New York Department of Social Services v. Dublino

PETITIONER:New York Department of Social Services
RESPONDENT:Dublino
LOCATION:Allegheny County District Court

DOCKET NO.: 72-792
DECIDED BY: Burger Court (1972-1975)
LOWER COURT:

CITATION: 413 US 405 (1973)
ARGUED: Apr 17, 1973 / Apr 18, 1973
DECIDED: Jun 21, 1973

ADVOCATES:
Dennis R. Yeager – for appellees
Jean M. Coon – for appellants

Facts of the case

Question

  • Oral Argument – April 17, 1973
  • Audio Transcription for Oral Argument – April 17, 1973 in New York Department of Social Services v. Dublino

    Audio Transcription for Oral Argument – April 18, 1973 in New York Department of Social Services v. Dublino

    Warren E. Burger:

    Number 72-792.Mr.

    Yeager, you may proceed whenever you are ready.

    Dennis R. Yeager:

    Mr. Chief Justice and may it please the Court.

    This case does not involve a question of the perfection of the Federal Work Incentive Program.

    In 1967, Congress enacted for the first time a compulsory work program for all AFDC recipients which it required each of the states to include in its plan of aid to families with dependent children.

    When it enacted that program, it described the program in the introductory statutory material as being designed to cultivate in individuals the sense of dignity, self-worth and confidence that flows from being a wage earning member of society.

    In 1971, the State of New York elected to enact its own compulsory work program applicable also to AFDC recipients which established the presumption of employability for such recipients and which was designed to and to a certain extent did achieve maximum welfare role reductions.

    One administrator in the State of New York characterized the results under the program as follows.

    “Last month, the weekend of October 5, we closed a hundred cases.

    I haven’t really gotten to closing codes for all of these cases.

    I would think that the employment section is having a greater impact on the right of closing.

    We are closing a very great proportion of cases on the basis of failure to comply on the employment procedures.

    That seems to be reflective of a somewhat different purpose than the purpose which Congress had in mind when it enacted the statute designed to cultivate a sense of dignity, self-worth and confidence.”

    It’s also worthy of note that that quotation is not exceptional —

    William J. Brennan, Jr.:

    What’s closing cases?

    What’s that?

    Dennis R. Yeager:

    Closing cases?

    Well, Your Honor, in a study that was done by the Department of Health, Education, and Welfare and the Department of Labor of the Administration of this program in the State of New York, it was found that what they were — I’m sorry, not an — it wasn’t a study, excuse me, in a — in the stipulation to fact in the case, it appears that approximately 11,000 jobs were found while approximately 13,000 case closings occurred as the result of failures to comply not as the result —

    William J. Brennan, Jr.:

    Does that mean you terminate benefits or what?

    Dennis R. Yeager:

    Terminating benefits.

    And now —

    William J. Brennan, Jr.:

    Completely?

    Dennis R. Yeager:

    Completely.

    That’s correct Your Honor.

    Except — that is as to the individual who is refusing to take part.

    If there’s some other individual in the family who is still eligible for AFDC, they would continue to receive their share of the benefits.

    Potter Stewart:

    But it wasn’t an integral part of this program the requirement that the welfare recipients come personally and collect their checks?

    Dennis R. Yeager:

    That’s correct Your Honor.

    Potter Stewart:

    And didn’t this — at least some of those closings — weren’t at least some of those closings attributable to the failure of the people to come personally to pick up their checks rather than to the work program?

    Dennis R. Yeager:

    That would be correct.

    Dennis R. Yeager:

    Some of those would be attributable to failure to come and pick up their check and that could mean that there was a very substantial hardship amounting almost to impossibility for some people to pick up those checks.

    Potter Stewart:

    Correct, correct, but it wouldn’t be necessary in all cases, it would — I mean, there was a purpose wasn’t there behind requiring people to come and pick up their checks personally?

    Dennis R. Yeager:

    The purpose —

    Potter Stewart:

    What was the purpose for?

    Dennis R. Yeager:

    — was characterized by HEW as possible harassment in a letter, Exhibit 16 in the case.

    The purpose also I think was rather un — specifically applied because the study to which I inadvertently referred a moment ago, the HEW DOL study found that some 67% of the people who claimed that they were not employable; i.e. should not be required to report —

    Potter Stewart:

    Right.

    Dennis R. Yeager:

    — were incorrectly characterized as people who should report.

    Potter Stewart:

    What was the purpose behind the — what was the avowed or purported purpose behind the inauguration of the requirement to come personally and pick up the check?

    Dennis R. Yeager:

    Your Honor, I’m not sure that that was ever explicitly stated by the Governor when he introduced the legislation in the state.

    I take it that it was part of the purpose, overall purpose of securing a checkup on whether or not individuals were employable.

    The statute required that the individual obtain a certificate from the State Employment Service semimonthly that there is no job available for that person.

    That was one of the purposes certainly to discharge a require — that particular requirement of the statute.

    Warren E. Burger:

    Well, wasn’t there another purpose too?

    Wasn’t it a means, one means of checking to see that a person was still in the State of New York and hadn’t moved to Florida and was collecting comparable benefits down in Florida while getting them through the mail in New York?

    Dennis R. Yeager:

    Your Honor, it would be a means of doing that, but I think the purpose of the statute as stated by New York when it was enacted was to provide for employability of welfare recipients.

    Warren E. Burger:

    Well, it’s for eligibility generally too, is it not?

    Dennis R. Yeager:

    I don’t think the purpose was stated to be that by the Governor when he introduced it.

    MI mean it would have that effect.

    I mean, it would have that effect.

    Warren E. Burger:

    You’re aware of cases I’m sure if you’ve been in this field where people receiving their benefit checks through the mail had moved to another state, established a residence and receive checks from both states.

    Dennis R. Yeager:

    I’m sure that that isn’t the case in the problem Your Honor.

    I think HEW —

    Warren E. Burger:

    — check on that, wouldn’t it?

    Dennis R. Yeager:

    Yes.

    I think HEW does suggest in its manual that the most appropriate method for delivering checks to individuals is through the mail.

    I think that the requirement as it was enacted in the State of New York was really one related to those employability requirements.

    Interestingly, you know, the State of New York did have a residence requirement which they enacted at the same time which was held to be unconstitutional.

    And that particular requirement presumably would’ve been in the place in which the state would’ve enacted a requirement that was specifically addressed to the problem of dual residency.

    That was enacted at the same time as a work program.

    Dennis R. Yeager:

    Four District Courts and one Circuit Court of Appeals have reached the conclusion that the Compulsory Work Program established by Congress has precluded the states from enacting similar Compulsory Work Programs.

    Those decisions for a right on three separate grounds in this particular case.

    First of all, they were right because the Federal Government has preempted the state activity in this area.

    Secondly, the decisions were right because the work rules constituted additional conditions of ineligibility.

    Thirdly, they were right as applied to this particular case because the New York statute is in conflict with the federal statute at so many points.

    In 1935, Congress enacted the Social Security Act.

    The President’s message which conveyed that Act to the Congress included within it a suggestion of a program for aid to widowed and otherwise, separated mothers.

    That program according to the message was “designed to release from the wage earning role the person whose natural function is to give her children the physical and mental guardianship necessary.”

    In other words, the program was designed to be for people whom Congress had made a judgment should not be employed outside the home.

    Secondly, in 1961, Congress amended the Social Security Act.

    For the first time, it included in the coverage of the Act, children in homes in which a breadwinner was present.

    As part of that Act and for the first time, Congress imposed a requirement that the breadwinner accept jobs to which he would be referred and report to the State Employment Service.

    That is the first time that we find a requirement of compulsory work in the Federal AFDC program.

    In 1962, Congress then enacted a com – a different compulsory program known as the Community Work and Training Program.

    The legislative history of that program is set out in the brief submitted by the National Welfare Rights Organization as amicus curiae indicates that that program was still to be primarily for those fathers who were in the AFDCU program, the breadwinners.

    However, and most importantly, when working — when work incentive program was enacted in 1967, both of those programs were repealed and replaced by requirements that states have work incentive programs.

    The Community Work and Training Program was completely repealed.

    The requirement in the AFDCU program that fathers accept work to which they were referred was repealed and replaced by a requirement that the state’s put all such fathers in the work incentive program within 30 days of their eligibility for AFDCU benefits.

    What the work incentive program did was it identified those individuals who in the judgment of Congress were appropriate for compulsory work or training.

    It also identified those individuals by — those individuals who were inappropriate for compulsory work or training.

    Thirdly, it established an elaborate program of job placement and training for appropriate individuals and volunteers.

    Fourthly and very importantly, it established — it authorized the establishment of a separate administrative agency which would handle the work incentive program.

    And different individuals in the State Employment Service do in fact operate the work incentive program from those individuals who operate the normal state employment service referrals.

    Fifthly, to repeat, the work incentive program repealed —

    William J. Brennan, Jr.:

    Well, I thought Mrs. Coons told us differently yesterday?

    Dennis R. Yeager:

    Your Honor, I believe that, if I recall —

    William J. Brennan, Jr.:

    I thought I asked you whether the same personnel administered both programs, I thought you answered me that they did?

    Dennis R. Yeager:

    I thought that you said the same offices did Your Honor.

    I — it might be that my recollection is incorrect, but these people are located in the same building.

    William J. Brennan, Jr.:

    They are different personnel (Voice Overlap)?

    Dennis R. Yeager:

    They’re different personnel.

    The Department of Labor and its working center program manual lists ten separate job titles —

    William J. Brennan, Jr.:

    This is a state department —

    Dennis R. Yeager:

    No, I’m sorry Your Honor.

    William J. Brennan, Jr.:

    Other than that —

    Dennis R. Yeager:

    The Federal Department of Labor that administers the work incentive program —

    William J. Brennan, Jr.:

    Yes.

    Dennis R. Yeager:

    — lists ten different job titles which it considers essential to the operation of the work incentive program.

    In 1971, there were further amendments to the work incentive program and those amendments were first of all refined the definition of those who should be compelled to work.

    Interestingly excluded all — it excluded all mothers and children under six.

    At that time, the statute was also amended to expand the range of services available by creating another separate administrative unit this time within the Department of Social Services which had as its function the providing of services designed to make people ready for certification to the Department of Labor so that they could take care — take part in the WIN program and eventually be referred to work or training.

    Fourthly, the statute as — when it was amended imposed a penalty on the states for failure to refer — to certify, now, that’s a second stage, failure to certify to the Department of Labor at least 15% per year of those who had been registered by the State Welfare Department as being eligible.

    Also, very importantly, when the statute was amended in 1971, it specifically stated that the registration requirement for those not exempt from WIN was a condition of eligibility for their receipt of assistance.

    William J. Brennan, Jr.:

    Mr. Yeager, I think Mrs. Coons told us that there are some 56 districts in New York and the WIN program has been — is operative only in some 10 or 12?

    Dennis R. Yeager:

    Dealing with 93% of the recipients —

    William J. Brennan, Jr.:

    But even so, is that —

    Dennis R. Yeager:

    That’s — that I think those are the numbers Your Honor.

    William J. Brennan, Jr.:

    Well, is that — is your preemption argument that even in those districts where WIN is not presently being operated, the state program may not —

    Dennis R. Yeager:

    Yes, Your Honor, it is —

    William J. Brennan, Jr.:

    In other words, it’s complete exclusion?

    Dennis R. Yeager:

    That’s correct Your Honor.

    The reason for that was discussed and explained in the District Court opinion in Wolford (ph) versus Brown —

    William J. Brennan, Jr.:

    Well, in limiting the 12 Districts even — whatever maybe the number of beneficiary to recipients, is that compliance? Is the state complying with the requirements of the WIN program?

    Dennis R. Yeager:

    Yes Your Honor.

    There — that Congress authorized the Secretary of Labor to establish programs in areas in which there would be a substantial number of welfare recipients.

    Areas in which they felt the program would do some good.

    The Secretary of Labor has promulgated rules which state that those programs are only to be in areas where there are at least 1100 recipients.

    The way it works is that those individuals located in those areas are not exempt from WIN by virtue of the fact that they are not in an area where a WIN project has been established.

    To find out who is exempt, one must return to the definition of the exempt.

    One of which is a person who is too remote from a WIN project to be — to participate effectively in the program.

    Dennis R. Yeager:

    That may obviously someone’s near the county line of a county, he could be closer than someone in the county and not be too remote.

    It’s just where they physically locate the facilities is that second provision.

    And very interestingly too when Congress enacted that particular provision allowing the establishment of these programs in less in all of the areas, it required the Secretary of Labor to use his best efforts to provide transportation and other things to get the rest of the individuals, those not in those areas (Voice Overlap) —

    William J. Brennan, Jr.:

    So to have a WIN program say in Rochester, how about one lived — a recipient lived 30, 40 miles from Rochester, he might be exempt although — merely because he lives that far away from Rochester?

    Dennis R. Yeager:

    Because of the distance, precisely.

    William J. Brennan, Jr.:

    And that he —

    Dennis R. Yeager:

    And he might not (Voice Overlap) —

    William J. Brennan, Jr.:

    How does he get his exemption?

    Dennis R. Yeager:

    The exemption is given to him by the Department of Social Services, it comes from the statute. The statute lists specifically those individuals —

    William J. Brennan, Jr.:

    They have a certificate or something to indicate this exemption?

    Dennis R. Yeager:

    I don’t they gave him a certificate.

    They just interview him and do not fill out the piece of paper which is called the registration paper, that’s what it comes down to.

    And everyone must be registered unless exempt.

    That is a requirement, the states must do that.

    I think that raises an interesting point too in connection with the state’s suggestion here that there is a preference for a WIN — referral for the individuals under the New York State program.

    That kind of a preference is really irrelevant if one examines the way the federal statute operates.

    If you’re exempt from the program, from the work incentive program, what good does it do that person referred under the state program to be referred to WIN?

    That person will be told that they can’t participate.

    If you’re not exempt from the program, you’re supposed to be registered for WIN, registered for a WIN, not registered for something else.

    Those individuals are yanked out of WIN and placed in the — whatever facility, whatever service the state has available which could include admittedly employment, but are kept from receiving the benefits of the federal program as well, I might add is the job placement requirements of the federal program.

    That too I think gets to an interesting point which is that under the federal program, work referrals are not supposed to occur if those work referrals would interfere with the plan for the permanent rehabilitation or self-support of the individual welfare recipient.

    Now that seems a perfectly logical rule.

    I think that some of the result — that is not a requirement of the jobs that the difference in the standards of the jobs to which people are to be referred under the state program as compared with the work incentive program and one of the results of this is you get situations such as people being taken out of college and told to go to work as go-go dancers.

    One other important aspect of the 1971 Amendments should be mentioned and that is that those amendments also enacted as a matter of statutory law, certain priorities.

    Unemployed fathers and volunteer mothers were to be compelled to take part in the — the unemployed fathers were to be compelled and the volunteer mothers were to be provided with the services.

    Before those services or jobs were provided to other individuals.

    There are no such priorities in the New York State Program and the consequence of that is, is really a virtual repeal of that aspect of the federal law which establishes these priorities.

    Congress has made up — has set up a specific set of things that it wants this people to do.

    It has established an order in which those things are to be done.

    The state ignores that order and refers people directly to its own program in whatever order is available.

    Dennis R. Yeager:

    After a person has been registered for the work incentive program, a process of appraisal begins under the rules that had been adopted by HEW.

    The statute itself requires that before a person can be placed in work or training, the Department of Social Services must provide a number of services, counseling, health, vocation, rehabilitation, child care and other services.

    The Federal Government picks up 90% of the costs of these services.

    Those services are designed to prepare the person for certification as ready for work or training.

    I think an examination of the budgetary history of the work incentive program is useful if one is to see what the purposes of those services really are and how important they have been in the federal program.

    In the Fiscal Year ending, 1969, Congress appropriated $117,500,000.00 for the work incentive program.

    In the Fiscal Year ending 1972, that is the last year of the operation of the program before the 1971 Amendments, Congress appropriated $259,160,000.00 for the program.

    In the proposed budget, admittedly an austerity budget for Fiscal Year 1974, the President has proposed $534,434,000.00 for the work incentive program.

    Of that, $40 million dollars is to go for the process of registration, this appraisal process that we were discussing, enrollment, follow up services, public service employment, $49 million, On-the-job training, $46 million, institutional training, $151,351,000.00, other services, $116,000.00.

    These services are real.

    I mean, they’re provided, Congress wants them to be provided to work incentive program participants.

    But it’s not just services that are provided, it’s also jobs.

    Congress did not leave the question of jobs to the operation of the marketplace, the way the New York state program does.

    Congress specifically appropriated money under Section 6 — specifically authorized the use of appropriated money under Section 633 (d) of the Act for job placement services and for job development services.

    The on the job training money and the public service employment money that I just described is money that is used to subsidize employment.

    In addition, at the same time of the 1971 Amendments came into effect, Congress amended the Internal Revenue Code to provide a tax incentive for employers to employ WIN graduates.

    In other words, Congress made it very clear that they did not intend this to be just a program of social services.

    It was a program that was designed to lead in an orderly fashion from a process of registration of the non exempt through a program of providing services, child care, counseling, training, and eventually into a permanent job.

    The New York program interferes with that purpose.

    Under the New York program, a presumption of employability was established.

    In other words, it was assumed that a welfare recipient was employable unless that person could demonstrate that he or she was not properly in the work program.

    Those individuals who were found to be employable were required as we’ve mentioned before to report to the State Employment Service to obtain a Certificate that no Job is available from the State of Employment Service and could be terminated for failure to report to the State Employment Service, failure to report the results of a job interview or failures to report to a job.

    Notice that there is a real difference here between the federal statute and the state statute.

    Under the federal statute, the presumption is that one must register for the services designed to prepare one for work or training.

    Under the federal — under the state statute, the presumption is one of employability.

    Direct job referral can and often does result from a determination of employability.

    This means that under the state program, you leap from the first step, non-exemption, not being exempt from the program, all the way up to the last step, job placement.

    One would not expect the program such as that to result in much successful permanent employment and in fact the New York Program didn’t.

    More than half of the persons referred under the New York Work Program were separated from the jobs in which they have been placed at the end of four weeks after placement.

    Similarly, I think that it’s interesting to compare the statistics on the numbers of individuals who are actually placed with those who were terminated for — not terminated because they had received income, but terminated because they had found to be — to have — they were found to have failed to comply with the requirements of the state program.

    Dennis R. Yeager:

    2000 — in July 1971, there were 2,361 job placements under the New York Program.

    5,265 individuals were terminated.In August of ‘71, 4,574 placements, 4,379 individuals terminated.

    September 1971, 4,378 terminations, 4,269 individuals placed.

    That appears again in the HEW Department of Labor study to which we refer to in our brief.

    There’s one other aspect of conflict between the New York work program and the work incentive program and that’s one that’s extremely important.

    The conflict between the procedures that are used under the New York program and the sanction as opposed to the procedures and sanction that are used under the work incentive program.

    In New York, there are basically two ways for one to obtain a hearing on whether or not one is out of compliance with the work rules.

    First of all — there are two ways to obtain a hearing on the correctness of the determination if one is employable.

    First of all, one can comply and however hard that is, await the holding of a hearing.

    Secondly, one cannot comply and risk termination of benefits for 30 days.

    William J. Brennan, Jr.:

    Let me see if I get this Mr. Yeager.

    That — the WIN program is so structured that a person has to go through stages before finally he ends up in a job placement.

    Training and this is —

    Dennis R. Yeager:

    Yes.

    William J. Brennan, Jr.:

    Now suppose on the way up for one reason or another, it’s time and he doesn’t qualify and he doesn’t — therefore, he is not required finally to go to a job placement.

    Do I understand you that then the New York program can pick him up and require him to take a job placement without the training and other things that the WIN program calls for it?

    Dennis R. Yeager:

    Precisely.

    William J. Brennan, Jr.:

    And then if he doesn’t, although under WIN, he’d continue to get his benefits, under the state program, they’d be terminated, is that it?

    Dennis R. Yeager:

    Yes Your Honor, that’s exactly right.

    Byron R. White:

    Well , you there —

    Dennis R. Yeager:

    If they didn’t take the job.

    Byron R. White:

    Yes.

    Dennis R. Yeager:

    If they didn’t take the job.

    Byron R. White:

    Are — there are instances of this?

    Dennis R. Yeager:

    Instance, well, Your Honor, most of the people with whom we’ve dealt in the record, we see all of them got temporary restraining orders.

    They were engaged in that process at the time that the temporary restraining orders came up.

    There were of course a number of terminations.

    There were — I’m not — I just don’t know the answer, [Attempt to Laughter] I guess it’s what it comes down to.

    I think though that this does bring out another point which is that New York applies — New York does apply its 30-day penalty to an individual who refuses to take part in the work incentive program.

    If you refuse to take part in the work incentive program under federal law, you’re supposed to be terminated from benefits only if and so long as you do not comply.

    Dennis R. Yeager:

    Once you make a decision that you will comply, you are allowed to receive your benefits again.

    But New York applies its 30-day disqualification not only to people who fail to comply with the New York work rules, but also applies that 30-day disqualification under its regulations to individuals, who declined to participate in the work incentive program.

    Presumably, they apply a whole new set of standard at that point when they make the decision about what — about the — whether or not to impose a 30-day requirement.

    Under the federal program, the procedures of course differ.

    First of all, one is entitled —

    Potter Stewart:

    Under the state program, there could be that what, a local departmental review and then a state fair hearing procedures, is that right?

    Dennis R. Yeager:

    That would be right Your Honor.

    That would be right.

    It’s the timing of that that is of concern.

    You get the fair hearing while — if you don’t want to risk your grant, you must comply while you await the fair hearing.

    Potter Stewart:

    You must go to the job that (Voice Overlap) —

    Dennis R. Yeager:

    Go to the job or pick your check.

    That of course could be a considerable hardship for the mother —

    Potter Stewart:

    I — (Voice Overlap) the case of this Henry Smith who was a student at Buffalo State University studying Mental Retardation and was referred to a job as a “Go go Girl?”

    Dennis R. Yeager:

    Yes.

    Potter Stewart:

    And she got a — she refused to go to the interview on she would say moral grounds, and grounds of its being an inappropriate job for a mother of two children and she got a temporary restraining order.

    Was that in the state court or was that —

    Dennis R. Yeager:

    Federal.

    Potter Stewart:

    — in the federal court part of this proceeding –?

    Dennis R. Yeager:

    As part of this preceding Your Honor.

    Potter Stewart:

    That’s — so that’s not part of the general procedure in this.

    That was an extraordinary injunction she got in this proceeding in the Federal Court, was it?

    Dennis R. Yeager:

    Yes, she got a temporary restraining order in this proceeding.

    I —

    Potter Stewart:

    That’s not a routine part of the procedure to go to the court for a determination on referral, is it?

    Dennis R. Yeager:

    No Your Honor, I don’t think it would be for a temporary restraining order.

    Secondly, the other way to get the hearing is to finish with that — the response to the question is that you can fail to comply, but that involves considerable risk cause these are very subjective judgments.

    Is this adequate childcare?

    Is this job a good job?

    Is this a job I can perform?

    Dennis R. Yeager:

    Am I healthy?

    In — there’s a very subjective elements that go into these decisions.

    I think the situation of say a mother who is confronted with the fact that she doesn’t care for the childcare service that has been provided her and she doesn’t think it’s adequate, she is obviously in conflict with the administration.

    That should be resolved before she’s compelled to comply.

    Finally, in conclusion, I think that what we’ve — what we really see here is that there is a federal program which tells what the condition of eligibility for AFDC is insofar as there is any work condition of eligibility.

    The Federal Government repealed the authorization to the states to use other kinds of programs at the time that that it enacted the work incentive program and the legislative history makes it very clear that the individuals were to be — who were covered were all individuals.

    You are either exempt or you are not exempt.

    The exempt were not supposed to be compelled to work.

    The nonexempt were supposed to be compelled if need be to take part in the work incentive program.

    In addition, the evidence of preemptive intent is overwhelming.

    This is not a question of the perfection of the New York — of the federal program.

    If perfection were one of the criteria for preemption, then I suppose there would be no doctrine of preemption, human fallibility being what it is.

    We’re talking here about a federal program which is very substantial which the statute on its face covers all of the individuals who could be covered, dividing them into the categories into those who must participate and those who must not participate and a very elaborate and expensive program has been established by Congress.

    Lewis F. Powell, Jr.:

    Mr. Yeager, if there is preemption under your view, what happens in the part of New York State in which there is no WIN program?

    Dennis R. Yeager:

    Your Honor, that would be covered by a preemption.

    The individuals who are so remote from the program because there is not a program located in their state would be — in their area would exempt.

    The individuals who were located close enough to participate regardless of whether that WIN program were — was in their county or in their city or wherever it might be would not be exempt and they would be compelled to comply with the federal program.

    In other words, Congress dealt with that very specific point and ruled that nonresidents or residents in an area which was not a WIN area was not an exemption from the program.

    Lewis F. Powell, Jr.:

    Is end result that in large parts of the state, there would be no work program of any kind?

    Dennis R. Yeager:

    Your Honor, that might be true geographically, but 93% of the welfare, AFDC recipients in the State of New York are located in the WIN areas.

    Now, in addition to that, there would be individuals not located in WIN areas who would not be too remote from the program who would also have to participate.

    So, it’s a very high percentage of the welfare recipients that are covered.

    I think the remoteness requirement indicates very definitely that Congress took that into consideration.

    William H. Rehnquist:

    Mr. Yeager, if upon the filing of your complaint in the District Court, the single district judge who’d felt the constitutional question were so insubstantial that he would refuse to convene a three-judge district court to hear it.

    Would there still have been jurisdiction in that court to hear your statutory claim under 1343 (3)?

    Dennis R. Yeager:

    Your Honor, it would be our position that there would still have been jurisdiction in the court at that time under the cases holding that 1343 (3) gives the court — 1343 (4) gives the federal court’s jurisdiction to review federal state conformity with federal statutes.

    I believe though that —

    William H. Rehnquist:

    Well, because all forces is under any act of Congress providing for the protection of civil rights including the right to vote, would you contend that the Social Security Act was an act for the protection of civil right?

    Dennis R. Yeager:

    No Your Honor, I think what we would contend — well, I might — we might contend that but I think the first thing we would contend would be the Section 1983 for it protects federal rights for citizens.

    And that that is a statute which would bring the Social Security Act into play in the federal court and in turn, you would have jurisdiction because 1983 is a statute covered by 1343 (4).

    Dennis R. Yeager:

    I think there was a substantial question below Your Honor for two reasons; number one, we won on one of those questions, the due process question.

    And number two, on a very similar question, the fair hearing question, the Second Circuit recently continued a preliminary injunction on this 30-day penalty requirement that had been issued by a District Court judge.

    Byron R. White:

    But what’s 1983 got to do with the three-judge court?

    I mean, that might — there might be a federal jurisdiction on the 1983 but not of course a three-judge court just because it’s 1983?

    Dennis R. Yeager:

    Well, Your Honor, that 1983 provides a remedy for the deprivation of federal rights.

    Byron R. White:

    Well, I guess, on the federal court.

    No, that’s right, it doesn’t require a three-judge forum.

    Dennis R. Yeager:

    Well, Your Honor, 1983 doesn’t require a three-judge court but a statue, this — as I’m saying here, the — Oh, I’m sorry, okay, I have missed that point.

    On that point, you’re right, I didn’t — wouldn’t be a three-judge court, I thought Justice —

    Byron R. White:

    Well, so — Justice Rehnquist’s question still remains then.

    If there was not a substantial and unconstitutional question to require a three-judge court, could the three-judge court continue to address itself to the statutory question just because of 19 — it’s a 1983 case?

    Dennis R. Yeager:

    Your Honor, I’m sorry, I thought Justice Rehnquist was asking me if the single judge would still have jurisdiction but that was a question to which I was trying to address myself.

    As to that question, I think it’s been unresolved at this point.

    They can — in some of the cases, the District Courts have been continuing to set as three-judge courts to deal with the statutory question because there was a substantial federal constitutional question.

    Certainly, this court in Rosado v. Wyman held that the single judge — court could retain jurisdiction if there were a substantial (Voice Overlap) —

    Byron R. White:

    But if there isn’t one, it should not.

    Is that it?

    Dennis R. Yeager:

    If the three-judge court could not.

    Byron R. White:

    Right.

    Okay.

    Dennis R. Yeager:

    Yes.

    Byron R. White:

    Thank you.

    Dennis R. Yeager:

    Are there further questions?

    Thank you very much.

    Warren E. Burger:

    Thank you Mr. Yeager.

    Mrs. Coon?

    Jean M. Coon:

    Mr. Chief Justice and may it please the Court.

    Briefly, I would like to cover in rebuttal three points of argument.

    One, the issue of preemption is one of Congressional intent.

    I call Your Honors attention to the quotes at page 7-A of our reply brief in which we quote from the Chairman of the Appropriate Congressional Committees who stated that it was not their intent even in enacting the WIN program to prohibit the states from providing for complimentary work programs.

    Jean M. Coon:

    I think in the WIN statutes and in the 1971 Amendments themselves, there are some indications of a lack of such an intent.

    First of all, with the 15% penalty provision which provides for a penalty for states which fail to refer into the WIN program, 15% of their registrants for WIN leaves a balance of 85% of the WIN registrants whom Congress must have considered would not necessarily be processed through the WIN program and would seem to me that of those 85% could by the virtue of the statute be left out of any work requirement if the state itself wanted to enact such a requirement might raise serious constitutional problems for the 15% who were then — who have been selected and required to go for employment.

    Secondly that the — system of priorities which were established for referrals in the 1971 Amendments, we submit to this Court involved a question of the Congressional determination of the use of, proper use of federal funds that the proper use of the federal funds should be in and under the WIN program to first place an employment those persons who were most job ready.

    It does mean that this was if — sole priorities for persons and who could be referred under what conditions they could be referred for employment.

    And it seems to me that the simple establishment of priorities indicates the Congressional intent not to preempt the entire field to provide for work and — work or training for all ADC recipients because if that — if they were all inclusive, there would not have necessarily been a system of priorities.

    If you’re going to include everybody, you don’t need to establish priorities for one various classes you’re going to be included.

    I’d like to call the Court’s attention, the fact that and clarify possibly, the fact that the number of districts within the Social Services Districts within a state and the with — which the WIN program operates is a determination solely of the United States Secretary of Labor.

    And that in fact, as I referred to one of our briefs, the Secretary of Labor refused to request from the State of New York to increase the number of WIN districts within the state.

    William H. Rehnquist:

    But is it as Mr. Yeager said was — Mrs. Coons, the fact that there are exemptions if one is too — lives too far away from —

    Jean M. Coon:

    They —

    William H. Rehnquist:

    WIN office?

    Jean M. Coon:

    Social Security Act exempts persons who are too remote —

    William H. Rehnquist:

    Yes.

    Jean M. Coon:

    — from our WIN project to participate.

    Under the Wolford case, the District Court on Wolford apparently interpreted that to mean too remote within a WIN district because it said that the determinations to remoteness must be made on individual basis and not on a geographical area basis when you’re talking about Social Services Districts in which there is no WIN project presumably that the remoteness issue could be taken up and it would be a geographical determination rather than an individual one.

    And I would also — I think that Mr. Yeager who has spoke as far as WIN participants are concerned, New York State does not apply it 30-day disqualification to act for participants in the WIN program.

    The appellees here also raised a question as to additional conditions of eligibility.

    I think in our reply brief, we have done —

    Byron R. White:

    Yes, but how about the ones who want to go into WIN and the Federal Government says you’re exempted from WIN or that you are unemployable or for some reason that program thinks that they need’nt — or they shouldn’t take employment.

    Jean M. Coon:

    Well actually, under the present New York statute, the definition of employability for ADC recipients under the state program is the WIN definition.

    The statute itself refers to that.

    Byron R. White:

    Well, and you just disagree with your colleague here —

    Jean M. Coon:

    Yes.

    Byron R. White:

    — as to whether or not New York would just actually disqualify or terminate someone in that category.

    Jean M. Coon:

    Someone who is unemployable under WIN would not be employable under this present New York state statute.

    Byron R. White:

    3925 Didn’t the lower court hold the contrary?

    Jean M. Coon:

    They did but they were interpreting a 1971 statute prior to the 19 — and not the 1972 Amendments.

    Byron R. White:

    Well then, is that issue before — is that conflict issue here then?

    Was that (Inaudible)?

    Jean M. Coon:

    That Amendments had — were enacted actually prior to the decision of the District Court but apparently we’re not called to its attention. This program has been in the course of amendment ever since it was enacted.

    Jean M. Coon:

    And particularly in 1972, this was an experimental program in New York State and they were — hardships were — which were discovered, which were taken cared of in some cases by a departmental regulation.

    And in others was by a statute, subsequent statutory enactment, some of these are in the record.

    Byron R. White:

    You say Mrs. Coon, the 72 Amendments had been called to the — were on the books but had not been called at the time?

    Jean M. Coon:

    I believe that the definition amendment had not been called to the Court’s attention prior to its decision.

    Byron R. White:

    Whose responsibility was it to call it to their attention?

    Jean M. Coon:

    Well I suppose it was mine but I didn’t even know was on the book myself because the Department of Social Services hadn’t told he was on [Laughter] — and the — prior to Your Honors and unfortunately, we have about 16,000 bills which go through the New York State legislature every year and it — we did know about some of them.

    The Department had told us about some amendments and those were called to the Courts attention.

    There were changes in the —

    Byron R. White:

    Well, is it–

    Jean M. Coon:

    — referral program.

    Byron R. White:

    — have you put in your brief or any papers in this Court the 72 Amendments? (Voice Overlap)

    Jean M. Coon:

    Yes, it is in our reply brief.

    Byron R. White:

    — and as compared with the (Inaudible) previous law that the District Court’s concern, (Voice Overlap)?

    Jean M. Coon:

    Yes, those are in the briefs.

    Potter Stewart:

    Mrs. Coon, you say that the definition of employability is now identical.

    The WIN definition —

    Jean M. Coon:

    Yes.

    Potter Stewart:

    — and the New York state definition.

    Jean M. Coon:

    Yes it is.

    Potter Stewart:

    Does this mean that there are somebody who’s found unemployable by the WIN people that that’s res judicata or could that be redetermined by the state people even though under the same criteria on paper and the — but a different determination in — on — upon the facts of any individual case, could that be done?

    Jean M. Coon:

    No, it would not be done because the same people make the determination employability in WIN as under the state program.

    The WIN per — people are referred to WIN by the State Social Services Department.

    The same people who ref — who would refer the same recipient to the state program.

    So the determination is made by the same person.

    Potter Stewart:

    Mrs. Coon, what if the state people determined that they — that a person was employable and then got to WIN and WIN found the — and referred him to WIN and WIN found — they noticed this person isn’t employable and therefore sent him back —

    Jean M. Coon:

    I think since the definitions are the same, and they’re not simply copied definition (Voice Overlap) —

    Potter Stewart:

    Well, if the definitions are the same for negligence too, would juries read all — can reach all kinds of difference results in the — in —

    Jean M. Coon:

    No, I think the result — by the way the statute is drafted, it has to be the same.

    Social Services stature which sets up the state work program specifically refers the definition of employability for the ADC recipients to that section of the law which relates to WIN.

    So I think that the determination has to be identical.

    Jean M. Coon:

    And there are of course state court procedures for viewing this determination.

    Potter Stewart:

    Yes, but — you said that there just couldn’t be inconsistent applications with respect to any individual or person.

    Jean M. Coon:

    Not to an ADC recipient who is under the WIN program.

    That’s true.

    Could not.

    Byron R. White:

    Mrs. Coons, if one thought that the 72 Amendments were critical to the resolution of the conflict issue in this case, what do you suggest one should do with it?

    Jean M. Coon:

    Oh, I think this Court could do what I did in the Shirley case, remand to the District Court for consideration of 72 Amendments.

    Byron R. White:

    After being all the way up here, we send it all the way back.

    Jean M. Coon:

    Well, it’s —

    Byron R. White:

    Do it all over again?

    Jean M. Coon:

    That’s what happened on Shirley and Shirley is now in the process of being reheard.

    Byron R. White:

    But still leaves the question though of — of a — the remedy or the 30-day business that — the inflexibility of a 30-day suspension as to compared with the federal?

    Jean M. Coon:

    Well, I think if that is exact — really if the 30-day suspension were the only issue, certainly this Court could find the statute invalid as to that part without wiping out the whole state program.

    Warren E. Burger:

    Thank you Mrs. Coon.

    Thank you Mr. Yeager.

    The case is submitted.