Minnefield v. McIntire, No. 99-3349-G (Mass. Superior Court, Suffolk, Feb. 14, 2000).
This case, filed as a class action by caretakers of children who are disabled but not receiving SSI, challenges as contrary the state policy of denying an exemption from time limits, work requirements, and a grant reduction when the disabled child does not receive SSI. The court has granted broad retroactive relief and partial summary judgment for plaintiffs and rejected defendant's motion to dismiss. As reported earlier, the court had granted preliminary relief in August, 1999. The court has now agreed with plaintiffs that corrective actions taken by the defendant after the August preliminary injunction do not make the case moot because plaintiffs may be entitled to retroactive payment of benefits incorrectly withheld and to correction of their 24 month time clocks. In reaching this conclusion the court rejected the state's argument that sovereign immunity bars retroactive relief, concluding that prior caselaw interpreting the agency's duty to correct underpayments to be a source of retroactive monetary relief was good law. With respect to whether time clock adjustments were appropriate, the court concluded that while the agency changed its regulation on exemptions for disabled children following the August order, only adjustments to time clocks to take account of the past illegal actions of the agency can result in plaintiffs receiving the same treatment as recipients who care for disabled adults. It therefore granted injunctive relief allowing individual plaintiffs to seek correction of an underpayment and correction of time clocks for 90 days following the court's order. In addition, even though the agency has changed the policy, the court granted declaratory relief to make clear that the agency cannot take the position that the rescinded regulation was lawful and deny underpayment correction and time clock adjustments. Finally, the court did not address the class certification motion for now, giving the defendant time to provide adequate notice to the putative class and afford them the regular agency procedures to obtain adjustments or corrections.
Plaintiffs' attorneys: Deborah Harris and Ruth Bourquin, Massachusetts Law Reform Institute, 99 Chauncey St., Suite 500, Boston, MA, tel. 617-357-0700, E-mail: dharris@gbls.org; Brian Flynn et. al. Greater Boston Legal Services, 197 Friend St., Boston, MA 02114, tel. 617-371-1270, x. 619, email: bflynn@gbls.org.
Brukhman v. Giuliani, __ N.Y. __ (Feb. 22, 2000).
In a unanimous decision affirming the appellate court, New York's highest court has rejected plaintiffs' arguments that the prevailing wage provision of the New York State Constitution (art. 1, . 17) applies to welfare recipients working in the Work Experience Program (workfare) as a condition of receiving public benefits. Plaintiffs had prevailed in the trial court based on a state statute requiring the use of the prevailing wage to determine the number of workfare hours. However, the appellate court reversed in light of a change in law which eliminated the prevailing wage language and provided for use of the minimum wage. Upon its review of the constitutional history and case law the Court of Appeals concluded that plaintiffs were not " in the employ" of anyone, that they were not engaged in "public work" and that the agencies and organizations for whom they work are not "contractors or subcontractors" within the meaning of the constitutional provision. The court notes that its decision is limited to the case before it. Plaintiffs had also raised other claims, including equal protection claims, which the court rejected without analysis.
Plaintiffs' attorneys: Marc Cohan of the Welfare Law Center, email: cohan@welfarelaw.org; Richard Blum, The Legal Aid Society, 953 Southern Boulevard, Bronx, NY 10459-3428, tel. 718- 991-4758; fax 718-842-2867; email: blum@legal-aid.org; Catherine Ruckelshaus and James Williams, National Employment Law Project, 55 John street, 7th Floor, New York, NY 10038- 3044, tel. 212-285-3025, fax 212-285-3044; email cruckelshaus @nelp.org and jwilliams@nelp.org; and James W.B. Benkard, Davis Polk & Wardwell, New York City. Attorney for Amici: Richard J. Ferreri, 125 Barclay Street, New York, NY 10007.
Kimel v. Florida Board of Regents, No. 98-791,__ U.S. ___ (Jan. 11, 2000).
The United States Supreme Court has ruled that the Eleventh Amendment bars lawsuits under the Age Discrimination in Employment Act of 1967 for money damages by state employees against their state employers. The majority opinion by Justice O'Connor concluded that while the ADEA contains a clear statement of Congress' intent to abrogate the states' immunity, Congress had no power to do so. While the ADEA is a valid exercise of Congress' power under Article I of the Commerce Clause, that power does not permit it to subject States to suits by private individuals. Section 5 of the Fourteenth Amendment does allow Congress to abrogate States' immunity, but the ADEA is not a valid exercise of Congress' remedial power under that provision. According to the majority the ADEA requirements are disproportionate to the conduct prohibited by the Equal Protection Clause because the Act bars discrimination based on age in a range of employment decisions that would likely withstand scrutiny under the rational basis standard used in Equal Protection cases. The Court also finds that when Congress adopted the ADEA, it had no basis to conclude that states practiced unconstitutional age discrimination and thus no basis for such broad a broad remedy. It also notes that virtually every state provides state remedies for state employees who are subject to age discrimination. Justice Stevens, joined by Justices Ginsburg, Souter, and Breyer, dissented in part and concurred in part. Justice Thomas, joined by Justice Kennedy, concurred in part and dissented in part.
Melville v. Apfel, 198 F. 3d 45, 1999 U.S. App. LEXIS 32880 (2d Cir. 1999).
The Court has vacated the district court's judgment against plaintiff's claim for SSI based on disability and remanded to SSA for further proceedings. Plaintiff's SSI claim was denied on the ground that she could perform past relevant work. The work in question was a workfare assignment involving clerical duties for several days a week. The claimant was required to perform this assignment as a condition of receiving public assistance. The Court of Appeals rejected the plaintiff's argument that workfare, that is work in exchange for benefits, could never be considered evidence of substantial gainful activity (SGA) and deferred to SSA's position that workfare may be indicative of SGA. The court concluded that under SSA's regulations, an assessment of whether past work was SGA required an evaluation of "how well claimant performed her duties, whether those duties were minimal and made little or no demand on her, what her work was worth to the employer, and whether her work was tied to her productivity." The record in this case revealed that SSA had not done this evaluation and that the ALJ had failed to develop the record concerning plaintiff's ability to perform the normal work of a paid clerk and indeed appeared to overlook the fact that her activity was workfare.
Plaintiff's attorneys: Daniel D. Kuhn, Kuhn & O'Toole, Staten Island, NY; James M. Baker, Northern Manhattan Improvement Corp., New York, NY. The Legal Aid Society filed a brief as amicus curiae in support of the appellant.
Saunders v. City of New York, (N.Y. Sup. Ct., N.Y. City, January 19, 2000).
In this suit by a municipal union to prevent New York City from replacing union workers with workfare recipients, a state judge has rejected the city's motion to dismiss, rejecting arguments that the union waited too long before filing. The union, District Council 37 (affiliated with the American Federation of State, County, and Municipal Employees and AFL-CIO), consists of 56 local labor unions representing approximately 120,000 New York City municipal employees. The union contends that, by filling thousands of vacancies in a number of departments with participants in its Work Experience Program, the City has deprived union members of promotional opportunities, and has reduced the size of the hired workforce and the union's bargaining unity. By placing workfare workers in formerly paid union positions, the union charges, the City has violated New York State's Social Services law, which forbids workfare assignments that displace currently employed workers, weaken existing contracts or collective bargaining agreements, decrease the size of the bargaining unit, or fill vacancies created by terminating regular employees. The City moved to dismiss on grounds that the statute of limitations has tolled, or, alternatively, on grounds of laches. The City asserted that the plaintiff's action was an Article 78 proceeding under New York Civil Practice Law and Rules, and therefore should be barred by the four-month statute of limitations applying to such proceedings. Although Justice Richard Braun acknowledged the City's point that claims challenging governmental entities or officials usually are classified under Article 78, he nonetheless found that the union's action was not an appropriate Article 78 proceeding because the union seeks review of an ongoing governmental policy, not a discrete government act or determination. Accordingly, the judge ruled the four-month statute of limitations to be inapplicable, in favor of the six-year statute of limitations accompanying actions for declaratory judgment. With respect to laches, the City argued that it faced prejudice and injury if the court allowed the suit to go forward. The City pointed to the threats of years of retroactive relief, the dismantling of an important social welfare program, and potential loss of federal and state funds owing to noncompliance with the City's workfare obligations under federal and state law. The court rejected these arguments, observing that the City had benefitted significantly from free labor through the workfare program and had declined to use other available alternatives to workfare that would have been adequate to satisfy its legal obligations for funding (including job training, job search and readiness assistance, community services programs, subsidized private or public sector employment, and education and training).
Plaintiff's Attorneys: Richard J. Ferreri and Mary J. O'Connell, District Council 37, American Federation of State, County, and Municipal Employees, AFL-CIO, 127 Barclay St., New York, NY 10007, tel. 212 815-1450.
Feliz v. Wing, Index No. 401292199 (N.Y. Sup. Ct., N.Y. City, January 25, 2000).
In this case, a workfare participant who had sought a fair hearing to challenge the New York City welfare agency's decision to discontinue her family's eligibility for assistance sought judicial review of the decision. The court vacated the administrative decision and remanded for action consistent with its ruling. The court found that the state agencies responsible for administering the fair hearing system, the State Department of Labor and the State Office of Temporary and Disability Assistance, ignored current law regarding the penalties for noncompliance with workfare requirements. In addition, the court found that the agencies had violated the recipient's due process rights by not sufficiently developing the record and by depriving the recipient of an adequate opportunity to be heard. The workfare recipient, Ms. Feliz, had sought the fair hearing after her assistance was discontinued because of her failure to attend a meeting to evaluate her employability. The basis of her hearing request was that she had not received notice of the meeting. The administrative law judge affirmed the agency decision to discontinue assistance finding that despite Ms. Feliz' assertion that she hadn't received the notice, the agency presented evidence that the notice was mailed, creating a presumption of receipt of mail. Since no further evidence was submitted by Ms. Feliz, the judge found that the presumption was not rebutted, and accordingly that Ms. Feliz did not establish good cause for not attending the employability evaluation. The Court, in reviewing the hearing decision, held that the agencies had violated state law by imposing the wrong penalty for noncompliance with workfare requirements. The Court noted that the applicable state law does not allow termination of benefits to the entire family, but only to the parent. The opinion strongly took the agencies to task for the error, and pointed to convincing evidence that they had knowingly disregarded the current law, including a legislative proposal drafted by the City proposing changes to the law. The Court also faulted the administrative law judge for denying Ms. Feliz due process. In particular the Court was troubled by the administrative law judge's failure to ask adequate follow-up questions, to elicit the record sufficiently, and to inform Ms. Feliz of her right to produce corroborative documents or witnesses. The Court also criticized the judge for not adequately explaining to Ms. Feliz the legal presumption of mail delivery, which shifted the burden to her to show that she had not received notice of the meeting. The Court emphasized that where an individual "is poor, uneducated, and not conversant in English," the presiding judge has a special obligation to "ensure that the petitioner knows what the issues are, what her burden is, what rights she has, [and] what evidence might be helpful and anything else to make sure the playing field is truly level."
Plaintiff's Attorneys: Marcella Silverman and Michael Martin, Fordham University School of Law, 33 W. 60th St., 3rd Fl., New York, NY 10023, tel. 212 636-7781.
Abdinur v. Department of Transitional Assistance, No. 99-J-702 (Commonwealth of Mass. Appeals Court, Dec. 16, 1999).
The Court has issued a preliminary injunction ordering the Department of Transitional Assistance to provide Emergency Assistance (EA) shelter to the plaintiff after finding that the defendants' decision that the plaintiff rendered herself homeless for the purpose of qualifying for is not supported by the hearing officer's findings. As reported by Massachusetts Law Reform Institute, the plaintiff, who is Somali and speaks no English, moved from Massachusetts to Tennessee where her husband abandoned the family. She then returned to Massachusetts to be close to her family and Somali support services and did not know of the EA program. Her request for EA was denied, and the denial upheld by the hearing officer and Superior Court.
Plaintiffs' attorneys: Dick Bauer, Steve Valero, Greater Boston Legal Services.
CalWORKS Title VI Language Access Complaint against Los Angeles County Dept. of Public Social Services (filed with U.S. Dept. of Health and Human Services Office of Civil Rights, Dec. 16, 1999).
This complaint alleges that at virtually every stage of the CalWORKS program, the Los Angeles County welfare agency fails to make services, training, and information available to legal immigrants and refugees who are not proficient in English in violation of Title VI of the federal Civil Rights Act of 1964. The complaint claims that the County's failures deny these individuals an equal opportunity to participate and succeed in the County's welfare program. The complaint cites the following primary failures: 1) failure to provide access to program information through translated materials about available programs and services, including notices, explanatory information, contractual agreements, and language appropriate signs ; 2) unavailability of bilingual workers or free translation services and failure to make telephone hotlines available for those with limited English proficiency (LEP); 3) unequal access to program components, including failure to provide language accessible job training and vocational education, racial steering of non-English and non-Spanish speaking LEP participants to the least desirable welfare-to-work activities, wrongful denial of access to English-as-a-Second-Language classes, and failure to provide equivalent resources to contracted agencies that provide case management to non-English and non-Spanish speaking individuals. The complaint seeks translation of written materials; restoration of benefits to individuals terminated or sanctioned on the basis of English-only notices; the hiring of bilingual workers and provision of free translation services; language appropriate training and vocational education; monitoring of contract agencies; the provision of equal resources contract agencies serving non-English/non-Spanish speaking clients; tolling of time limits for those wrongfully denied equal access; development of policies, including staff training and community outreach, to prevent future violations; and monitoring and data reporting. Twenty-three organizations have endorsed the complaint.
Complainants' representatives: Muneer Ahmad et al., Asian Pacific American Legal Center, tel. 213 977-7500; Michael Leoz, Kate Meiss, San Fernando Valley Neighborhood Legal Services, tel. 818 896-5211; Yolanda Arias, Silvia Arguetta, Legal Aid Foundation of Los Angeles, tel. 213 640-3883; Yolanda Vera, Western Center on Law and Poverty, tel. 213 487-7211, ext. 28.
Stevens et al. v. Ferguson, C.A. No. 99-5963 (R.I. Superior Ct., Providence (Complaint).
Plaintiffs in this case are two individual applicants for food stamps and/or Medicaid who received notices denying their applications saying "You failed to provide all required information." The individual Medicaid applicant also received a denial notice stating merely that there are "no eligible individuals in the RI Medical Assistance case." Plaintiffs claim that the welfare agency regularly and frequently issues such broad notices without individualized reasons for ineligibility and asserts that these notices violate federal and state statutes and regulations and the due process requirements of the federal and state constitutions. The suit also claims violations of various federal Food Stamp requirements regarding the verification procedures. Plaintiffs seek declaratory and injunctive relief.
Plaintiffs' attorney: Gretchen Bath, Rhode Island Legal Services, 56 Pine St., 4th Fl., Providence, RI 02903, tel. 401 274-2652, fax 401 453-0310.
Conti v. Ferguson, C.A. No. 99-5109 (R.I. Superior Ct., Providence) (Complaint).
Plaintiff is a disabled SSI recipient who receives Medicaid and seeks to enforce against the state the federal requirement to insure necessary transportation to and from medical providers. He claims that the state's policy is to provide only medically necessary ambulance transportation and to deny requests for other transportation. He also challenges the state's failure to provide information or application forms for transportation assistance or to provide written notice and opportunity for a hearing of denials. Plaintiff made numerous requests for assistance and a number of hearing requests after receiving oral denials but was denied a hearing because the issue was not "ripe for adjudication." Plaintiff claims that the state violates federal requirements requiring it to insure transportation, federal statutes and regulations relating to notice and hearings and due process requirements of the federal and state constitutions. He also claims that decisions on transportation requests are arbitrary and standardless in violation of regulations and due process. He seeks declaratory and injunctive relief.
Plaintiff's attorney: Gretchen Bath, Rhode Island Legal Services, 56 Pine St., 4th Fl., Providence, RI 02903, tel. 401 274-2652, fax 401 453-0310.