for the Aged, Blind, and Disabled (SSP).
The complaint alleged five distinct causes of action. The first charged that IDPA had violated 45 C.F.R. § 228.34(d)*fn3 by giving no explanation of the restriction of chore and housekeeping services to AFDC, SSI, or SSP recipients and by giving no indication that any public comment was received relative to the change in eligibility standards. The second cause of action charged that IDPA's exclusion of persons such as the named plaintiffs who needed housekeeper services but had insufficient funds to pay for them violated Title XX of the Social Security Act by reason of its failure to distribute the social services in a manner which was both equitable and consistent with the objective of providing a given service to the maximum number of persons in the State who were in need thereof. The third cause of action charged that the IDPA regulations, excluding from consideration any needs for housekeeper services in determining financial eligibility for AFDC and SSP, violated the requirements of Title XX. The fourth cause of action charged that the IDPA regulations concerning eligibility for AFDC and SSP restricted eligibility for those programs and for chore and housekeeping services contrary to the Illinois Public Aid Code, specifically Ill. Rev. Stat. ch. 23, § 12-4.11.*fn4 The fifth, and last, cause of action charged that the denial to persons who have the same or greater need for chore and housekeeping services as AFDC, SSI, or SSP recipients and who similarly are without funds necessary to pay for the services but whose income came from a source other than AFDC, SSI, or SSP deprived the plaintiffs and the class they represented of the equal protection of the law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution.
In a Memorandum Opinion and Order of March 22, 1976, the district court denied defendant's motion to dismiss, ruling that the plaintiffs had stated a sufficient constitutional claim for purposes of establishing jurisdiction. The district court stated that the equal protection claim was not devoid of any merit, implausible, or foreclosed by prior Supreme Court decisions. See Hagans v. Lavine, 415 U.S. 528, 536-39, 39 L. Ed. 2d 577, 94 S. Ct. 1372 (1974). It also denied plaintiff's motion for preliminary injunctive relief and for class certification.
Following briefing on cross-motions for summary judgment and the filing of stipulated facts and exhibits, the district court, in a Memorandum Opinion and Order entered June 24, 1976, abstained on its own motion from deciding the merits of the case, stayed the federal action, and directed the parties to bring proceedings in state court concerning the state law claim set out in their fourth cause of action. After the district court's denial of plaintiffs' motion for reconsideration, plaintiffs appealed. On December 10, 1976, this court held that the district court incorrectly denied class certification, and improperly abstained in view of the delay, expense, and potentially irreparable injury to plaintiffs and of the inadequacy of the state proceedings. Vickers v. Trainor, 546 F.2d 739 (7th Cir. 1976) [ Vickers I ]. The case was remanded with instructions to consider initially the state law and statutory claims.
On remand, the district court decided the state law claim (count 4) in favor of the plaintiffs as well as the first statutory claim (count 1).*fn5 It declined to decide counts 2 and 3 because the favorable decision on the state law claim provided the relief plaintiffs requested. It also did not reach count 5, the equal protection claim, because it observed the sound principle of federal adjudication that constitutional questions are to be reached last.*fn6 The defendant appeals on the grounds that the district court abused its discretion in assuming jurisdiction over the pendent state law claim and that it erroneously construed the state statute in deciding the state law claim.
Under the doctrine of pendent jurisdiction, a federal court, in a case alleging both a federal claim of sufficient substance to confer subject matter jurisdiction and state claims, may assume pendent jurisdiction over the state claims whenever the state and federal claims "derive from a common nucleus of operative fact" and are such that a plaintiff "would ordinarily be expected to try them all in one judicial proceeding." United Mine Workers v. Gibbs, 383 U.S. 715, 725, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966). In Gibbs, the Court carefully distinguished between constitutional power to assume pendent jurisdiction and discretionary exercise of that power.
That power need not be exercised in every case in which it is found to exist. It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff's right.
Id. at 726 [footnote omitted]. It is this discretion that defendant alleges was abused by the district court.*fn7
The defendant, extrapolating somewhat inaccurately from the language of Gibbs, argues that a court abuses its discretion to exercise pendent jurisdiction if: (1) concerns of comity and federalism militate against such exercise; (2) the federal claims should have been dismissed prior to trial; and (3) the state claims predominate over the federal claims.
As to the concerns of comity and federalism, the defendant offers no authority to support its argument that such concerns require a court with jurisdiction over federal statutory claims, a federal constitutional claim, and a state claim, to decide the federal statutory claims before the state claim. Moreover, the defendant concedes the novelty of this argument. This court thoroughly considered and addressed the problems of comity and federalism in Vickers I, and although the consideration was primarily directed to the propriety of the district court's abstention, much of the analysis is apposite to our determination in the present appeal that the district court did not abuse its discretion by deciding the state law claim first.*fn8
As to the dismissal of federal claims prior to trial, Gibbs stated that if the federal claims are dismissed before trial, the state claims should be dismissed as well.*fn9 Id. at 726. In the present case, the federal issues were not dismissed prior to trial. Moreover, defendant argues that only the federal statutory claims should have been dismissed leaving the state claim and the equal protection claim. From this posture, defendant concludes that the district court abused its discretion by not dismissing the state claim. Even assuming arguendo that the federal statutory claims should have been dismissed, defendant's conclusion lacks any support in either judicial precedent or jurisprudential reasoning; indeed, it contravenes the well-established judicial principle that federal ...