Hagans v. Lavine – Oral Argument – December 11, 1973

Media for Hagans v. Lavine

Audio Transcription for Opinion Announcement – March 25, 1974 in Hagans v. Lavine


Warren E. Burger:

We will hear arguments next in Hagans against Lavine, 72-6476.

You may proceed whenever you’re ready Mr. Nathanson.

Carl Jay Nathanson:

Mr. Chief Justice, may it please the Court.

The Second Circuit did not determine this case on the merits.

The Court concluded that because the complaint failed to plead a substantial constitutional question, the District Court was without pendent jurisdiction to determine as it did at the New York Welfare Regulation violated the Social Security Act.

Because of the procedural posture of this case therefore, two questions are presented to this Court.

The first question is a narrow one, whether the pleadings raised nonfrivolous —

Let me get this straight.

You state the question of — in pendent jurisdiction terms, tell me that the question that you want to be pendent.

Carl Jay Nathanson:

The pendent question was whether or not the New York Welfare regulation violated the Social Security Act.

There is a Social —

No, no.

why do you need to resort to pendent jurisdiction?

Carl Jay Nathanson:

Well, I don’t think you need to resort to pendent jurisdiction, Your Honor.

Well, why do you say so then?

Carl Jay Nathanson:

The —

When do you call that pendent?

Isn’t that a federal question in itself?

Carl Jay Nathanson:

The lower court determined that the District Court lack jurisdiction to pass upon that pendent claim because of the absence of a substantial constitutional claim.

Well, I know but you say it was a pendent claim.

But it isn’t pendent if — at all, is it if you don’t need a constitutional claim, it isn’t pendent, is it?

Carl Jay Nathanson:

It would not be pendent, Your Honor.

Well, and then if you need a constitutional claim, you just can’t consider whether it’s pendent or not.

Carl Jay Nathanson:

Well, Your Honor before the Court can determine whether or not it’s correctly to determine, to characterize that as a pendent claim, I would first have to pass upon the second aspect of our argument which is —

No, but which is what?

Carl Jay Nathanson:

Which is that absent a constitutional claim, the District Court had jurisdiction under 1343 (3) and 1343 (4) of an action founded on 1983 of the Civil Rights Act to determine the Social Security Act claim without regard to whether or not —

Do you think any statutory, any statutory claim, any claim that a state law conflicts with a federal statute in order to be — is pendent to the constitutional plan, is that it?

Carl Jay Nathanson:

I think that any time —

If there is a constitutional claim, the only basis for considering the statutory claim was pendent jurisdiction?

Carl Jay Nathanson:

No Your Honor, I don’t.

Carl Jay Nathanson:

And believe there is independent federal jurisdiction to determine that claim.

William H. Rehnquist:

You claim that the federal Social Security statute then, is in effect one of the laws described by Section 1343 as enacted to protect civil rights?

Carl Jay Nathanson:

I contend Your Honor that the Social Security Act is one of the laws described by Section 1983 and when a state acts to deprive a citizen of — a right, federal rights or the color of state law that therefore there’s jurisdiction to hear that remedy under 1343 and 1343 (4).

William H. Rehnquist:

Not because of the constitutional Supremacy Clause but just because the federal right is conferred by a federal statute?

Carl Jay Nathanson:

Yes, Your Honor.

But what — but do you mean — why isn’t that a constitutional claim in itself when it’s Supremacy Clause?

Carl Jay Nathanson:

It would be a constitutional claim —

But you said it is for the purposes of a three-judge court statute.

Carl Jay Nathanson:

We didn’t raise it in the terms of the Supremacy Clause being the constitutional basis.

Although in fact that is true that that isn’t a basis but we didn’t raise it in the lower court.

We have no reason but we can’t strike down a state statute except for the constitutional grounds, is that it?

Carl Jay Nathanson:

No Your Honor, except —

Now if we strike it down because it’s in conflict with the federal statute, it’s because the constitution requires it.

Carl Jay Nathanson:

Under Supremacy Clause.


Carl Jay Nathanson:

In 1971, the New York State Department of Social Services promulgated Regulation 352.7 (g) (7) of Title 18 of the New York Code of Rules and Regulations.

That regulation was submitted to HEW for approval.

HEW on several occasions notified me that that regulation fails to satisfy federal requirements.

Not withstanding such noncompliance, New York State continued to give the regulations, statewide application and continues to receive federal funds.

The regulation is known as the recoupment regulation.

It permits the local — the (Voice Overlap) —

Warren E. Burger:

Before you get in to that, Mr. Nathanson, let me ask you another question.

Do you think every — do you think 1983 reaches every federal statute that confers the right on someone?

Carl Jay Nathanson:

I think 1983 was intended to grant that type of remedy where a state deprives one or other federal right that 1983 covers a full gamut of federal rights.

And it was intended unless Congress has expressly limited the jurisdiction of the Court to hear that type of claim Your Honor that —

You mean federal rights whether they derive from the constitution of federal statutes and treaties and so forth?

Carl Jay Nathanson:

Federal right —

1983 reaches all of those?

Carl Jay Nathanson:

1983 — constitutional and laws, Your Honor.


Warren E. Burger:

Can you think of any right under a federal statute that — then would not be within the reach of 1983, absent the declaration by Congress to excluding it.

It takes an affirmative exclusion, is that your position?

Carl Jay Nathanson:

Yes, Your Honor.

The recoupment regulation permits a local department of Social Services to provide a duplicate rent payment to a recipient of public assistance who is threatened with eviction for nonpayment of rent but mandates that that duplicate rent payment be recouped over the next six months in equal amounts.

In very practical terms, the rent recoupment regulation solves the immediate crisis but creates a far more serious crisis since during the period of the recoupment, the family is deprived of the very means to sustain themselves, to feed, clothe or shelter — to house themselves.

The state argues that this rent recoupment regulation turns on — is designed to deter mismanagement.

As the record demonstrates, the recoupment regulation does not turn on mismanagement.

Petitioner Hagans and his two children reside in the county with an acute housing shortage.

The state has conceded that petitioner wasn’t able to secure housing within the rent schedule.

Petitioner received a shelter allowance from the Local Department of Social Services in the amount of $165.00.

She was unable to find housing at that allowance.

She therefore was — she then found housing in the amount of $200.00 per month.

The local agency approved that housing.

She was simply unable to continue making the rent payments with the moneys intended to her other basic needs and with that period of time, fell into arrears.

And she was evicted.

She was rehoused by the department in the neighboring county.

The money used to rehouse her was then deducted in full from the next months grant leaving a family of three with worth $17.00 for the entire months needs.

William H. Rehnquist:

Was she rehoused at her request?

Carl Jay Nathanson:

She was homeless Your Honor.

William H. Rehnquist:

Well —

Carl Jay Nathanson:

She found the housing.

William H. Rehnquist:

But I — is — she wanted the state agency to do that.

Carl Jay Nathanson:

Yes, she did.

The recoupment regulation is implemented with or without consent of the recipient.

In the case of two of the named petitioners, the Local Department Social Services paid the rent directly to the landlord to forestall a nonpayment proceeding without the prior consent or even knowledge of the recipient and then recouped the money from the subsequent months grant.

So it doesn’t really turn on the consent of the recipient or knowledge of the recipient either.

And in those two cases, the recipients had not paid rent — in one of those cases the recipient had not paid rent because she was protesting the failure of the landlord to make repairs.

So in effect, the recoupment regulation of fraud were an opportunity to even assert that defense.

In the complaint filed in the District Court, petitioners asserted three basic claims.

They asserted an equal protection claim alleging that the rent recoupment regulation irrationally creates two classes of needy dependent children in New York State.

Carl Jay Nathanson:

Children whose parents require an emergency rent payment are deprived of their right to have their grant determined in accordance with the state standard of need while other children who receive assistance under the program have their assistance determined in accordance with state needs.

The petitioners also contended the regulation invidiously discriminates against the needy dependent children because it punishes them for conduct over which they have no control.

They in no way were guilty of mismanagement or in no way created the crisis at hand.

Warren E. Burger:

But would the same thing possibly be true if the rent allotment were taken out to buy three color television sets and the money all used up.

Would you then make the same dichotomy of classes that the children of parents who went out and bought three television sets, were treated differently from the children of parents who were more of approval and prudent.

Carl Jay Nathanson:

The intended beneficiary of the entire State’s program which is financed by the federal government is to provide financial protection for the needy and dependent children.

Congress —

Warren E. Burger:

Yes, but would you make the same argument, that’s my question.

Carl Jay Nathanson:

I would if — those children who were deprived of assistance for a period of six months in the basis of parent’s conduct Your Honor, I would make the same argument.

Yet the payment is made to the parent, is it not?

Carl Jay Nathanson:

The state chooses to whom — who the beneficiary or is one law quick character was the conduit of the assistance is going to be.

The state can choose the parent or it can choose some other relative responsible person to disperse the money on behalf of the intended beneficiary which is the child.

Do you feel this doesn’t parse itself in the family units as such.

You want to keep the children separate and distinct from some instances mismanaging parents.

Carl Jay Nathanson:

I think the sole aim of the assistance program was to protect the dependent child.

As further evidence of that Your Honor, Congress has recognized that mismanagement can be a problem.

We don’t argue for a moment that everybody who requires a duplicate rent payment has in fact mismanaged a grant.

We say that it doesn’t necessarily require that when the fact show that.

But Congress has said, “Mismanagement is a problem and has established non-punitive measures to provide with that problem.

One being a restricted check so that the parent is not free to spend the check anyway they choose but has to use it for intended purpose.”

Mr. Nathanson, if you should prevail here what is the likely result in the New York system.

Is it a likelihood that they will then do away with advances to prevent eviction?

Carl Jay Nathanson:

Your Honor, there is — and HEW has said so in a brief that they filed as an amicus in the lower court.

HEW said there is ample provision for New York State to deal with this particular crisis, for that resort to a recoupment regulation.

And one of that — and what that remedy is emergency assistance which doesn’t require repayment on the part of the parent.

It’s given — it could only be given only once during a 12-month period to resolve the crisis.

Who pays the emergency assistance then?

Carl Jay Nathanson:

The assistance would be paid by the state with reimbursement by the federal government.

In fact, it’s a measure that Congress particularly enacted, I think it was 1966 because they were concerned too with the problems of mismanagement.

They wanted to deal with it in a rehabilitated ways rather than in punitive ways.

Carl Jay Nathanson:

This regulation is a — as I feel is a punitive measure that deals with the problem.

William H. Rehnquist:

We say punitive just because it gets back what it ultimately paid off?

Carl Jay Nathanson:

Punitive because again, if we are to assume that the intended beneficiary of the payment is a child, the dependent child because it penalizes the child for conduct over which the child has no control.

William H. Rehnquist:

Well, but the child would’ve suffered if there’d actually been an eviction and there’d been no home to move in to, wouldn’t it?

Carl Jay Nathanson:


Certainly, family disrupted would suffer.

William H. Rehnquist:

So what would — so the state’s action is really to prevent that sort of harm to the child.

Carl Jay Nathanson:

Precariously, under the New York State where — and the record indicates is where a family is actually evicted and rehoused by the state in a motel, the state, because they haven’t paid their rent and rehoused them in a motel.

The state does an exact — the recoupment from the recipient they need to be — the motel of course, just pay them full, that [Voice Overlap] payment.

And the family continues to receive the full benefits of the grant so the state hasn’t even treated all whom they alleged are mismanaged the same way.

Let me go back to my question, I take it’s your position then and if you prevail here you are in no way affecting adversely the very children that you’re intending to benefit by being here?

Carl Jay Nathanson:

Then I feel that they will not — to answer your question, they would not — they would not be adversely affected by determination that the regulation is in violation of the —

You will draw it up — other sources of assistance?

Carl Jay Nathanson:

No, Your Honor and HEW said that and they agreed.


I must say I then misunderstand wholly what this case is about.

I had thought that if you prevailed here, all that would happen would be that the case to go back to the District Court for a trial, I thought this was only was only a jurisdictional question before us here.

Carl Jay Nathanson:

The District Court has determined the claim — the Social Security Act claimed on the merits.

The District Court never addressed itself to the merits of the constitutional claim beyond merely saying and finding that it was substantial.

And the only questions presented as I read them in your brief —

Carl Jay Nathanson:

Are jurisdictional —

— and I understood them in reading these briefs at some lengths, I assume were jurisdictional questions.

Carl Jay Nathanson:

Jurisdictional questions.

Well then, what do you mean if you prevail here, somebody is going to have to pay some money? If you prevail here its going back to the District Court for a trial, isn’t it?

Carl Jay Nathanson:

I thought Judge Blackmun’s question meant, if we ultimately prevailed, what would be the impact in the United States —

Well, its not here —

Carl Jay Nathanson:

No, in this Court, no, that’s quite true.

All we have here is jurisdictional question.

Carl Jay Nathanson:

Jurisdictional (Voice Overlap)

Unless I have quite misread and misunderstood the briefs.

Carl Jay Nathanson:

No, you haven’t misunderstood the briefs.

Perhaps I misunderstood the question, I thought you were referring to what would happen if this regulation is ultimately struck down, what would the significance of it be?

But — well, did you argue in the Court of Appeals that under 1983 and 1343 a Supremacy Clause argument namely a claim that a state statute is in conflict with a federal statute and therefore invalid.

Would you argue that that kind of a claim is a constitutional claim within the meaning of 1983?

Carl Jay Nathanson:

No, in the Circuit Court the argument centered around whether or not the equal protection claim was a nonfrivolous claim for jurisdictional purposes and —

Well, again, how about answering that — the question, did you argue that or not that this conflict Supremacy matter was a constitutional claim within the meaning of 1983?

Carl Jay Nathanson:

No Your Honor, it did not.

William H. Rehnquist:

But why not?

Carl Jay Nathanson:

The lower court had found jurisdiction, —

I don’t care about the lower court —

Carl Jay Nathanson:

The second —

The jurisdiction was challenged in the Court of Appeals, wasn’t it?

Carl Jay Nathanson:

There was a first panel of the Court of Appeals which unanimously found jurisdiction citing 1343 (3) as a basis for jurisdiction in Carter v. Stanton.


Carl Jay Nathanson:

The state attacked the jurisdiction on the basis of the lack of a substantial constitutional claim and we responded on that basis Your Honor.

And what did the Court of Appeals hold?

Carl Jay Nathanson:

Court of Appeals?

The second Court of Appeals panel?


Carl Jay Nathanson:

The second Court of Appeals —

But the decision you’re wanting to be reviewed here.

Carl Jay Nathanson:

The second Court of Appeals panel determined that on the facts as disclosed in the pleadings failed to present a substantial constitutional claim.

Well, do you argue in response to the State’s claim that there is a constitutional issue here namely one of Supremacy?

Did you argue that?

Carl Jay Nathanson:

No, Your Honor.

Well, what — your very opening sentence of your complaint at page 4 is that you seek a declaration, the Title 18 of the New York Code is in violation of Social Security Act and in also the Equal Protection Clause.

Carl Jay Nathanson:

Yes, Your Honor.

Well, what’s that first sentence mean?

If it’s in violation of the Social Security Act, and isn’t that a Supremacy Clause allegation?

Carl Jay Nathanson:

We allege that there was jurisdiction under 1343 (3) —

We’re arguing on your side right now, if you remember that?[Laughter]

Do you know of any cases in this Court that say that a substantial Supremacy Clause argument is not a constitutional question within the meaning of 1983?

Carl Jay Nathanson:

No, Your Honor.


Carl Jay Nathanson:

No, Your Honor.

Well, let’s assume that it is, isn’t this case over?

Carl Jay Nathanson:

That would be the end of the case?

It should.

Carl Jay Nathanson:

We argue that the court below erroneously concluded that the by an erroneous application of the standard of determining substantiality of the constitutional claim, that this claim was frivolous.

This Court has repeatedly held that constitutional claims are frivolous, only if so attenuate as to be without merit or its unsound or so clearly result from the previous decisions of this Court so as to foreclose the possibility that it could be a subject of controversy.

Recently in the case Goosby v. Osser this Court interpreted the phrase wholly without merit in the context of prior decisions and determined that constitutional claims are frivolous only if they’re inescapably foreclosed by prior decisions of this Court.

The court below cited no controlling authority that forecloses this constitutional claim.

The court appears to have based its finding that the equal protection claim was insubstantial on the basis of this court’s holding at Dandridge v. Williams.

We submit that the case of Dandridge v. Williams is not dispositive of the threshold question of jurisdiction.

Dandridge determines the appropriate standards to apply to a equal protection challenge in the area of social welfare legislation.

Recently, the state argues that Dandridge be given a broad sweeping application so as to foreclose any equal protection challenges in the area of social welfare legislation.

Recent decisions of the Court suggest that no such gross sweeping application has in fact been given to Dandridge or should be given.

In the case of Carter v. Stanton is a case in point.

In Carter v. Stanton, the plaintiffs challenged an Indiana welfare statute on both statutory and equal protection grounds.

The District Court found that the equal protection argument was foreclosed by this Court’s holding in Dandridge.

On appeal, this Court found jurisdiction at citing Dandridge in support of its finding of constitutional substantiality.

We maintain that whether or not the District Court properly concluded that the constitutional claim is insubstantial, that there was independent jurisdiction to determine the Social Security Act claims under both 1343 and 1343 (4).

Since this action was founded on a violation of Section 1983 of the Civil Rights Act.

Section 1983 is an Act of Congress providing for equal rights of citizens within meaning, also that on two basis that 1983 is an Act providing for the protection of civil rights within the meaning of 1343 (3) and that 1983 is an Act providing for equal rights within the meaning of 1343 (4).

Section 8, 1983 provides for civil actions to redress deprivations on the color of state law of any privilege right — privilege or immunity secured by the constitution and laws.

In this case petitioner seeks to redress rights to them secured by federal law, namely the Social Security Act.

And while petitioners may not have a right in some absolute sense to a level of benefits or any benefits at all, they do have a right so long as New York State continues to receive federal funds to have their eligibility determine in accordance with federal standards.

Mr. Nathanson, may I ask you a question?

Is the only reason that the Title 28 of the United States Code, Section 1331 inapplicable here because of the one of the requisite jurisdictional amount?

Carl Jay Nathanson:


Do you understand my question?

Carl Jay Nathanson:


I don’t think that they would satisfy the monetary requirements of 1331.

Excuse me.

Is that the only reason?

Carl Jay Nathanson:

It was never raised as a defense to or —

Well, in your submission, why is it that you have to argue about 1343 (3) and (4), wouldn’t 1331 be available to you?

Carl Jay Nathanson:

But then we would — it would be available, if we could demonstrate that we satisfy the monetary requirements.

Well then the answer to my first question is yes?

That’s the reason and the only reason?

Carl Jay Nathanson:

We cannot satisfy the monetary requirements on it.


Because of the jurisdictional amount?

Carl Jay Nathanson:


Because that never came through too clearly.

I guess it’s implicit all through these briefs.

That’s the sole reason for it that 1331 is not available.

Carl Jay Nathanson:

That’s correct.

Right, thank you.

Carl Jay Nathanson:

1343, — this Court has often observed judicial construction of a statute begins by looking at the words of the statute itself.

The words of 1343 (4) are clear and leave no room for doubt.

We believe that claims brought under 1983 were intended to be covered by 1343 (4).

In Lynch v. Household Finance Corp., this Court held that Congress intended to give broad sweeping protection to basic civil rights by the enactment of 1983.

The right to enjoy property, being one of those rights, whether that property be a home, a savings account or even a welfare check, just as a right not to be deprived of property without due process of law is a right secured by the constitution.

We maintain so then the right to receive benefits provided by the Social Security Act is a civil right within the meaning of 1343.

And this — the court has recently recognized in Moor v. County of Alameda that 1983 is an Act which protects civil rights within the meaning of 1343 (4).

Other courts specifically addressing themselves to this question have reached the same conclusion.

Only the Second Circuit has rejected 1343 (4) jurisdiction, but has done so without any rationale or reasoning for its determination.

In the court below, the court concluded that there was no jurisdiction and 1343 (4) jurisdiction but dismissed the case on the basis of Almenares v. Wyman.

Almenares v. Wyman, a Second Circuit case determined that there was jurisdiction because of a substantial constitutional claim but in dicta reject the 1343 (4) jurisdiction. Citing, McCall v. Shapiro.

Carl Jay Nathanson:

McCall v. Shapiro did discuss 1343 (4) jurisdiction, found no basis for jurisdiction but did so on the basis of the personal liberties property rights distinction which this Court was later to reject the Lynch v. Household Finance, thus it’s clear that the Second Circuit has yet to come up with any convincing rationale for rejecting 1343 (4) jurisdiction to 1983 suits.

The state argues that the one roadblock to jurisdiction, to 1343 (4) jurisdiction is a brief description in a House report accompanying the Bill which describes it as merely a technical amendment to a proceeding section of law.

We submit that that limited view is not accurate since the proceeding section of law to which it was — to which it refers was specifically eliminated by floor amendment and was not enacted into law.

Even had that section been enacted in to law, it’s clear that the plain words of 1343 (4) go far beyond the ascribed purpose of the committee.

Congress surely intended the Act to mean something that would — the Senate would not have passed the section of law to refer to a preceding section that knowingly rejected some further indication of the purpose of 1343 (4) can be gleaned from the very title itself which is an Act to strengthen civil rights enforcement.

It’s only if the interpretation that we suggest be given to it that it can be considered an act enlarging and enhancing federal civil rights importance.

This Court has already interpreted 1343 (4) as expansive of federal jurisdiction.

In the case of Jones v. Alfred H. Mayer, a private corporation was sued for discrimination and refusing to sell a home to a person because he was a Negro.

1343 (4) was the only statute available to provide jurisdiction over a private suit.

The Supreme Court in the 1982, this Court found jurisdiction under 1343 (4).

If the state is correct that 1343 (4) is too technical a provision to provide jurisdiction to 1983, it surely would be too technical to provide jurisdiction for 1343 (4).

We submit further that 1343 (3) provides an independent basis for jurisdiction.

1343 (3) and 1983 were intended so the legislative history shows to be coextensive in scope and that Congress never intended to create any gap between the two.

Moreover, 1983 is an Act that protects equal rights since it guarantees a federal forum — equal access to a federal forum to secure those rights, secured by federal law.

Mr. Nathanson are you familiar with the treatment, in the opinions in the Rachel and/or Peacock cases of almost identical language in the removal statutes?

Carl Jay Nathanson:

Yes, sir.

Where it was held, as I remember, that an Act of Congress providing for equal rights of citizens meant just that, meant what it said, it didn’t mean any Act of Congress or any constitutional provision either.

Carl Jay Nathanson:

I think Your Honor, in response to your question that Congress often uses different language in the same Act to have different shades of meaning.

The —

My question was whether — were you familiar with the language in Peacock v. Greenwood?

That was my question.

Carl Jay Nathanson:

I think that the equal rights language is not limited to suit upon racial equality.

The —

Well, let me first, would you — yes you are familiar with that language.

Carl Jay Nathanson:

Yes, I am.

Do I recollect correctly that it was held in those cases that similar or identical language meant legislation providing for equal rights, it didn’t even include, for example, the First Amendment.

Carl Jay Nathanson:

Yes, you’re correct in your recollection of the case.

And now how would you distinguish that?

Carl Jay Nathanson:

Georgia v. Rachel involved 1443, a removal —

Removal statute.

Carl Jay Nathanson:

(Voice Overlap) — removal statute.

Removal statutes origin can be traced to the Thirteenth Amendment which was an Act to eradicate the badges of slavery.

1983 on the other hand has its origin in the Fourteenth Amendment which has not been interpreted and limited solely to racial discrimination cases but has given interpretation far beyond that.

The court construed 1443 (1) in a narrow way because of the removal section divesting and removes a case from the state court system.

It deprives the court of the power to decide the case.


Carl Jay Nathanson:

It’s a source for a possible friction between two sovereignties that being so, the court gave it a narrow construction.

We submit that the legislative history of 1983 doesn’t require and certainly demands a more expansive interpretation as this Court has already interpreted 1983 to apply to a full gamut of federally protected rights, not just those limited in terms of racial equality.

Well, that’s 1983, I was referring to 1343 (3).

Carl Jay Nathanson:

1343 (3) and 1983 derived from the same statute.

At the very outset, there was intention on the part of Congress to create federal jurisdiction over all 1983 actions without distinction.

I think that — it’s because of the history of the two sections together that we make the argument that it should be given coextensive application.

There was no intention on the part of Congress to create a gap between the creation of a federal right and a forum where that right to be heard.

Is the language of 1343 (3) the relevant language, substantially identical with that of the removal statute dealt with in Rachel and Peacock?

Carl Jay Nathanson:

Substantially, technically yes.

Without a merit.


Carl Jay Nathanson:

Yes, sir.

Warren E. Burger:

Mr. Colodner.

Michael Colodner:

Mr. Chief Justice and may it please the Court.

At issue in this case is the regulation of the New York State Department of Social Services in which the state makes an additional rent payment to welfare recipient that is over and above the regular shelter allowance which that recipient would recede and then recoup it over a period of six months.

The requirements for this regulation is that the recipient for whatever reason misallocate his or her regular shelter allowance.

The recipient then becomes threatened with the eviction.

The department then steps in at the request of the recipient and offers them an opportunity to remain where they are living and therefore receive a duplicate rent payment.

But if they choose this option, they will have to repay this extra amount over the course of the next six months.

Now, the petitioners in this case challenged this because they claimed there’s a denial of equal protection because those who are subject to recoupment are in some matter being treated differently from those who are not subject to this recoupment even though this other class never received the extra payment.

The Second Circuit found this claim to be insubstantial and as such found that there was no jurisdiction to decide the pendent statutory claim which involves whether the New York State regulation at issue violates the Social Security Act.

Well, explain to me it happen likely — why they claim that the state, that statute violates the federal statute is to be a substantial constitutional question in itself under — within the meaning of 1983 and 1343?

Michael Colodner:

I would suggest Your Honor that the 1983 and 1343 deal with a specific amendment.

It deals with the Fourteenth Amendment to the constitution.

Michael Colodner:

It’s the civil right statute.

The wording of those statutes are such that it deals with rights protected by constitution and laws or laws protecting equal rights.

If Your Honors, interpretation of —

You mean all of our cases – the First Amendment rights are covered by 1983?

Michael Colodner:

First Amendment rights would probably be covered by 1983.

What is the Fourteenth Amendment?

Michael Colodner:

Well, it depends on how it is and how broadly you would read 1983.

1983 was passed specifically to enforce the Fourteenth Amendment which is not a self executing amendment.

Do you say that in a way — your short answer is that just like construction of 1983 at this — the constitutional claim its referring to are more limited than the federal constitution?

Michael Colodner:

I would suggest —

And then certainly it doesn’t include Supremacy Clause point.

Michael Colodner:

I would suggest that at any event it could not include the Supremacy Clause because there would be no reason for Congress to put in jurisdiction and laws protecting equal rights if in fact the constitution included the whole kind of federal laws.

I wouldn’t think so if you could be constantly be asserting that claim is of a federal statute, that a state might be in very — without having a state statute be in conflict.

Michael Colodner:

Yes, that is correct.

But I would think that in terms of what Congress meant when they established jurisdiction to get claims under the constitution using the Supremacy Clause argument, they established 1331 which is the general federal question jurisdiction (Voice Overlap) —

Well, again, do you know of any cases that deal expressly with this issue?

Michael Colodner:

I do not know of any cases which deal with this issue.

But that issue is here, isn’t it?

Michael Colodner:

I don’t believe it’s here because it was never raised by the —

Well, I know, that the jurisdiction — if we’re dealing with jurisdiction, I suppose we have some freedom that we normally don’t have in terms of issues.

Michael Colodner:

That could be Your Honor.

And if the issue is here or is open, as far as you know, it would be the first time that this Court has ever decided that the Supremacy Clause issue is not a constitutional issue within the meaning of 1983 and 1343.

Michael Colodner:

This Court has never really decided that type of issue at all.

I am aware of the decision.

I think it was last year, it was dealt with the three-judge court statute which —

It was Swift versus Wickham.

Michael Colodner:

That’s of course that’s – than last year, which held that if my recollection is correct that the Supremacy Clause does not include within this three-judge court —

2281, that is —

Michael Colodner:

2281, that’s correct.

That’s Swift against Wickham.

Michael Colodner:

That’s correct.

With three-judge court?

Michael Colodner:

But insofar as what the question that Your Honor has brought if I am not aware of any cases that it’s ever reached that question.

I point out that in this case —

Why couldn’t this action have been brought under 1331?

Michael Colodner:

Because there is no monetary amount to $10,000.00 in dispute at least —

That’s the only reason?

Michael Colodner:

It would seem to me that you can always bring a claim.

1331 is general federal question jurisdiction.

This is a claim arising out of the federal statute.

It’s the — 1331 says arising out of federal statutes, there’d be no reason why it couldn’t be brought.

Why is it a right arising out of the federal statute, if you bring a declaratory — to have a state statute stricken down?

What kind of a 1331 claim is that?

Michael Colodner:

It’s a right —

(Voice Overlap) statute?

Michael Colodner:

It’s a right arising under the constitution or laws of the United States.

Well, which?

Michael Colodner:

Depends on how the plaintiffs might claim —

Well, (Voice Overlap) —

Michael Colodner:

In this particular case —

Let me frame it for you.

The complaint says the state statute says so and so.

The federal statute says so and so.

I want a declaratory judgment action that the state statute is unconstitutional.

Because —

Michael Colodner:

I think —

— it is in conflict with the federal statute.

Michael Colodner:

Well —

Now, is that a constitutional claim or is it just a claim under a federal statute.

Michael Colodner:

I think that presupposes your initial question as where does constitutionality come in to this with the Supremacy, — where the supremacy —

I know it has to have constitutional authority to strike down the state statute.

Michael Colodner:

I would think that if a federal statute, if a state statute conflicted with the federal statute.

Why is that?

Why is it then that federal statute prevail?


Michael Colodner:

Well, that would be the Supremacy Clause —

It has to be, isn’t it?[Laughter]

Michael Colodner:

I think if you go back to the history of the Civil Rights Act here, there was no indication that it was ever meant to include this type of broad colloquy of including every single state law that is perhaps contrary to every single federal law.

There is nothing in the history of the Civil Rights Act that leads to that conclusion.

And while you can make a verbal argument to that effect, I don’t think that the history bears it out.

Now insofar as the —

Warren E. Burger:

Do you think nothing said in our cases in the last four to five, six years is in conflict with your position on that?

Michael Colodner:

I think Your Honor that if you take the cases in the last four or five years that there really is not a conflict with the exception perhaps of some dicta in one or two cases.

Because 1983, lets get right into 1983, the claim of the petitioners here is that it provides a remedy for all federal statute and they look to the language which says, “All rights are secured by constitution and laws.”

And they claim laws include a Social Security Act and therefore they have a right to come into Federal Court to — at least allege a federal cause of action under 1983.

But the 1871 Act, which is the basis for 1983 did not mention rights secured by laws.

It only mentioned rights secured by the constitution.

The change that occurred in 1871 Act came during the revision when the 1866, 1870, 1871 Acts were all codified together and clarified and put into one provision.

And here the reviser put in the words, “And laws.”

And I think that since there is no explanation as to why the reviser put this in.

It would appear that he was referring to the laws that were included in that whole civil rights package which were in essence the 1866 Civil Rights Act and the 1870 Civil Rights Act.

There is no basis in the history of the Civil Rights Act that Congress ever intended to create a federal cause of action for every conceivable federal statute that would ever come into existence aside from statutes that enforce the Thirteenth to Fourteenth and the Fifteenth Amendments.

In fact, the only Supreme Court case that ever considered this issue as to what the scope of “and laws” what was a 1900 Supreme Court case and it held that this language did not apply at least to a patent rights case, holding that 1983 applied to civil rights only, at least showing that the Supreme Court in 1900 believed that 1983 was a failing narrow statute.

Now when this Court has spoken of 1983 in terms of the rights that it protects, it has spoken of protection of constitutional rights.

And this Court has never held 1983 to its literal language as witnessed in the case of Tenney versus Brandhove.

I think it is important to note, that when Congress passes a federal statute they generally provide their own remedy within the statute.

The Social Security Act when it was passed provided no remedy in Federal Court for recipients of AFDC benefits.

And I would suggest that there was no reason why Congress which always provides its own remedies when it passes any new statute would pass a statute which creates a federal cause of action as to every conceivable future federal law in any field whatever, banking, tax, it makes no difference simply because state action might be involved.

There was just no reason why Congress would pass this statute and there is no reason to give the language of “ and laws “ in 1983, the broad interpretation that petitioners want to give and that this Court has stated in dicta might apply.

I would suggest that even if 1983 is as broad as petitioner say it is and if it includes every single federal law, it is clear that Congress did not provide jurisdiction in the Federal Courts to hear this course of action because the language of 1343 (3) is narrow.

Michael Colodner:

It says deprivation of rights secured by the constitution and if any Act of Congress providing the equal rights.

Now the history of that clause is also very unclear.

In the 1874 codification the District Court had jurisdiction over rights secured by any law, the Circuit Court on the other hand had rights secured by any law providing for equal rights.

These were probably meant to be concurrent because the basis of this was the same the 1866 Act which did provide concurrent jurisdiction.

I have shown it in my brief that this address was note on the Circuit Court provision that chose it was intended to be narrowly applied to equal rights statutes.

And in 1911, Congress explicitly shows the equal rights language which shows a clear intent of Congress that it at least believed that the original jurisdiction was limited to equal rights provisions.

Now it is very interesting that the petitioners have come to this Court and it really changed the whole thrust of their argument because in the lower courts they were arguing at the Social Security Act, was the Act of Congress providing for equal rights or the Act of Congress providing for civil rights?

Now they’ve changed the argument.

They say that 1983 itself is such an Act.

And I would suggest that this is really bootstraps argument because 1983 is a procedural statute.

It creates a cause of action where someone is deprived of rights that are enumerated somewhere else.

It is in the words of 1343.

The civil action authorized by law to be commenced.

That’s right on the first line of 1343.

It is not the Act, the substantive act providing for equal rights.

If in fact 1983 were an Equal Rights Act, there’d be a lot of problems just on the language of the statute itself.

Number one, it would be inconsistent to say that 1983 is the authorizing law and at the same is a substantive law.

Number two, you’d have a complete redundancy here if 1983 is an Equal Rights Act because 1343 (3) refers to rights secured by the constitution, which means that the language of 1343 (3) would be redundant if it includes 1983 which already refers to rights secured by the constitution.

All Congress would need to have done would just be to say there is jurisdiction under any equal rights statute.

There’d be no reason even to mention constitution if 1983 is brought down into the jurisdictional provision.

And thirdly, I would say incongruously if 1983 is an Equal Rights Act, its language and laws is much too broad to encompass itself within that narrow definition.

I think the key to this case is the decision in Georgia versus Rachel.

Because they are dealing with the same language in the removal statute this court held that the term any law providing for equal rights was narrow.

It meant laws dealing with historic equal rights and specifically said, it did not mean 1983.

That’s within the language of that opinion and I think its very interesting to note that both 1443, which is the removal statute and 1343 (3) which is the statute at issue here derive from the same provision of the 1866 Civil Rights Act, which is Subsection 3, the very same provision.

It would seem that if 1443 was that narrow, 1983 which was codified, the exact same year as 1443 must have the same meaning.

I would also suggest that if Congress was so concerned about passing 1343 (4) ninety years later just to add the right to vote.

They evidently also considered the phrase, equal rights to have a very narrow meaning.

And in fact, I would point out that the history of 1343 (3) shows that the “and laws” language of 1983 was probably meant to be more limited than this court had hinted it might be.

Now, the petitioners also argue that somehow rather in 1957, Congress passed a new jurisdictional provision to the Civil Rights Act, 1343 (4) which somehow changed the course of all civil rights jurisdiction.

Michael Colodner:

The jurisdictional provision there is an Act of Congress providing for the protection of civil rights including the right to vote.

Well, what does this really mean?

Civil rights including the right to vote.

And if you look to see what Congress was really trying to do here, you’ll see essentially that what was at stake in 1957 was a voting rights act.

The House report called this particular provision as a technical amendment.

The House debate only dealt with what they called civil rights and specifically included by rulings of the House Chairman, economic rights of which we are obviously dealing with here.

The Senate debate is even more interesting because it limits itself solely to voting rights because of a very strong reaction on the part of those Senators favoring state’s rights, that this particular vote Civil Rights Act of 1957 might be too broad because historically this would be the first Civil Rights Act that was passed since reconstruction.

The provision to keep in this — what became 1343 (4) was proposed by a similar case of South Dakota.

And he throughout the debates states that the reason he wants this provision in is because it deals wholly and he says that wholly with the establishment of the jurisdiction of Federal Courts toward the state suits relating to the right to vote and just the right to vote.

I think that what you have here with 1343 (4) is a Act which creates jurisdiction in the Federal Courts to hear suits relating to the right to vote.

Congress was very uncertain as to what the jurisdictional limits of 1343 (3) were.

And they were clarifying it.

In fact the caption is very interesting here.

The caption of 1343 just says civil rights.

When this caption — when 1343 (4) was added in 1957, the caption was amended to say civil rights and elective franchise.

That was all that was added.

So what you have here essentially when you deal with civil rights in 1343 (4) is the same rights that were in 1343 (3) except that it includes the right to vote.

Now, it is true that 1343 (4) does not include —

Thurgood Marshall:

You don’t think 1343 includes the right to vote?

Michael Colodner:

Whether I think it or whether the Congress thought so?


Michael Colodner:

I don’t believe that Congress felt sure whether it did or whether it did not.

And they want — since they were dealing in the Civil Rights Act, they wanted to make sure that there would be no jurisdictional contradiction in the statutes between the jurisdiction set forth in 1343 and the jurisdiction provided in —

Thurgood Marshall:

Do you agree that those Civil Rights Acts were after the Thirteenth, Fourteenth and Fifteenth Amendments?

Michael Colodner:

Excuse me, Your Honor?

Thurgood Marshall:

After the Thirteenth, Fourteenth, and Fifteenth Amendments, weren’t they to enforce to those three amendments?

Michael Colodner:

That’s correct.

Thurgood Marshall:

And it didn’t include the right to vote?

Michael Colodner:

I would think Your Honor —


Michael Colodner:

Your Honor, I would think that whether —

Thurgood Marshall:

Or do you know what the Fifteenth Amendment is?

Michael Colodner:

The Fifteenth Amendment Your Honors provides for the right to vote.

But Congress wasn’t very concerned about the fact that what did equal rights statute mean?

And also 1343 (4) provides a right of action not under color of state law.

Because 1971, the voting rights act was amended provided for the Attorney General to bring suits against private individuals acting under color of state law or not under color of state law.

And this was one of the reasons why they had to put in some different provision to allow for these suits to be brought in Federal Court without a jurisdictional amount not under color of state law.

But I don’t believe there’s anything in the history of 1343 (4) which suggests that the subject matter of the Civil Rights Act was being expanded anymore than the debates indicated.

I would suggest that the rights of 1343 (4) are no greater than the rights of 1343 (3).

And that Congress never intended that Federal Courts have jurisdiction over suits that arise under the AFDC provisions of the Social Security Act.

It’s very interesting that when the Social Security Act was passed in 1935, there was jurisdiction provided in the Federal Courts for claims arising under the old age provisions but not under the Aid to Dependent Children Provision.

This evidences and intends on the part of Congress that the Federal Courts were not going to hear every single minor, AFDC claim outside of the general federal question, jurisdiction of 1331 which is not at issue here because there is no claim that $10,000.00 is in dispute.

Now, I would like to point out that because there is no jurisdiction under the Social Security Act per se and Congress never intended it to be jurisdictional under the Social Security Act per se that the only issue left in this case is whether this Court can hear it by virtue of this claim being pendent to a substantial constitutional claim.

And that was the issue which the Second Circuit decided when they held no.

That constitutional claim is not substantial and therefore we don’t have jurisdiction to decide this pendent claim.

The standard they use and the standard that it obviously applies here is the test, obviously without merit.

This Court has used it all the time.

The standard did not change with Goosby versus Osser but was reaffirmed there and I think if you look at the equal protection violation here, it’s frivolous.

What are they claiming?

They’re claiming — they are claiming that they are getting more money one month and less money the next month and that somehow — rather they are being treated as a violation of equal protection but the essence of equal protection is equal treatment and they are being treated exactly equally.

They receive a duplicate payment to which they are not entitled and to which nobody else gets at the subsequent month or the subsequent six months, they pay back this duplicate payment to be put in the exact same effect as any other welfare recipient.

In fact, I would suggest that if this is a constitutional claim of any substance and if petitioners were to prevail here it would be just as substantial for any other recipient who did not get the recoupment claim to bring a civil rights action in this Court and claim with denial of equal protection because they don’t get extra payments and they have to live within a tight budget.

I think that the Second Circuit clearly determined this to be frivolous because as the Second Circuit says, the purposes of equal protection are served by treating all alike without granting special favor to those who have misappropriated their rent allowance.

Now, since this claim is obviously without merit as it must be, there is obviously on any minimal rational basis test, a state can allocate its limited funds so that every recipient receives an equal share.

And we don’t put this thing into encourage mismanagement or discourage mismanagement, that’s not the issue here.

The issue is that we are trying to treat all of these recipients equally.

We are not required to give them this extra rent allowance.

We can’t allow them to be evicted.

There is no federal constitutional or even statutory requirement that we say to this people look, if you choose to stay in the same house and not go through the vicissitudes of eviction, we have to do this for you.

We don’t have to do it.

Michael Colodner:

But we are doing it because we feel that eviction is a very traumatic experience for welfare recipients.

But we only have limited funds at the same time.

And there is certainly nothing unreasonable about this sort of approach to give people extra moneys to help them out and then to take the moneys back so that we can in effect treat them the same as any other welfare recipient.

Warren E. Burger:

I suppose there is one remedy which the state could follow if you do not prevail here, drastic remedy.

They could simply refuse to make these payments.

Michael Colodner:

That is absolutely right Your Honor and in fact I would suggest that that is a very real alternative.

If in fact we are not allowed to make this payments because we have to make them to everybody else, is what it comes down to (Voice Overlap) —

Warren E. Burger:

Is there any other way that you could ward off the equal protection claims of all the other recipients?

Michael Colodner:

If the other — I would say that —

Warren E. Burger:

Or else increase everybody, give everybody a bonus.

Michael Colodner:

We would have to give everybody a bonus or if we were forced to pay this back we would have to give a ratable reduction to everybody else.

We’re only dealing from a pool of finite funds.

If we start giving more to one group, we are going to start giving less to the other group and as a result everyone’s grants could be cut.

As the Supreme Court has said we can do in Rosado, we can give a ratable reduction.

And that would ultimately probably be the result of this.

But it will probably be more realistic to assume that if we could not recoup we just would not give these duplicate rent payments.

Household finances?

Well, this is the question I asked your opponent of course and he rather brushed it aside by saying that there were other emergency measures that could be utilized by the state, do you disagree with his answer?

Michael Colodner:

I disagree with his answer to this extent.

Yes, there are other measures that can be utilized.

But I don’t think any of this — I don’t think any of the other measures really solved the problem.

And this is a very sticky problem.

What do you do to people who misallocate the money that they’re paid?

Well, you can say, I’ll give them protective payments.

But the federal government says you can’t give more than 10% of all recipients’ protected payments.

The federal government in fact doesn’t even want us these protective payments because one of the objects of the Social Security Act is to in fact make people self-sufficient.

One court suggested that we sue them which is absurd.

We have got people who have no funds.

They suggest well, if the parent can manage to take the children out of a home, that’s certainly more drastic than having them — than recouping money over six months.

Now, petitioners are saying, “Well, there’s this emergency assistance.”

Michael Colodner:

The New York courts have held that in cases of destitution, where destitution can be shown, they will order this Social Service Department to pay under the emergency assistance provision.

But this is a level that you have to reach down to a certain level.

And it does not deal with what would be a ordinary recoupment case.

It may or may not occur.

There are alternative remedies.

There are remedies which have policy implications and all sorts of direction.

And New York state has chosen a remedy which allows the person to forestall eviction, forestall being thrown on the street and being sent to live in a motel somewhere or at the same time protecting the moneys of the state and I would respectfully submit that this particular choice of New York is entirely rational and is in no way any violation of the constitution.

Thurgood Marshall:

You mentioned the motel, is that true that you go to motel and you pay the bill and they don’t pay you back?

Michael Colodner:

The state pays the bill on motels.

Thurgood Marshall:

And the recipient doesn’t have to pay it back?

Michael Colodner:

Of course no, the recipient doesn’t have to pay that back but they didn’t get the benefit of the extra payment which allowed them to stay.

Thurgood Marshall:

That’s got me in trouble.

If you move somebody into a house that is $60.00, well, let’s be realistic, $300.00 a month and you pay that, they have to pay the $300.00 back, right?

Michael Colodner:

That’s right.

Thurgood Marshall:

And the movement to a motel and paying $300.00, you don’t have to pay that back?

Michael Colodner:

That’s right.

Thurgood Marshall:

And the reason being?

Michael Colodner:

The reason being that it’s the State’s decision that it is more beneficial to keep the family where they’re living rather than to throw them out and force them to live in some motel somewhere away from where they are living with perhaps greater detriment to the children involved.

Thurgood Marshall:

You mean that some motels in New York are worst than the houses the poor people live in?

Michael Colodner:

I would think that this will require individual —

Thurgood Marshall:

Well, then you don’t have any rules there about the standards of motel, do you?

Michael Colodner:

There are rules for standards on both housing and motels.

I would respectfully suggest Your Honor that living in a motel is not be preferred to living in a residential community.

Thurgood Marshall:

I agree on that but I just — it’s just they decided that they’d pay the motel bill, I guess because it’s the only way out.

Michael Colodner:

New York State Your Honor happens to guarantee housing.

It’s a humane decision on the part of the state.

Most states don’t.

Thurgood Marshall:

I’m not talking about humane decisions and what have you.

I just have difficulty in understanding that if you have a family of a husband and wife and two children and you put them in an apartment, they have to pay the money back.

If you put them in a two-room motel, they don’t have to pay the money back.

Michael Colodner:

You’re assuming Your Honor that the question of putting.

We’re not putting this people in an apartment.

We are keeping them in the apartment of which they used to be living.

Thurgood Marshall:


Michael Colodner:

We are not evicting them.

And that is a definite difference.

Mr. Colodner, was the argument made to the Court of Appeals for the Second Circuit that’s being made here that, i.e. that quite apart from what’s been called here pendent jurisdiction that there is independent jurisdiction of this so-called statutory claim, this preemption claim under 1343 (3) and 1343 (4)?

Michael Colodner:

I would say the argument was made to this extent.

That was the jurisdictional basis cited in the complaint, 1343.

Potter Stewart:

Because I’ve just — that I have a probably hear a Judge Hays’ opinion and he seems to say that the basic constitutional claim was premised upon that jurisdictional statute, 1343 (3) and then he goes on to say it was established jurisdiction under this statute and substantial to constitutional claim must be advanced and then he says for the reasons that you just told us, this equal protection claim was not a substantial constitutional claim.

And then he ends very abruptly because no substantial constitutional claim was presented.

The District Court was without jurisdiction to consider the statutory claim urged by the plaintiffs.

The statutory presumably being the preemption claim.

Now, was — which doesn’t seem to respond to — at least to the argument that is being made in this Court with respect to the independent grounds for jurisdiction of the so-called statutory claim?

Michael Colodner:

I don’t —

I wonder if the argument is made to the Court of Appeals.

Michael Colodner:

The argument was made to the extent that 1343 was mentioned in the petitioner’s complaint until the extent of the states brief in showing that there was no jurisdiction once there was an insubstantial constitutional claim set forth the fact that there would be no jurisdiction under 1343.

And the court apparently just accepted it without —

Michael Colodner:


Without any analysis, correct?

Michael Colodner:


And I am — do I —

Michael Colodner:

I would assume so because it is not in the decision of the court.

As they — the court took the view that once they had decided the constitutional claim was not a substantial one.

Then what they call the statutory claim automatically fell with it without any consideration at all of any independent jurisdictional basis for the so-called statutory claim, is that right?

Michael Colodner:

I can only read the opinion as Your Honor has read the opinion.

I do not know what was in the minds of the judges.

I do know what was presented to the court.

That the opinion is what it says.

But this precise argument I gather from what you say was not presented to the Court of Appeals or —

Michael Colodner:

It was presented —

Or at least not in the way it’s being presented here, is that fair to say?

Michael Colodner:

Not in the detail that is presented here but we did present this argument in response to the fact that there would be no jurisdiction in the Federal Courts for a claim arising under the Social Security Act if there was not (Voice Overlap) —

And unless that were pendent to a substantial constitutional claim?

Michael Colodner:

That’s correct.

And the Court of Appeals apparently wholly accepted your thesis.

Michael Colodner:



Michael Colodner:

Thank you.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.