Edelman v. Jordan – Oral Argument – December 12, 1973

Media for Edelman v. Jordan

Audio Transcription for Opinion Announcement – March 25, 1974 in Edelman v. Jordan


Warren E. Burger:

We’ll hear arguments next in 72-1410, Edelman against Jordan.

Robert J. O’rourke:

Mr. Chief Justice.

Warren E. Burger:

Mr. O’Rourke.

Robert J. O’rourke:

May it please the Court.

John Jordan, the plaintiff-respondent in this case filed a complaint in the United States District Court for the Northern District of Illinois individually and as representative of a class, seeking an injunctive relief and damages for violation of the federal welfare regulations against former directors of the Illinois Department of Public Aid of the State of Illinois and other county officials charged with administrating the welfare program.

Specifically, the plaintiffs alleged that certain sections under the Illinois Categorical Assistance Manual were invalid, being inconsistent with the 30-day and the 60-day determination requirements as defined by the regulations of the United States Department of Health, Education, and Welfare.

The defendants in this matter denied the allegations, material allegations of the complaint.

The welfare program involved is the Aid to the Aged, Blind, and Disabled, and is one of the categorical assistance programs that it is administered by the Illinois Department of Public Aid under the Illinois Public Aid Code.

The program is funded 50% by the state, and the other 50% is provided by the Federal Government under the Social Security Act.

The Illinois Department of Public Aid issued regulations pursuant to statute setting up eligibility and payment requirements.

And the Department of Health, Education and Welfare which administers the welfare program for the Federal Government promulgated regulations pursuant to the Social Security Act, setting up time limitations for the determination of eligibility and the payments of benefits.

The plaintiffs in this action contended that the Illinois Department of Public Aid was required to process all applications for welfare assistance for the aged and the blind within 30 days, and for the disabled within 60 days of the initial application.

Having failed to process such applications within the specified time so plaintiffs contended, the plaintiff class was entitled to monetary award commencing on July 1, 1968 which is the date of the federal regulations went into effect to be computed by the amount of money, the members of the class would have received, had their applications been processed within the 30 and the 60-day requirements.

The defendants never claimed that all such applications were process within the 30 and the 60 days.

Indeed, the defendants pointed out that some applications take longer to process than others because of various factors which must be determined in order to establish eligibility for the particular applicants.

The District Court granted summary judgment for the plaintiffs and enter the judgment that provided among other things that the Illinois Department of Public Aid be permanently enjoined from failing to make a determination of eligibility and payment within the 30 days of initial application for aid to the aged and blind, and within 60 days of the initial application for the disabled under the Illinois Aid to the Aged, Blind, and Disabled Program.

The District Court also found for the plaintiffs on the monetary award question.

It required the defendants to make all payments not made to the applications would apply for the Illinois Department of Public Aid benefits between July 1, 1968, the day that the federal regulation went into effect, and April 16, 1972, the date that the District Court entered a preliminary injunction mandating the Illinois Department of Public Aid to make the payments within the 30 days.

For the aged and the blind applicants who did not receive their initial benefit check within the 30 days from the date of application, the order provided for the payment of a sum of money equal to the assistance they would have received for the period beginning on the 30th day from the date of application for the — to the date their entitlement became effective.

For the disabled, they were two different dates because of the fact of the change of the regulations during the course of this cause of action.

But in affect, the order provided for the payment of money equal to the assistance they would have received for the period beginning either with the 45th day or the 60th day, depending upon the date of the entitlement or the date of the application to the date that they actually received their first benefit.

Appeal followed in the Court of Appeals, and this appeal was based substantially on the same grounds that are raised in the instant petition for writ of certiorari to this Court.

In particular, it was pointed out that an action for a monetary award filed against state officials in their official capacity the award to be discharged out of the general revenue fund of the State of Illinois could not be maintained by federal district court in view of the provisions of the Eleventh Amendment to the Unites States Constitution.

The Seventh Circuit Court of Appeals rejected this contention and found that a retroactive money award given to welfare recipients did not contravene the prohibition of the Eleventh Amendment to the United States Constitution.

It is respectfully submitted that a suit seeking payment of a money award from the general revenue fund of a state by class of welfare recipients sounding in equity, whether it be characterized as restitution or damages in within the clear meaning of the Eleventh Amendment, and hence the judgment of the United States District Court for the Northern District of Illinois, and the opinion on mandate of the Seventh Circuit as they apply to the monetary award should be reversed by this Court.

Potter Stewart:

Mr. O’Rourke?

Robert J. O’rourke:

Yes, Mr. Justice.

Potter Stewart:

Of course in recent years, there had been a lot of cases in the desegregation area where school districts have been compelled to take steps to desegregate which necessitate the expenditure funds.

I am thinking of busing and other things.

Robert J. O’rourke:

Yes, sir.

Potter Stewart:

You think those are within the Eleventh Amendment area?

Robert J. O’rourke:

No sir, I do not and this Court has so held I believe because of the fact that there is a prospective application of the law — the prospective application in monetary award, but particularly, those claims where brought under the Due Process and Equal Protection Clauses of the Constitution.

We have a situation here.

There is a clear violation of the constitution of those provisions.

Here, we have a violation, if any, of the regulations of the Social Security Administration which are statutory regulations which would require the payment of retroactive benefits.

Harry A. Blackmun:

And there’s another area developing of the late, and that’s where Attorney’s fees are allowed in Civil Rights cases.

Robert J. O’rourke:

Yes, sir.

Harry A. Blackmun:

Do you feel this is also distinguishable from this case?

Robert J. O’rourke:

I really don’t feel as distinguished.

I believe that the Court has never addressed itself to the Eleventh Amendment prohibition for the awarding of these fees.

I believe there was one case and I can’t think of the name of that right now, but it was awarded as a deterrent to the defendants in that case because of the fact that they had complicitly did not obey the court’s order that there had been a contempt citation.

Byron R. White:

Are you suggesting that this Court has implicitly said that Eleventh Amendment was repealed or limited by the Fourteenth?

Robert J. O’rourke:

No, sir.

No, I am not.

There is an argument to that effect though, of course and that the respondents, I believe, will make that argument, but I believe that the Eleventh Amendment of course as it applies to the States but not as it applies to individuals would not be certain about it.

Harry A. Blackmun:

That’s in the an NAACP brief, particularly —

Robert J. O’rourke:

Yes sir, it is.

And that’s the whole NAACP brief that is amicus or amicus in this case goes into the reconstruction statutes and indicates that there has been a superseding of the Eleventh Amendment by the Thirteenth, Fourteenth and Fifteenth Amendments.

Byron R. White:

Well, hasn’t this Court affirmed there are some retroactive welfare payments?

Robert J. O’rourke:

Yes sir, they have — summarily affirmed.

Byron R. White:

But it’s — I suppose you suggest that the issue was never raised or flashed with respect to the Eleventh Amendment.

Robert J. O’rourke:

But the issue was raised in briefs, but the Court had never addressed itself to the question.

Byron R. White:

Well, we did summarily rejected the Eleventh Amendment arguments at least two or three times.

Robert J. O’rourke:

Yes sir, that’s correct.

And your arguments, I recall your brief is really then that precedents it all?

Robert J. O’rourke:

I’m sorry Your Honor, I didn’t hear that.

I think your arguments, I recall your brief is a summary affirmance as though precedents for anything.

Robert J. O’rourke:

Well, —

It’s like a denial of certiorari.

Robert J. O’rourke:

It’s a denial of certiorari, yes sir and there’s arguments on both sides to that question of course, Rothstein versus Wyman which is the Second Circuit Court of opinion.

Robert J. O’rourke:

Many of the jurisdictions hold the fact that this Court did not entertain certiorari in that case such a precedent that the Eleventh Amendment argument is a valid argument.

The other side we’ve argued in our case to the fact that the Seventh Circuit has rejected the Eleventh Amendment argument.

Rothstein versus Wyman is a — bringing it up as a Second Circuit case which dealt with the same subject matter as this involved here, yet contrary to the decision of the Seventh Circuit Court in this case, the Second Circuit in the Rothstein held that the Eleventh Amendment bargain action in the United States District Court for the release of benefits supposedly wrongfully withheld.

There the Second Circuit went into a long examination of this Court‘s opinion in Rosado versus Wyman and the fact that pursuant to Rosado versus Wyman, the only remedy afforded by the Social Security Act was the withholding of federal funds from the state and that it was not a personal thing to the welfare recipients, and the Second Circuit held on that basis that there was an improper exercise of equity jurisdiction by the lower court in awarding retroactive benefits.

The state however in the appeal raised the Eleventh Amendment which provides that a federal judicial power did not extend to suits against the state, and the court in Rothstein versus Wyman held that the point was well taken that insofar as retroactive payments are concern, it is in truth a suit against the State of New York which the State of New York had never consented.

The court in the Rothstein case then stated and I quote “It is one thing to tell the Commissioner of Social Services that he must comply with federal standards for the future if the state is to have the benefits of federal funds and the programs he administered.

It is quite another thing to where the Commissioner to use funds to make preparation for the past.

The latter would appear to us would fall a foul of the Eleventh Amendment if that basic constitutional provision is to be conceive as having any present force”.

The respondents argue in their brief that the petitioners in this cause of action failed to raise the Eleventh Amendment argue on the defense in the trial court and only alleged it for the first time in the Seventh Circuit.

Now, the Seventh Circuit did not find these arguments sufficiently sound so as to preclude its own analysis of the applicability of the Eleventh Amendment argument.

It is admitted by your petitioners that it did not raise the Eleventh Amendment defense in the trial court, but contends that there was no language in the respondents’ complaint from which the Eleventh defense could be anticipated as the thrust of the plaintiffs’ complaint was for declaratory and injunctive relief.

Now, it would have been futile for Illinois to have raised the Eleventh Amendment argument with respect to the application of the law.

Warren E. Burger:

We’ll resume there at 1 o’clock.

[Noon Recess]

Mr. O’Rourke, you may resume.

Robert J. O’rourke:

Mr. Chief Justice and may it please the Court.

At the recess, I was just indicating to the Court that the thrust of the plaintiffs’ complaint in this cause of action was for declaratory and injunctive relief, and we maintain it would have been futile for the State of Illinois to have raised the Eleventh Amendment argument with respect to prospective application of the law.

The application of the fiction of Ex parte Young was and it’s quite clear.

Clearly, the Eleventh Amendment does not prohibit Federal Courts from ordering state officials to bring their conduct in conformity with the federal law.

Therefore, no question was entertained about this District Court’s jurisdiction to enter a declaratory judgment or a mandatory junction compelling future conformity with the administration of the Illinois Public Welfare Program with the federal statutes in the federal regulations.

Furthermore, the Illinois’s Assistant Attorney General who appeared on behalf of the Illinois Department of Public Aid in the trial court as a matter of law could not waive the Eleventh Amendment argument.

This follows through with the sovereign immunity doctrine and in our state, the law is quite clear, both case law and through the Constitution that the only that can waive these arguments are the state legislature itself.

In Ford Motor Company versus the Treasury Department of the State of Indiana, Justice Reed in delivering the opinion to the Court stated, “The objection to petitioner suit has a violation of the Eleventh Amendment was first made and argued by Indiana in this Court.

This was in time however.

The Eleventh Amendment declares a policy and sets forth in explicit limitation on the federal judicial power of such compelling force.

This Court will consider the issue arising under this amendment in this case even though urge for the first time in this Court”.

But is in controversy in this case are the limitations of the applications of the Ex parte Young fiction.

It is submitted that if a suit fits to declare a liability which must be met from the general revenue fund of the state which is mandated by its own constitution of matching its cause with this anticipated revenue, then Federal Courts are without jurisdiction to entertain a suit without the expressed consent of the state.

This Court recently stated in Employees versus Missouri Public Health Department that it was not easy to infer that Congress in legislating pursuant to the Commerce Clause which has grown in vast proportions in its application desired silently to deprive the state of an immunity which they have long enjoyed under another part of the constitution.

Thus, we cannot conclude that Congress conditionally operation of these facilities on the forfeiture of an immunity from suit a federal form.”

Robert J. O’rourke:

Similar, either is no language in the Social Security Administration Act that either expressly or impliedly shows the intent on the part of Congress to deprive the States of their immunity under the Eleventh Amendment.

There is also nothing in the compact between the Illinois Department of Public Aid and the United States Department of Health, Education, and Welfare that expressly conditions, Illinois’ participation in the federally-assisted program on its waiver of immunity under the Eleventh Amendment.

Consistent with the Eleventh Amendment, Congress enacted an apparently exclusive remedy in the form of cutoff of future funds when the state failed to conformed to the federal law, and this is found in 42 U.S.C. 604.

There is nothing in the statutory enactment that provides for an expressed or an implied right to payment of retroactive assistance.

The remedy provided is the cutoff of future funds.

No mention being made of a right to welfare assistance to retroactive payments.

The United States Department of Health, Education and Welfare recently sought legislation in the Second Session of the 91st Congress that would have granted the right of retroactive assistance to welfare recipients.

This legislation was never enacted, which makes it clear that Congress never intended to give and now has rejected legislation, giving welfare recipients a right to retroactive assistance.

As was pointed out in this Court in Employees versus Missouri Public Health Department, it is not easy to infer that Congress in legislating desired silently to deprive the States of an immunity that it is long enjoyed.

In Rothstein versus Wyman again, the Second Circuit Court case, the Second Circuit advanced three basic reasons why retroactive assistance should not be granted.

The first relates to the fundamental principle of welfare legislation, that of satisfying present ascertain needs of the impoverished people, recognizing that federal standards are designed to ensure that those needs are equitably met.

The court properly observed that the passage of time makes such payments compensatory rather than remedial since the coincidence between the ascertained and existing needs becomes less clear.

The second reason or interest noted by the Rothstein court was that of assuring of proper use of federal funds.

The Second Circuit Court found that the interest was not a personal interest to the welfare recipients since Congress provided that the cutoff of federal funds was the appropriate remedy.

The third and most compelling reason for implying a right to retroactive assistance was found to be a willful deterrence of state violations of federal laws.

None was found in the Rothstein context, and we submit that none may be found in the Illinois context.

Warren E. Burger:

You mentioned earlier Mr. O’Rourke that sometimes and in certain cases, it takes more time and perhaps 30 days to —

Robert J. O’rourke:

Yes, Your Honor.

Warren E. Burger:

— make the necessary factual determination.

I don’t recall whether in your briefs, you focused especially on newly arrived residents who would make claims for relief or other aid under Shapiro holding.

Robert J. O’rourke:

No sir, we did not.

Warren E. Burger:

But, I should think it might be a special problem on people who move from Southern California to New York or more likely from New York to Southern California to find out the status of their financial condition and what not.

Robert J. O’rourke:

There are such problems as the Chief Justice points out.

There are other problems of course too, particularly, with the disabled and the blind assistance.

There, there is a matter of determining the extent of the disability and whether or not the person is disabled.

Warren E. Burger:

Well then, what was the purpose of Congress as you see it to fix these rather shorts — a time on it says that’s just hortatory advisory?

Robert J. O’rourke:


If the court please, the Congress did not set the times. Congress merely indicated that the determination of the eligibility and the payment must be reasonably prompt or with proper determinate leave — with reasonable promptness.

The Department of Health, Education and Welfare in formulating the regulations then —

Warren E. Burger:

I meant to refer to their regulations.

Robert J. O’rourke:

Yes, sir.

Subsequently if the Court please, the determination time for the disabled persons has been extended.

Originally, it was 45 days then extended to 60 days.

In October 17 just this year, the Department of Health, Education and Welfare promulgated new regulations that give now 45 days for the aged and the blind, but make the payment to go back to the 30th day after the initial application.

There are problems and they have been recognized.

We do submit in the appendix various graphs that not graphs but charts that show the length of time that Illinois has had to process some of these applications.

Warren E. Burger:

Well, do you think this retroactive provision of the regulations on aid to the blind is in conflict with the Eleventh Amendment?

Robert J. O’rourke:

No sir, not when we have effective application of it, and we are complying — Illinois is complying with that at the present time.

Warren E. Burger:

But when the determination is made, let’s assume the determination is not made for 90 days as conceivably might happen.

Its effective back to the 31st day, is it not?

Robert J. O’rourke:

Back to the 30th day, yes sir under the present regulations.

They were able to provide — the state is able and according to the injunction that was entered in this matter originally on April 16.

We have been complying with going back.

We are able to budget our appropriations with that in mind.

We are talking about as the money award for the benefits that were withheld in the past.

Harry A. Blackmun:

But you are taking the position that the specified day provision is not consistent with the statute.

Robert J. O’rourke:

Yes sir, we are.

We maintain that that’s unreasonable regulation that we are having difficulty and living with it.

We’re making the determination of the eligibility.

The respondents in their brief urge that or impliedly urge that Illinois impliedly consented to waive the Eleventh Amendment immunity as a result of participation in the federally-funded assisted program.

According to the Seventh Circuit, the three advanced in Parden versus Terminal Railway should necessitate the finding that Illinois had indeed waived this immunity.

The Seventh Circuit in citing Parden found that Illinois surely left the spear that — was exclusive its own when it began as participation in the federal state welfare program, and thereby waived its immunity.

However, the decision of the Seventh Circuit in holding this waive runs counter to this Court’s holding in Employees versus.

Missouri Department of Health and Welfare.

The respondents have contended in their brief that the Eleventh Amendment issue is not properly joined in this cause because the Constitution of the State of Illinois has abolished the doctrine of sovereign immunity.

In examination of the history of the doctrine of sovereign immunity in our state established its continued existence and its viability.

In 1970, the people of the State of Illinois ratified a new constitution.

At the time of this suit was filed, Illinois was functioning under the Constitution of 1870.

Article IV, Section 26 of the Illinois Constitution of 1870 provided that the State of Illinois shall not be made a defendant in any court of law or equity.

Now, recognizing that persons might have legitimate claims against the State of Illinois which ought to be paid, the Illinois General Assembly passed a Court of Claims Act pursuant to the grant of authority contained in the 1870 Constitution in effect that Act was to provide that persons with certain types of claims against the State of Illinois which were otherwise be bartered by Article IV, Section 26 of the Constitution could be brought him the Court of Claims.

Robert J. O’rourke:

Decisions made by the Court of Claims are mere recommendations to the state legislature which must may take affirmative action to appropriate funds to pay the claims founds by the Court of Claims to be just.

It is true that Article XIII, Section 4 of the Illinois Constitution of 1970 which became effective January 1, 1972, altered the old rule of sovereign immunity by providing, except as the General Assembly may provide by law, sovereign immunity in this state is abolished.

The General Assembly then enacted to restore sovereign immunity by enacting Section 801, Chapter 127 of the Illinois Revise Statutes.

That Act became affective on January 1, 1972, the same date that the 1970 Constitution took affect by the transition schedule.

That particular Act provides, except as provided in an Act to create the Court of Claims filed July 17, 1945 as amended.

The State of Illinois shall not be made a defendant or party in any court.

In other words, Section 801 restored sovereign immunity Illinois, but reaffirmed the rights of persons to bring claims against the State of Illinois in its Court of Claims.

And if the Court please, I’d like to reserved my remaining time.

Harry A. Blackmun:

May I ask one question Mr. O’Rourke?

Robert J. O’rourke:

Yes, Mr. Justice.

Harry A. Blackmun:

Can you logically say that this case is controlled by the decision here in Missouri employees?

Isn’t there a distinct factual difference and not there the state was in the hospital business —

Robert J. O’rourke:

Yes, that’s correct.

Harry A. Blackmun:

— long before the FELA requirements went in. whereas here, that is not so.

And I suppose, there’s another factual difference and that is — well as of the secretary there could bring suit.

Robert J. O’rourke:

Yes, that’s correct.

Harry A. Blackmun:

And perhaps here, there is no alternative provision.

I just wonder if Missouri employees is so conclusive as you intimate it is.

Robert J. O’rourke:

We maintain that is if Mr. Justice Blackmun of the Court please, there the similarities are — similarities are very, very alike.

There, there was the interpretation of the statute.

Here, the interpretation of a statute.

We also have a situation that the State of Illinois has been in the public aid business for many, many year before the regulation as to the 30 and 60 days took affect, and we have the right to believe that we were operating it properly and correctly such as the state had the right to believe that they’re operating the hospitals pursuant to their prior authority.

I believe that there’s a number of similarities.

Byron R. White:

Absent the Eleventh Amendment argument, you still would contend that back pay so to speak is not an appropriate remedy?

Robert J. O’rourke:

Yes sir, we do that there with a federal court of the —

Byron R. White:

But about all you’re saying in that regard is that this isn’t expressly provided for.

Robert J. O’rourke:

That’s correct, neither expressly or impliedly.

And this Court —

Byron R. White:

But do you think the Court is there for wrong to order back payments?

Robert J. O’rourke:

I think so, if the Court please, this Court so held in Rosado versus Wyman that the sole remedy for the — against the state for failure to comply would be the cutoff of federal funds.

Robert J. O’rourke:

We believe that any action would actually sound in the Federal Government rather than in action for retroactive benefits.

Byron R. White:

Well, sole remedy accepted injunction as far as the future is concerned?

Robert J. O’rourke:

We agree with the injunction, yes sir.

Byron R. White:

Well, that is the sole remedy, is it?

Robert J. O’rourke:

No, that’s correct.

Well, then nor was it in Rosado versus Wyman.

Byron R. White:


Well, and arguably, does it mean arguably that it goes out of it and mean to foreclose the back payments?

Robert J. O’rourke:

We maintain that sir.

Byron R. White:


Warren E. Burger:

Mr. Roodman?

Sheldon Roodman:

Mr. Chief Justice and may it please the Court.

In this argument, I would first review Eleventh Amendment defense of the Illinois Department of Public Aid Director, and then secondly review the reasons why upholding the relief granted by the court below is necessary to effectuate compliance with the requirements in the Social Security Act.

I would also ask the Court to bear with the cough that I have at this time throughout the argument.

I apologize for it.

We all have it.

Sheldon Roodman:

[Laughter Attempt] The first defense and the principle defense of the Director of Illinois Department of Public Aid is that the Eleventh Amendment bars the equitable restitution relief in this case.

This defense is raised in a setting in a factual context in which it is not previously been presented to this Court.

The suit against the Director of the Illinois Department of Public Aid, they concede as properly in Federal Court.

They concede that the suit against the Director of the Illinois Depart — Director of the Department of Public Aid in a relief which orders him to process every future application in the entire State of Illinois within 30 days or 60 days respectively.

He’s not barred by the Eleventh Amendment.

They further concede that the portion of the provisions of the judgment which require that assistance shall be affective as of the last day of the respective time periods for all future applicants, even those that extend beyond the prescribed time period.

Even in those cases, that relief is not barred by the Eleventh Amendment.

However, with respect to the incidental, equitable relief of restitution, they claim that the Eleventh Amendment bars a federal court from granting such relief.

The Director claims that such relief is barred by state immunity from suit.

Consequently, he must be claiming that in denying members of the plaintiff class, their equitable entitlement and the statutory entitlement and he concedes that John Jordan and all other members of the plaintiff class were entitled to these benefits in the first instance.

That is conceded in this case.

But, it is argued that the incidental relief of granting those benefits is barred by the states immunity from suit.

However, this Court in Ex parte Young reasoned that when a state officer acts in violation of paramount federal law that he acts without the authority of the state, the language of Ex parte Young is that he acts without the authority of the state that his actions are simply an illegal act, that the state has no power to impart to its officers immunity from responsibility to the supreme authority of the United States.

It is that doctrine that encompasses the entire relief in this case.

Sheldon Roodman:

Once this case is in Federal Court, the Eleventh Amendment which applies to suits and not to types of relief no longer is applicable, the question then becomes what — whether the relief is appropriate, but not whether that such relief is barred by the Eleventh Amendment.

In interpreting Ex parte Young, there is no basis that is offered by the petitioners in order to bifurcate that doctrine.

The doctrine applies to injunctive relief.

It applies to all relief that is necessary inappropriate.

Suggestion that there is a distinction between constitutional that constitutional cases are different ignores the reality that in this case, we have a violation of the Supremacy Clause.

We have a situation where the Illinois Director has violated federal requirements and in turn the Supremacy Clause.

William H. Rehnquist:

Do you think your clients could bring the 1983 action for damages against the petitioner here?

Sheldon Roodman:

Your Honor, if that really — if the Federal Court believe that that such relief was necessary and appropriate and incidental to the other relief in this case, yes, I think number one, its certainly the Eleventh Amendment would not bar that relief.

We are already in Federal Court.

The court has already ruled on the merits of the case and has heard the case and as an incident to that, the court if it deemed it necessary and appropriate to effectuate compliance with the Act, it could grant that relief.

William H. Rehnquist:

I’m thinking not so much of the Eleventh Amendment as the general motion that an agent of the state, though he may be enjoin from violating the Constitution is ordinarily not thought to be personally liable in damages for his action probably and the analogy to a private employee of a private employer.

Sheldon Roodman:

If the Court is suggesting under 1983, causes of action against public officials, this Court as held is permissible and the officials are personally liable in those situations.

William H. Rehnquist:

In damages?

Sheldon Roodman:

Personally liable in damages.

William H. Rehnquist:

Aren’t those tort cases though?

Sheldon Roodman:

That’s correct, Your Honor.

In this case, there are two theories in terms of the cause of action that would apply here.

One is that equitable relief is that there is a right to the statutory entitlement, and that the court in exercising its equitable powers is merely exercising the traditional powers of the court to grant appropriate and complete relief to the parties before the court.

Now, under 1983, it would be possible for the — it is our position that the court exercising its equitable powers may order state officials to make restitution.

Now, the more difficult case — if you suggest and that restitution is no different than the relief that orders state officials in connection with civil right cases, the school cases are the reapportioning of legislatures.

Does that answer the question, Your Honor?

William H. Rehnquist:

I think so, yes.

Sheldon Roodman:

The Eleventh Amendment decision of the defense then has for two reasons is not a bar to the relief granted in this case.

First, the language of the amendment itself, the language of the Amendment uses the specific word “suit”, but they concede that this suit, it says no — the judicial power of the Unites States shall not be construed to extent to any suit.

But they concede that the suit against the Director is properly in Federal Court under the doctrine of Ex parte Young.

Thus, this Court would have to distort the language of the amendment itself in order to reach the conclusion offered by the petitioners, and secondly, the doctrine of Ex parte Young.

As we’ve indicated, the rational is that when a state officer violates paramount federal law, he is stripped of his official or representative capacity.

He’s acting without the authority of the state and the state has no power to impart to him any immunity from responsibility.

In this case in particular, we have a situation where and I would refer the Court to the facts.

They’re setout in the appendix at the page 85 through 89.

Warren E. Burger:

Specifically, what federal law do you say State of Illinois the officers were violating?

Sheldon Roodman:

They were violating Your Honor both the statutory provision which requires applications to be processed with reasonable promptness, and the federal regulations pursuant thereto, the federal regulations which require processing of applications within maximum time periods.

Mr. Roodman, suppose the authorities had voluntarily come into compliance, will the federal statute and regulations before this action were brought.

And then, these plaintiffs wanted to get the retroactive payments.

What kind of action do they bring?

Sheldon Roodman:

If the suit at that point Your Honor, they would bring a suit in equity and in 1983 action, in the Federal Court for restitution of benefits wrongfully denied.

So, that would be an independent equitable action for restitution?

Sheldon Roodman:

That’s correct Your Honor.

And the case would be no different than this as so far as the Eleventh Amendment is concern?

Sheldon Roodman:

That’s correct Your Honor.

Only because why?

Sheldon Roodman:

Because for the plaintiffs who are wrongfully denied their benefits in the past as a result of illegal acts of that Sate Director, he would at that time be stripped of his authority, and as this Court has held, he is not permitted to claim the immunity of the state when acting in violation of federal law.

Warren E. Burger:

Does the concept of an equitable cause of action or restitution require that there be someone in a corollary sense unjustly enriched?

Sheldon Roodman:

Your Honor, the doctrine of equitable restitution involves situations in which one person should make an accounting to the other for either of two reasons.

One, because one person would be unjustly enriched or conversely, one person would unjustly suffer loss.

This case has both of those elements.

Particular —

Warren E. Burger:

Who is unjustly enriched here?

Sheldon Roodman:

Your Honor, in this case, in connection with the unjustly enriched aspect, the Illinois Department of Public Aid saved the expenditure of state funds that they would — that they were required to make under the law as result of a violation of law.

Warren E. Burger:

And you think that’s unjust enriched?

Sheldon Roodman:

Well, I would certainly rest the stronger part of my case upon the argument that John Jordan and others like him should not unjustly suffer loss.

The restatement of restitution provides our States has one of the guiding principles that a person should not profit by his wrong at the expense of another.

I would like to explain the facts Your Honor with respect to your previous questions.

It is not just the fact that some cases took longer than 30 and 60 days.

First, there are specific exceptions to those rules that are not at issue in this case.

And under certain circumstances, it is permissible under the federal rules to take longer than the prescribed period.

The class of plaintiffs that we’re talking about in this case are only those persons who are eligible and did not fall within that special category.

Only those persons who are eligible and the delays were not as a result of their fault or any special circumstances with respect to determining their eligibility.

An independent action for restitution jurisdictionally would rest on what section?

Sheldon Roodman:

Your Honor, jurisdiction would rest (a) on 1331.

Byron R. White:

But if there is 10,000?

Sheldon Roodman:

If there is 10,000?

Byron R. White:

And there is only one named plaintiff here?

Sheldon Roodman:

There is one named plaintiff.

Byron R. White:

But you think there is more than 10,000?

Sheldon Roodman:

The circumstances of the named plaintiff were that he did not have sufficient funds for the basic necessities of life.

In the affidavit attached to the complaint on the TRO, the 63-year-old mentally disabled man was ill.

He was ill, number one, and malnourished.

Secondly, he was in a position where he did not have vision in one eye and needed glasses.

If his application had been processed, he would have had as an incident the rights of AABD recipients, a medical card which would entitle him to free medical — comprehensive medical care.

It would maintain (a) that that $10,000.00 was at stake for this individual.

Secondly, we would have jurisdiction under 1343 (3).

Byron R. White:

Although you alleged here only a claim based on a federal statute; no constitutional claim?

Sheldon Roodman:

There was a second count Your Honor that is not before this Court.

There was a second count that does involved constitutional claims.

That the Seventh Circuit ruled upon that has not been appealed to this Court.

Byron R. White:

If there was — you did assert constitutional question.

Sheldon Roodman:

That’s correct Your Honor.

What was that an equal protection?

Sheldon Roodman:

That’s correct Your Honor.

William H. Rehnquist:

(Inaudible) dispose of that —

Sheldon Roodman:

Of the jurisdiction?

William H. Rehnquist:

Do that go to the constitutional claim go to the Seventh Circuit?

Sheldon Roodman:

Yes, it did Your Honor.

The Seventh Circuit ruled on against the plaintiffs on the equal protection claim on a separate issue.

I would like to point out to the Court that the fact that the delay is not the essence of this case.

The fact that applications were delayed in processing is not the essence of this case.

The essence of the depravation in this case is the Illinois Regulations, Section 8255 which provided that assistance could not be provided for any month prior with the month in which the application was approved.

For example, with respect to John Jordan who applied in September 1970, his application was not active upon as of the date of the filing of this lawsuit.

The lower court that the suit was filed in January of 1970, four months later, lower court ordered his application to be processed.

Sheldon Roodman:

He was determined eligible and was given assistance for effective January 1, 1971.

That’s the month in which his application was approved.

As a result of the Illinois Regulation which bar assistance for any month prior to the month in which the application was approved.

But for this regulation, even though his application was illegally delayed, he would have received assistance effective November 1, 1970.

So, it is the two months, November and December 1970 that he was — his statutory entitlement that’s conceded in this case.

And this Illinois regulation barred him from receiving those benefits, so that all cases for all member of the plaintiff class, they were entitled to these benefits, and it’s this regulation which barred them from receiving it.

Now, with respect to this regulation, the established facts are in this case, and I would refer the Court to the appendix at pages 85 through 89, established facts are — I’m reading from paragraph 5 on page 87 of the appendix.

From July 1, 1968 to the present, Herald O. Swank (ph) willfully and in gross disregard the rights of eligible AABD applicants, knew that substantial numbers of eligible AABD applicants were being deprived contrary the requirements of federal law of their full AABD entitlements effective 30 days from the date of their application with respect to disability applicants 45 days from the date of their application, by reason of the operation, implementation and enforcement of Section 8255 and 8255 of the Illinois Categorical Systems Manual.

The facts are then that the Director knew from July 1, 1968 throughout the relevant period that the regulation for the Department of Public Aid was contrary to the federal law and deprived members of the plaintiff class of their statutory entitlement.

Harry A. Blackmun:

You have to get over the prevalent Congress that the regulations are consistent with the statute, don’t you?

Sheldon Roodman:

Your Honor, that argument was not raised before the trial court at all.

It is not properly preserved for appeal.

That’s the ruling of the Seventh Circuit.

It was not presented at all to the lower court, even if we were to consider it on the merits Your Honor.

All of the other courts that have considered the question of whether the 30-day and 60-day maximum time standards have held them to be reasonable, this Court and I would emphasize in the case of Rodriguez versus Swank which is the related case that involved AFDC recipients in Illinois, raised that question and the question summarily affirmed in this Court.

Certainly Your Honor, even on the merits though question of providing assistance to people who are needy and by definition do not have sufficient funds for the necessities of life within 30 days.

We maintain is not an unreasonable judgment.

Harry A. Blackmun:

Well, you have all the sentiment with you, but I take it from your argument.

You’re saying that HEW can do almost anything and wanted to and it wasn’t — within the months, we have not got along with any HEW regulation.

Sheldon Roodman:

Our argument, Your Honor, is not they could go — our argument is not that they could do anything.

Our argument is that they’re just — the judgment was not arbitrary and capricious that they urged and that is the standard of the petition that the petitioners must establish in this case.

We maintain that that is a reasonable exercise of the judgment of the HEW officials.

It is a standard that prevail since 1951, Your Honor.

For 17 years, that standard of 30 days has prevailed.

Secondly, the standard in and of itself —

Harry A. Blackmun:

But it just been changed to 45, wasn’t it?

Sheldon Roodman:

It has been, Your Honor, just changed.

Harry A. Blackmun:

So, it hasn’t prevailed just didn’t — it hasn’t prevailed consistently and not to —

Sheldon Roodman:

Well, it has prevailed up until this time Your Honor.

I would maintain also, Your Honor, and I would suggest to the Court that the regulation itself has a specific exception provision for unusual circumstances so that the regulation does have on an escape hatch in certain situations.

Sheldon Roodman:

But that is not the — in this case, we are talking about people who by definition where eligible for all those benefits and who threw no fault of their own whose applications were delayed in processing, and even if and really, the heart of the deprivation is that this regulation of the Illinois Department of Public Aid 8255 which barred assistance for any period prior to the month in which the application was approved, it is that regulation that have that not existed.

John Jordan would have received his full entitlement as of the time when his application was finally approved in January of 1971, so that one right of his would have been violated.

It would have taken too long, but he would have received everything he would have been entitled to.

Warren E. Burger:

I suppose there are some forms of need which could be demonstrably imperative than five days or 10 days, but you don’t challenge the right to have — now, 45 days to examine.

Sheldon Roodman:

Your Honor, we do not — we accept the notion, we accept the principle that eligibility for public assistance requires time.

We accept the principle that 30 days is a reasonable judgment for what that time should be.

There are circumstances in which people have need at the moment that they applied.

There are special provisions for emergency assistance in those cases, but we — should defer in this case to the judgment of HEW over 17 years, and then that again, I will point out that the issue is not even before the Court properly.

It was not raised in the court below in the District Court.

Lewis F. Powell, Jr.:

Mr. Roodman, am I correct in understanding from what you have been saying about the Illinois regulation that it gives your opposition that the element relied upon — one of the three elements relied upon by the Second Circuit in the Rothstein, namely that the federal law was willfully disregarded is met in this case?

In other words, you’ve taken the position that the Illinois willfully by virtue of the regulation disregarded the federal regulation.

Sheldon Roodman:

Your Honor, yes is the answer to that.

I think the established fact is set out in pages 85 through 88 of the appendix, established that the Director of the Illinois Department of Public Aid knew that the regulation was contrary to federal law.

Even if, Your Honor, it’s not considered willful.

It’s clear that he understood that his regulation was in violation of federal law, if he had.

And from July 1, 1968 and forward, if there was any question in his mind as to the legality of those regulations, the Director could have filed a suit for declaratory judgment.

Instead, he continues to receive federal funds for all of the period, knowing that his actions went violation of federal law.

But Your Honor, I would point out that what we are interested in and the remedy of restitution of form is a remedy — it is a remedy design to deter all violations of law.

We are not concern only with willful violations, but we are concerned with deterring all violations of law.

The remedy of restitution in this case, and that is within the panoply of equitable remedies that a Federal Court sitting as a court of equity has an order to grant appropriate relief to the parties.

This Court has held in Porter and Mitchell that are described in detail in our brief that unless a statute, otherwise restricts the powers of the court of equity, that court retains all of its traditional equitable powers.

In Porter, the question was whether restitution of excess rents charging violation of Emergency Price Control Act where a Federal Court had authority to grant restitution.

The court said yes.

In Mitchell, the question was whether an employee who is discharged in violation of the Fair Labor Standards Act wasn’t and whether the court had the equitable power to grant restitution in/or of back wages in that case.

In each case, the court reaffirmed the principle that the court of equity may grant restitution, unless if the statute otherwise restricts.

In this case Your Honor, the remedy of restitution is necessary in order to bring about compliance with the Social Security Act.

I think it is worth pausing for a moment to reflect in the situation that occurs without a remedy of restitution.

Without a remedy of restitution, Director of any public aid office learns the valuable lesson that any federal provision under the Social Security Act that is mandatory may be ignored with impunity.

That savings and welfare budgets may be brought about by violating the law because there is no effective sanction.

Any requirement that is considered onerous or unfair, maybe disregarded because there is no sanction.

Warren E. Burger:

You refer to that as a savings, what — does that go into the general tax along with the general tax revenues then?

Sheldon Roodman:

Your Honor, for example with respect to John Jordan, he was entitled to benefits for November and December 1970.

Position there were taken and was deprived those benefits, and according to the law of Illinois, each additional month they would have delayed, they would have saved the state share of payments to John Jordan.

So, had we not brought this suit and his application would have been remained non-acted upon.

For January, for February, for March, the state would have saved welfare payments for each of those months.

It is our position that that — there must be incentives not to save money by violating the law.

There are the Social Security Act, provides legitimate means for the States to control the expenditures and public assistance programs.

This Court has so held that if the States sets its own standard of need and may pay less than the full percentage of need, that is the reasonable — that is the legitimate way of States controlling public assistance expenditures.

On the other hand, state directors of public aid, must need some incentives to pay careful attention to federal requirements whenever they are enforcing, whenever they are adopting their regulations in taking positions in the Social Security Act.

We would point out to the Court that the present remedies of an injunction prospectively only is not a deterrent, and certainly, the remedy of a total cutoff of federal funds is not a deterrent.

It is only the remedy of restitution that provides a deterrent and conversely provides an incentive to comply with federal law.

We would, at the very least in this cooperative scheme of federalism.

The States agree to comply with the law.

That is the central condition upon which the Federal Government provides to the states billions of dollars.

States agree that we will conform to federal law, and that’s their only part of the bargain.

If cooperative federalism is to work, it must work under scheme where state officers respect the Supremacy Clause and the supremacy of federal requirements.

If there is not — if this Court were to reverse on the grounds of the remedy of restitution was inappropriate, it would provide a valuable lesson to state law officials that there is no sanction for violating the law, and particularly in the case, given the established facts that the director was aware that his — that the owner regulations was contrary to law.

There is no basis for reversing the decision.

Byron R. White:

I suppose if the state regulations had been approved by the — or state plans been approved by HEW, there might be some argument that there shouldn’t be retroactive payments just because a court decided that the state regulations were contrary to Social Security Act?

Sheldon Roodman:

Your Honor, that — that is one of the equitable considerations that the Court would take into account.

In this case, I would point out that in fact, the director does not argue that on the equities, the lower court abused this discretion.

Byron R. White:

Well, they did — they did make an argument that the judgment — that the regulations were contrary to the — that the manual was contrary to HEW regulations–

Sheldon Roodman:

Yes, sir.

Byron R. White:

— or should be given only prospective affair?

Sheldon Roodman:

Well, I think that that’s a different doctrine than the one that —

Byron R. White:

Well, but it really says, it really argues to have been exempted.

There is no equity in applying the decision retroactively.

Sheldon Roodman:

Well, if the Court would — that argument seems to be that yes, we knew that we are violating the law, but now that we are caught, we are not to have to provide the statutory entitlements that we were — obligated to make in the first place and that we agree to make in the first place.

With respect to the question — answering the question in conclusion with respect to willful violations and whether HEW approved it, we think that’s one factor that the Court would consider.

But of course, what we are interested in is deterring violations of all laws, and if a court rules that a state provision is contrary to Social Security Act and the Supremacy Clause, we must remember that the plaintiffs then are being deprived to this work deprived of their statutory entitlements, and all that of remedy or restitution does, it places them in the position that they would have been in but for the violation of law.

Sheldon Roodman:

And that’s the classic goal of restitution.

Thank You.

Warren E. Burger:

Thank you Mr. Roodman.

Mr. O’Rourke, do you have anything further?

Robert J. O’rourke:

Just one or two short items, if the Court please.

I think the court in questioning Mr. Chief Justice, Mr. Roodman relative to the question about unjust in Richman, it is upon a point.

They keep characterizing their relief is equitable restitution, and we maintain that as the establishment of equitable restitution, there must be unjust to Richman if someone.

Certainly, the director did not receive any money.

The State of Illinois did not receive any money.

As a matter of fact, our appropriations for welfare for all of the years in question were completely exhausted.

Not one cent was returned to the Treasury in the State of Illinois.

Byron R. White:

What about the — an assertion or was there a finding of the laws that the director knew that the Manual was contrary (Inaudible)?

Robert J. O’rourke:

That was pursuant to an affidavit filed by the plaintiffs which was never responded to by the defendants.

It’s true that we knew that the regulations where inconsistent in the State of Illinois with the regulations of HEW.

That was —

Byron R. White:

Well, you were aware of that?

Robert J. O’rourke:

Yes, we were Your Honor, and as a matter of fact, respondents in their brief makes also a point that we were being sued at this present time in Rodriguez versus Swank with the aid of the dependant children program, on much the same type of thing.

But we contend that this not necessarily follow that we showed bad faith that there was willful violation of this because what we were doing was pursuing a legal remedy that we felt we had or legal theory we had, and we respectfully submitted that some proper allege of the exhaustion are ones we call it remedies as anyway indicates bad faith.

Question of the magnitude of the job that the State of Illinois has other state throughout the union has to do in the welfare program in determining eligibility.

The number of people that were on welfare, in 1967 was 420,665 people in the State of Illinois.

This is gone now to at the present time, 983,600.

In just one year, the year 1967 or 1971, 397,281 people were added to the welfare roles.

So, we do have a problem of having peak periods and having low periods as to determining eligibility.

The counsel points out two cases that he relies upon are rather heavily, the Powell case relative to the payment of retroactive — retroactive payments for rents that were withheld, and also the Mitchell case relative to wages, neither one of these case as we submit was a case against a state and in both of those cases, we believe that the principle of equitable restitution was a proper one.

There had been unjust for Richman, both in the landlord that charged the over amount of rents and also in the employer that had not paid the wages according to the Fair Labor Standards Act, that if the Court please, we rest.

Thank you.

Warren E. Burger:

Thank you.

Thank you gentlemen.

The case is submitted.